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2005 DIGILAW 314 (RAJ)

Hem Raj v. State of Rajasthan

2005-02-03

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-By this petition for writ a challenge is given to the Judgment dated 17.09.1993 passed by learned District Judge, Bikaner in Appeal No. 47/90 (Hem Raj vs. State of Raj.) whereby the learned District Judge while exercising the powers under Section 9 of the Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964 [hereinafter to be referred to as the Act of 1964] affirmed the order passed by the Estate Officer under Sections 5 and 7 of the Act of 1964. 2. The contention of the Counsel for the petitioner is that the order dated 17.09.1993 is perverse as the appellate Court failed to appreciate the contention of the petitioner that no notice, as required under Sub-section (1) of Section 5 of the Act of 1964, was served upon him to proved a reasonable opportunity of being heard. According to the Counsel for the petitioner the Estate Officer treated the service sufficient though the returned notice does not bear any proof for effecting service on the petitioner. It bears signatures of one Smt. Kanta Devi who is said to have accepted notice on 012.1985. The relation of the petitioner with Smt. Kanta Devi has not been disclosed in the notice which is placed on record as Annex. 4. The Estate Officer on basis of the endorsement made by aforesaid Kanta Devi treated the service sufficient upon the petitioner. According to the Counsel for the petitioner there was no proof available with the Estate Officer to treat the service sufficient upon the petitioner and, therefore, no reasonable opportunity of being heard was given to him as required to be given under Sub-section (1) of Section 5 of the Act of 1964. 3. Learned Counsel for the respondents pointed out by referring reply to the averments made to para 8 of the petition with regard to non-service of the notice and urged that the service was treated sufficient as the petitioner refused to accept the notice. It is pertinent to note here that it was no where the case of the respondents that the petitioner refused to accept the notice but service was treated sufficient on basis of an endorsement made on notice by Smt. Kanta Devi. 4. It is pertinent to note here that it was no where the case of the respondents that the petitioner refused to accept the notice but service was treated sufficient on basis of an endorsement made on notice by Smt. Kanta Devi. 4. Learned District Judge while deciding the appeal under Section 9 Judge of the Act of 1964 also held that the service was sufficient upon the petitioner as the notice was accepted by Smt. Kanta Devi. It is nowhere disclosed that who was Kanta Devi and how she was/is related with the petitioner. Notice under Sub-section (1) of Section 5 with regard to grant of reasonable opportunity of hearing is required to be served upon the person directly effected. 5. In the present case the notice, under Sub-section (1) of Section 5 was not served upon the petitioner and further it was also not made clear as to how Smt. Kanta Devi, who made an endorsement, was related to the petitioner and whether she was adult at the time of accepting notice. Therefore, the Court below erred while treating the service sufficient. Consequently, the order passed by the District Judge, Bikaner dated 17.09.1993 as well as the order passed by the Estate Officer exercising the powers under Section 5 of the Act of 1964 are not sustainable in the eye of law. The same therefore are hereby quashed. The Estate Officer may now proceed with the proceedings under Section 5 of the Act of 1964 by giving an opportunity of hearing to the petitioner. It is open for the petitioner to raise all objections before the Estate Officer including all the questions which have been raised by the petitioner in the present writ petition while availing the opportunity of hearing under Section 5 of the Act of 1964. The parties are in agreement to appear before the Estate Officer on 09.03.2005. The writ petition is accordingly disposed of . The cost of the petition is made easy.