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Judgment
Narendra Nath Tiwari
The petitioner has challenged the order dated 01.12.2011 passed by the Estate Officer in purported exercise of power u/s 5(1) of the Public Premises(Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the ''Act'') on the grounds that the said order has been passed without giving any opportunity of hearing and is wholly illegal and violative of mandatory provisions of law and the principle of natural justice. It has been stated that the land, as described in the notice, was purchased by one Abdul Jalil from Maina Sahun by virtue of registered sale deed dated 20.11.1954. The said Abdul Jalil sold the land to Gokul Dutta, Haradhan Dutta, Sudhakar Dutta and Parmeshwer Dutta by registered sale deed dated 20.03.1956. Since then, the petitioner has been residing in the house constructed over a portion of the said land, with his family members and cultivating the remaining portion of land. Agriculture source is only their livelihood. Suddenly, a notice issued under purported provision of section 4(1) of the said Act dated 1.12.2011 and order dated 1.12.2011 were served on the petitioner. Simultaneously another notice u/s 5(1) of the Act was also issued directing the petitioner to vacate the premises.
It has been submitted that if any person is said to be in an unauthorized occupation of any public premises and if the Estate Officer is of opinion that the person should be evicted, the Estate Officer has to issue notice to the concerned person u/s 4 of the Act specifying the grounds on which the order of eviction is proposed to be made. According to section 4 of the Act, the person must be given show cause notice giving at least seven days time from the date of issue of notice. Section- 5 provides that if the Estate Officer is satisfied thereafter that the public premises are in authorized occupation, the estate officer may make an order of eviction by a reasoned order.
It has been submitted that no opportunity of filing reply to the show cause notice issued u/s 4(1) of the Act dated 1.12.2011 has been given to the petitioner. The order of eviction passed without complying with the said provision of section 4(1) of the Act is wholly illegal and unsustainable and is liable to be quashed.
Learned counsel, appearing on behalf of the respondents, opposed the writ petition and submitted that the petitioner has been found in unauthorized occupation of Railway''s B class land and is liable to be evicted from the said premises and there is no illegality or arbitrariness in the impugned order/notices.
He, however, has not denied the legal position that before the order of eviction, person must be given a clear notice to show cause, allowing at least seven days time for filing reply to the show cause. He also fairly admitted that in the instant case, notice u/s 4(1) of the Act and the order of eviction u/s 5(1) have been issued on the same date, which are not in conformity with the said provisions.
Learned counsel submitted that only because of the said irregularities, the proceeding cannot be said to be a nullity. The matter may be considered afresh by the concerned Estate Officer, in accordance with law.
I have heard learned counsel for the parties and considered the facts and the provisions of law.
Section 4 of the Act provides for issuance of notice to the person in unauthorized occupation, against any proposed order of eviction, which reads as follows:
Issue of notice to show cause against order of eviction.-(1) If the estate officer is of opinion that any persons are in unauthorized occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon alt persons concerned to show cause why an order of eviction should not be made.
The notice shall-
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require alt persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,-
(i) 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 seven days from the date of issue thereof; and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.
The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
(Emphasis supplied)
On plain reading of the provisions, it is clear that at least seven days clear time must be given for filing show cause reply against the proposed order of eviction and appearing before the estate officer and adducing evidence, if any, and also for personal hearing, if desired.
Section 5 of the Act provides for making an order of eviction, for reasons to be recorded by the Estate Officer after considering the show cause reply, evidence produced, if any and after giving personal hearing.
Section 5 of the Act runs as follows:
Eviction of unauthorized occupants.-(1) if, after considering the cause, if any, shown by any person in pursuance of a notice u/s 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section(2) of section 4, the estate officer is satisfied that the public premises are in unauthorized occupation, the estate officer 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.
(2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days on the date of its publication under sub-section(1), whichever is later, the estate officer or any other officer duly authorized by the estate officer in this behalf (may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person) from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.
Admittedly, in the instance case, both the notices i.e. u/s. 4(1) and 5(1) of the Act have been issued on the same date i.e. on 01.12.2011.
Learned counsel for the respondents have also fairly conceded that the said notices issued u/ss. 4(1) and 5(1) of the Act, contained in Annexures-1 & 1/1 are violative of the provisions, contained in sections 4 & 5 of the Act and are not sustainable. In view of the above, this writ petition is allowed. The notice issued u/s. 4(1) of the Act dated 01.12.2011 (Annexure-1) and also the notice issued u/s. 5(1) of the Act dated 01.12.2011(Annexure-1/1) are quashed.
However, this order should not be viewed as an impediment in initiating any proceeding, in accordance with law.