Gurtu, J. - (1.) THIS is a petition under Article 226 of the Constitution of India.
(2.) THE Petitioner swears in his affidavit that he was allotted 92 acres of Kham land by the Kham Department of Tarai and Bhabhar Kham Estate of the Government of U.P. in the year 1950 for agricultural purposes, that in the district of Naini Tal there are two kinds of land, namely, Kham land and Colonization land and Kham land is given to the public for agricultural purposes, that the land in question was given to the Petitioner on the payment of annual land rent and the Petitioner was regularly paying the said rent on demand by the Tehsil which was acting under the orders of the Kham Department, that the Kham Superintendent of the Kham Department after allotting the land to the Petitioner orally ordered him to use the land for agricultural purposes, that the Petitioner was using the land for agricultural purposes for the last five years or more that since 1950 the Petitioner had been cultivating the land and growing wheat, paddy, sugarcane crops etc., on that land and as such the Petitioner had acquired tenancy rights in the land under the U.P. Tenancy Act, that the Petitioner was recorded as tenant in the village papers, that the Petitioner had constructed a pucca well in the land by incurring an expenditure more than Rs. 1000, that originally upon the land stood dense jungle and the Petitioner at the instance of the then Superintendent, Kham Department spent Rs. 20,000 in clearing and levelling the land and for bringing it under agricultural operation, that subsequently the then Superintendent Kham Department was transferred and the new Superintendent who was incharge of both the Kham and the Colonization department asked the Petitioner as to how he had been in possession of the land as it belonged to the Colonization Department, that actually the land in dispute belonged to the Kham Department and not to the Colonization Department, that under the circumstances the Petitioner made a representation to the then Agricultural Secretary of the U.P. Government and the Secretary sent it back to the Director, of Colonization with the remark that the Petitioner's case should be considered favourably and the land may be finally granted to the Petitioner, that the aforesaid application had been kept pending and no action had been taken on it by the Department. According to the Petitioner's affidavit subsequently on 1 -2 -1955 the Petitioner was served with a notice under Section 4(1) of the U.P. Govt. Land (Eviction and Recovery of Rent) Act of 1953, that the Petitioner objected to the aforesaid notice on the ground that he had occupied the land as duly authorised by the Kham Department, that notwithstanding the Petitioner's objections proceedings under Section 4(1) of the U.P. Govt. Land (Eviction and Recovery of Rent) Act were started against the Petitioner in the court of the Addl. Distt. Magistrate, Naini Tal; that the Addl. Distt. Magistrate was pleased to pass an order against the Petitioner on 25 -8 -1955 ordering the eviction of the Petitioner from the land, that in pursuance of the aforesaid order possession has been taken from the Petitioner of 41 acres of land the rest of the land measuring 52 acres is in the occupation of the Petitioner; and that the opposite parties to the petition are threatening to evict the Petitioner from the 52 acres of the land also.
(3.) THE Petitioner states in his affidavit that he challenges the validity of the order dated 25 -8 -55 and the action proposed to be taken on its basis on the following grounds: (1) Because the U.P. Act of 1933 is unconstitutional as contravening Article 14 of the Constitution. (2) Because the Petitioner was not given, any opportunity of hearing and was not allowed to produce evidence. (3) Because the order of the Competent Authority ordering eviction of the Applicant is nullity. (4) Because the Applicant has acquired tenancy rights and cannot be evicted. (5) Because tie opposite parties are estopped and cannot evict tae Petitioner after having made him to spend a huge amount on improving the land.;