BENI PRASAD Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) PRESENT petition has been filed by the petitioner challenging the judgment and order dated 22.07.2009 passed by the learned District Judge, Champawat and the order dated 28.05.2007 passed by the Prescribed Authority/Sub Divisional Magistrate, Sri Poornagiri, Tanakpur. The petitioner has also sought a writ of mandamus directing the respondents not to take any coercive measures and not to evict the petitioner from the shop in question. The petitioner has further prayed for a writ of mandamus directing the respondents not to demolish the construction set up by the petitioner on the land in dispute.

(2.) BRIEF facts of the case, inter alia, are that a large number of persons, including the petitioner, have set up and constructed wooden shops and tin shades by the side of the road heading to the temple of goddess Poornagiri from Thuligarh to Poornagiri temple situated at Tuniyas in Tehsil and District Champawat. As many as 40 to 50 wooden shops and tin shades have been constructed by the side of the road approaching to the said temple. It is averred in the petition that in the said stalls, the petitioner is carrying on business of selling the Pooja Samagri, sweets and also offering drinking water to the pilgrims. The pilgrims have to take rest after covering a distance of one or two kilometers and the said shopkeepers have, therefore, constructed tin shades in which the pilgrims take rest, during the rains or hail storm. In his tin shade, the petitioner also provides shelter to the pilgrims, as there is no other covered building by the side of this road constructed by Public Works Department. The petitioner has made a wooden shop and tin shade in an area of 190 Squire Meter over the land in dispute. It has been further asserted that the land in dispute belongs to Zila Parishad for which the Zila Panchayat was charging rent from the shopkeepers sometime in the form of rent and sometime as Mela Fee. The Public Works Department has constructed Kaccha Road in the year 1993 -94 which passes through the land on which the petitioner has constructed wooden stall. It has been further stated that since the shop in question was constructed by the petitioner in the land for which he is paying rent to the Zila Panchayat, therefore the Forest Department has no authority to get his shop demolished, particularly when the Zila Panchayat has been regularly charging rent from the petitioner. It has been further stated that the wooden shop and the tin shade constructed by the petitioner is not causing any obstacle on the hill road as the same has not been constructed on the road. After the Forest Department approached to the Prescribed Authority for getting the petitioner evicted from the land in question, a notice was issued to the petitioner under Section 4(1) of the U.P. Public Premises (Eviction of Unauthorized Occupation) Act, 1972 (hereinafter referred to as the 'Act') by the Prescribed Authority asking the petitioner to show cause as to why he may not be evicted from the land in dispute. A case thereof was also registered against the petitioner in which the petitioner filed his objection. Thereafter, vide order dated 28.05.2007 the Prescribed Authority passed order evicting the petitioner from the land in dispute. Aggrieved with the order of eviction, the petitioner preferred Eviction Appeal before the District Judge, Champawat and vide order dated 22.07.2009 passed in the Eviction Appeal the appeal was also dismissed and the order dated 28.05.2007 passed by the Prescribed Authority/Sub Divisional Magistrate, Sri Poornagiri, Tanakpur was affirmed. Being aggrieved with both these orders, the petitioner has filed the instant petition.

(3.) I have heard the Sri Prabhakar Joshi Advocate and Sri B.S. Negi, the learned Counsel for the petitioner and Sri Sudhir Kumar, the learned Brief Holder for the State and perused the record.