IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7842 of 2009 (O&M) Date of decision:15.07.2011 Mohd. Suleman (deceased) through his LRs ...Petitioner versus Municipal Council, Malerkotla and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Pawan Kumar, Senior Advocate, with Mr.Anshuman Mandhar, Advocate, for the petitioner. Mr. R.S.Cheema, Advocate, for respondent No.1. Mr. Arvind Mittal, Additional Advocate General, Punjab, for respondents 2 and 3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The only point that survives for consideration in this writ petition is whether an action for eviction could be initiated by the Municipal Committee which is the owner of the premises without serving a notice under Section 4 of the Act. Section 5 of the Public Premises Act (PP Act) which provides for eviction of unauthorized occupants prefaces the requirement thus; “ if after considering the cause, if any, shown for any person in pursuance of a notice under Section 4, then……..”. Section 4 sets out the requirement of an issue of notice to Civil Writ Petition No.7842 of 2009 (O&M) - 2 - show cause against order of eviction. The Section requires the satisfaction of the Collector that a person is in unauthorized occupation of public premises and clause 2 of Section 4 requires the notice to specify the ground on which the order of eviction is proposed and also require to show cause against the proposed order of eviction on a day being a date not earlier than 15 days from the date of issue of notice. There is no notice issued under Section 4 and action under Section 5 for eviction could not have been instituted in the manner done by the Municipal Committee. 2. It is strange that the Municipal Committee has faulted in spite of an earlier Civil Court remedy which the petitioner sought for and failed to obtain the reliefs to its advantage. Previously, there had been an order of eviction passed by the Collector and affirmed by the Commissioner. The petitioner had challenged the same by means of a civil suit on the ground that the action had been taken without notice under Section 4. Although the suit was originally dismissed in an civil appeal 7 of 2005, the District Judge reversed the decision and held that the petition filed for eviction without notice under Section 4 was not valid. 3. Subsequent to this order on 04.06.2005, which incidentally had become final between the parties, the respondent has issued a notice under Section 173 of the Punjab Municipal Act of 1911, stating that the petitioner has caused encroachment in the street and directed the removal. The Municipal Council did not proceed with the action pursuant to Section 173 which contemplates removal of the Civil Writ Petition No.7842 of 2009 (O&M) - 3 - encroachment with the police or any State agency and to take measures to restore the street in the condition that existed before such alteration, excavation or damage committed by a tenant or any other person. On the other hand, the petition is filed under Sections 5 and 7 seeking for ejectment which is in challenge before this Court. 4. The Commissioner, while affirming the decision of the Collector, had held that the tenant has not paid rent in spite of the directions of this Court in a civil revision petition. The petitioner denies that there was any default while the Municipal Committee affirms that the petitioner is still in default and also enter an application on whether a default exists or not. The objection filed before the Collector on the basis of which eviction was passed cannot be sustained for the only reason that there was no statutory compliance of Section 4 notice and the petitioner could not have been ejected under the PP Act in the manner done. The writ petition is, under the circumstances, allowed and the impugned order of the Collector and the Commissioner are quashed. The Municipal Committee shall be at liberty to take fresh action for eviction if they are so advised in accordance with law after service of notice under Section 47 of the PP Act. (K. KANNAN) JUDGE 15 .07.2011 sanjeev