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PETITIONER: JAI DUTT

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT26/10/1978

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH TULZAPURKAR, V.D. SEN, A.P. (J)

CITATION:  1979 AIR 1303            1979 SCC  (2) 586  CITATOR INFO :  R          1984 SC1828  (2)

ACT:      U.P. Land (Eviction and Recovery of Rent & Damages) Act 1959, s.  3(1) and U.P. Tenancy Act 1939 s. 180(2)-Scope of- Appellant remained in occupation of banjar (barren) land for twelve  years-Claimed  ownership  of  land  -No  documentary evidence  or   rent  receipts   produced-Failure   to   take proceedings to  evict-If would  confer title  on trespasser- Land Lying banjar-Lawful ownership lies with State.      A notice  under s.  3(1) of the U.P. Land (Eviction and Recovery of  Rent and  Damages) Act,  1959 was issued by the Public Authority  to the appellant on the ground that he was in  unauthorised  occupation  of  public  land.  The  Public Authority rejected  the appellant’s  claim that since he was in possession  of the  land for  more than  12 years, he had acquired rights  of a  hereditary tenant  under s. 180(2) of the U.P.  Tenancy Act,  1939. The  appellant failed  in  his appeal to  the District  Judge and  his writ  petition under Art. 226 was rejected by the High Court.

HEADNOTE:      In appeal  to this  Court it  was  contended  that  the appellant had  become a hereditary tenant under s. 180(2) of the Tenancy  Act by  reason of  the fact that he had been in cultivator possession  of the land for a number of years and no steps had been taken to evict him within two years of his entry into  possession of  the land,  (2) that  since he had been  paying   rent  to   the  Government   he  was  not  in unauthorised occupation  of the  land and (3) failure of the Public Authority to refer the dispute to a Civil Judge under Section 7 of the Act vitiated the order of eviction      Dismissing the appeal, ^      HELD: l(a)  The  appellant’s  claim  was  not  that  he lawfully entered  into possession  of the  land but  that he took possession without any grunt, settlement or leases from the owner.  By claiming acquisition of a hereditary tenancy) under s.  180(2) he  admitted that  he had  taken possession without any  title anal  without the  consent  of  the  land owner. 1180 C]      (b) The  provisions of Section 2(18), 30, 180(2) of the

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Tenancy  Act are to be construed in harmony with each other. So construed, a person occupying land belonging to the State Government, as  a trespasser  or without  title or  a person holding over  after the  revocation or  cancellation of  the lease, allotment or a grant in accordance with the condition thereof, cannot  be "a  tenureholder. .  .  from  the  State Government under  the U.P. Act, 1939." within the meaning of Sec. 2(e)(i)  of the  Tenancy Act.  There was  thus no doubt that the  land was  "public land"  within the meaning of the Eviction Act. [181 A-B]      (2) The obligation to refer the question whether or not the land  is public  land, under Section 7, is not basic but contingent. Although the Public Authority did not say in the phraseology of the statute that the objection raised by the 176 appellant was  prima facie  baseless, yet,  in substance, it well-nigh came  to the  same conclusion.  It was, therefore, not obligatory  for the  authority to  refer the question to the Civil Court. [181 F]      (3) The  plea that  the notice  did not comply with the requirements of s. 3 of the Eviction Act and for that reason illegal had not been raised in the Courts below. It is not a pure question  of law. The appellant has not produced a copy of the notice served on him. Tn the circumstances, the maxim omnia prae  sumuntur vite  essa acta  will be  attracted. It will be  presumed that  the purpose  for which the appellant was sought  to be  evicted was duly specified in the notices compliance with the requirements of s. 3(2). [182 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 484 of 1969.      From the  Judgment and  order dated  28-7-1967  of  the Allahabad High Court in Special Appeal No. 352/67.      M. S. Gupta for the Appellant.      G. N. Dikshit and O. P. Rana. for the Respondents.      The Judgment of the Court was delivered by      SARKARIA, J. This is an appeal by certificate against a judgment, dated  July 28,  1967, passed by the High Court of Allahabad in  Special Appeal  352 of  1967. It arises our of these fact.      Jai Dutt,  appellant, was  in possession of public land bearing Survey  Nos 230,  131A and  131B, with  an aggregate area of  80 Bighas  and 19  Biswas in  the area  of  village Guljarpur PurraamSingh, Tehsil Kala chungi, Distt. Nainital. The Public  Authority, Nainital; served a show cause notice, dated August  26, 1963,  under Section 3(1) of the U.P. Land (Eviction and  Recovery of Rent and Damages) Act, 1959 (here inafter called  the Eviction  Act) on  the appellant for his eviction from  this land  on the  ground that  he was in its unauthorised occupation.  The appellant contested the notice on the ground that he was in its possession for more than 12 years and  had acquired the rights of a hereditary tenant in the land  under Section 180(2) of the U.P. Tenancy Act, 1939 (for short,  called the Tenancy Act). On these premises, the appellant contended that the land was not ’public land’, and as such,  the Eviction Act has no application and the notice was illegal.      By  its  order  dated  October  31,  1963,  the  Public Authority  dismissed   the  objections,   holding  that  the appellant "has  not filed  any documentary  evidence to show that the  land in dispute was allotted to him by a competent authority, while  the documents filed on behalf of the State

