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MUNICIPAL BOARD versus ASDO

High Court of Judicature at Allahabad

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Municipal Board v. ASDO - WRIT - C No. 2525 of 1979 [2003] RD-AH 517 (12 December 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+Civil Misc Writ Petition no 2525 of 1979

#Municipal Board    

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+Civil Misc Writ Petition no 2525 of 1979

#Municipal Board    

...  Petitioners

$SDO  

... Respondents

!RN Singh

Advocates for Petitioners

^ Sankatha Rai

Advocate for Respondent

*Coram

Hon'ble Yatindra Singh, J.

%Date of Judgment 12.12.2003

:Judgment

1. Is the UP Tenancy Act, 1939 (the Tenancy Act for short), a ''law relating to land tenure' within the meaning of the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (the Act for short)? Is land held by a tenure holder under the Tenancy Act, ''premises' within the meaning of the Act? These questions arise for determination in these four writ petitions.1 This is how they arise.

FACTS

2. The property in dispute is Nazul property.   The concerned District Magistrate had leased it out in favour of the predecessors-in-interest of the contesting respondents. The notified area committee had renewed it for a term. Subsequently the lessees transferred the property in favour of the contesting respondents. After expiry of the period of the leases, a notice was issued to the contesting respondents under the Act for their eviction in proceedings initiated by the Municipal Board, Chunar, Mirzapur (The Board for short). It is not disputed that now the Board manages the property. The Courts below have dismissed the proceedings on the ground that property in dispute is not premises under the Act. Hence these writ petitions.

POINTS FOR DETERMINATION

3. I have heard Sri Sankatha Rai and Sri R.N. Singh learned counsels for the parties.  The following points arises for determination:

(i)Is the Tenancy Act a law relating to land tenure within the meaning of the Act?

(ii)Is the land in question ''public premises' under the Act?

(iii)Are the contesting respondents in unauthorised occupation of the same?

Ist POINT: THE TENANCY ACT - LAW RELATING TO LAND TENURE.

4. There is no doubt that the Tenancy Act is a law relating to land tenure, as these words are normally understood. But is it a ''law relating to the land tenure' within the meaning of the Act, is the question before me. The Act was first promulgated as an ordinance then enacted as an Act in 1972. The Act was amended by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (UP Act 28 of 1976) (the Amending Act for short). The Act as it originally stood is referred to as the unamended Act and as it stands today is referred to as the Act. The first four paragraphs of the statement of objects and reasons of the unamended Act narrate the history for enacting the Act.2 Paragraph 4 of the statement objects and reasons states that care was taken to consolidate several existing laws governing different classes of public lands and buildings. But it appears that despite this some anomalies persisted. It was for this reason that it was amended in 1976, amending some provisions of the unamended Act. This is so stated in paragraph 11 of the statement of objects, and reasons3 of the Amending Act. It is for this that the provisions of the unamended Act and the Act are relevant for deciding the controversy in issue.

5. Initially in the unamended Act the words ''premises' and ''public premises' were defined in clause 2(b)4 and 2(c) of the Act. There was no definition of the phrase ''law relating to land tenure'. The reference to the laws relating to land tenure was in the definition of the word ''premises' itself. The definition of the ''premises' in the unamended Act excluded the land held by a tenure-holder, inter alia under the Tenancy Act also. By the amending Act definition of ''premise' and ''public premises' were amended and the words ''law relating to land tenure' was inserted as clause 2(aa). This new definition of premises was deemed always to have been substituted. It was retrospective.5 The ''premises' now do not include land held by a tenure holder under any law relating to land tenure. But this law relating to land tenure in new clause 2(aa) does not include the Tenancy Act; earlier it did. This omission, in the light of the statement of objects and reasons of the unamended Act and the amending Act, appears to be on purpose. The intention of the legislature is not to exclude the land held by a tenure holder under the Tenancy Act from the purview of the Act.

6. Sri Sankatha Rai, learned Counsel for the petitioner argues that in the definition clause 2(aa) the words ''law relating to land tenure means' should be read as ''law relating to land tenure includes'. He says that the Tenancy Act has been dropped on a mistaken belief that it is no longer in force and has been repealed. According to him the Tenancy Act is still applicable to a small area of Uttar Pradesh where the different Land Reforms Act after independence are not in force. He says that the Court should correct the mistake and supply the omission.

