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2018 DIGILAW 1426 (ALL)

RAM KRISHNA TIWARI v. STATE OF U. P.

2018-06-08

SURYA PRAKASH KESARWANI

body2018
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Dr. S.B. Singh, learned counsel for the petitioner and learned standing counsel for the State-respondents. 2. This writ petition has been filed praying for the following relief: “(i) issue a writ, order or direction in the nature of certiorari quashing the impugned Order/Notice dated 24.5.2018 passed by respondent No. 3 - Sub Divisional Officer, Robertsganj, Sonbhadra (Annexure 5 to this writ petition) (ii) issue a writ, order or direction in the nature of mandamus restraining the respondent authorities from proceeding in any manner against the petitioner as well as against the institution in question namely Shanti Niketan Junior High School, Obra, Sonbhadra. (iii) issue any other suitable writ, order or direction which this Hon’ble Court deems fit and proper in the circumstances of the case. (iv) award the cost of the petitioner to the Petitioner.” 3. Learned counsel for the petitioner submits that the S.D.M. is not the competent authority under the Act and that the impugned notice dated 24.5.2018 is in the nature of an order and, therefore, it deserves to be quashed. Perusal of the impugned notice dated 24.5.2018 shows that it required the petitioner to vacate the disputed land and to pay damages failing which he shall be evicted by force and the damages shall be recovered. In support of his submissions, he referred to an agreement for lease of land and building in favour of the institution in question by lease deed dated 26.5.1978 executed by the Uttar Pradesh Electricity Board, a copy of which has been filed as Annexure-1 to the writ petition, which prima facie would show that a lease of a property was granted in favour of respondent No. 5 of which the petitioner is the Manager. He, therefore, submits that the authorities are bound give an opportunity of hearing to the petitioner before passing any order of eviction under Section 4 of the Act. 4. I have carefully considered the submissions of learned counsel for the petitioner and the learned standing counsel. 5. Sections 3, 4 and 5 of the Uttar Pradesh Public Premises (Eviction of Unauthorised) Occupants Act, 1972 (hereinafter referred to as ‘the Act’) provides, as under: “3. 4. I have carefully considered the submissions of learned counsel for the petitioner and the learned standing counsel. 5. Sections 3, 4 and 5 of the Uttar Pradesh Public Premises (Eviction of Unauthorised) Occupants Act, 1972 (hereinafter referred to as ‘the Act’) provides, as under: “3. Appointment of Prescribed Authority.—The State Government may, by notification in the official Gazette.— (a) appoint such persons, being Gazetted Officers of the State Government or officers of equivalent rank or the corporate authority, as it thinks fit, to be prescribed authorities for the purposes of this Act, and (b) defined the local 1imits which, or the categories of public premises in respect of which, the prescribed authorities shall exercise the powers conferred, and perform the duties imposed, on prescribed authorities by or under this Act. 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 an 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 there of. (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 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. 5. Eviction of unauthorised occupants.—(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Prescribed Authority is satisfied that the public premises are in unauthorised occupation, the Prescribed Authority may make an order of eviction for reasons to be recorded therein, directing, that the public premises shall be vacated, on such date as may be specified the order, by-all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction within thirty days of the date for its publication under Sub-section (1), the Prescribed Authority or any other officer duly authorised by the Prescribed Authority in this behalf may evict that person from and take possession of, the public premises and may, for that purpose, use such force, as may be necessary.” 6. A Notification No. 1833/One-1-2004-1-6(6)-98-207-T.C.-I, dated 1.12.2004 under Section 3 of the Act, 1972 was published in U.P. Gazettee Extraordinary Part-4, Section (Kha), dated 15.4.2005, as under: “In exercise of the powers under Section 3 of the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (U.P. Act No. 22 of 1972) read with Section 21 of the Uttar Pradesh General Clasues Act, 1904 (U.P. Act No. 1 of 1904) and in supersession of Government Notification No. U.O.-252/1-1-94-Revenue, dated September 24, 1998, the Governor is pleaded to appoint with effect from the date of publication of this notification in Gazettee, the following persons being Gazetted Officers of the State Government as prescribed authority for purposes of the said Act and further to define the local limits within which and categories of public premises of which the said prescribed authorities shall exercise the powers conferred and perform the duties imposed on prescribed authorities by or under the said Act as under : 7. The Judgment of a learned Single Judge dated 6.5.2016 in Writ Petition No. 14422 of 2016 (Smt. Deepika Singh v. Zila Panchayat Bulandshahar and another) relied by learned counsel for the petitioner contending that “only the Labour Commissioner U.P./Additional Labour Commissioner/Joint Labour Commissioner/Deputy Labour Commissioner/Assistant Labour Commissioner (Housing) and Regional Deputy Labour Commissioner alone and are empowered to act as Prescribed Authority in respect of all public premises within their jurisdiction and no one else,” has no substance. The aforesaid judgment was passed