# • . __. \ 17 5 JAI DUTT v. STATE OF U.P. & ORS

- **Citation:** [1979] 2 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 1978-10-26
- **Bench:** R. S. Sarkaria, V. D. Tulzapurkar, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/17-5-jai-dutt-v-state-of-u-p-ors-7495
- **Pages:** 8

## Headnote

B
U.P. Land (Evictio,n and Recovery of Rent & Da1nages) Act, 1959, s. 3(1)
and U.P. Tenancy Act, 1939
s.
180(2)-Scope of-Appellant reniained in
occupation of baniar (barren) land for twelve years-Claitned ow11ership of
land -No documentary
evidence or rent receipts produced-Failure to take
proceedings to evict-If would confer title on trespasser-Land lying banjarLawful 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 \\'as in unauthorised occupation of public land.
The Public
Authority rejected the appellant's claim that since he was in possession of the
land for 1nore 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 bis
appeal to the District Judge and his writ petition under Art. 226 was rejected
by the Hi.5b Court.
In appeal to this Court it was contended that the appellant had become a
hereditary tenant under s. 180(2) of thei. Tenancy Ac~ by reason of the fact that
he had been in cultivatory 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 unauth~rised 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 la\vfully entered into
possession of the land but that he took possession without any grant, 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 and
\Vithout the consent of the land owner. [180 C]
(b) The provisions of Section 2(18), 30, 180(2) of the Tenancy Act are to
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be construed in harmony with each other.
So construed, a person occupying
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land belonging to the State Government, as a trespasser or \vithout title or a
person holding over after the revocation or cancellation of the lease, aJlotinent or
a grant in accordance with the condition thereof, cannot be "a tenureholder ...
from the State Governn1ent 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-BJ
(2) The obligation to refer the question whether or not the land is public
land, unde:~ 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
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SUPREME COURT REPORTS
(1979] 2 S.C.R.
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appellant was pnina facie baseless, yet, in substance, it well-nigh can1c to the
same conclusion. It was, therefore, not obligatory for the authority to refer the
question to the Civil Court. [181 F]
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(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.
In the circumstances, the maxim omnia praesun1untur vitt~ essa acta V.'ill be attracted.
It will be presun1cd that the purpose
for ·which the appellant \Vas sought to be evicted was duly specified in the
notice in complaincc '\Vith the requirements of s. 3(2). [182 A-8]
CIVIL APPELLATE JuRJSDICTlON : Civil Appeal No. 484 of 1969.
From the Judgment and Order dated 28-7-1967 of the Allahabad
High Court in Special Appeal No. 352167.
M. S. Gupta for the Appellant.
G. N. Dikshit and 0. P. Rana. for the Respondents.
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## Text

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17 5
JAI DUTT
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v.
STATE OF U.P. & ORS.
October 26, 1978
[R. S. SARKARIA, V. D. TULZAPURKAR AND A. P. SEN, JJ.]
B
U.P. Land (Evictio,n and Recovery of Rent & Da1nages) Act, 1959, s. 3(1)
and U.P. Tenancy Act, 1939
s.
180(2)-Scope of-Appellant reniained in
occupation of baniar (barren) land for twelve years-Claitned ow11ership of
land -No documentary
evidence or rent receipts produced-Failure to take
proceedings to evict-If would confer title on trespasser-Land lying banjarLawful 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 \\'as in unauthorised occupation of public land.
The Public
Authority rejected the appellant's claim that since he was in possession of the
land for 1nore 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 bis
appeal to the District Judge and his writ petition under Art. 226 was rejected
by the Hi.5b Court.
In appeal to this Court it was contended that the appellant had become a
hereditary tenant under s. 180(2) of thei. Tenancy Ac~ by reason of the fact that
he had been in cultivatory 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 unauth~rised 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 la\vfully entered into
possession of the land but that he took possession without any grant, 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 and
\Vithout the consent of the land owner. [180 C]
(b) The provisions of Section 2(18), 30, 180(2) of the Tenancy Act are to
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be construed in harmony with each other.