7. I am afraid, it cannot be done. The Tenancy Act was mentioned in the unamended Act in 1972. It has been dropped in order to remove the defects. I cannot supply it even if it was an omission. May be it isn't an omission. Different land Reforms Acts; enacted after independence, contain a provision for speedy eviction of an unauthorised occupant from the property which broadly speaking belongs to Government-that is ''public premises' but the Tenancy Act does not contain such a provision. May be, this was a reason for excluding the Tenancy Act from the definition of the word ''law relating to land tenure'. Articles 31(A) and 31(B) of the Constitution to which reference was made during arguments have no bearing while interpreting the provisions of the Act. These Articles were enacted in a different context. The land even if held by a tenure holder under the Tenancy Act would be ''premises' within the meaning of the Act.

IInd POINT: IS THE DISPUTED LAND PUBLIC PREMISES?

8. The ''public premises' have been defined in section 2(e) of the Act. This definition was substituted by Section 25(2) of the amending Act and is deemed always to be to have been substituted. It is retrospective and includes nazul lands or any other premise entrusted to the management of the local authority.6 It is admitted case that the property in dispute was nazul property, which was let out by the District Magistrate and is being managed by the Board. The property in dispute has been entrusted to the management of the board and is public premises.

IIIrd POINT: UNAUTHORISED OCCUPATION

9. The word ''unauthorised occupation' has been defined under section 2(g) of the Act7. It says that a person is in unauthorised occupation of public premises if there is no authority for his occupation or if there was some authority or grant but has expired. The contesting respondents had authority/ grant for their occupation. There was a lease deed in favour of their predecessor in interest, but that lease deed has now expired.  This is not disputed. Their occupation is unauthorised. They are liable for eviction.

10. The Courts below have dismissed the case of the Board on the finding that the property in dispute is not a premise within the meaning of the Act. This, I have held to be incorrect. Sri Sankatha Rai, counsel for the respondents says that as a matter of fact in the area, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (the Urban Zamindari Abolition for short) is applicable and the contesting respondents have become a tenure holder under that Act. This question has not been gone into by the courts below. I think it would be appropriate that the courts below should decide if the contesting respondents have any rights under the Urban Zamindari Abolition Act or not?

CONCLUSION

11. The orders of the District Judge, Mirzapur dated 20.12.1978 and that of the Prescribed Authority dated 19.7.1978 are hereby-quashed; the cases are send back to the Prescribed Authority for reconsideration on the merits. The parties would be entitled to lead evidence whether the contesting respondents have become tenure holders under the Urban Zamindari Abolition Act or not? It is also clarified that nothing in these proceedings prohibits any person to apply for freehold rights on the land in accordance with the policy of the State if applicable to the facts of the case.  

With these observations the present writ petitions are disposed of. The parties will appear before the concerned Prescribed Authority under the Act on 6.9.1999.

Let the copy of this order be placed in the record of connected writ petitions No. 2526/1979, 2527 Of 1979 and 2528 of 1979.

Date: 26.7.1999

SKS

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+Civil Misc Writ Petition no 2525 of 1979

#Municipal Board    

...  Petitioners

$SDO  

... Respondents

!RN Singh

Advocates for Petitioners

^ Sankatha Rai

Advocate for Respondent

*Coram

Hon'ble Yatindra Singh, J.

%Date of Judgment 12.12.2003

:Judgment

1. Is the UP Tenancy Act, 1939 (the Tenancy Act for short), a ''law relating to land tenure' within the meaning of the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (the Act for short)? Is land held by a tenure holder under the Tenancy Act, ''premises' within the meaning of the Act? These questions arise for determination in these four writ petitions.1 This is how they arise.

FACTS

2. The property in dispute is Nazul property.   The concerned District Magistrate had leased it out in favour of the predecessors-in-interest of the contesting respondents. The notified area committee had renewed it for a term. Subsequently the lessees transferred the property in favour of the contesting respondents. After expiry of the period of the leases, a notice was issued to the contesting respondents under the Act for their eviction in proceedings initiated by the Municipal Board, Chunar, Mirzapur (The Board for short). It is not disputed that now the Board manages the property. The Courts below have dismissed the proceedings on the ground that property in dispute is not premises under the Act. Hence these writ petitions.

POINTS FOR DETERMINATION

3. I have heard Sri Sankatha Rai and Sri R.N. Singh learned counsels for the parties.  The following points arises for determination:

(i)Is the Tenancy Act a law relating to land tenure within the meaning of the Act?

(ii)Is the land in question ''public premises' under the Act?

