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2003 DIGILAW 89 (DEL)

SANJAY MEDICOS v. DIRECTOR (ADMN. ) LNJP HOSPITAL

2003-01-30

body2003
A. K. Sikri, J. ( 1 ) A short but neat question of law arises in this writ petition which is common in all the four writ petitions. Petitioners are in occupation of shop nos. 1,2,3 and 4 respectively in an Ashram known as Baba Haider Das Ashram which is allegedly situated inside Lok Nayak Jai Pr akash Hosp ital (LNJP, for short ). Respondent No. 2 who is appointed as Estate Officer (Central District) received from Director (LNJP Hospital) reference dated 23rd October, 2000 stating that a part of the land allotted to the hospital by the Land and Building Department, Government of India had been encroached by few persons who had established an Ashram known as Baba Haider Dass Ashram about 10-15 years go. In this reference it was also stated that the said Ashram has started commercial activities from those places by constructing four pucca shops and renting them to the following persons: 1. Shop No. 1 = M/s. Sanjay Medicos, Prop. Sh. Sanjay Dewan. 2. Shop No. 2 = Sudh Vaishno Chai Nashte Ke Dukan, Prop. Sh. Bharat singh. 3. Shop No. 3 = STD and Confectionary Shop, Prop. Sh. Shiv Kumar. 4. Shop No. 4 = Om Nursin Tailor, Prop. Master Kishan Chand. ( 2 ) PUBLIC Grievance Commission also made complaint regarding unauthorised encroachment in LNJP Hospital and directed in its order dated 17th August, 2000 to remove unauthorisedly constructed four pucca shops. ( 3 ) ON the basis of aforesaid reference separate notices dated 15th November, 2000 under Section 5-A (2) of the Public Premises (Eviction of Unauthorised occupants) Act, 1971 was served upon the petitioners. Petitioner contested these notices on various grounds. One of the grounds taken was that they were tenant under Baba Haider Das Ashram and occupying these shops in that capacity and validity of the notice was challenged on the grounds that notice had not been served upon the said Ashram and it was not made a party in the proceedings. However, after hearing the parties, respondent No. 2 passed order dated 21st December, 2000 holding petitioners to be unauthorised occupant of the aforesaid shops and directed that they be removed from the said public premises. However, after hearing the parties, respondent No. 2 passed order dated 21st December, 2000 holding petitioners to be unauthorised occupant of the aforesaid shops and directed that they be removed from the said public premises. ( 4 ) LEARNED Counsel for the petitioners submits that as per the provisions of section 5-A (2) of the Act under which action is taken against the petitioners, notice should have been served upon the said Ashram which had, even as per respondent s own admission, made the construction in question. Section 5-A (2) reads as under: 5a. Power to remove unauthorised constructions, etc. (1) x x x (2) "where any building or other immovable structure or fixture has been created, placed or raised on any public premises in contravention of the provisions of Sub-section (1), the Estate Officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the Estate Officer, sufficient, the Estate Officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue. ( 5 ) SUBMISSION of learned Counsel for the petitioner has force. It is specifically stipulated in Sub-section 2 of Section 5-A that Estate Officer would serve notice upon the person erecting such building or structure or fixture requiring him either to remove or to show cause why he shall not remove such building or structure or fixture which is found to be unauthorised as per Sub-section (1) of Section 5-A of the act. A perusal of the order dated 20th December, 2000 would clearly show that as per respondent s own case, land in question has been encroached by Baba Haider dass Ashram and even construction of shops was made by the said Ashram. A perusal of the order dated 20th December, 2000 would clearly show that as per respondent s own case, land in question has been encroached by Baba Haider dass Ashram and even construction of shops was made by the said Ashram. In this order it is also an allegation of the respondent that shops were rented out to the petitioners herein as would bear out from following portion of the order: "a reference was received from Director (Admn.), Lok Nayak Hospital vide his letter No. F. 10a/dir (A)/lnh/2000/246a dated 23. 10. 2000 stating that a part of the land allotted to Lok Nayak Hospital by Land and Building department, Government of India, has been encroached by a few persons who have established an Ashram known as Baba Haider Dass Ashram about 10-15 years ago. It further stated that the management of the said Ashram had started commercial activities from the said place by constructing 4 pucca shops and renting them to the following persons. . . " ( 6 ) THUS when as per the respondent s own case it is Baba Haider Dass Ashram who had erected the unauthorised structure and let out the establishment to the petitioner, the proceedings under Sub-section (2) of Section 5-A could not have been initiated without serving notice to the said Baba Haider Dass Ashram. ( 7 ) IT is trite law that even a person who is in unauthorised occupation has to be evicted in accordance with law. Law in the instant case is Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Once it lays down a particular procedure in respect of particular kind of cases as mentioned in Section 5-A, this procedure and mandate of that provision has to be followed by the respondents. Since notice under Section 5-A (2) was not served upon Baba Haider Dass Ashram nor was it made a party in the proceedings even after petitioners took specific objection in respect thereof, the proceedings and consequential order dated 21st december, 2000 is not in accordance with law and has to be quashed. ( 8 ) THESE writ petitions are accordingly allowed. Order dated 21st December, 2000 passed in these cases are hereby set aside. It would, however, be open to the respondents to take fresh action after following due procedure in law. ( 8 ) THESE writ petitions are accordingly allowed. Order dated 21st December, 2000 passed in these cases are hereby set aside. It would, however, be open to the respondents to take fresh action after following due procedure in law. In case fresh action is initiated, petitioners herein as well as Baba Haider Dass Ashram shall participate and cooperate in the said proceedings to enable the Estate Officer to conclude the proceedings as expeditiously as possible. Writ Petition Nos. 1567-1569 and 1575/2001 stand disposed of. Writ Petitions allowed.