So construed, a person occupying
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land belonging to the State Government, as a trespasser or \vithout title or a
person holding over after the revocation or cancellation of the lease, aJlotinent or
a grant in accordance with the condition thereof, cannot be "a tenureholder ...
from the State Governn1ent 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-BJ
(2) The obligation to refer the question whether or not the land is public
land, unde:~ 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
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176
SUPREME COURT REPORTS
(1979] 2 S.C.R.
A
appellant was pnina facie baseless, yet, in substance, it well-nigh can1c to the
same conclusion. It was, therefore, not obligatory for the authority to refer the
question to the Civil Court. [181 F]
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(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.
In the circumstances, the maxim omnia praesun1untur vitt~ essa acta V.'ill be attracted.
It will be presun1cd that the purpose
for ·which the appellant \Vas sought to be evicted was duly specified in the
notice in complaincc '\Vith the requirements of s. 3(2). [182 A-8]
CIVIL APPELLATE JuRJSDICTlON : Civil Appeal No. 484 of 1969.
From the Judgment and Order dated 28-7-1967 of the Allahabad
High Court in Special Appeal No. 352167.
M. S. Gupta for the Appellant.
G. N. Dikshit and 0. P. Rana. for the Respondents.
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The Judgment of the Court was delivered by
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SARKARIA, J. This is an appeal by certificate against a judgment,
dated July 28, 1967, pass,ed by ·the High Court of Allahabad in Special
Appeal 352 of 1967. It arises out of these facts:
J ai 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 Purramsingh, Tehsil Kalachungi, Dist!. Nainital.
The Public Authority, Nair'~al served a showcause notice, dated August 26, 1963, under Section 3(1) of the U.P.
Land (Eviction and Recovery of Rent and Damage•) Act, 1959 (hereinafter called the Eviction Act) on the appellant for bis eviction from
this land on the ground that he was in its unauthorised occupation.
The appellant contested the notice on the grO'llnd that he was in its
possession for more than 12 ~ars and had acquired the rights of a
hereditary tenant in the land under Section 180(2) of the U.P. Tenancy
Act, 19"9 (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 evidenoc 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 trespa•ser thereon", and he is, therefore, liable to be evicted therefrom
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.TAI DUTT v. u. P. (Sarkaria, J.)
177
uuder Section 4(1) of the Eviction Act. The Public Authority further
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assessed Rs. 121- as damages payable by the appellant.
Against this order of the Public Authority, Jai Dutt carried an
appeal under s>ectian 5 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 contentian that he had
bc'cn 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 und,er Article 226 of the
Constitution before the High Court to impugn the orders of the Public
Authority and of the Addi. District Judge, inter aJia, on the ground that
since he had been paying rent for the land which ha·s been in his cultivating possession for a number of years preceding the eviction proceedings, he could not be said to be an 'unauthorised occupant', but
a hereditmy tenant under Section 180(2) of the Tenancy Act.
The
learned Sir1gle 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 und,er 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 Shn 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 Evictian 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 Whlch exceeded
Rs. 20,000 1- and the ques'tion of the Constitutional validity of the
Eviction Ac:t, the High Court granned a certificate under Article 133
(1) (a) and (c) of the Constitution, that the case was fit for appeal
:to this Court. Hence, this appeal.
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
Mr. M. S. Gupta, appearing for the appellant, 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 judgmerrt in Magan/al Chhagganlal v. Municipal Corporation of Greater
Bombay & ors.(") 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 within two years of his entry into possession, he became a hereditary tenant under Swtion 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 ~enure-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 occnpation of the·
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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.
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(iii) Since the objections raised by the appellant in response to·
the show-cause notice ismed under Section 3 ( 1) of the Eviction Act
were substantial, the Public Authority was bonnd 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 the Public land is required "for one or more
public purposes 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 &eriously 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 ..... .
