D.K.Seth, J. - (1.) A proceeding was initiated against the petitioner for eviction under the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred as the Act). By an order dated 18.6.1977, the said proceeding was decided. There was another proceeding and both the proceedings were decided by a common judgment passed in Case Nos. 241 and 342 of 1976-77. The State Government preferred appeals being Appeal Nos. 648 and 649 of 1977 respectively. Both the appeals were disposed of by a common judgment dated 5.3.1979. This is under challenge in the present writ petition.
(2.) Mr. Ajai Banout learned counsel holding brief for Shri Ashok Khare, learned counsel for the petitioner ably argues that the premises being held by the petitioners as an occupancy tenant, their holdings are that of tenure-holders under a law relating to land tenure and, therefore, the premises held by the petitioners are excluded from the definition of "premises' contained in Section 2 (b) of the said Act. In support of his contention he relies on the order dated 8.3.1965 in Case No. 19 of 1964 under Section 33/39 of the U, P. Land Revenue Act between the petitioner and one Shri Sushll Kumar Banerjee where the name was recorded as occupancy tenant in respect of the disputed property after expunging the name of Sushll Kumar Banerjee whose name was so recorded. He also relies on a copy of the plaint in Suit No. 2 of 1968 under Section 172 of the U. P. Tenancy Act wherein he pointed out that the Collector had admitted the claim of the petitioner that he had acquired occupancy tenancy right by virtue of decree under Section 39 of the U. P. Tenancy Act, 1939. Therefore, according to him after such admission, the State Government cannot go back of its own admission. He relies on the decision in Revision No. 108 arising out of an order dated 10.11.1972 rejecting the said Case No. 2 of 1968 where it has been held that the name of the petitioner having been recorded as occupancy tenant and he having acquired the occupancy tenancy right and the same having been admitted, the suit was not maintainable. Secondly, he contends that the premises cannot be termed as a public premises and, therefore, the present Act has no manner of application. He elaborates his argument relying on the definition contained in Section 2 (e) of the Act relating to public premises. His third contention is that in the facts and circumstances of the case, he is not unauthorised occupant as defined in Section 2 (g) of the Act in respect of the said premises and therefore the proceeding is not maintainable. His fourth contention is that the question of title to the premises having been decided in the proceedings mentioned by him, the principle of res judicata is attracted and the question can no more be opened in the present proceedings.
(3.) Mr. Upadhyaya, learned standing counsel on the other hand contends that the proceeding between the petitioner and Sushil Kumar Banerjee does not bind the Government since the Government is not party to the said proceeding. According to him, the property is a part of the Government Estate which was leased out to one Shri Sushil Kumar Ghosh without any right to sub-let. Sushil Kumar Ghosh was not made party in the proceedings between the petitioner and Sushil Kumar Banerjee. Therefore, the decision is not binding on the State. He contends that Suit No. 2 of 1968 was wholly misconceived. Since under Section 172 of the U. P. Tenancy Act, it was Shrl Ghosh who can be evicted. Admission that the defendant had acquired tenancy on the basis of the alleged decree cannot be taken to be an admission of fact. Inasmuch as it was only an opinion of the Estate Officer on interpreting the effect of the said decree. If the said decree appears to be void, in that event the opinion given on the basis thereof cannot be, sustained. Therefore, it cannot be said that it was an admission on the part of the Government. Then again the question of title of the petitioner had never been decided. As it appears from the judgment in the revision it was dismissed on the ground of alleged admission and as well as on the ground that the question cannot be decided in a summary proceedings for the correction of the record. Therefore, in fact the question was never adjudicated upon and the right of the petitioner had never been established. On that ground, according to him the principle of res judicata is not attracted. Neither the admission can stand in the way particularly when the decision in the revision and the Suit No. 2 of 1968 proceeds on the basis of the decision in the Case No. 19 of 1964 which itself is not binding on the State and is void. Therefore, the proceeding is very much maintainable. Earlier, the Court having wrongly decided the same, the same was rightly set aside by the appellate court. He also relies on the decision given in the appeal itself and points out that the same is a reasoned one and there is no infirmity in the order.;