Shri 1008 Mahamandleshwar Somnath Giri vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The proceedings under Section 4(1) by way of Case No.17 of 2008-09 dated 02.07.2009 of Uttarakhand Public Premises (Eviction of Unauthorized Occupants) Act, 1972, was initiated by the Prescribed Authority, Bhatwari, Uttarkashi, as against the present petitioner in relation to the property given in the schedule, which has detailed hereunder:

"Schedule

(Details of Premises to be Given)

खसरा नम्बर/रकबा

1598/0.073, 1600/0.078, 1645/0.019, 1647/0.015, 1667/0.013,

1668/0.006, 1669/0.014, 1670/0.005, 1671/0.008, 1672/0.006,

1686/0.005, 1687/0.015, 1689/0.005, 1689/0.005, 1691/0.001,

1692/0.004, 1703/0.001, 1708/0.004, 1709/0.003, 1710/0.005,

1870/0.011, 1871/0.003 कुल रकबा 0.324 है0 भूमि"

Sd.

Prescribed Authority

Bhatwari, Uttarkashi"

In the notice thus issued under Section 4(1), which gave a detailed description of khasra number, as well as the area of the land over which it was alleged by the Prescribed Authority that the present petitioner has encroached upon the land and is unauthorizedly occupying it since 2005. Hence, as a consequence of the notice dated 2.07.2009, he was called upon to give his reply by 28.07.2009. Admittedly, as per the response given to the said notice by the petitioner on 18.04.2010 few facts, which would amount to be an admission of unauthorized occupation of land at his behest on which reliance has been placed by the Standing Counsel was as given in paragraphs 6 and 13 of the objection, it is to the effect that:

"6. कि विपक्षी/जवाबदेह ने मौके पर जो हेलीपैड बनाया है वह पूर्णतः अस्थाई है, जिसे तत्कालीन जिलाधिकारी महोदय की अनुमति से निर्मित किया गया है। विपक्षी/जवाबदेह ने तत्कालीन जिलाधिकारी महोदय को यह लिखित आश्वासन दिया है कि प्रश्नगत हेलीपैड पूर्णतः अस्थाई है, जिसका प्रयोग आवश्यकता पड़ने पर जि प्रशासन या सेना के द्वारा भी किया जा सकेगा, इस प्रकार से हेलीपैड वाली भूमि को अतिक्रमण की श्रेणी में नहीं रखा जा सकता है।

कि क्यांकि विपक्षी/जवाबदेह के द्वारा जनहि को दृष्टिगत रखते हुए भारतीय संस्कृति और योगादि के सम्बर्द्धन के लिए जो आश्रम कुमाल्टी-सैंज में निर्मित किया है, उसके लिए भारी संख्या में मजदूरों और मिस्त्रियों की आवश्यकता थी, आस-पास में मजदूरों और मिस्त्रियों तथा कारीगरों के लिए कोई भी उपयुक्त स्थान रात्रि निवास के लिए उपलब्ध न होने से विपक्षी/जवाबदेह के आश्रम के कर्मचारियों ने नितान्त अस्थाई रूप से कच्चे झोपड़े (Labour Huts) का निर्माण किया था, जैसे-जैसे आश्रम का निर्माण कार्य पूरा हो रहा है और लेबर व कारीगरों की आवश्यकता कम होती जा रही है, वैसे-वैसे उन कच्चे झोपड़ों को हटाया जा रहा है।"

This Court is of the view, that as soon as in the reply given by the petitioner he refers that "मौके पर जो हेलीपैड बनाया है" a reference, which has been given by the petitioner that "मौके पर" here would mean to be the property, which is covered in the notice dated 2.07.2009, issued under Section 4 and further more in the reply to notice he admits the fact that the said construction of the Helipad on the said land has been made on the permission given by the District Magistrate. He further submits that the construction of the Helipad over the land is temporary in nature, so that it can be utilized by the administration, as well as, by the defense personnels whenever it is needed by them and hence under that pretext that permission was granted by District Magistrate the petitioner's contention is that the construction of the Helipad in fact over the land covered by the notice under Section 4, but it cannot be said to be in an unauthorized possession because of the fact that it was constructed on the permission given by the District Magistrate. However, it is not the case of the petitioner in his objection to notice that the land over which the helipad was constructed temporarily on permission of District Magistrate was a land which ever stood recorded in his name.

As far as the conclusion drawn from the said reply given by the petitioner it could be inferred that it is an admission of petitioner of the fact that the Helipad is on the land, which is covered by the notice under section 4, and it is a temporary structure and under that pretext of the permission being given by the District Magistrate, the petitioner rather admits that it is a public land and it will not grant him any title over the property on which the Helipad is constructed, which he admits to be constructed on the land covered by the notice under section 4 dated 02.07.2009.