(!) [19751 l S.C.R. l.
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JAl DUTT v. u. P. (Sarkaria, !.)
17 9
(3) land acquired or held for a public JYW1l0Se or work of public
utility. " Even if it is assumed that the appellant was at the material
time in occupation of this land for more than Swo years, he would not
acquire rights of a hereditary tenant under Section 180(2). Omission
of th~ State Government, therefore, to institute a suit under Section
180(1) within the prescribed period of limitation would not bring into
existence relationship of landlord and tenant between the Government
and the appellant, and the latter'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 bv
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."
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
Govermnent 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 lease as
defined in Section 105 of the Transfer of Property Act, 1882".
Them is neither any factual nor legal basis for the appellant's contention that he had acquired some kind of tenure as a tenanr 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 1955-56, 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
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
corresponding to 1961-62) as "bi/a tas{ia, Ziman 10-Ka".
Same is
the position shown in the Khatauni 1368 Fasli "Bil Tasfia" obviously
means "without settlement or allotment or grant".
The docnmentary
evidence from the revenue NCords, accepted by the courts below, had
thus discounted the appella:nt's claim that he had been in cultivatory
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 enbered
into possession of the land.
On the cantrary, his case was that he
took possession of the land without any grant, settlement or lease from
the land owner.
Indeed, by claiming acquisition of a hereditary tenancy under Section 180(2), he admitted that he had taken poss•Jssion
without any title and without th.; consent of the land-owner.
Mr. Gupta has been unable to show that the appellant's occupation of the land o:wen for one or two years preceding the notice under
Section 3(1) was that of a "t.;nure 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 conten'tion that hoo has been paying rent !or this
land does not appear to bo well-founded.
No such plea appears to
have been raised before the Public Authority, much ""ss was any
evidence, such as a rent receipt produced there. The Public Authority
has nobed 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 the permission of or under allo!ment from
any competent authority. Nor was this pica 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 a:ny rent receipt or
like document on record showing that the appellant had paid rent
in respect of this la:nd to the Govermnent for the period of his possession precedrng 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 tho~o documents evidence the
receipt of rent by the Government in respect of the disputed land for
the relevant period proceding the issue of notice under Section 3 (1).
This being tho 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
which was never raised before the Public Authority, nor pressed before
the High Court.
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JAI DUTT v. u. P. (Sarkarfo, !.)
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 c<Y11Strued 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 aft>cr the revocation or cancellation of the lease, allotment
or grant in accordance with the conditions thereof, cannot be considered "a tenure-holder from th.e State Governn"ent under ... the U.P .
Tenancy Act, 1939" within the meaning of Section 2(e) (i) of the
Tenancy Act.
Ther•e 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.
Poilll (iii) :
Section 7, (so far as material) reads thus :
"7 (I ) Where an objecticm ~' taken on the ground that
the dispnbed land is not public land and the Public Authority
is of the opinion that the objection is not prima facie baseless 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
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clear that the obligation to refer the question whether or not the land
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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
basdess or frivolous.
In the instant case, a perusal of the impugned
order would show that although the Public Authority did not say in
the phrm;eology of the Statute th'at the objection raised ·by the appellant was prima facie "basekss", yet in substance, h·e unhesitatingly
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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 dispu'.•e 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 th·o O.P. is a trespasser thereon."
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We are therefor:\ of opinion that there was no infraction of Section
7.
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Point (iv) :
This point was not raised before the Public Authority, nor in any H
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 stage.
It is not
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SUPREME COURT REPORTS
(1979] 2 S.C.R.
a pure question of law which could be decided on the basis of material
already on record.
Tue 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 app~llant
was sought to be evicted from the public land, was only specified in
the notice in compliance with the r~quirement 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.
P.B.R.
Appeal dismissed.
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