SWAMI NATH CHOUHAN AND ORS.versusUNION OF INDIA AND ORS.

A                   SWAMI NATH CHOUHAN AND ORS.
                                         v.
                         UNION OF INDIA AND ORS.

                              DECEMBER 18, 2002

B    [SYED SHAH MOHAMMED QUADRI AND ARIJIT PASAYAT, Jt.]


         Assam Settlement Rules :

C         r.18-land acquired by Union of India for defence purposes-later,
    land rec01weyed to landowner hut possession not delivered-Notice under
    r.18 issued to respondents 5 to 7-Suit filed by R.5 to R.7 for declaration of
    their tenancy of suit land contending that they were tenants protected under
    s.5 of Assam Non-Agricultural Urban Areas Tenancy Act, 1955-Suit and
    appeal dismissed-RS to R7 held to be encroachers-Again notice under r.
D   18 issued to them-Notice quashed in writ petition-However, writ appeal
    of Union .of India allowed by Division Bench of High Court upholding the
    notice-Held, r. I 8 empowers the Government to evict any person from land
    over which no person has acquired right of a proprietor, land holder or
    settlement holder-Suit land was not so acquired-Ejectment of appellants
    u/r. 18 is under due process of /aw-There is no illegality in the order of
E   Division Bench of High Court-Appeal dismissed-Assam land and Revenue
    Regulations, 1886-Assam Non-Agricultural Urban Areas Tenancy Act,
    1955-s5.

         CIVIL APPELLATE JURfSDICTION : Civil Appeal No. 8549 of 1994.
F
         From the Judgment and Order dated 16.11.1993 of the Gauhati High
    Court in Writ Appeal No. 45 of 1993.

          Manoj Saxena and Pravir Choudhary, for the Appellants.

G        V.K. Sidatharan, Rajiv Mehta and Mrs. Rekha Pandey for B.V.B. Das, for
    the Respondents.

          The following Order of the Court was delivered:

          The appellants claimed to bl:. the tenants of land measuring 4 Bighas,
H                                        548
                     SWAMI NATH CHOUHAN v. U.0.1.                           549
4 Kathas and 15 Lechas at Hukanpukhuri (for short, 'the suit land'). The suit       A
land originally belonged to the faiher of respondents 5 to 7. In 1943, the first
respondent (Union of India) acquired the suit land for defence purposes. The
case of the appellants is that they entered into agreement of lease of the suit
 land with respondents 5 to 7 in 1947. However, on September 17, 1976, the
 first respondent reconveyed the suit land in favour of respondents 5 to 7 but      B
 did not hand over the possession to the said respondents. Perhaps for that
 reason, the 4th respondent issued ejectment notice against the appellants
 under rule 18 of the Assam Settlement Rules framed under the Assam Land
 and Revenue Regulations, 1886. While so, the appellants filed suit-T.S. No.
 I 11178--0n the file of Munsiff No. I, Tinsukhia for declaration of their
 tenancy of the suit land and confirmation of possession over it. The trial court   C
 decreed the suit in favour of the appellants on June 4, 1985. Aggrieved by
judgment and decree of the trial court, the first respondent filed an appeal-
 T.A. No. 77/86-before the A.dditional District Judge, Tinsukhia. On December
 21, 1987, the learned Additional District Judge partly allowed.the appeal and
 held that the appellants herein were not tenants but encroachers and that          D
 they could be evicted by due process of law. That judgment was assailed
 unsuccessfully by respondents 5 to 7 in Second Appeal No. 67/88 before the
 High Court. After dismissal of the second appeal on July 20, I988, fresh
 proceedings were initiated against the appellants by the State Government
 under Rule 18 of the Assam Settlement Rules. The notice issued by the State        E
Government (Respondents 2 to 4) on June 19, 1992 was assailed by the
appellants in writ petition-C.R. No. 1912/92-before the High Court of ASsam.
A learned single Judge of the High Court quashed the impugned notice and
allowed the writ petition on February 18, 1993. Respondents 5 to 7 carried the
matter before a Division bench in Writ Appeal No.45/93. The Division Bench
allowed the writ appeal, set aside the judgment of the learned single Judge         F
and upheld the validity of the impugned notice dated June 19, 1992. That
judgment and order of the Division Bench is under challenge in this appeal.

      Mr. Manoj Saxena, the learned counsel appearing for the appellants,
vehemently contends that the appellants are protected under section 5 of the        G
Assam Non-Agricultural Urban Areas Tenancy Act, 1955, therefore, they
cannot be evicted by issuing_ notice under rule 18 of the Settlement Rules. A
perusal of the said provision shows that it protects tenants from eviction. To
claim the protection of the said section, the appellants must show that they
are the tenants. There are more reasons than one to hold that the appellants
are not the tenants. First, the appellants claim tenancy through respondents        H
    550                    SUPREME COURT REPORTS (2002) SUPP. S S.C.R.

A   s 5 to 7 who had no right, title or interest in the suit land in 1947 as it has
    been, noted above that the suit land was already acquired by the .first
    respondent as long back as in 1943. Secondly, the appellants were held to be
    encroachers in the earlier civil proceedings. Thirdly, the father of respondents
    5 to 7 who was the original owner of the suit land, died in 1960. It is only
B   thereafter that. respondents 5 to 7 came into the ricture, as such they could
    not have leased out the suit land to the appellants in 1947. Be that as it may,
    the proceedings which gave rise to this appeal were initiated under rule 18
    of the Settlement Rules which reads thus:

                "18. Ejectment-{ I) Subject as hereinafter provided, the Deputy
c           Commissioner may eject any person from land over which no person
            has acquired the rights of a proprietor, landholder or settlement-
            holder."

          A ~rusal of the rule shows that it empowers the Deputy Commissioner
D to evict any person from land over which no person has acquired the right
    of a proprietor, landholder or settlement-holder. The Division Bench of the
    High Court, having referred to rule 18, held that the suit land was not acquired
    by a proprietor or landholder or settlement-holder within the meaning of the
    Settlement Rules.

E         It is next contended that in the earlier suit proceedings, it was held that
    the appellants could be evicted by due process of law. In our view, ejecting
    the appellants under rule 18 of the Settlement Rules cannot but be due
    process of law. In view of this position, the fact that as on the date of
    issuance of the impugned notice, the first respondent did not have title to the
F   land in question is immaterial.

           It is brought to our notice by the learned counsel for respondents 5
    to 7 that after the order under challenge in this appeal was passed on
    November 16, 1993, the State Government took over the possession of the
    land· in question and handed over the same to respondents 5 to 7 on March
G   25, 1994. These facts are set oiit in the counter affidavit but they were not
    traversed by filing a rejoinder affidavit. On December I, 1994, this Court
    passed the order directing the parties to maintain status quo, which was
    long after the alleged handing over of possession. However, the appellants
    claim to be in possession and we do not propose to express any opinion
H   on this . aspect.
                    SWAMI NATH CHOUHAN v. U.0.1.                           551
      For these reasons, we find no illegality in the impugned order of the A
Division Bench of the High Court. The appeal fails and it is, accordingly
dismissed.

      There shall be no order as to costs.

      The application for 4eletion of the name of Union of India from the array   B
of the respondents is dismissed.

RP.                                                        Appeal dismissed.