IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 1005 of 2003 (M/S) Nagar Palika Parishad, Haridwar Through its Executive Officer ..……… Petitioner. Versus District and Sessions Judge, Haridwar and another ……… Respondents Mr. Pankaj Miglani, the learned counsel for the petitioner. Mr. Siddhartha Singh, the learned counsel for the respondents. Hon’ble Tarun Agarwala, J. A notice dated 31st March, 2000 was issued to respondent No.2 indicating therein that as per the report dated 31st March, 2000 of the draughtsman, the petitioner is in unauthorized occupation of a nazul land which belongs to the State Govt. and that the Nagar Palika is facing a loss of Rs. 342/- p.m. and, consequently, directed the respondent No. 2 to vacate the premises in question. Since the premises was not vacated, inspite of the receiving the notice, the petitioner filed an application u/S 4 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 to vacate the premises. In this notice, it was contended that the land is a nazul land in which respondent No.2 was in unauthorized occupation and had also raised some constructions and inspite of the notice dated 31st March, 2000, the respondent had not vacated the premises and, consequently, the notice u/S 4 (1). Another notice u/S 7 (3) of the Act was also issued indicating that the respondent No.2 was liable to pay damages @ Rs. 342 p.m. for the period 01/04/1997 to 30/06/2000 for unauthorized occupation of the premises in question. The respondent No.2, upon receiving the notice, filed his objection and contended that his forefathers were given the land to reside while working as labourers during the British rule when a tunnel was being constructed for a railway track from Haridwar to Dehradun and, since then, it has been in their occupation and has gone down to 2 his father and to himself. The respondents contended that they were in authorized occupation and, if unauthorized, was liable to be regularized. The Prescribed authority, after considering the material, found that there was no allotment in favour of the respondent and, consequently, concluded that the respondent was living unauthorizedly on the plot in question and, consequently, directed eviction of the respondent and also directed to pay compensation amounting to Rs.13,338/- for wrongful occupation of the premises in question. The respondent No.2, being aggrieved by the said order, preferred an appeal which was allowed by an order dated 29th July, 2003. The Appellate Court held that the notice issued u/S 4 of the Act was vague, as it did not indicate the date or the year when the petitioner occupied the premises unauthorisedly nor the notice indicated the year or the month when the constructions were raised. The appellate court found that the petitioner has been living in the premises for more than 35 years and, therefore, such occupation could not be held to be unauthorized and, in any case, the petitioner could not be evicted after being in occupation for more than 35 years. The Appellate Court, Consequently, allowed the appeal and set aside the order of the Prescribed Authority. The Nagar Palika Parishad, Haridwar, being aggrieved by the said order, has filed the present writ petition. Heard Shri Pankaj Miglani, the learned counsel for the petitioner and Shri Siddhartha Singh, the learned counsel for the respondents. One of the questions which arises for consideration is, whether the notice contemplated the grounds for eviction or not and whether such grounds are required to be mentioned with 3 precision in the notice or not ? For facility, the provision of Section 4 of the Act is extracted hereunder:- “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 unauthorized 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 pubic 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 thereof. (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 pubic 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.” A perusal of the aforesaid provision indicates that the notice u/S 4 of the Act shall specify the grounds on which the order of eviction is proposed to be made. Section 2 (g) of the Act defines unauthorized occupant as :- “(g) “unauthorized occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after 4 the authority (whether by way of grant or any other mode of transfer) under which are the capacity in which he was allowed to hold or occupy the premises had expired or has been determined for any reason whatsoever, and also includes continuance in occupation in the circumstances specified in sub- section (1) of Section 7, and a person shall not, merely by reason of the fact that he had paid any amount as rent, be deemed to be in authorize occupation.” A perusal of Section 2 (g) of the Act indicates that unauthorized occupation of a public premise can be on various grounds. A Division Bench of the Allahabad High Court in Bikarama Vs. IVth Additional District Judge, Varanasi and others, 1984, AWC 546 has held that the provision of Section 4 are mandatory and that a valid notice specifying the ground in which the order of eviction is proposed to be made is sine quo non for an order of eviction. The Court held as under:- “In Bikarama vs. IVth Additional District Judge, Varanasi and other, 1984 (2) ARC 241, a Division Bench of this Court held that the language of Section 4 was clear and explicit. It required that the notice shall specify the grounds on which the order of eviction was proposed to be made and that a valid notice under Section 4 was a condition for an order of eviction to be passed against an unauthorised occupant. The court held that if the grounds are not mentioned in the notice, in that event, the notice was not a valid notice and that the defect invalidated the notice abinitio. The Court held- "The notice has been quoted above and it is obvious that a vital requirement of