(iii)Are the contesting respondents in unauthorised occupation of the same?

Ist POINT: THE TENANCY ACT - LAW RELATING TO LAND TENURE.

4. There is no doubt that the Tenancy Act is a law relating to land tenure, as these words are normally understood. But is it a ''law relating to the land tenure' within the meaning of the Act, is the question before me. The Act was first promulgated as an ordinance then enacted as an Act in 1972. The Act was amended by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (UP Act 28 of 1976) (the Amending Act for short). The Act as it originally stood is referred to as the unamended Act and as it stands today is referred to as the Act. The first four paragraphs of the statement of objects and reasons of the unamended Act narrate the history for enacting the Act.2 Paragraph 4 of the statement objects and reasons states that care was taken to consolidate several existing laws governing different classes of public lands and buildings. But it appears that despite this some anomalies persisted. It was for this reason that it was amended in 1976, amending some provisions of the unamended Act. This is so stated in paragraph 11 of the statement of objects, and reasons3 of the Amending Act. It is for this that the provisions of the unamended Act and the Act are relevant for deciding the controversy in issue.

5. Initially in the unamended Act the words ''premises' and ''public premises' were defined in clause 2(b)4 and 2(c) of the Act. There was no definition of the phrase ''law relating to land tenure'. The reference to the laws relating to land tenure was in the definition of the word ''premises' itself. The definition of the ''premises' in the unamended Act excluded the land held by a tenure-holder, inter alia under the Tenancy Act also. By the amending Act definition of ''premise' and ''public premises' were amended and the words ''law relating to land tenure' was inserted as clause 2(aa). This new definition of premises was deemed always to have been substituted. It was retrospective.5 The ''premises' now do not include land held by a tenure holder under any law relating to land tenure. But this law relating to land tenure in new clause 2(aa) does not include the Tenancy Act; earlier it did. This omission, in the light of the statement of objects and reasons of the unamended Act and the amending Act, appears to be on purpose. The intention of the legislature is not to exclude the land held by a tenure holder under the Tenancy Act from the purview of the Act.

6. Sri Sankatha Rai, learned Counsel for the petitioner argues that in the definition clause 2(aa) the words ''law relating to land tenure means' should be read as ''law relating to land tenure includes'. He says that the Tenancy Act has been dropped on a mistaken belief that it is no longer in force and has been repealed. According to him the Tenancy Act is still applicable to a small area of Uttar Pradesh where the different Land Reforms Act after independence are not in force. He says that the Court should correct the mistake and supply the omission.

7. I am afraid, it cannot be done. The Tenancy Act was mentioned in the unamended Act in 1972. It has been dropped in order to remove the defects. I cannot supply it even if it was an omission. May be it isn't an omission. Different land Reforms Acts; enacted after independence, contain a provision for speedy eviction of an unauthorised occupant from the property which broadly speaking belongs to Government-that is ''public premises' but the Tenancy Act does not contain such a provision. May be, this was a reason for excluding the Tenancy Act from the definition of the word ''law relating to land tenure'. Articles 31(A) and 31(B) of the Constitution to which reference was made during arguments have no bearing while interpreting the provisions of the Act. These Articles were enacted in a different context. The land even if held by a tenure holder under the Tenancy Act would be ''premises' within the meaning of the Act.

IInd POINT: IS THE DISPUTED LAND PUBLIC PREMISES?

8. The ''public premises' have been defined in section 2(e) of the Act. This definition was substituted by Section 25(2) of the amending Act and is deemed always to be to have been substituted. It is retrospective and includes nazul lands or any other premise entrusted to the management of the local authority.6 It is admitted case that the property in dispute was nazul property, which was let out by the District Magistrate and is being managed by the Board. The property in dispute has been entrusted to the management of the board and is public premises.

IIIrd POINT: UNAUTHORISED OCCUPATION

9. The word ''unauthorised occupation' has been defined under section 2(g) of the Act7. It says that a person is in unauthorised occupation of public premises if there is no authority for his occupation or if there was some authority or grant but has expired. The contesting respondents had authority/ grant for their occupation. There was a lease deed in favour of their predecessor in interest, but that lease deed has now expired.  This is not disputed. Their occupation is unauthorised. They are liable for eviction.