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show that  it is  a public  land and  "the  O.P.  (appellant herein) is  a trespasser  thereon", and  he  is,  therefore, liable to be evicted therefrom 177 under Section 4(1) of the Eviction Act. The Public Authority further   assessed  Rs.  12/-  as  damages  payable  by  the appellant.      Against this  order of  the Public  Authority, Jai Dutt carried an appeal under Section S of the Eviction Act to the District Judge.  The appeal  was  heard  by  the  Additional District Judge,  Kummaon-Nainital, before whom the appellant reiterated the  contention that he had been in possession of the land  in question  for the  preceding 12  years, and  as such,  had  acquired  the  rights  of  a  hereditary  tenant thereon.  There,   the  appellant   seems  to  have  further contended that  he had been paying "rent" for his occupation of the  land He  appears to have shown some receipts also to the Additional District Judge.      The  Additional   District  Judge   negatived  all  the contentions and dismissed the appeal.      The appellant  then filed a writ petition under Article 226 of  the Constitution before the High Court to impugn the orders of  the Public  Authority and  of the  Add.  District Judge, inter  alia, on  the ground  that since  he had  been paying rent  for the  land which has been in his cultivating possession for  a number  of years  preceding  the  eviction proceedings, he  could not  be said  to be all ’unauthorised occupant’, but  a hereditary  tenant under Section 180(2) of the Tenancy  Act The learned Single Judge of the High Court, who heard  the writ  petition, rejected this contention with the observation that ’the Khatauni of 1368 Fasli entered the petitioner’s possession  over the  disputed plots as ranging from 1  to 6  years. The oral evidence led by the petitioner does not  outweigh the force of the entries in the Khatauni. The petitioner,  therefore, did  not acquire any title under Section 180  of the  U.P.  Tenancy  Act  before  1953."  The learned Single  Judge further  observed that the decision of the Division  Bench of  that High  Court in  Shri Chandra v. State of U.P. & Ors. (W.P. No. 3277 of 1966 decided on 13-2- 67) was  applicable to the case and the land in dispute will be  public   land  and   the  possession  of  the  appellant unauthorised. In the result, the writ petition was dismissed with costs.  The appellant’s special Appeal was dismissed by a Division  Bench of the High Court on July 28, 1967. In the meantime,  the  Eviction  Act  was  successfully  challenged before the  High Court  in Writ  Petitions 3755  and 3756 of 1962 which were decided on May 24, 1968.      Keeping in  view the  value of the subject matter which exceeded Rs. 20,000/- and the question of the Constitutional validity of  the Eviction  Act, the  High  Court  granted  a certificate  under   Article  133  (l)(a)  and  (c)  of  the Constitution, that  the case  was fit  for  appeal  to  this Court. Hence, this appeal. 178      Mr M. S. Gupta, appearing for the appeal, has now given up the  challenge to  the  Constitutional  validity  of  the Eviction Act on the ground of its being violative of Article 14 of  the Constitution,  because this  ground of  attack no longer  survives  in  view  of  this  Court’s  judgement  in Maganlal Chhagganlal  v. Municipal  Corporation  of  Greater Bombay &  ors.(1) He,  however, sought  to  make  out  these points:      (i) The appellant had been in cultivatory possession of the land  for a  number of  years  and  no  action  for  his eviction was  taken for  a long time and since no steps were