He further in paragraph-13 as referred above had made a statement that for the purposes of construction of the structure/ashram, he required number of labourers and masons to be used to avail their service in raising construction of the Ashram. Even there also he admits that the said occupation of the land by masons and the labourers by constructing the hutments over the land covered by notice under section 4, absolutely is temporary in nature and consequently he also admits that gradually as soon as the construction is being completed the petitioner would removing the hutments from the land in question.

Once again this pleading in objection dated 28.07.2009 will amount to be an admission at his behest that the hutments made by the labourers and the masons for construction of the Ashram in fact was on a public land and that is why he has made a statement that he would be gradually removing the hutments as soon as the construction is completed. I am of the opinion that merely under the pretext that the petitioner has to raise construction of his Asharam, that in itself will not grant him a permission to raise Hutments for the residences of the labourers or the masons and that too on the land, which otherwise stands recorded with the State.

He further submits that as far as his Ashram is concerned, his case is that has been constructed the same on the land, which stands recorded in his name in pursuance to the orders passed by the Nayab Tehsildar in the Mutation Proceedings No. 54/451 of 2006-07 on 05.11.2007 in relation to the property as described in column-4 of khatauni of Village-Kumalti, Tehsil-Bhatwari, District-Uttarkashi, as it has been recorded in the khatoni pertaining to 1416 to 1421 fasli.

As far as the said property is concerned, for the time being, based on the revenue records as aforesaid, it can be said that it was a property belonging to him and as recorded so, though this may not be taken as to be an expression given by the Court determining his right or title over the property, it is only a prima-facie observation, which is made by this Court. Simultaneously, the Khatoni pertaining to 1416 to 12421 fasli also, he makes reference to Khasra numbers as given in column-4, which he contends that he was occupying it as an owner of the property after the mutation order made by the Tehsildar in the proceedings in Case No. 391/2007-08.

He further in order to establish his rights the counsel for petitioner has also made reference to the Khatoni pertaining to 1416 to 1421 fasli in relation to the certain plots, which are covered under Column-4 alleging that it was an exclusive purchase made by the petitioner and recorded in his name in pursuance to the orders passed by the Tehsildar in Case No. 390 of 2007-08 and order passed on it on 8.05.2008 in mutation proceedings. Mutation entries being fiscal entries would not determine the right and title, but only a prima-facie case of devolving of rights.

As far as the land, which finds place and reference of which is made in the notice under Section 4(1) and in the Challani report as submitted by the team of revenue officials on 21.03.2009 the said land is a public land as recorded in the revenue records, which is a fact admitted by petitioner and admittedly even as per the own showing of the petitioner it is not part and parcel of the land covered by the khatonis on which he has placed reliance. Contending thereof that he happens to be a recorded owner in relation to only those khatonis in which his name was officially recorded by the orders of the Tehsildar. If that be so, and in view of paragraph-6 and 13 of the reply submitted by the petitioner on 28.07.2009, he admits the fact that he is not the owner of the property, which is covered by the Challani report subsequently under Section 4(1) notice issued by the Prescribed Authority. If that be the situation, the petitioner could be legally evicted with regards to the land covered under the notice under Section 4, which according to his objection will amount to be an objection supporting the fact that it is a public land and it was not a belonging to the petitioner or ever recorded in his favour.

In such an eventuality, the decision of the prescribed authority directing the eviction of the petitioner from the property, which was the subject matter of the notice under Section 4(1) is obviously to be enforced against the land, which is exclusively covered under the said notice and the judgment of the Prescribed Authority dated 13.09.2011 as rendered in Case No. 17 of 2008-09 'State vs. Somnath Giri'. The said judgment though stands affirmed by the Appellate Court too by the impugned judgment dated 21.12.2011 as it stood affirmed in Miscellaneous Civil Appeal No. 6 of 2011 'Somnath Giri vs. State' In such an eventuality and based on that limited ground itself, which has been argued by the learned counsel for the petitioner while affirming the impugned orders passed by the courts below, it would be deemed and it also goes without saying that the eviction proceedings in pursuance to impugned orders would be confined by the Prescribed Authority or the State Agencies thereof only exclusively in relation to the property covered in the notice under Section 4(1) for which the proceedings were held under P.P. Act as well as the order of the Prescribed Authority as rendered on 13.09.2011 and the appellate judgment dated 21.12.2011 would not be treated to beyond the land covered under the notice under Section 4(1) of the Act.

Subject to the above observation, the writ petition as far as the challenge given by the petitioner to the impugned orders would not be of a much concern to the petitioner because it was not in relation to land covered any part of the land, which he contends that he is exclusively an owner in accordance with the khatoni, which has been placed on record in the writ petition. Hence, the writ petition lacks merit and is, accordingly, dismissed.