completely ignoring the afore-quoted notification dated 1.12.2004 which was issued in supersession of Notification dated 24.9.1998. The aforesaid judgment in Smt. Deepika Singh Case (supra) has also been set aside by Hon’ble Supreme Court in Civil Appeal No. 3773 of 2017 (Zila Panchayat Bulandshahar and another v. Smt. Deepika Singh) observing as under: “(3) The only question which arises for our consideration is whether the impugned judgment of the High Court is justified on the basis that there is subsequent notification dated 1.12.2004 superseding all other notifications wherein powers have been vested with the City Magistrate under the Act to act as Prescribed Authority. (4) It appears that the High Court allowed the writ petition filed by the respondent herein finding that vide Notification of 1974 and in the light of Section 21 of the U.P. General Clauses Act, 1904 which is para materia with Section 21 of the General Clauses Act, 1897, the jurisdiction of the prescribed authority has been cancelled. Thus, only the Labour Commissioner and officers below him exclusively has jurisdiction to entertain the matters in respect of public premises. (5) Having regard to the facts of the case, we find that the High Court, without considering the materials available on record, had passed the impugned order. In our opinion, the notification dated 1.12.2004 authorized the City Magistrate to act as prescribed authority. Therefore, we are of the view that the order passed by the High Court cannot be accepted or held sustainable in the eyes of law and the same is set aside. (6) Accordingly, the appeal is allowed.” (Emphasis supplied by me) 8. Thus, all the officers who are specified in the above noted Notification under Section 3 of the Act, 1972 are the Prescribed Authority under the Act. Therefore, Sub-Division Officer is the Prescribed Authority under Section 3 of the Act read with the notification dated 1.12.2004 issued thereunder. Therefore, the impugned notice does not suffer from lack of jurisdiction. 9. Perusal of Section 4 itself shows that if the Prescribed Authority, either on 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 an unauthorised occupation of any public premises and that they should be evicted, he shall issue in the manner provided, a notice in writing calling upon all persons concerned to show-cause why an order of eviction should not be made. The notice shall specify the grounds on which the order of eviction is proposed to be made and require to all persons concerned, 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 may be specified in the notice, being a date not earlier than ten days from the date of issue there of. After notice under Section 4 is issued and it is served in the manner as prescribed, the noticee is required to show-cause. After notice under Section 4 is issued and it is served in the manner as prescribed, the noticee is required to show-cause. After considering the cause shown, if any, and evidences as may be produced by noticee in support of his reply and after giving him a reasonable opportunity of hearing, if the Prescribed Authority is satisfied that the public premises is in unauthorised occupation of the noticee, he may make an order of eviction for reasons to be recorded therein, directing, that the public premises shall be vacated, on such date as may be specified in the order, by-all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. 10. Thus, the principles of natural justice are inbuilt in the provisions of Sections 4 and 5 of the Act. The mandatory requirement before passing an order of eviction under the Act is that a show-cause notice should be issued by the Prescribed Authority giving an opportunity to the noticee to show-cause. Thereafter, the Prescribed Authority is bound to afford a reasonable opportunity of hearing and to consider the cause shown by the noticee and the evidences which may be led by him. Thereafter, if the Prescribed Authority finds that any public premises has been unauthorisedly occupied by the noticee, then he shall pass an order of eviction. 11. For passing an order of damages, a notice is required to be issued to the unauthorised occupant under Section 7(3) of the Act calling upon him to show-cause within specified time, as to why an order of damages be not made. The procedure for assessment for damages is provided under Rule 8 of the Uttar Pradesh Public Premises (Eviction of Unauthorised) Occupants Rules, 1973 (hereinafter referred to as ‘the Rules’). 12. Thus, against the impugned notice for eviction dated 24.5.2018, proper course available to the petitioner is to submit reply before the Prescribed Authority and lead such evidences as he may deem fit, within three weeks from today. If reply is submitted by the petitioner within the stipulated period, and evidences, if any, are filed, then the Prescribed Authority shall proceed in the manner as provided under Sections 4 and 5 of the Act. If reply is submitted by the petitioner within the stipulated period, and evidences, if any, are filed, then the Prescribed Authority shall proceed in the manner as provided under Sections 4 and 5 of the Act. For damages, the Prescribed Authority may proceed in the manner as provided under Section 7 read with Rule 8 of the Rules). 13. With the aforesaid observations, this writ petition is disposed of leaving it open to the petitioner to submit a reply, alongwith evidences, if any, before the Prescribed Authority within three weeks from today. The Prescribed Authority is directed to pass an appropriate order in accordance with law within next four weeks after affording reasonable opportunity of hearing to the petitioner. For a period of eight weeks or till the order is passed, whichever is earlier, no coercive action shall be taken against the petitioner.