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taken by  the Government to evict him evict two years of his entry into  possession, he became a here ditary tenant under Section 180(2) of the Tenancy Act.      (ii) Even  if the  appellant did not acquire the rights of a  hereditary tenant in the disputed land, he had by long possession acquired  the rights of a tenant or tenure-holder of any  other kind  under the Government. He has been paying rent in respect of the land to the Government, and, as such, was not  in unauthorised  occupation of  the land. Since the land was  held by the appellant as a tenant, it did not fall within the definition of ’public land’ given in Section 2(a) of the Eviction Act.      (iii) Since  the objections  raised by the appellant in response to  the show-cause notice issued under Section 3(1) of the  Eviction Act  were substantial, the Public Authority was bound to refer the dispute to the Civil Judge under Sec. 7 of  the Eviction  Act. Its  failure to do so, vitiates the code of eviction passed by it.      (iv) one  of the  prerequisites of  taking action under Section 3(1)  of the  Eviction Act is that title Public land is required  "for one  or more public purposed of this Act". Sub-section (2)  (a) of  Section 3  requires that the notice shall "specify the grounds on which the order of eviction is proposed to  be made".  The impugned  notice issued  by  the Public Authority  did not comply with these, requirements of Section 3 and was therefore, illegal. Points (i) and (ii):      Mr. Gupta  did not  seriously press  the  first  point, obviously because  it was without substance. It may be noted that Section  180 of  the Tenancy  Act is  subject  to  the, restrictions contained  in Section  30 of  that  Act,  which provides:      "Notwithstanding anything  in  Section  29,  hereditary rights shall not accrue on......      (1) [1975] I S.C.R. 1. 179      (3) land  acquired or held for a public purpose or work of public  A utility.  ." Even  if it  is assumed  that  the appellant was  at the  material time  in occupation  of this land for more than two years, he would not acquire rightmost of a hereditary tenant under Section 180(2). Omission of the State Government,  therefore,  to  institute  a  suit  under Section 180(l)  within the  prescribed period  of limitation would not  bring into existence relationship of landlord and tenant between  the Government  and the  appellant, and  the letter’s  possession   would  remain,   as  it  was  at  its inception, that of a trespasser or unauthorised occupant.      This point  is further highlighted by the definition of "unauthorised occupation"  given in  clause (h) of Section 2 of the Eviction Act, which states:      "Unauthorised occupation  means occupation  of a public land by  any person  without the  authority of the owner for such occupation  and includes its continued occupation after the expiry  of the  period of  allotment, lease  or  grant.. anything contained  in.. O.P.  Tenancy Act,  1939..  to  the contrary notwithstanding." n      In the  context, the  definition of "Public Land" given in Section  2(e) of  the Eviction Act may also be seen. This definition, so far as material for our purpose, states:      "Public land  means land  belonging to  or owned by the State Government but does not include land-           (i) for the time being held by a tenure-holder for      the State Government under the U.P. Tenancy Act, 1939.                (ii) ....... ."      Section 2  (b) of  this Act  defines "Lease" to mean "a

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lease as  defined in Section 105 of the Transfer of Property Act, 1882".      There is  neither any  factual nor  legal basis for the appellant’s contention  that he  had acquired  some kind  of tenure as  a tenant by remaining in twelve years’ continuous possession of  the land in dispute. As noticed by Additional District Judge  and the  learned Single  Judge of  the  High Court, the  Khasra tendered  in evidence  before the  Public Authority, shows that in the years 1362, 1363, 1365 and 1367 Fasli (which  we are  told roughly  corresponds to 16655-56, 1956-57, 1958-59  and 1960-61  A.D.) the land in dispute was lying Banjar  (barren). That is to say, in the years 1955 to 1961, the  appellant was  not in  occupation of  this  land. During these  years, when  the land  was lying  Banjar,  its possession would  be presumed  to be  of the  lawful  owner, viz., the  State Government. The appellant’s possession over the land  is shown  for the first time in Khasra of the year 1368 Fasli (roughly 180 corresponding to  1961-62) as  "bila tasfia,  Ziman  10-Ka". Same is  the position  shown in the Khatauni 1368 Fasli "Bil Tasfia" obviously  means "without settlement or allotment or grant". The  documentary evidence  from the revenue records, accepted by  the  courts  below,  had  thus  discounted  the appellant’s claim  that he had been in cultivator possession of the disputed land for 12 years preceding the issue of the impugned notice under Section 3(1).      It was  never the  case of  the appellant  that he  had lawfully  entered  into  possession  of  the  land.  On  the contrary, his  case was  that he took possession of the land without any  grant, settlement or lease from the land owner. Indeed, by  clanging acquisition  of  a  hereditary  tenancy under  Section   180(2),  he  admitted  that  he  had  taken possession without  any title and without the consent of the land-owner.      Mr. Gupta  has been unable to show that the appellant’s occupation of  the land  even for one or two years preceding the notice  under Section 3(1) was that of a "tenure holder" within the contemplation of the saving sub-clause (i) in the definition of "public land‘’ in Section 2(e) of the Eviction Act.      The appellant’s contention that he has been paying rent for this  land does  not appear  to be well-founded. No such plea  appears   to  have   been  raised  before  the  Public Authority, much  less was  any  evidence,  such  as  a  rent receipt produced  there. The  Public Authority  has nob d in its order  dated October  3, 1963,  that the O.P. (appellant herein) did  not produce  any documentary  evidence to  show that he  was holding  the land  with title  permission of or under allotment  from any  competent authority. Nor was this plea agitated  or pressed before the learned Single Judge or the Division  Bench of  the High Court. Even now, before us, counsel has  not  referred  to  any  rent  receipt  or  like document on  record showing that the appellant had paid rent in respect  of this land to the Government for the period of his possession  preceding the  notice under Section 3 (1) of the Eviction  Act. Even  the Additional  District Judge,  to whom for  the first  time in  appeal, some  "rent  receipts" appear to have been shown by the appellant, has not recorded any clear-cut  finding that  those  documents  evidence  the receipt of rent by the Government in respect of the disputed land for  the relevant  period preceding the issue of notice under Section 3(1). This being the situation, in this appeal arising out  of  writ  proceedings  under  Article  226,  we decline to  embark upon  a speculative  examination of  this

