ABDUL RASHEED Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS petition is directed against the orders passed by the District Judge, Varanasi, dated 13-1-1977 dismissing the application under section 5 of the Indian Limitation Act for condoning the delay in filing the appeal as well as the appeal against the judgment passed by the Prescribed Authority, Gyanpur, Varanasi dated 18-3-1976.

(2.) THE facts giving rise to the instant writ petition are that a notice under section 4 (1) of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, (hereinafter referred to as the Act) was served on the petitioner on the ground that he was in unauthorised occupation of plot no. 49/2 (3 biswai situate in village Pure-Noor-Khan, Qasba Bhadohi, in the district of Varanasi and, therefore, to show cause why an order of eviction be not passed against him. THE petitioner filed an objection claiming that he was in possession over the plot in dispute since the time of his ancestors for the last more than 75-76 years After recording the evidence of the parties the Prescribed Authority by his order dated 18-3-1976 held the possession of the petitioner to be unauthorised and ordered for his eviction. Apart from the order of eviction the Prescribed Authority also held that the petitioner was liable to pay Rs 1890/- as damages for the unauthorised occupation.

(3.) THE next contention raised on behalf of the petitioner is that the Prescribed Authority committed an illegality in assessing the amount of damages to be paid by the petitioner for the use and occupation of the premises on the ground that no notice under section 7 of the Act was served on the petitioner to show cause before assessing any damage to be paid by him, as required under section 7 (3) of the Act. A reading of section 7 of the Act clearly indicates that a person cannot be asked to pay damages for the use and occupation of the premises until and unless he is served with a notice under Sec. 7 and he is called upon to show cause why damages should not be assessed against him. In the Instant case the Prescribed Authority while passing the order under section 5 of the Act against the petitioner assessed Rs. 1890/- as damages to be paid by him. THE procedure adopted by the Prescribed Authority is wholly fallacious and contrary to the provisions of the Act. Since the Prescribed Authority has not strictly adopted the procedure, which is mandatory in nature in getting the copy of the order affixed at the conspicuous place of the premises and also in not complying with the provision of section 7 of the Act, even if the explanation given by the petitioner in not filing the appeal may not be so convincing, it is equitable that the petitioner should be given a right of hearing on merit by the District Judge in the appeal filed by him.