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2003 DIGILAW 1114 (ALL)

BABBOO KHAN v. DISTRICT JUDGE, RAMPUR

2003-05-08

ANJANI KUMAR

body2003
ANJANI KUMAR, J. ( 1 ) HEARD learned counsel for the petitioner and Shri Nazar Bokhari for the respondents. ( 2 ) BY means of this writ petition, petitioner has challenged the order passed under Section 4 of U. P. Public Premises (Eviction of Unauthorised Occupants)Act, 1972 in Case No. 20 of 1984 P. S-Kotwali, District-Rampur dated 7th May, 1984. whereby the prescribed authority after hearing the petitioner and State has passed the order of eviction of the petitioner from the premises in question, which is admittedly a public premises. In appeal the appellate authority affirmed the findings of the prescribed authority and directed for eviction of the petitioner from the premises in question. ( 3 ) LEARNED counsel for the petitioner has contended that a perusal of Section 4 of U. P. Public Premises (Eviction of unauthorised Occupants) Act, 1972 provides that the notice in the manner prescribed should have been served on the petitioner before the proceedings are initiated. Section 4 is reproduced below:- "4. Issue of notice to show cause against order of eviction.- (1) If the prescribed authority, either of its own motion or on an application or report received on behalf of the State government or the corporate authority, is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the prescribed authority shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall- (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons, who are, or may be, in occupation of, or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof. (3) The prescribed authority shall cause the notice to be served either personally on all those persons concerned or by having it affixed on the outer door or some other conspicuous part of the public premises and in any other manner, provided in the Code of Civil Procedure, 1908. (3) The prescribed authority shall cause the notice to be served either personally on all those persons concerned or by having it affixed on the outer door or some other conspicuous part of the public premises and in any other manner, provided in the Code of Civil Procedure, 1908. (4) Where the prescribed authority knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by registered post or by delivering or tendering it to that person or in such other manner as may be prescribed. " ( 4 ) LEARNED counsel for the petitioner relied upon a decision of Division Bench of this Court reported in 1984 All. L. J. page 1022; Bikarama Versus IV additional District Judge. Varanasi and others. Para 7 and 8 on which learned counsel has placed reliance are quoted below: "7. Learned counsel appearing for the state of U. P. before the Courts below fairly conceded that the impugned notice issued under S. 4 of the Act was not a valid notice and was not in the prescribed form as it did not disclose the ground upon which it has been issued. Before us however, the learned Standing Counsel contended that the notice, if read as a whole, clearly confirmed to the requirements of S. 4 of the Act. 8. We do not agree. The notice has been quoted above and it is obvious that a vital requirement of S. 4 is missing. The notice does not profess, directly or indirectly, to state the ground upon which the eviction of the petitioner is v being sought. In our opinion the provisions of S. 4 are mandatory and a valid notice specifying the grounds on which the order of eviction is proposed to be made is sine qua non for an order of eviction. We do not agree with the learned Standing counsel that the notice if read as a whole can be construed to be a valid notice under S. 4 of the Act. It does not disclose the grounds on which eviction is sought. It is not in the prescribed form either. The defects invalidate the notice ab initio. We do not agree with the learned Standing counsel that the notice if read as a whole can be construed to be a valid notice under S. 4 of the Act. It does not disclose the grounds on which eviction is sought. It is not in the prescribed form either. The defects invalidate the notice ab initio. " ( 5 ) MUCH emphasis has been laid on the manner of service of notice as observed by the Division Bench, as in the present case it is not disputed that parties had knowledge of the proceedings and has also contested the proceedings. A Full bench of this Court consisting of five judges in a case reported in AIR 1975 allahabad 315 (FB); Gyan Singh versus The District Magistrate. Bijnor and others, has explained the purpose of notice wherein it has been held by full bench that once the party concerned acquires the knowledge of the proceedings though mandatory, the purpose of notice stood served. ( 6 ) PARAGRAPHS 15 and 19 of the aforesaid case are being quoted here-in-below :- "15. We, however, do not agree with the observations of the learned Judge that the actual service of the notice of the meeting should be proved. It would be sufficient compliance with the provisions of Section 87-A (3) if notice is sent to the members and the members acquire knowledge about the time, date and place of the meeting. The facts involved in vishwanath Tripathis case 1968 All WR 114 are different than those available in the present case. The observations of R. S. Pathak, I, that Section 87-A (3) was mandatory in its entirety does not represent correct view for the reasons stated earlier. If notice is sent by registered post and publication of the notice is done, the legal fiction enacted