Smt. Pushpa Kimothi vs State of Uttarakhand and Others

Tarun Agarwala, J.—Heard Shri Pankaj Purohit, the learned Counsel for the petitioner and Shri Sudhir Kumar, the learned Brief Holder for the respondents.

Based on a report of a Patwari that the petitioner has constructed a cow-shed and a latrine/bath room on a government land, a notice u/s 4 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 was issued directing the petitioner to show cause as to why the petitioner could not be evicted from the premises in question. The petitioner submitted a reply and contended that the construction is made on the land belonging to them which they are in cultivatory possession since the year 1955. In paragraph 5 of the writ petition, it has been alleged that the land in question is recorded in their name and, over a period of time, certain portion of the land had been sold to various persons. In support of his submission, the learned Counsel for the petitioner examined himself as well as other witnesses to prove that he had been in cultivatory possession for a period of time.

The Prescribed Authority, after considering the material evidence on record, came to the conclusion that the cow-shed and the bath room was recently constructed on a land situate above the road leading to the house of the petitioner which was an unauthorized construction and, accordingly, directed demolition and the eviction of the petitioner from the said premises. The petitioner, being aggrieved, filed an appeal which also met the same fate and, consequently, the present writ petition has been filed.

The learned Counsel for the petitioner tried to impress upon the Court to the effect that the land in question where the alleged construction has been raised was adjacent to the land of the petitioner in which their exists a house and, in view of the provision of Section 5 of the Kumaun Nayabad and Waste Lands Act, 1948, every person cultivating land in Kumaun has a right to extend his cultivation over adjoining unmeasured land and submitted that in view of this provision, the petitioner could not be evicted as he had an inherent right to cultivate the adjoining land. In furtherance to his submission, the learned Counsel also submitted that since he is bhumidhar of the land in question, the land is outside the purview of the Act of 1972 and, consequently, no proceedings could have been initiated under the said Act.

Having heard the learned Counsel for the petitioner and, having perused the evidence that has been brought on record, this Court is of the opinion that the submission raised by the learned Counsel for the petitioner cannot be considered at this belated stage. The Court finds that no averment was made by the petitioner with precision or with clarity that the provision of U.P. Zamindari Abolition and Land Reforms Act, 1950 or the Kumaon and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 or the Kumaun Nayabad and Waste Lands Act, 1948 was applicable and that the land being agricultural in nature, the provision of U.P.Z.A. and L.R. Act was not applicable. This court has perused the objection filed by the petitioner and finds that such contention has not been raised. On the other hand, there is a clear assertion that the land is within the urban limits and the notice u/s 4 of the Act of 1972 was issued on account of new construction being raised on government land.

Consequently, the Court is of the opinion that the Act of 1972 is applicable. This Court is of the opinion that the Act of 1948 which the petitioner is relying upon is not applicable to the facts and circumstances of the case. From the evidence that has come on record, a categorical finding has been given, based on the admission of the petitioner and his examination and cross examination to the effect that a cow-shed and a bath room was a recent construction, raised a few years ago from the date of the issuance of the notice. The evidence has come that the construction which had been made by the petitioner is on a government land and not on the land which belongs to the petitioner. In fact, the petitioner is now claiming that since the land is adjoining to the land of the petitioner, he has an inherent right to occupy u/s 5 of the Act of 1948 which the Court has already held is not applicable in the present case.

In the light of the aforesaid concurrent findings given by the court below, this Court is of the opinion that no interference is required in the impugned order. Notice u/s 4 of the Act was validly issued. The writ petition, consequently, fails and is dismissed.