Mohd. Hanif vs Prescribed Authority/S.D.M. and Another

Rajesh Tandon, J.—Heard Sri S.P. Adhikari, Sr. Advocate assisted by Sri B.S. Adhikari, Counsel for the petitioner and Sri N.P. Shah, Counsel for the respondents.

By the present writ petition, the petitioner has prayed for quashing the orders dated 29.3.2001 and 16.8.2002 passed by the respondent No. 1 and 2.

Briefly stated, according to the petitioner the fact of the case are that he has purchased the area in dispute from one Sri Madan Lal Sah from his Khata No. 19, Khet No. 618 who had been recorded as Bhumidhar in possession of the land, through a registered sale deed dated 2.12.1991.

Petitioner has submitted that 8 Mutthi or 1/2 Nali land was purchased from one Madan Lal Sah by the petitioner and his name was mutated on 8.6.1992. Petitioner has filed the copy of the Khatauni by which it will appear that his name was mutated in respect of the area in question, which was purchased by him. The entry to that effect is quoted below:-

^^uk� ck� la� 85@91&92 fnukad 21&1&1992 ds enuyky us nqxkZlkg ds gd ls 11 eqV~Bh eSa eks� guhQ iq= ''kjhQ vgen ds uke fo�; ukekadu fd;k

gLrk{kj vLi"V

8&6&1992**

Petitioner has submitted that while getting the possession on the basis of the sale deed dated 2.12.1999, the land was thoroughly measured by the Patwari of Talla Katura Bageshwar.

Subsequently, a notice u/s 4(1) of Public Premises and Eviction of Illegal Occupants Act, 1972 was issued by respondent No. 1 on 4.11.2000 showing that the petitioner has unauthorisedly occupied the premises in respect of 2 Mutthi of public land. The notice shows as under:-

^^xzke ?kVc<+ "kV~Vh@iVokjh {ks= r� d� ckxs''oj rglhy ,oa tuin ckxs''oj d m�iz� ljdkj dh [krkSuh [kkrk la[;k 69 ds iSekblh [ksr uEcjku 617 e/; ij dh jdck ukyh 02 eqV~Bh ij vizkf/k�r v/;klu fd;k x;k gSA

vkt fnukad 4&11&2000 dks gLrk{kfjr ,oa U;k;ky; dh eqnz ls leqfnzr gksdj fuxZr fd;k x;k gSA**

In pursuance of the aforesaid notice, the petitioner has filed his objections on 18.12.2000 denying the averments contained in the notice. Petitioner has submitted that he is constructing his house only on his Bhumindhari land, which was purchased from Sri Madan Lal San through registered sale deed. Sri Mohan Singh Nayal Patwari of Talla Katura has given his report on 30.11.1991 and he did not find any encroachment on the possession of the petitioner.

Petitioner has submitted that he has not encroached on any state land and he has purchased land over plot No. 618 and Khatauni No. 19 even his own land is only 7 1/2 Mutthis out of 8 mutthis and therefore, the land is less than actual measurement which has been found by Patwari during his spot inspection dated 21.5.2001.

A perusal of the Inspection Report dated 21.5.2000 shows to the following effect:-

^^bl e/; vihykUV eksgEen guhQ ds dCts esa yxHkx 1040 oxZ QhV vklikl gS tk 8 eqV~Bh vFkkZr vk/kk ukyh ls dqN QhV de gSA vr% fjiksVZ e; uD''kk lsok es izLrqr gSA**

Similar report has been given on 11.1.2001 where it has been stated that the construction of the petitioner stands at 7 and half Mutthi.

Further the Patwari was examined on oath namely Mohan Lal Nayal, who has stated as under:-

^^blesa fdlh us fjiksVZ ugha dh xLrs nkSjku tkap dhA eSa ekSds ij 31&10&2000 dks x;k FkkA vfr�e.k okyh tehu uki Hkwfe ds chp esa gSA ekSds ij dksbZ vU; mifLFkr ugha FkkA eSus v/;klh dks cqyk;k vU; fdlh dks ugha cqyk;k eSus uD''k@[kljk@[krkSuh o pkykuh fjiksVZ ogha ij rS;kj dj nh FkhA eS 30&11&1999 dks mDr v/;klh dh uki Hkwfe dh uki djus x;k FkkA vnkyr ds vkns''k ij x;k FkkA Hkou 6 1@2 eqV~Bh uki ij Hkou fuekZ.k fd;k FkkA**

The petitioner was also examined, who has stated that, he has purchased 8 Mutthi land of Plot No. 618 and the house is constructed on 7 and half Mutthi and Half Mutthi is on the side of Joga Ram and Joga Ram is owner of plot No. 617.

The Prescribed Authority vide his order dated 29.3.2001 has passed the order evicting the petitioner is proceedings u/s 4 (1) of the Public Premises Act.

Aggrieved by the aforesaid order, the petitioner went in appeal. The appellate Court has recorded a finding that the petitioner has purchased the land of 8 Mutthi of Plot No. 618 and he is in possession of some land of plot No. 617 as well. The findings to that effect are quoted below:-

^^vihyh; iz�e ij fookfnr Hkwfe dh losZ vk[;k ls ;g Li"V gS fd [ksr la� 19 ds iSekb''k [ksr la� 618 esa ls 8 eqV~Bh Hkwfe dk �e fd;k gS ijUrq losZ vk[;k esa vihykFkhZ dh vk/kh ukyh Hkwfe ls dqN oxZ fQV Hkwfe de gSA mDr vk[;k ls ;g Li"V ugha fd;k x;k fd vihykFkhZ dh tks Hkwfe de gS og fdl [ksr esa vf/kd gSA ;k mldh yxHkx vk/kh eqV~Bh Hkwfe fdlus nck yh] ijUrq losZ vk[;k ls ;g Li"V gS fd vihykFkhZ us [kkrk la� 618 ds dCts ds lkFk lkFk [kkrk la� 618 esa Hkh nks eqV~Bh Hkwfe dk vfr�e.k fd;k gSA fu''p; gh vihykFkhZ dk ;g vf/kdkj Li"V ugha gks ldk fd fdl vf/kdkj ds vk/kkj ij mlus Hkwfe la� 617 esa ls Hkwfe vius v/;klu ls izkIr dj yh ,oa ml ij edku fufeZr dj fy;kA**

A perusal of the notice u/s 4 (1) shows that the petitioner has encroached on plot No. 617 in respect of two Mutthi. The petitioner has made a statement that he has no concern with plot No. 617 as he is the owner of the plot No. 618 alone and he has constructed his house in the plot itself. The notice, therefore, which was issued in respect of plot No. 617 cannot be a basis for eviction in respect of Plot No. 618.

The State has failed to differentiate between the plot No. 617 and 618 from the inspection report as well as from the statement of the Patwari. However, from the record it will appear that the petitioner has constructed the house on his own land of plot No. 618 and not on 617.

Consequently, the orders dated 29.3.2001 and 16.8.2002 passed by the respondent No. 1 and 2 respectively are quashed.

The writ petition is allowed. No order as to costs.