IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1296 of 2010 (O&M) Date of decision: 4th August, 2011 Hazara Singh … Appellant Versus Haryana Urban Development Authority and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ajay Jain, Advocate for the appellant. Mr. Ajay Nara, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The plaintiff, having failed in two rounds of litigation, has filed present regular second appeal. He had instituted a suit seeking declaration to the effect that he has become an owner in possession in equal share of the land measuring 39 Kanals 19 Marlas situated in village Shamshabad, the details and description whereof were given in the head-note of the suit, on the ground that he has acquired occupancy rights in respect of the suit property by virtue of The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter referred to as, ‘the Vesting Act’) and the entries made in the revenue record that the plaintiff is Gair Marusi Bila Lagan “Be Vajah Najayaj Kabja” are wrong and incorrect and furthermore, he had sought a declaration that the impugned notice issued by respondent-defendant No.1 under Section 18 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as, ‘the HUDA Act’) calling upon the appellant-plaintiff to vacate the suit land being an unauthorized occupant within 30 days is Regular Second Appeal No.1296 of 2010 (O&M) not binding upon the appellant-plaintiff. As a consequential relief, the appellant-plaintiff had sought permanent injunction restraining the defendants from unlawfully dispossessing him. It is not disputed that both the courts below have held that the appellant-plaintiff or his predecessors are in an unauthorized possession after the expiry of period of lease in the year 1978. This Court need not to go into the details as Mr.Ajay Jain, Advocate appearing on behalf of the appellant-plaintiff, at the outset has very fairly stated that the appellant-plaintiff has failed to establish occupancy rights as per the provisions of the Vesting Act. However, Mr.Jain has stated that as per the proviso to Section 18 of the HUDA Act, before any order is passed an opportunity of hearing is to be afforded to the appellant-plaintiff. Counsel for the appellant has shown me a photostat copy of the notice Ex.PX issued by the Court of Collector, Sirsa (Estate Officer, Haryana Urban Development Authority Sirsa, performing the functions of Collector, under the HUDA Act). The notice Ex.PX reads as under: “Whereas Land Measuring 39 Kanal 19 Marlas belongs to Haryana Urban Development Authority (Hereinafter referred to as the Authority) and it was never allotted to you or any other person. And whereas you have occupied the above said land by you detailed below Murba No.121, Killa No.9(5-14), 18 (7-18), 11(1-11) Murba No.122, Killa No.6(7-1), 7(5-12), 14 (3-18), 15(4-4), 17(4-1) situated in Village-Shamshabad, Tehsil & Distt. Sirsa. And whereas in the circumstances, I am satisfied that you are in unauthorized occupation of the above said land namely Murba No./Killa No. as detailed above Land belonging to the authority. 2 Regular Second Appeal No.1296 of 2010 (O&M) And whereas it is necessary that you, being in unauthorized occupation of the said land, are by notice ordered under clause (b) of sub section (i) of sec-18 of the Haryana Urban Development Authority Act, 1977, to vacate the above said land within a period of 30 days from the date of service of such notice. Now, therefore, you being in unauthorized occupation of the land of the Authority as described above are ordered by this notice that you as well as any other persons who may be in occupation of the whole or any part of the above said land, shall vacate them within a period of 30 days from the date of service of this notice and hand over possession of this Collector Sirsa or his representative.” It will be apposite here to reproduce Section 18 of the HUDA Act, which reads as under: “18. Power to evict persons from premises of authority:- (1) If the Collector is satisfied- (a) That any person authorized to occupy any premises of the Authority has- (i) not paid rent lawfully due from him in respect of such premises for a period of more than two months; or (ii) sublet, without the permission of the Estate Officer, the whole or any part of such premises; or (iii) otherwise acted in contravention of any of the terms expressed or implied, under which he is authorized to occupy such premises; or (b) that any person is in unauthorized occupation of any premises of the Authority, the Collector., ‘may, notwithstanding anything contained in any law, for the time being in force, by notice 3 Regular Second Appeal No.1296 of 2010 (O&M) served by post or by affixing a copy of it on the outer door or some other conspicuous’ part of such premises or in such other manner as may be prescribed, order that person as well as any other person, who may be in occupation of the whole or any part of the premises, shall vacate them within a period of thirty days from the date of the service of the notice: Provided that no such order shall be passed unless such person has been afforded an opportunity to show cause as to why such order should not be made. (2) If any person refuses or fails to comply with an order made under sub-section (1) the Collector may that person from, and take possession of the premises arid may for that purpose use such force as may be necessary. (3) If a person, who has been ordered to vacate any premises under sub-clause (i) or sub-clause (iii) of clause (a) of sub-section (1), within a period of thirty days of the date of service of the notice or such longer time as the Collector may follow, pays to the Estate Officer the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the Collector, as the case may be, the Collector shall, in lieu of eviction such person under sub-section (2) cancel his order made under sub-section (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him.” The only prayer made by counsel for the appellant-plaintiff is that the appellant-plaintiff cannot be evicted straightaway in the garb of notice until an opportunity of hearing is afforded to him and an order is passed against him. 4 Regular Second Appeal No.1296 of 2010 (O&M) Mr. Ajay Nara, Advocate appearing on behalf of respondent- HUDA has not been able to satisfy this Court as to how principles of natural justice cannot be adhered to and an opportunity of hearing cannot be afforded to the appellant-plaintiff, especially when proviso to Section 18 of the HUDA Act specifically provides that before any order is passed an opportunity of hearing is to be afforded to the person to whom notice is issued. Accordingly, notice Ex.PX is upheld. However, present appeal is hereby disposed of by directing the authorities to afford an opportunity of hearing to the appellant-plaintiff and thereafter pass a speaking order taking into consideration the submissions made by the appellant. The appellant-plaintiff shall appear before the Collector, Sirsa (Estate Officer, Haryana Urban Development Authority Sirsa, performing the functions of Collector, under the HUDA Act) on 25th August, 2011 and the said authority, after affording an opportunity of hearing to him, shall pass a speaking order within two months thereafter. Till 25th August, 2011, i.e. the date of appearance of the appellant-plaintiff before the authority, status-quo as it exists today shall be maintained and thereafter on an application filed for interim relief, the appropriate authority may pass an order. [KANWALJIT SINGH AHLUWALIA] JUDGE August 4, 2011 rps 5