10. The Courts below have dismissed the case of the Board on the finding that the property in dispute is not a premise within the meaning of the Act. This, I have held to be incorrect. Sri Sankatha Rai, counsel for the respondents says that as a matter of fact in the area, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (the Urban Zamindari Abolition for short) is applicable and the contesting respondents have become a tenure holder under that Act. This question has not been gone into by the courts below. I think it would be appropriate that the courts below should decide if the contesting respondents have any rights under the Urban Zamindari Abolition Act or not?

CONCLUSION

11. The orders of the District Judge, Mirzapur dated 20.12.1978 and that of the Prescribed Authority dated 19.7.1978 are hereby-quashed; the cases are send back to the Prescribed Authority for reconsideration on the merits. The parties would be entitled to lead evidence whether the contesting respondents have become tenure holders under the Urban Zamindari Abolition Act or not? It is also clarified that nothing in these proceedings prohibits any person to apply for freehold rights on the land in accordance with the policy of the State if applicable to the facts of the case.  

With these observations the present writ petitions are disposed of. The parties will appear before the concerned Prescribed Authority under the Act on 6.9.1999.

Let the copy of this order be placed in the record of connected writ petitions No. 2526/1979, 2527 Of 1979 and 2528 of 1979.

Date: 26.7.1999

SKS

...  Petitioners

$SDO  

... Respondents

!RN Singh

Advocates for Petitioners

^ Sankatha Rai

Advocate for Respondent

*Coram

Hon'ble Yatindra Singh, J.

%Date of Judgment 12.12.2003

:Judgment

1. Is the UP Tenancy Act, 1939 (the Tenancy Act for short), a ''law relating to land tenure' within the meaning of the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (the Act for short)? Is land held by a tenure holder under the Tenancy Act, ''premises' within the meaning of the Act? These questions arise for determination in these four writ petitions.1 This is how they arise.

FACTS

2. The property in dispute is Nazul property.   The concerned District Magistrate had leased it out in favour of the predecessors-in-interest of the contesting respondents. The notified area committee had renewed it for a term. Subsequently the lessees transferred the property in favour of the contesting respondents. After expiry of the period of the leases, a notice was issued to the contesting respondents under the Act for their eviction in proceedings initiated by the Municipal Board, Chunar, Mirzapur (The Board for short). It is not disputed that now the Board manages the property. The Courts below have dismissed the proceedings on the ground that property in dispute is not premises under the Act. Hence these writ petitions.

POINTS FOR DETERMINATION

3. I have heard Sri Sankatha Rai and Sri R.N. Singh learned counsels for the parties.  The following points arises for determination:

(i)Is the Tenancy Act a law relating to land tenure within the meaning of the Act?

(ii)Is the land in question ''public premises' under the Act?

(iii)Are the contesting respondents in unauthorised occupation of the same?

Ist POINT: THE TENANCY ACT - LAW RELATING TO LAND TENURE.

4. There is no doubt that the Tenancy Act is a law relating to land tenure, as these words are normally understood. But is it a ''law relating to the land tenure' within the meaning of the Act, is the question before me. The Act was first promulgated as an ordinance then enacted as an Act in 1972. The Act was amended by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (UP Act 28 of 1976) (the Amending Act for short). The Act as it originally stood is referred to as the unamended Act and as it stands today is referred to as the Act. The first four paragraphs of the statement of objects and reasons of the unamended Act narrate the history for enacting the Act.2 Paragraph 4 of the statement objects and reasons states that care was taken to consolidate several existing laws governing different classes of public lands and buildings. But it appears that despite this some anomalies persisted. It was for this reason that it was amended in 1976, amending some provisions of the unamended Act. This is so stated in paragraph 11 of the statement of objects, and reasons3 of the Amending Act. It is for this that the provisions of the unamended Act and the Act are relevant for deciding the controversy in issue.

5. Initially in the unamended Act the words ''premises' and ''public premises' were defined in clause 2(b)4 and 2(c) of the Act. There was no definition of the phrase ''law relating to land tenure'. The reference to the laws relating to land tenure was in the definition of the word ''premises' itself. The definition of the ''premises' in the unamended Act excluded the land held by a tenure-holder, inter alia under the Tenancy Act also. By the amending Act definition of ''premise' and ''public premises' were amended and the words ''law relating to land tenure' was inserted as clause 2(aa). This new definition of premises was deemed always to have been substituted. It was retrospective.5 The ''premises' now do not include land held by a tenure holder under any law relating to land tenure. But this law relating to land tenure in new clause 2(aa) does not include the Tenancy Act; earlier it did. This omission, in the light of the statement of objects and reasons of the unamended Act and the amending Act, appears to be on purpose. The intention of the legislature is not to exclude the land held by a tenure holder under the Tenancy Act from the purview of the Act.