Section 4 is missing. The notice does not profess, directly or indirectly, to state the ground upon which the eviction of the petitioner is being sought. In our opinion the provisions of Section 4 are mandatory and a valid notice specifying the grounds on which the order of eviction is proposed to be made to sine quo non for on order of eviction. We do not agree with the leaned Standing Counsel that the notice if read as a whole can be construed to be a valid notice under Section 4 of the Act. It does not disclose the 5 ground on which eviction is sought. It is not in the prescribed form either. The defects invalidate the notice ab initio." The Court further held- "With respect, we entirely agree with the above statement of law and hold that the impugned notice issued to the petitioner under Section 4 of the Act is clearly invalid and proceedings commenced thereon are liable to be quashed, founded, as they are, on such a notice. The Learned Appellate Court has wrongly observed that even though the notice is invalid, the participation of the petitioner in the proceedings had the effect of curing the invalidity of the notice. The notice being void ab initio any participation by the petitioner in the proceedings commenced thereon could not cure the inherent infirmities from which the notice suffered." Similarly, in Ram Prajapati and others Vs. Prescribed Authority, S.D.M., Kotdwar and another, 2003 92) ARC 679, it was held that the notice which did not disclose the ground for eviction was void abinitio and that the proceedings for eviction under the Act could not be initiated. Similarly, in Dharamveer Vs. Krishi Utpadan Mandi Samiti, Naveen Mandal Sthal Chilkana Road, Saharanpur, [2007 (3) ARC 236], the Court held as under :- “In the present case the provision of Section 4 of the Act is mandatory and a valid notice must specify the grounds on which the order of eviction is proposed to be made. The defect in the notice invalidates the notice abinitio. The notice being void abinitio will not cure the inherent defect merely by the participation of the petitioner in the proceedings commenced under Section 4 of the Act. The decision of the Full Bench is clearly distinguishable and has no application to the present facts and the circumstances of the case. Consequently, this Court is of the opinion that since the notice did not contain the grounds for the eviction of the petitioner, the entire proceedings initiated under the Act was void abinitio and the impugned orders, therefore, could not be sustained.” 6 In Sateshwar Prasad Sati Vs. State and others decided on 20th July, 2010 in Writ Petition No. 5005 of 2001 (M/S), this Court held as under :- “In the light of the aforesaid, the Court finds that the mandatory requirement of the grounds of eviction having not been mentioned in the notice, the proceedings initiated under the Act of 1972 was wholly invalid. Consequently, the impugned orders passed by the Prescribed Authority as well as by the appellate authority cannot be sustained and are quashed. The impugned notice issued u/S 4 of the Act dated 08/05/1980 being against the mandatory provision of Section 4 of the Act, being invalid, is also quashed.” In view of the aforesaid, this Court has perused the notice issued u/S 4 of the Act. The notice indicates that the eviction of respondent No.2 was being sought on the ground that the land is a nazul land and that the respondent No.2 is in unauthorized possession and that he has raised certain constructions. On the other hand, from a perusal of the reply of the respondents, one finds that an assertion was made that the grandfather of the respondent was settled by the Britishers for construction of a railway track from Haridwar to Dehradun and the respondent’s grandfather settled there since then. It has also come on record that the respondent’s father has been paying water tax and electricity charges to the respective department for several years since the early 1990’s and, this fact has not been denied by the Nagar Palika, i.e. the petitioner. The lower appellate court has found that the father of respondent No.2 and his grandfather have been in occupation for more than 35 years. This fact has not been disputed by the petitioner. The appellate court further found that many other persons are residing adjacent to the respondent’s plot and in its vicinity and nothing has been indicated by the petitioner with regard to the status of the land of such persons. 7 In the light of this fact coming on record, a question which arises for consideration is, whether the requirement of specifying the ground with precision and with clarity is sine quo non for an order of eviction or is it sufficient for the petitioner to make a general allegation that the respondent is in unauthorized occupation of a nazul land. The court further finds that the entire basis of the respondent being in unauthorized occupation is the report of the draughtsman which report has not been filed and, consequently, an irresistible conclusion is drawn that the allegation of the petitioner that the respondent is in unauthorized occupation has not been proved by any documentary evidence. But coming back to the original issue, the Court finds that the allegations are general and vague and does not meet the requirement for specifying the grounds u/S 4 of the Act. In my opinion, the petitioner should have come out with a specific case as to when the unauthorized occupation was made and when the alleged construction was raised. Making a general allegation, in my opinion, is patently vague and such vague allegation does not meet the essential requirement contemplated u/S 4 of the Act. In the light of the aforesaid, this Court does not find any error in the impugned order passed by the lower appellate court. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated 30.07.2010 Shiv