Heard Mr.R.P.Singh, learned counsel for the petitioner. The petitioner has challenged the order dated 27th of May, 1987, passed by the Estate Officer, Lucknow Cantt. in exercise of power provided under Section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, whereby one Shri Dilawar Ali and all other persons who may be in occupation of the said premises or any part thereof were directed to vacate the said premises within 15 days from the date of publication of the said order as also the judgment and order dated 8th of February, 1990, passed by the IV Additional District Judge, Lucknow in Misc. Civil Appeal No.182 of 1987 upholding the order passed by the Estate Officer including the notice issued under Section 4(1)(b)(ii) of Sub Section (2) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, whereby the petitioner was asked to vacate the premises in question.
The notice of eviction relates to Khasra No.672 bearing area 41,000 Sq. fit situate at village Behsa, Pargana Bijnore, Tehsil and District Lucknow. The petitioner filed objection before the Estate Officer, Lucknow Cantt, who was acting as Prescribed Authority against the eviction notice and submitted therein that this land was never acquired by the Defence Department, though he admits the acquisition of the said land by the 2 Lucknow Development Authority, but for a limited period that is only for one year. It is further stated that plot No.672/2 is a separate land from plot No.672. The plot No.672/2 is recorded in the name of Asraf Ali, Inayat Ali, Asif Ali, Mohammad Umar, Mohammad Ahmad sons of Hasmat Ali and Shamshad Ali son of Hamid Ali and Smt. Amina widow of Hamid Ali, resident of village Behsa since prior to 1360 fasli, which was never acquired by any authority. It has been further submitted that the petitioner has been declared to be an authorized occupant of the area of 41,000 sq.fit i.e. 1 bigha 10 biswa out of areas of 3 bigha of plot No.672, whereas he has occupied the plot No.672/2, which is a separate plot from plot No.672, which was bifurcated by 80 fit wide road of Lucknow Development Authority. Though he admits that at some point of time the plot No.672/2 bearing area of 1 bigha and 10 biswa was recorded as a Navin Parti, but on the application for correction, the entry was corrected and land was recorded in the name of aforesaid persons. He further submitted that according to the report of Sub Divisional Officer to Defence Estate Department, plot No.672 was requisitioned under the provisions of Rule 75(A) of the Defence of Indian Rules, 1939, but the opposite parties failed to submit any certificate of Gazette Notification of requisition and acquisition. He challenged the notice of eviction on the ground that it was not in accordance with the Act. It has further been submitted that the Registered sale deed of 1 bigha 10 biswa belonging to plot No.672/2 was executed in favour of Esar Piti Tool Pvt.Ltd. Company, who has been substituted as petitioner and the plot has also been mutated in his name in the revenue records by the competent 3 revenue authority. Thus he shows his occupation and possession over the portion of plot No.672/2 bearing area 1 bigha 10 biswa. It has also been submitted that the Defence Department failed to bring on record the award of the acquisition proceeding. The petitioner further submits that the plot No.989, 949, 995, 1064, 1078, 1100, 1112, to 1118, 1121, 1123, 1130, 1136, 1137, 1138, 1166, 1167, 639, 667, 672, 673, 674, 676, 678, 739, 834, 1139 of village Behsa Pergana Bijnore, Tehsil and District Lucknow had been acquired by the Lucknow Development Authority for city Development planning in connection with the construction of residential colony. The above acquisition has been duly notified in the extra-ordinary gazette dated 8th of July, 1987. It has also been submitted that under Rule 75(A) of the Defence of India Rules, 1939 the plot in question was acquired only for one year, pursuant to which several plots have been acquired, but plot No.672 was never acquired.
Through the counter affidavit filed on behalf of opposite parties 2 and 3 it has been submitted that there is no plot No.672/2 in the revenue plan of village Behsa. The petitioner has tried to separate his land on the basis of the averments that plot No.672/2 is a different plot, whereas it is not so. It has been submitted that the plot No.672 was acquired during 1942-44 year. Since the petitioner was an unauthorized occupant over land measuring 41,000 sq.fit to that very plot, he was issued a notice under Section 4(1) of the Public Premises Act, 1971.
Upon perusal of the order passed by the Estate Officer, I find that the Khasra and Khatauni of plot No.672 bearing area 3 bigha recorded in the 4 name of Defence Department was brought on record including extract of MLR. The copy of award of Special Land Acquisition Officer, dated 29.6.1943 as well as possession certificate dated 12.12.1944 for taking over possession over Khasra No.672 with 3 bigha land was also brought on record. So far as the allegation of the petitioner that the disputed land i.e. plot No.672/2 bearing area 1 bigha 10 biswa is concerned, no such Khasra number has been found to be recorded in the revenue record of village Behsa. Shir Dilawar Ali, who claimed as recorded tenure holder was asked to produce the authenticated Khasra plan of village Behsa, wherein Khasra No.672/2 was shown, but he failed to produce the same. The dispute was found only to Khasra No.672 measuring 3 bigha, which is recorded in MLR in the name of Ministry of Defence acquired by the Special Land Acquisition Officer, therefore, the notice of eviction under Section 4(1) of the Public Premises Act was issued to the petitioner. The court of appeal also discussed all these facts and took notice to the fact that the Khasra No.672 situate at village Behsa, which is part of Amausi Air Port, has been acquired by the Ministry of Defence during the period 1942-44. It was found according to the S.D.O. of D.E.O, Lucknow, that the whole Khasra No.672 recorded in the name of MLR acquired by the defence department. Mr.Dilawar Ali, who contested the case before the Defence Estate Officer, Lucknow did not dispute the right of ownership of Khasra No.672, but contended that he was occupying the area of one bigha 10 biswa by showing Khasra No.672/2, which is not in existence in the revenue record. Thus it is established that on the misrepresentation of the fact the petitioner has tried 5 to maintain the encroachment by submitting that Khasra No.672/2 bears the separate land, whereas no such Khasra is available in the revenue record. Only Khasra No.672 bearing area 3 bigha is available, which belongs to the Ministry of Defence Department. So far as the benefit of mutation order, which has been claimed by Mr.Dilawar Ali is concerned in the said proceeding the Ministry of Defence was not a party, therefore, on the basis of the said entry he cannot claim any right over the land belongs to defence department. Thus the concurrent finding of facts recorded by the Prescribed Authority as well as the court of appeal, do not call upon the interference by this court.
In the result the writ petition is dismissed.
Dated:7.1.2010 Banswar