6. Sri Sankatha Rai, learned Counsel for the petitioner argues that in the definition clause 2(aa) the words ''law relating to land tenure means' should be read as ''law relating to land tenure includes'. He says that the Tenancy Act has been dropped on a mistaken belief that it is no longer in force and has been repealed. According to him the Tenancy Act is still applicable to a small area of Uttar Pradesh where the different Land Reforms Act after independence are not in force. He says that the Court should correct the mistake and supply the omission.

7. I am afraid, it cannot be done. The Tenancy Act was mentioned in the unamended Act in 1972. It has been dropped in order to remove the defects. I cannot supply it even if it was an omission. May be it isn't an omission. Different land Reforms Acts; enacted after independence, contain a provision for speedy eviction of an unauthorised occupant from the property which broadly speaking belongs to Government-that is ''public premises' but the Tenancy Act does not contain such a provision. May be, this was a reason for excluding the Tenancy Act from the definition of the word ''law relating to land tenure'. Articles 31(A) and 31(B) of the Constitution to which reference was made during arguments have no bearing while interpreting the provisions of the Act. These Articles were enacted in a different context. The land even if held by a tenure holder under the Tenancy Act would be ''premises' within the meaning of the Act.

IInd POINT: IS THE DISPUTED LAND PUBLIC PREMISES?

8. The ''public premises' have been defined in section 2(e) of the Act. This definition was substituted by Section 25(2) of the amending Act and is deemed always to be to have been substituted. It is retrospective and includes nazul lands or any other premise entrusted to the management of the local authority.6 It is admitted case that the property in dispute was nazul property, which was let out by the District Magistrate and is being managed by the Board. The property in dispute has been entrusted to the management of the board and is public premises.

IIIrd POINT: UNAUTHORISED OCCUPATION

9. The word ''unauthorised occupation' has been defined under section 2(g) of the Act7. It says that a person is in unauthorised occupation of public premises if there is no authority for his occupation or if there was some authority or grant but has expired. The contesting respondents had authority/ grant for their occupation. There was a lease deed in favour of their predecessor in interest, but that lease deed has now expired.  This is not disputed. Their occupation is unauthorised. They are liable for eviction.

10. The Courts below have dismissed the case of the Board on the finding that the property in dispute is not a premise within the meaning of the Act. This, I have held to be incorrect. Sri Sankatha Rai, counsel for the respondents says that as a matter of fact in the area, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (the Urban Zamindari Abolition for short) is applicable and the contesting respondents have become a tenure holder under that Act. This question has not been gone into by the courts below. I think it would be appropriate that the courts below should decide if the contesting respondents have any rights under the Urban Zamindari Abolition Act or not?

CONCLUSION

11. The orders of the District Judge, Mirzapur dated 20.12.1978 and that of the Prescribed Authority dated 19.7.1978 are hereby-quashed; the cases are send back to the Prescribed Authority for reconsideration on the merits. The parties would be entitled to lead evidence whether the contesting respondents have become tenure holders under the Urban Zamindari Abolition Act or not? It is also clarified that nothing in these proceedings prohibits any person to apply for freehold rights on the land in accordance with the policy of the State if applicable to the facts of the case.  

With these observations the present writ petitions are disposed of. The parties will appear before the concerned Prescribed Authority under the Act on 6.9.1999.

Let the copy of this order be placed in the record of connected writ petitions No. 2526/1979, 2527 Of 1979 and 2528 of 1979.

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+Civil Misc Writ Petition no 2525 of 1979

#Municipal Board    

...  Petitioners

$SDO  

... Respondents

!RN Singh

Advocates for Petitioners

^ Sankatha Rai

Advocate for Respondent

*Coram

Hon'ble Yatindra Singh, J.

%Date of Judgment 12.12.2003

:Judgment

1. Is the UP Tenancy Act, 1939 (the Tenancy Act for short), a ''law relating to land tenure' within the meaning of the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (the Act for short)? Is land held by a tenure holder under the Tenancy Act, ''premises' within the meaning of the Act? These questions arise for determination in these four writ petitions.1 This is how they arise.