by the legislature would at once come into play and thereupon every members shall be deemed to have received notice even though a member may not have actually received the same. On the material on record of that case, R. S. Pathak, J. held that neither the notice of the meeting was actually served upon one of the petitioners nor the notice was published in any other manner as directed by the District magistrate, therefore the meeting was not validly constituted. On the material on record of that case, R. S. Pathak, J. held that neither the notice of the meeting was actually served upon one of the petitioners nor the notice was published in any other manner as directed by the District magistrate, therefore the meeting was not validly constituted. The learned Judge further held that even if the member had knowledge of the meeting he was under no obligation to take notice and for that reason he was not disentitled to relief under Article 226 of the Constitution. We are not in agreement with this view of the learned Judge. As already stated the purpose of sending notice is to give information to the members to attend the meeting convened for the purpose of considering the motion of no-confidence, and once it is established that the member concerned had notice and had acquired knowledge of the date and time of the meetingconvened for considering the motion of no-confidence, the purpose for which notice is required to be sent would be fulfilled and the member concerned will not be entitled to any relief from this court under Article 226 of the constitution for nullifying the proceedings of the meeting. 19. The President is elected by the members of the Municipal Board in accordance with Section 43 of the Act. A member of the Board or any elector, who is not less than 30 years of age is qualified to be chosen as President of the Board. Thus a non-member may be elected president of the Board. But once an elector is elected President he becomes member of the Board ex-officio under section 49 of the Act which lays down that the President of a Board if he is not already a member of the Board shall be ex-officio member of the Board. The president presides over the meetings of the Board. All questions which come up before the meeting of the Board are decided by majority of the members at the meeting. Section 92 of the Act lays down that in case of equality of the Board the president of the Board shall have a second or casting Board these provisions clearly indicate that a President is a member of the Board for all purposes even though he may not be an elected member of the board. Section 92 of the Act lays down that in case of equality of the Board the president of the Board shall have a second or casting Board these provisions clearly indicate that a President is a member of the Board for all purposes even though he may not be an elected member of the board. Section 87-A (3) enjoins a duty on the District Magistrate to convene a meeting for consideration of the motion of no-confidence against the President. It further lays a duty on him to send notice of the meeting by registered post to every member of the Board at his place of residence. The District Magistrate therefore must send notice of the meeting to the President also by registered post at his place of residence even though he may not be an elected member. The motion of no-confidence is directed against the president he is the most affected party in the matter. He is entitled to take part in the debate at the meeting and to defend himself. Thus, principles of natural justice require that he should be given notice of the meeting so that he may get an opportunity of defending himself. " ( 7 ) HERE in the present case, it has not been disputed by the petitioner that he had knowledge of the proceedings and he contested the proceedings. This aspect of the matter has not placed before the division Bench relied by the counsel for the petitioner. ( 8 ) IN this view of the matter, in view of the Full Bench referred to above, which is binding on me and couple with the fact that the decision of Division Bench relied on by learned counsel for the petitioner does not apply to the facts of the present case. Therefore, this argument deserves to be rejected. ( 9 ) THE argument having failed, other argument advanced by learned counsel for the petitioner assailing the findings of the prescribed authority as well as of the appellate authority also deserves to be rejected. It is settled that the findings of fact arrived at, are not to be easily interfered with under Article 226 of the constitution, unless the same are demonstrated to be perverse, or suffers from manifest error of law. It is settled that the findings of fact arrived at, are not to be easily interfered with under Article 226 of the constitution, unless the same are demonstrated to be perverse, or suffers from manifest error of law. That having not been shown, learned counsel lastly argued that this Nazool property, which is under the management of the local body concerned and the local body would not let out the same on a higher rent or premium and petitioner who has also submitted an application for allotment may also be allowed to offer before this court and if this is the only criteria, his case may also be considered. However, if the respondents are inclined to let out or lease out the property in question for rent, the application of the petitioner may also be considered in accordance with law. ( 10 ) IN view of what has been stated above, the writ petition is dismissed. .