YOGESH AGARWAL Vs. ESTATE OFFICER AND ORS.

JUDGEMENT

(1.) The issue which falls for determination in the present reference to the Full Bench, turns upon the provisions of Sec. 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Act). Sec. 9 provides for an appeal against an order of the Estate Officer made in respect of public premises under Sec. 5 or Sec. 5B or Sec. 5C or Sec. 7. As the Sec. stands, no appeal has been provided against an order of the Estate Officer under Sec. 5A. Yet, a Division Bench of this Court held in Sanjay Agarwal v/s. Union of India, Writ -C No. 14580 of 2012, decided on 26 March, 2012, that an appeal in respect of an order made under Sec. 5A is maintainable under Sec. 9. When this judgment was cited before the learned Single Judge in a batch of writ petitions, the Court found itself unable to agree with the view in Sanjay Agarwal on the ground that the right to appeal is a statutory right and where the statute has not provided an appeal under Sec. 9 in respect of an order made under Sec. 5A, an appeal could not be maintained. Hence, the following questions have been referred for decision before the Full Bench, Order dated 16 October, 2015 in Writ -C No. 40360 of 2015 and connected petitions:

(2.) Sec. 4 empowers the Estate Officer to issue a notice to show -cause for eviction where he is of the opinion that any persons are in unauthorised occupation of any public premises. The expression 'unauthorised occupation' is defined in Sec. 2(g) as follows:

(3.) Sec. 5 provides for an order of eviction against an unauthorised occupant where the Estate Officer after considering the cause shown in pursuance of a notice under Sec. 4 and the evidence produced, is satisfied that the public premises are in unauthorised occupation.