FACTS

2. The property in dispute is Nazul property.   The concerned District Magistrate had leased it out in favour of the predecessors-in-interest of the contesting respondents. The notified area committee had renewed it for a term. Subsequently the lessees transferred the property in favour of the contesting respondents. After expiry of the period of the leases, a notice was issued to the contesting respondents under the Act for their eviction in proceedings initiated by the Municipal Board, Chunar, Mirzapur (The Board for short). It is not disputed that now the Board manages the property. The Courts below have dismissed the proceedings on the ground that property in dispute is not premises under the Act. Hence these writ petitions.

POINTS FOR DETERMINATION

3. I have heard Sri Sankatha Rai and Sri R.N. Singh learned counsels for the parties.  The following points arises for determination:

(i)Is the Tenancy Act a law relating to land tenure within the meaning of the Act?

(ii)Is the land in question ''public premises' under the Act?

(iii)Are the contesting respondents in unauthorised occupation of the same?

Ist POINT: THE TENANCY ACT - LAW RELATING TO LAND TENURE.

4. There is no doubt that the Tenancy Act is a law relating to land tenure, as these words are normally understood. But is it a ''law relating to the land tenure' within the meaning of the Act, is the question before me. The Act was first promulgated as an ordinance then enacted as an Act in 1972. The Act was amended by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (UP Act 28 of 1976) (the Amending Act for short). The Act as it originally stood is referred to as the unamended Act and as it stands today is referred to as the Act. The first four paragraphs of the statement of objects and reasons of the unamended Act narrate the history for enacting the Act.2 Paragraph 4 of the statement objects and reasons states that care was taken to consolidate several existing laws governing different classes of public lands and buildings. But it appears that despite this some anomalies persisted. It was for this reason that it was amended in 1976, amending some provisions of the unamended Act. This is so stated in paragraph 11 of the statement of objects, and reasons3 of the Amending Act. It is for this that the provisions of the unamended Act and the Act are relevant for deciding the controversy in issue.

5. Initially in the unamended Act the words ''premises' and ''public premises' were defined in clause 2(b)4 and 2(c) of the Act. There was no definition of the phrase ''law relating to land tenure'. The reference to the laws relating to land tenure was in the definition of the word ''premises' itself. The definition of the ''premises' in the unamended Act excluded the land held by a tenure-holder, inter alia under the Tenancy Act also. By the amending Act definition of ''premise' and ''public premises' were amended and the words ''law relating to land tenure' was inserted as clause 2(aa). This new definition of premises was deemed always to have been substituted. It was retrospective.5 The ''premises' now do not include land held by a tenure holder under any law relating to land tenure. But this law relating to land tenure in new clause 2(aa) does not include the Tenancy Act; earlier it did. This omission, in the light of the statement of objects and reasons of the unamended Act and the amending Act, appears to be on purpose. The intention of the legislature is not to exclude the land held by a tenure holder under the Tenancy Act from the purview of the Act.

6. Sri Sankatha Rai, learned Counsel for the petitioner argues that in the definition clause 2(aa) the words ''law relating to land tenure means' should be read as ''law relating to land tenure includes'. He says that the Tenancy Act has been dropped on a mistaken belief that it is no longer in force and has been repealed. According to him the Tenancy Act is still applicable to a small area of Uttar Pradesh where the different Land Reforms Act after independence are not in force. He says that the Court should correct the mistake and supply the omission.

7. I am afraid, it cannot be done. The Tenancy Act was mentioned in the unamended Act in 1972. It has been dropped in order to remove the defects. I cannot supply it even if it was an omission. May be it isn't an omission. Different land Reforms Acts; enacted after independence, contain a provision for speedy eviction of an unauthorised occupant from the property which broadly speaking belongs to Government-that is ''public premises' but the Tenancy Act does not contain such a provision. May be, this was a reason for excluding the Tenancy Act from the definition of the word ''law relating to land tenure'. Articles 31(A) and 31(B) of the Constitution to which reference was made during arguments have no bearing while interpreting the provisions of the Act. These Articles were enacted in a different context. The land even if held by a tenure holder under the Tenancy Act would be ''premises' within the meaning of the Act.

IInd POINT: IS THE DISPUTED LAND PUBLIC PREMISES?

8. The ''public premises' have been defined in section 2(e) of the Act. This definition was substituted by Section 25(2) of the amending Act and is deemed always to be to have been substituted. It is retrospective and includes nazul lands or any other premise entrusted to the management of the local authority.6 It is admitted case that the property in dispute was nazul property, which was let out by the District Magistrate and is being managed by the Board. The property in dispute has been entrusted to the management of the board and is public premises.

