Kamal Uddin v. State of Uttar Pradesh — 1980 DIGILAW 1163 (ALL)

ORDER K.C. Agrawal, J. - This writ petition is directed against the judgment of the II Additional District Judge, Bijnor, acting as an appellate authority, under Section 9 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act. 2. On a complaint made by the Municipal Board, Chandpur, a notice under Section 7 (3) of the Act was issued to the petitioner by the Prescribed Authority. In the notice the possession of the petitioner was described as unauthorised. Through the notice, the petitioner was informed that the occupation was unauthorised and asked to show cause as to why an order requiring him to pay the amount mentioned therein he not made. The petitioner filed an objection to the said notice and claimed inter alia that he was the owner of the premises. He asserted that since he was the owner and was not in unauthorised occupation, he was not liable to pay any compensation either to the State Government or to the Municipal Board, Chandpur. On the pleadings of the parties, the Prescribed Authority framed the following issues :- 1. Whether the property in suit is Nazul land? If so, its effect? 2. Whether the objectors are the owners of the land in dispute? If so, its effect? 3. Whether the proceedings are time-barred and without jurisdiction? 3. The Prescribed Authority decided all the three issues in favour of the petitioner and discharged the notice issued to him under Section 7 (3) of the Act. Being aggrieved, the State of U.P. filed an appeal before the District Judge, who was the appellate authority appointed for the purposes of the Act. The appeal was transferred to the II Additional District Judge. The appellate authority reversed the order of the Prescribed Authority holding that the petitioner was not the owner of the disputed land, allowed the same. The appellate authority found that the petitioner was not only liable to pay compensation or damages but also liable to be ejected. Accordingly, the order passed by him was: "The appeal is allowed. Order dated 31-1-1974, is set aside. The case is decreed for the two reliefs of ejectment and damages sought in the petition". 4. Being aggrieved by the aforesaid order, the petitioner filed the present writ petition. 5. Accordingly, the order passed by him was: "The appeal is allowed. Order dated 31-1-1974, is set aside. The case is decreed for the two reliefs of ejectment and damages sought in the petition". 4. Being aggrieved by the aforesaid order, the petitioner filed the present writ petition. 5. It appears that in the year 1965, the petitioner and several others filed suit No. 42 of 65 against the Municipal Board, Chandpur for injunction restraining the Municipal Board from interfering in the possession of the plaintiffs. The basis of the suit was that those persons were the owners of the disputed land, and were not liable to be evicted. The suit was contested by the Municipal Board. It was decreed. Against the decree of the trial Court, an appeal was filed by the Municipal Board being First Appeal No. 240 of 68, in this Court. The appeal was allowed on 9-10-1980 and the claim of the petitioner and others to be the owners of the disputed land was refuted. The High Court held that they could not establish that they had any title and legal right over the disputed land. 6. In the writ petition, one of the questions which had been raised was that of ownership. The petitioner has alleged that as he was the owner the notice issued under Section 7 (3) of the Act calling upon him to pay the damages was illegal. The basis of the argument was that such a notice could be issued only against a person who is in unauthorised occupation. Counsel for the petitioner conceded that in view of the decision of the High Court in F.A. No. 240 of 1968, the question of ownership is no longer alive in issue. He confined himself to the validity of the notice on another ground which I shall presently deal. 7. The ground taken by the learned counsel was that the notice issued in the present case was under Section 7 (3) of the Act calling upon the petitioner to show cause as to why he was not liable to pay damages mentioned in the notice. As it was a notice claiming damages, the appellate authority erred in directing eviction of the petitioner as well. For appreciating the argument, a brief reference to the relevant provisions may be made. 8. As it was a notice claiming damages, the appellate authority erred in directing eviction of the petitioner as well. For appreciating the argument, a brief reference to the relevant provisions may be made. 8. The act had been passed by the State Legislature in 1972, providing for the eviction of the unauthorised occupants from the public premises and certain incidental matters. Section 2 gives the definition of the various words used in the Act. Section 3 deals with the appointment of the Prescribed Authority which can be made by a notification in the official Gazette authorising such a person or the Prescribed Authority to take action or proceedings contemplated by the same. Section 4 deals with issuance of notice to show cause against the order of eviction. Sub-sections (1) and (2) of Sec. 4 of the Act which are relevant for our purposes are extracted below : (Provisions not extracted in judgment copy - Ed. 9. Sub-section (3) of Section 4 lays down that the notice contemplated by sub-section (2) be served on the person in unauthorised occupation personally or in the manner prescribed by the Code of Civil Procedure. Section 5 confers a right on a person to whom the notice has been served to file an objection and to adduce evidence in support of his case. He is entitled to bring evidence on record to contest the notice served upon him under Section 4. Under sub-section (2) if the cause shown and the objection is found to be unsustainable, the Prescribed Authority is entitled to make an order for eviction. Section 6 with which we are not concerned, provides for disposal of the property left as public premises by unauthorised occupants. The next relevant Section is Sec. 7, about which a mention had already been made. This confers powers on the authority to require payment of rent and damages in respect of the premises un-authorisedly occupied by him. Sub-section (1) deals with the provision of recovery of illegal possession whereas subsection (2) confers powers for realisation of damages from the person who is in unauthorised occupation. This realisation has to be done through the process of a notice contemplated by sub-sec. (3). Section 8 deals with the powers of the Prescribed Authority whereas Section 9 confers powers of appeal. 10. After a review of the aforesaid provisions, I find that there are two notices contemplated by the Act. This realisation has to be done through the process of a notice contemplated by sub-sec. (3). Section 8 deals with the powers of the Prescribed Authority whereas Section 9 confers powers of appeal. 