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2017 DIGILAW 472 (UTT)

LAL CHAND v. DISTRICT JUDGE, HARIDWAR

2017-08-31

SHARAD KUMAR SHARMA

body2017
JUDGMENT Hon'ble Sharad Kumar Sharma, J. Under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, (hereinafter to be called as “Act"), it contemplates drawing of the proceedings against a class of occupants who are said to be unauthorized occupants as defined under the Act in relation to a public premises. 2. In the case, at hand, admittedly, the respondent No. 3, has given a piece of land to the petitioner for 30 years' lease by Nagar Palika in the year 1966. The said lease was to expire in the year 1996. According to the Nagar Palika, despite of expiry of the period, when the premises was not vacated, Nagar Palika had issued various notices to the petitioner, i.e. on 21st August, 1996, 9th August, 1996 and 7th March, 2001, asking the petitioner to vacate the premises, this not be a notice under Public Premises Act. When despite of the said notice, the petitioner has not vacated the premises, then, they initiated the proceedings by making reference to the Prescribed Authority for initiating the proceedings under the Act. As per the records available, the notice, annexure No.3 to the writ petition, reflects to be a notice under Section 5 (1) of the Act. Consequently, the said notice was replied by the petitioner and, thereafter, the Prescribed Authority passed the order impugned directing the petitioner to vacate the premises. On an appeal, preferred by the petitioner under Section 9 of the Act, the direction as issued for vacating the premises by 26th March, 2007, was affirmed by the Appellate Court, by its judgment dated 31.05.2007. 3. It is these two judgments dated 26th March, 2007, passed by the Prescribed Authority and that of 31st May, 2007, passed by the Appellate Authority, which is subject matter of consideration before this Court. 4. The petitioner, in his ground No. (f), has pleaded as under:- “Because no notice U/s 4 of the Act No. 22 of 1972 was ever issued to the petitioner and straightaway orders / notices under Section 5 (1) and 7 (1)were issued. Due to non issuance of the notice under Section 4 of the Act, entire proceedings stand vitiated." 5. The petitioner, in his ground No. (f), has pleaded as under:- “Because no notice U/s 4 of the Act No. 22 of 1972 was ever issued to the petitioner and straightaway orders / notices under Section 5 (1) and 7 (1)were issued. Due to non issuance of the notice under Section 4 of the Act, entire proceedings stand vitiated." 5. In ground No. (f), as taken by the petitioner, his submission is that the proceedings initiated at the behest of notice Section 5 (2) of the Act is bad in the absence of the re-being a procedure taken under Section 4 of the Act, for issuing a ten days show cause notice to the petitioner, priorto the issuance of notice under Section 5 of the Act for eviction was illegal as notice under Section 5 could be only after issuance of notice under Section 4. 6. The argument of learned counsel for the petitioner is that the proceedings under Section 5 of the Act is dependent upon a prior proceedings under Section 4 of the Act, before initiating the eviction proceedings. 7. In response to it, Mr. Pankaj Purohit, learned Deputy Advocate General, submitted that the purpose of Section 4 stood satisfied by issuance of notice under Section 5,because in pursuance to the notice under Section 5, the petitioner has submitted the reply, hence, the intention to show cause against eviction stood satisfied. 8. This Court is not in agreement with the argument extended by Mr. Pankaj Purohit, learned Deputy Advocate General for the State, the reason being, the Legislature in allits wisdom, when it was legislating Section 4 and if read in harmony with Section 5, Section 4 was expressing an “intention" of Prescribed Authority for giving a show cause notice of 10 days to the occupants for vacating the premises. The show cause of 10 days was to be issued by the Prescribed Authority, expressing his intention to get the accommodation vacated. Section 5 is a substantive provision, where eviction is to be directed against unauthorized occupants, but with a rider that it has to be only after the compliance of Section 4. 9. Hence, in the absence of Section 4 proceeding being taken against the petitioner, no proceedings under Section 5 could be taken by the respondent and Section 5 cannot be taken as to be substitute for Section 4. 9. Hence, in the absence of Section 4 proceeding being taken against the petitioner, no proceedings under Section 5 could be taken by the respondent and Section 5 cannot be taken as to be substitute for Section 4. For the reason, if this argument of respondent is accepted, it would have an effect as if the existence of Section 4 in the Statute would be redundant, because each provision under the Act has got different purpose and intention to meet with. 10. Learned counsel for the petitioner submitted that since the village is under consolidation and has been notified under Section 4, hence, no proceedings could be taken under the Act, which is summary in nature, when the village is under a consolidation under a special Statute. 11. Though, the learned counsel for the petitioner has not been able to establish as to when the village was brought under consolidation, to enable this Court to consider the impact of the consolidation of the notices issued to her under the Act. Hence, this Court is refraining itself from making any observation on the said argument as extended by the learned counsel for the petitioner. 12. But, on the sole ground that Section 4 notice was not issued to the petitioner, the proceedings concluded in pursuance to the notice under Section 5, would be vitiated when its inception is not in accordance with the Statute. 13. In view of the above, the writ petition is allowed. The impugned orders are quashed. However, it is left open to the respondent to issue a fresh notice under Section 4 and then to proceed against the petitioner under the Act in accordance with law. No order as to costs.