A. K. Jain v. Presence

3. The factual background reveals that the petitioner purchased land measuring one Nali situated in Khasra No. 2319, Khata No. 59, in Village Jaul from its previous owner Aan Singh, son of Dungar Singh, through a registered sale deed dated 07.09.2006. The revenue records and Patwari reports prior to the sale indicated that the said land was not government property but rather belonged to Aan Singh and fell in category 4.

4. The land was bounded on the east by a pedestrian road, on the west by the property of Rajesh Chhabra, on the north by Shyamalatal Road, and on the south by land owned by the State Government.

5. It appears that eviction proceedings were initiated against the petitioner with respect to 03 Nali land situated in Khasra No. 2377, which is admittedly public land recorded as Panchayat Forest in category 9(3)(A). On 07.05.2016, the Prescribed Authority directed the eviction of the petitioner under the assumption that he had encroached upon Khasra No.

6. The petitioner contested this order, asserting that he has no possession in Khasra No. 2377 and had explicitly stated so during proceedings before the authority. The impugned order was passed, and the subsequent appeal was dismissed on 14.06.2017, which failed to examine in depth the evidence pertaining to ownership and identity of land.

7. Heard learned counsel for the parties and perused the records. Writ Petition No. 2607 of 2017 (M/S)-----A. K. Jain vs District Magistrate, Champawat and another 2 Ashish Naithani J.

8. Learned counsel for the petitioner submits that the entire proceedings culminating impugned orders are founded on a factual misapprehension and a gross error in identifying the land in question.

9. It is vehemently argued that the petitioner is the rightful owner and in possession of one Nali land situated in Khasra No. 2319, which he acquired through a registered sale deed dated 07.09.2006 from Aan Singh, son of Dungar Singh. The said transaction is duly reflected in the revenue records and supported by the Patwari’s earlier report dated

02.09.2005, which categorically states that the land was privately owned and not government land.

10. It is further submitted that the petitioner is not, and has never been, in possession of Khasra No. 2377, which is recorded as public land categorized under Panchayat Forest. The boundaries of the petitioner’s land, as shown in the registered sale deed and the earlier injunction decree passed on 07.10.2013 by the Civil Judge (Junior Division), Tanakpur, also confirm that the disputed land lies in Khasra No. 2319.

11. The petitioner asserts that during proceedings before the Prescribed Authority, he made it abundantly clear that he had no objection if he was evicted from Khasra No. 2377, as he never had any possession over that land. Despite this categorical admission, the authority erroneously proceeded to evict him by wrongly presuming encroachment.

12. It is argued that there was neither proper demarcation nor any credible evidence to establish that the land under the petitioner’s occupation was in fact Khasra No. 2377. Furthermore, the measurement methods employed by the officials were vague, lacking clear metric indicators or boundary identification. The impugned orders are, therefore, assailed as Writ Petition No. 2607 of 2017 (M/S)-----A. K. Jain vs District Magistrate, Champawat and another 3 Ashish Naithani J. being passed without proper appreciation of the material on record and in breach of natural justice.

13. Learned counsel for the State, on the other hand, supports the impugned orders and contends that the petitioner had encroached upon 03 Nali of government land situated in Khasra No. 2377, which falls under Panchayat Forest (Category 9(3)A).

14. It was further submitted that on the basis of a challan report dated

05.09.2007 and the supporting testimony of the Patwari, the Prescribed Authority rightly found unauthorized occupation by the petitioner. A spot map and revenue records supported the challan, and it was stated that a wall had been constructed on the said land.

15. The State further contends that during cross-examination, the petitioner admitted to having no claim over Khasra No. 2377 and did not object to eviction from it, which reinforces the validity of the orders.

16. It was argued that the petitioner failed to produce any conclusive evidence showing that the land in his possession falls within Khasra No. 2319 and not 2377, and the burden of proof lay entirely on him. The concurrent findings of the Prescribed Authority and the Appellate Court, it is claimed, are based on proper appreciation of facts and law and warrant no interference.

17. Upon a careful evaluation of the record, this Court is of the considered view that the impugned orders suffer from factual and legal infirmities. Writ Petition No. 2607 of 2017 (M/S)-----A. K. Jain vs District Magistrate, Champawat and another 4 Ashish Naithani J. At the core of the dispute lies the identification of the land allegedly encroached by the petitioner.

18. The Prescribed Authority proceeded on the basis of the challan report dated 05.09.2007, which claimed that the petitioner had encroached upon 03 Nali land in Khasra No. 2377. However, the foundational issue of whether the land under the petitioner’s possession actually lies in Khasra No. 2377 was neither adequately examined nor established with precision.

19. The report of the Patwari relied upon by the respondents does not contain any definitive boundary markers or measurements in feet or meters. The Patwari himself admitted that the land was measured only using an inch tape, without demarcating proper boundaries or linking the site on the ground to the revenue records in a verifiable manner.

20. The petitioner, on the contrary, has placed substantial documentary evidence indicating that he is in possession of land situated in Khasra No. 2319, which he lawfully purchased through a registered sale deed dated

07.09.2006. This transaction is supported by the revenue entries and a prior civil court decree dated 07.10.2013, wherein his possession over the said land was upheld and protected. The boundaries detailed in the sale deed, as well as in the civil court judgment, differ materially from those described in the eviction order relating to Khasra No. 2377. It appears that both the Prescribed Authority and the Appellate Court proceeded on mere presumptions without conducting any on-site demarcation or physical verification in the presence of both parties. Writ Petition No. 2607 of 2017 (M/S)-----A. K. Jain vs District Magistrate, Champawat and another 5 Ashish Naithani J.

21. Further, the petitioner’s statement that he has no concern with Khasra No. 2377 was misconstrued by the authorities. A disavowal of possession over the said khasra cannot be read as an admission of illegal occupation. Instead, it was a clarification aimed at rebutting the State's presumption. The respondents also failed to establish through cogent evidence, either by way of site plan, verified coordinates, or physical possession status,that the petitioner was indeed in unlawful occupation of Khasra No. 2377.

22. The burden of establishing unauthorized occupation under the Public Premises Act lies squarely on the authority initiating eviction. In the present case, this burden was not satisfactorily discharged. The observations made by both the lower courts were largely repetitive and devoid of independent reasoning. The failure to consider the petitioner’s documents, particularly the registered sale deed, mutation entries, and civil court decree, shows a lack of judicial application of mind.

23. In view of the foregoing discussion, this Court is of the opinion that the orders dated 07.05.2016 passed by the Learned Prescribed Authority/Sub-Divisional Magistrate, Purnagiri and dated 14.06.2017 passed by the Learned District Judge, Champawat, cannot be sustained in law or on facts. Both the authorities failed to ascertain the identity of the land properly, did not appreciate material evidence on record, including the registered sale deed and civil court decree in favour of the petitioner, and acted solely on assumptions unsupported by reliable measurement or verification. The petitioner has successfully established that he is in possession of land bearing Khasra No. 2319, which is neither public land nor under dispute in the eviction proceedings. Writ Petition No. 2607 of 2017 (M/S)-----A. K. Jain vs District Magistrate, Champawat and another 6 Ashish Naithani J. ORDER Accordingly, the writ petition is allowed. The impugned orders dated 07.05.2016 and 14.06.2017 are hereby quashed. The respondents are restrained from taking any coercive action against the petitioner in relation to the land situated in Khasra No. 2319, Village Jaul. There shall be no order as to costs. Dated: 02.06.2025 NR/ Ashish Naithani, J. Writ Petition No. 2607 of 2017 (M/S)-----A. K. Jain vs District Magistrate, Champawat and another 7 Ashish Naithani J.