10. After a review of the aforesaid provisions, I find that there are two notices contemplated by the Act. One is contemplated by Section 4 and the other by Section 7. The purposes of the two notices are different. Upon a notice under Section 4 being served, the Prescribed Authority is required to consider whether the eviction order has to be made against a person in unauthorised occupation, whereas by a notice served under Section 7 the controversy involved is only that of recovery of damages. In the present case, the Prescribed Authority did not serve any notice under Section 4 of the Act upon the petitioner. He was not called upon to show as to why an order of eviction was not liable to be made against him. What was to be done by the Prescribed Authority was to call upon the petitioner to show cause as to why damages were not awardable against him on account of his unauthorised occupation. The petitioner confined himself to Section 7 and showed cause that he was not liable to eviction. Although the controversy before the Prescribed Authority and the appellate authority was only with respect to Section 7 (3), it appears that the learned Additional District Judge assumed it to be also under Section 4 and passed an order of eviction which he could not do. Under Section 9 of the Act, the power of the appellate authority was confined to the matter which had been raised before him by means of an appeal. He was not the original authority who could assume the function of the Prescribed Authority and could consider the proceedings to be one under Section 4 and pass an order under Section 5 although the same was not done by the Prescribed Authority. Section 9 confers limited powers on a Court of appeal. As a Court of appeal as mandated by the statute, the powers have to be necessarily confined to the recovery of compensation. The order of the appellate authority evicting the petitioner was illegal and was liable to be quashed. 11. Section 9 confers limited powers on a Court of appeal. As a Court of appeal as mandated by the statute, the powers have to be necessarily confined to the recovery of compensation. The order of the appellate authority evicting the petitioner was illegal and was liable to be quashed. 11. Sri R.H. Zaidi, counsel for the respondent urged that since the nature of proceedings both under Section 4 and Section 7, is the same, it was immaterial that no notice under Section 4 was served upon the petitioner and that he was not called upon to show cause as to why he was not liable to be evicted. He contended that damages could not be claimed from a person who is not an authorised occupant and in the instant case, as the case of the petitioner was that of an unauthorised occupant, the petitioner could be made to vacate the premises irrespective of the fact that a notice under Section 4 had not been served upon him. It was never disputable that the claim of damages is incidental. To claim for possession in the present case, a survey of scheme of the provisions of the Act indicates that there are two distinct proceedings contemplated by the Act. Had the Legislature thought of conferring a right of claiming damages following from right of eviction, there was no provision for making of sub-section (2). The fact that two different provisions have been made shows that though the controversy in both the matters could be the same yet it was open to the two authorities or a person acting on their behalf to evict or not to evict an unauthorised person. This might be justified on a variety of reasons. It may not be possible for me to imagine all the reasons. What a person can think is that the State Government may claim damages from a person in an unauthorised occupation and may still not evict him. That a person against whom the damages are claimed is not immune from proceeding under Section 4. As I have said above that there may be various reasons, the argument of the learned counsel for the respondent that Section 7 was only incidental to Sec. 4 and, therefore, the order need not be interfered with, cannot be accepted. 12. That a person against whom the damages are claimed is not immune from proceeding under Section 4. As I have said above that there may be various reasons, the argument of the learned counsel for the respondent that Section 7 was only incidental to Sec. 4 and, therefore, the order need not be interfered with, cannot be accepted. 12. Section 7 (3) does not only encompass sub-section (2) but also take within its purview the provisions of subsection (1) of Section 7. Sub-section (1) does not deal with the claim of the person who is in unauthorised occupation. It provides a remedy for the recovery of damages even against a person who is in lawful possession. Accordingly it may not be correct to say that the provisions of Section 7 are only incidental to Section 4. 13. It is settled that a statutory authority can excise only such powers and jurisdiction as are conferred on it by the statute either expressly or by necessary implication. Any exercise by the authority beyond the ken of powers would, therefore, be without jurisdiction and the resultant order a nullity. As already seen, issuance of a notice under Section 4 of the Act was a condition precedent; without such notice, the authorities under the Act could not order eviction of any person. In Chet Singh v. State of Punjab ( AIR 1977 SC 1494 ), the Supreme Court has held that an order which is passed without the existence of a condition precedent is non est. That being so, learned District Judge had no jurisdiction to order eviction of the petitioner in proceedings under Sec. 7, of the Act; more so, when such a relief was not even sought for by the Municipal Board even in the appeal. 14. It was next urged that as no prejudice has been caused to the petitioner on account of issuance of one notice, this Court need not interfere. I am unable to hold that the petitioner was not prejudiced on account of omission of service of notice under Section. 4 When the statute contemplates things being done in a judicial manner, the mandate of law requires to be done in that manner. 15. For the reasons given above, the part of the order of the Additional District Judge directing the petitioner to vacate the premises is liable to be quashed. 4 When the statute contemplates things being done in a judicial manner, the mandate of law requires to be done in that manner. 15. For the reasons given above, the part of the order of the Additional District Judge directing the petitioner to vacate the premises is liable to be quashed. In respect of damages it is entitled to be upheld. 16. In the result, the writ petition succeeds partly and is allowed to the extent mentioned above. There shall be no order as to cost.