IIIrd POINT: UNAUTHORISED OCCUPATION

9. The word ''unauthorised occupation' has been defined under section 2(g) of the Act7. It says that a person is in unauthorised occupation of public premises if there is no authority for his occupation or if there was some authority or grant but has expired. The contesting respondents had authority/ grant for their occupation. There was a lease deed in favour of their predecessor in interest, but that lease deed has now expired.  This is not disputed. Their occupation is unauthorised. They are liable for eviction.

10. The Courts below have dismissed the case of the Board on the finding that the property in dispute is not a premise within the meaning of the Act. This, I have held to be incorrect. Sri Sankatha Rai, counsel for the respondents says that as a matter of fact in the area, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (the Urban Zamindari Abolition for short) is applicable and the contesting respondents have become a tenure holder under that Act. This question has not been gone into by the courts below. I think it would be appropriate that the courts below should decide if the contesting respondents have any rights under the Urban Zamindari Abolition Act or not?

CONCLUSION

11. The orders of the District Judge, Mirzapur dated 20.12.1978 and that of the Prescribed Authority dated 19.7.1978 are hereby-quashed; the cases are send back to the Prescribed Authority for reconsideration on the merits. The parties would be entitled to lead evidence whether the contesting respondents have become tenure holders under the Urban Zamindari Abolition Act or not? It is also clarified that nothing in these proceedings prohibits any person to apply for freehold rights on the land in accordance with the policy of the State if applicable to the facts of the case.  

With these observations the present writ petitions are disposed of. The parties will appear before the concerned Prescribed Authority under the Act on 6.9.1999.

Let the copy of this order be placed in the record of connected writ petitions No. 2526/1979, 2527 Of 1979 and 2528 of 1979.

Date: 26.7.1999

SKS

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+Civil Misc Writ Petition no 2525 of 1979

#Municipal Board    

...  Petitioners

$SDO  

... Respondents

!RN Singh

Advocates for Petitioners

^ Sankatha Rai

Advocate for Respondent

*Coram

Hon'ble Yatindra Singh, J.

%Date of Judgment 12.12.2003

:Judgment

1. Is the UP Tenancy Act, 1939 (the Tenancy Act for short), a ''law relating to land tenure' within the meaning of the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (the Act for short)? Is land held by a tenure holder under the Tenancy Act, ''premises' within the meaning of the Act? These questions arise for determination in these four writ petitions.1 This is how they arise.

FACTS

2. The property in dispute is Nazul property.   The concerned District Magistrate had leased it out in favour of the predecessors-in-interest of the contesting respondents. The notified area committee had renewed it for a term. Subsequently the lessees transferred the property in favour of the contesting respondents. After expiry of the period of the leases, a notice was issued to the contesting respondents under the Act for their eviction in proceedings initiated by the Municipal Board, Chunar, Mirzapur (The Board for short). It is not disputed that now the Board manages the property. The Courts below have dismissed the proceedings on the ground that property in dispute is not premises under the Act. Hence these writ petitions.

POINTS FOR DETERMINATION

3. I have heard Sri Sankatha Rai and Sri R.N. Singh learned counsels for the parties.  The following points arises for determination:

(i)Is the Tenancy Act a law relating to land tenure within the meaning of the Act?

(ii)Is the land in question ''public premises' under the Act?

(iii)Are the contesting respondents in unauthorised occupation of the same?

Ist POINT: THE TENANCY ACT - LAW RELATING TO LAND TENURE.

4. There is no doubt that the Tenancy Act is a law relating to land tenure, as these words are normally understood. But is it a ''law relating to the land tenure' within the meaning of the Act, is the question before me. The Act was first promulgated as an ordinance then enacted as an Act in 1972. The Act was amended by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (UP Act 28 of 1976) (the Amending Act for short). The Act as it originally stood is referred to as the unamended Act and as it stands today is referred to as the Act. The first four paragraphs of the statement of objects and reasons of the unamended Act narrate the history for enacting the Act.2 Paragraph 4 of the statement objects and reasons states that care was taken to consolidate several existing laws governing different classes of public lands and buildings. But it appears that despite this some anomalies persisted. It was for this reason that it was amended in 1976, amending some provisions of the unamended Act. This is so stated in paragraph 11 of the statement of objects, and reasons3 of the Amending Act. It is for this that the provisions of the unamended Act and the Act are relevant for deciding the controversy in issue.

