Hon’ble Sudhanshu Dhulia, J. (Oral)

1. The petitioner has filed the present writ petition before this Court aggrieved by the orders by the Prescribed Authority passed under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (from hereinafter referred to as ‘Act’) wherein it has been declared that the petitioner is an unauthorized occupant of public premises and he has thus been ordered to be evicted, as well as by order in appeal under Section 9 of Act (before the learned District Judge Nainital), which was been dismissed. Hence, the present writ petition.

2. Brief facts of the case are as follows:-

The land in dispute is within the municipal limits of Nagar Palika Haldwani, which is presently a corporation i.e. Nagar Nigam. According to the State authorities the petitioner is an unauthorized occupant of public premises, he was hence given notice under Section 4 of the Act on 26.04.2004. The petitioner sought time to file his reply/objections but since it was not done, the matter proceeded ex-parte against him where an ex-parte order was passed on 28.02.2005, declaring him unauthorized occupant of the public premises. Aggrieved the petitioner filed an appeal before the learned District Judge, Nainital. His appeal was allowed and the matter was remanded to the Prescribed Authorities vide order dated 25.10.2005 as the petitioner was not heard by the Prescribed Authority. The Prescribed Authorities after hearing the objection of the petitioner on record passed an order on 19.01.2006 declaring the petitioner to be an unauthorized occupant of the public premises, an order upheld in appeal.

3. There are various grounds of challenge to the aforesaid two orders. The petitioner rests his claim on ground that the premises in question is neither a “public premises” nor is he an “unauthorized occupant”, as defined under the Act. We will deal with the definition of both the “Public Premises” as well as the “Unauthorized Occupant”, which is given under the Act later but presently what is necessary to state at this juncture is that another grounds of challenge of the two orders by the petitioner is that the suit for permanent injunction was filed way back in the year 1985 being Civil Suit No. 59 of 1985 before the court of Civil Judge (J.D.), Haldwani, District Nainital by one Moti Ram, who claims certain tenure rights over the property, as he was being evicted by the State authorities. He had filed a suit for permanent injunction against the Nagar Palika, Haldwani as well as State authorities. In that suit there is undoubtedly a finding that Shri Moti Ram is not an unauthorized occupant of the property, in fact, he is legally occupying the property. There is also a finding that the State Government or the Nagar Palika are presently not in possession of the property concerned, and on this ground suit was decreed observing that in case the State authorities have a claim on the property, they are always at liberty to proceed under Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act.

4. According to the learned Additional Advocate General Shri Avtar Singh Rawat, who appears for the State in the present matter, since there was an observation of the trial court wherein liberty was given to the State Authorities to proceed under Public Premises Act no appeal was filed against the order of the trial court. Thereafter a notice was given under Section 4 of the Act. The details of which had already referred above.

5. The case of the petitioner is that the State Authorities could not have proceeded under the Uttar Pradesh Public Premises Act on ground of res judicata, and estoppel. This we shall deal first. As far as estoppel is concerned, the same has absolutely no application on the facts of the present case. The State Government has been able to establish that it is a Government property or “Nazul land” therefore, estoppels has no application, nor has it been shown that there