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argument for  which there  is no firm factual foundation and was never  raised before  the Public  Authority, nor pressed before the High Court. 181      Be that  as it  may, the  provisions of Sections 2(18), 30, 180(2)   of the Tenancy Act on the one hand and Sections 2(b), 2(e)(i) and 2(h) of the Eviction Act on the other, are to be  construed in harmony with each other. So construed, a person occupying  land belonging to the State Government, as a trespasser or without title or a person holding over after the revocation  or cancellation  of the  lease, allotment or grant in  accordance with  the conditions thereof, cannot be considered "a  tenure-holder from the State Government under . .  . the  U.P. Tenancy  Act, 1939"  within the  meaning of Section 2(e)(i)  of the Tenancy Act. There was thus no doubt that the  disputed land  was "public land" and the appellant was in  its "unauthorised  occupation" within the meaning of the Eviction Act. Point (iii) :      Section 7, (so far as material) reads thus:           "7(1) Where  an objection  is taken  on the ground      that the  disputed land  is not  public  land  and  the      Public Authority  is of  the opinion that the objection      is not  prima facie  base- less  or frivolous, he shall      refer  the   question  to   the  Civil   Judge,  having      jurisdiction, stating  the facts  of the case and the,-      point in issue."      From a  plain reading of Section 7(1), extracted above, it is  clear that  the  obligation  to  refer  the  question whether or not the land is public land, is not absolute, but contingent. It arises only if the Public Authority is of the opinion that  objection  is  not  prima  facie  baseless  or frivolous. In  the instant  case, a  perusal of the impugned order would  show that although the Public Authority did not say in  the phraseology  of the  Statute that  the objection raised by  the appellant  was prima facie "baseless", yet in substance, ._  unhesitatingly came  well-nigh  to  the  same conclusion when he observed:      "The O.P..  has not  filed any  documentary evidence to show that  the land  in dispute  was allotted  to him  by  a competent authority.  The documents  filed on  behalf of the State show that the land in dispute is a public land and the C.P. is a trespasser thereon."      We  are   therefore  of   opinion  that  there  was  no infraction of Section 7. Point (iv):      This point  was not raised before the Public Authority, nor in  any of  the Courts  below. It is sought to be raised for the  first time  in  this  Court,  now.  We  decline  to entertain it at this state. It is not 182 a pure  question of  law which could be decided on the basis of  material  already  on  record.  The  appellant  has  not produced even  the copy  of the  notice under  Section 3 (1) which was  served upon  him and  is supposed  to be  in  his possession. In  the circumstances  of the  case,  the  maxim omnia praesumuntur rite essa acta will be attracted. It will be presumed that the public purpose of the Act for which the appellant was sought to be evicted from the public land, was only  specified   in  the  notice  in  compliance  with  the requirement of sub-section (2) of Section 3 of the Act.      Thus, all the contentions advanced by the appellant are devoid of merit.      In the  result, the  appeal fails and is dismissed with costs.

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P.B.R.                                     Appeal dismissed. 183