Sayyed Mohd. Rizwan v. Prescribed Authority Under U. P. Act No. 22 of 1972
2004-03-05
A.N.VARMA
body2004
DigiLaw.ai
JUDGMENT : A.N. VARMA, J. 1. Through the instant writ petition under Article 227 of the Constitution of India, the Petitioner has prayed for quashing of the entire proceedings pending before the opposite party No. 1, the same having been initiated by the opposite party No. 3 u/s 4(1) of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter to be referred as 'Act'). A further relief has also been prayed for quashing of the plaint, copy of which has been annexed as Annexure-1 and notice u/s 4(1), copy of which has been filed as Annexure-2. 2. The opposite party No. 3 initiated the proceedings u/s 4(1) of the Act against 25 persons. The Petitioners before this Court are amongst the said 25 persons. The opposite party No. 1 on 16.12.2003 vide Annexure-3 directed the case to be registered and also issued notices to the aforesaid persons. 3. I have heard the learned Counsel for the Petitioner, Shri Mustaq Siddiqui, as well as the learned standing counsel and Sri. D.K. Tripathi, who has put in appearance on behalf of the opposite party No. 3, at some length. 4. The submission of the learned Counsel for the Petitioners is that the order impugned, directing the notices to be issued to the Petitioners as well as other persons indicated in Annexure-1, is on the face of it bad and suffers from manifest error. His submission is that copy of the plaint mentions about a list which is not on record. His further submission is that number of plots have also not been indicated in the plaint, nor the area has been shown, upon which the encroachment is said to have been made. His argument further is that no amount of damages has been indicated which is said to be claimed on account of encroachment made on the land. According to him the proceedings are totally without jurisdiction and cannot continue before the opposite party No. 1. A complaint was also lodged before the Lok Ayukt, U.P., whereupon it was directed that demarcation of the plots be made and proceedings be initiated after any encroachments are found. Pursuant to the said direction from the office of the Lok Ayukt, the demarcation, etc. were made. The submission is that despite the fact that there being no encroachments made by the Petitioners, the issuance of notice is bad. 5.
Pursuant to the said direction from the office of the Lok Ayukt, the demarcation, etc. were made. The submission is that despite the fact that there being no encroachments made by the Petitioners, the issuance of notice is bad. 5. The word "premises" under the Act as defined in Section 2(b) means any land (including any forest land or trees standing thereon, or covered by water, or a road maintained by the State Government or land appurtenant to such road) or any building or part of a building and includes: (i) the garden, grounds, and out-houses, if any, appertaining to such building or part of a building, and (ii) any fittings or fixtures affixed to or any furniture supplied with such building or part of a building for the more beneficial enjoyment thereof. 6. Section 4(1) of the Act postulates that if the prescribed authority, either on its own motion, or upon an application or a report received on behalf of the State Government or the Corporate Authority, is of the opinion that any person is in unauthorised occupation of any public premises and that they are to be evicted the prescribed authority shall issue notices calling upon such persons as to why an order of eviction be not passed against them. 7. Section 5 lays down that if after considering the cause shown by the person to whom a notice u/s 4(1) of the Act has been issued and after giving him a reasonable opportunity of being heard, the prescribed authority is satisfied that the public premises is in unauthorised occupation, an order of eviction may be passed. A provision for appeal is also provided u/s 9 of the Act against the order for eviction. 8. In the case at hand no order of eviction has been passed till date. Only a notice has been issued to the opposite parties who have been impleaded in the plaint calling upon them to show cause as to why an order of eviction be not made.
8. In the case at hand no order of eviction has been passed till date. Only a notice has been issued to the opposite parties who have been impleaded in the plaint calling upon them to show cause as to why an order of eviction be not made. So far as the question as to whether or not there is any encroachment on the spot, or a person is in unauthorised occupation is a matter to be argued and decided in the proceedings u/s 4 of the Act, even otherwise the demarcation which is said to have been made will indicate as to whether any encroachment has been made or not or any person is in unauthorised occupation of a public premises. This is a subject matter to be decided by the prescribed authority and not by this Court in exercise of powers under Article 227 of the Constitution of India. 9. Under Article 227 of the Constitution of India, the High Court has power of superintendence over all the courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. The power involves a duty on the High Court to keep the inferior courts and Tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. It is restricted to cases of grave dereliction of duty or flagrant violation of law and in cases where grave injustice would be done unless the High Court interferes. This means, the High Court can interfere under Article 227 of the Constitution of India in cases of: (a) Erroneous assumption or exercise of jurisdiction ; (b) Refusal to exercise jurisdiction ; (c) Error of law apparent on the face of the record ; (d) Arbitrary or capricious exercise of authority ; (e) Patent or flagrant error in procedure. The jurisdiction thus under Article 227 of the Constitution of India is limited only with regard to examining whether the subordinate court kept itself within the bounds of its authority in reaching to a finding. The High Court cannot quash the judgment or proceeding merely on the ground that the same is erroneous. The power thus is not exercised to correct an irregularity or illegality of procedure unless such error affects the jurisdiction. 10.
The High Court cannot quash the judgment or proceeding merely on the ground that the same is erroneous. The power thus is not exercised to correct an irregularity or illegality of procedure unless such error affects the jurisdiction. 10. In the present case the opposite party No. 1 has acted within the bounds of its authority. Section 4(1) itself contemplates that where a person is in unauthorised occupation of any public premises and he is to be evicted, the prescribed authority shall issue notices calling upon such persons as to why an order of eviction be not passed. The order directing the notices to be issued does not violate any of the conditions which are laid down in Section 4(1) of the Act. 11. In support of his argument the learned Counsel for the Petitioner also placed reliance upon a decision rendered by the Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 . 12. In paras 14 and 15 of the aforesaid decision the Hon'ble Supreme Court held as follows: 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the acts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. 13.
13. The aforesaid case, in the considered opinion of this Court, has absolutely no application inasmuch as that neither the writ petition has been filed for the enforcement of any fundamental rights, nor there has been any violation of principles of natural justice, nor the proceedings are without jurisdiction or ultra vires of any Act. The proceedings before the opposite party No. 1 are within the four corners of what is contemplated u/s 4(1) of the Act. 14. In view of the above the instant writ petition does not call for any interference by this Court in exercise of powers under Article 227 of the Constitution of India. The writ petition being totally devoid of merit, is hereby dismissed.