5. Initially in the unamended Act the words ''premises' and ''public premises' were defined in clause 2(b)4 and 2(c) of the Act. There was no definition of the phrase ''law relating to land tenure'. The reference to the laws relating to land tenure was in the definition of the word ''premises' itself. The definition of the ''premises' in the unamended Act excluded the land held by a tenure-holder, inter alia under the Tenancy Act also. By the amending Act definition of ''premise' and ''public premises' were amended and the words ''law relating to land tenure' was inserted as clause 2(aa). This new definition of premises was deemed always to have been substituted. It was retrospective.5 The ''premises' now do not include land held by a tenure holder under any law relating to land tenure. But this law relating to land tenure in new clause 2(aa) does not include the Tenancy Act; earlier it did. This omission, in the light of the statement of objects and reasons of the unamended Act and the amending Act, appears to be on purpose. The intention of the legislature is not to exclude the land held by a tenure holder under the Tenancy Act from the purview of the Act.

6. Sri Sankatha Rai, learned Counsel for the petitioner argues that in the definition clause 2(aa) the words ''law relating to land tenure means' should be read as ''law relating to land tenure includes'. He says that the Tenancy Act has been dropped on a mistaken belief that it is no longer in force and has been repealed. According to him the Tenancy Act is still applicable to a small area of Uttar Pradesh where the different Land Reforms Act after independence are not in force. He says that the Court should correct the mistake and supply the omission.

7. I am afraid, it cannot be done. The Tenancy Act was mentioned in the unamended Act in 1972. It has been dropped in order to remove the defects. I cannot supply it even if it was an omission. May be it isn't an omission. Different land Reforms Acts; enacted after independence, contain a provision for speedy eviction of an unauthorised occupant from the property which broadly speaking belongs to Government-that is ''public premises' but the Tenancy Act does not contain such a provision. May be, this was a reason for excluding the Tenancy Act from the definition of the word ''law relating to land tenure'. Articles 31(A) and 31(B) of the Constitution to which reference was made during arguments have no bearing while interpreting the provisions of the Act. These Articles were enacted in a different context. The land even if held by a tenure holder under the Tenancy Act would be ''premises' within the meaning of the Act.

IInd POINT: IS THE DISPUTED LAND PUBLIC PREMISES?

8. The ''public premises' have been defined in section 2(e) of the Act. This definition was substituted by Section 25(2) of the amending Act and is deemed always to be to have been substituted. It is retrospective and includes nazul lands or any other premise entrusted to the management of the local authority.6 It is admitted case that the property in dispute was nazul property, which was let out by the District Magistrate and is being managed by the Board. The property in dispute has been entrusted to the management of the board and is public premises.

IIIrd POINT: UNAUTHORISED OCCUPATION

9. The word ''unauthorised occupation' has been defined under section 2(g) of the Act7. It says that a person is in unauthorised occupation of public premises if there is no authority for his occupation or if there was some authority or grant but has expired. The contesting respondents had authority/ grant for their occupation. There was a lease deed in favour of their predecessor in interest, but that lease deed has now expired.  This is not disputed. Their occupation is unauthorised. They are liable for eviction.

10. The Courts below have dismissed the case of the Board on the finding that the property in dispute is not a premise within the meaning of the Act. This, I have held to be incorrect. Sri Sankatha Rai, counsel for the respondents says that as a matter of fact in the area, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (the Urban Zamindari Abolition for short) is applicable and the contesting respondents have become a tenure holder under that Act. This question has not been gone into by the courts below. I think it would be appropriate that the courts below should decide if the contesting respondents have any rights under the Urban Zamindari Abolition Act or not?

CONCLUSION

11. The orders of the District Judge, Mirzapur dated 20.12.1978 and that of the Prescribed Authority dated 19.7.1978 are hereby-quashed; the cases are send back to the Prescribed Authority for reconsideration on the merits. The parties would be entitled to lead evidence whether the contesting respondents have become tenure holders under the Urban Zamindari Abolition Act or not? It is also clarified that nothing in these proceedings prohibits any person to apply for freehold rights on the land in accordance with the policy of the State if applicable to the facts of the case.  

With these observations the present writ petitions are disposed of. The parties will appear before the concerned Prescribed Authority under the Act on 6.9.1999.

Let the copy of this order be placed in the record of connected writ petitions No. 2526/1979, 2527 Of 1979 and 2528 of 1979.

Date: 26.7.1999

SKS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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