Jai Dutt Vs. State of U.P. & Ors
 INSC 215 (26 October 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
SEN, A.P. (J)
CITATION: 1979 AIR 1303 1979 SCC (2) 586
R 1984 SC1828 (2)
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 were rejected by the High Court.
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 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 tenure holder.
. . 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]
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
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 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 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,
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 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
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)  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,
(ii) ....... ." Section 2 (b) of this
Act defines "Lease" to mean "a 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 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.
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
P.B.R. Appeal dismissed.