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Sanjeeva Shenoy Vs. District Judge - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 11869 of 1985
Judge
Reported inILR1986KAR1691
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1971 - Sections 5 and 5(2)
AppellantSanjeeva Shenoy
RespondentDistrict Judge
Appellant AdvocateH.G. Hande, Adv.
Respondent AdvocateS. Udayashankar, HCGP for R-1; ;K. Shivshankar Bhat, Senior Standing Counsel for Central Govt. for R-4
Excerpt:
.....1971 (central act no. 40 of 1971) - section 5(2) -- after dismissal of appeal affirming orders of estate officer not necessary to issue eviction notice or publish dismissal order fixing date for vacating premises.;question arose for consideration: whether after dismissal of appeal by district judge, a fresh notice is required to be served upon the unauthorised occupant or the order of dismissal has to be published as per section 5(2) of the act, fixing a date for vacating the premises ?;apart from section 5 of the act, there is no other provision in the act, for evicting the unauthorised occupant of the public premises . . . after the appeal is dismissed, it is not necessary to issue notice for eviction nor it is necessary to publish an order passed by the appellate authority dismissing..........the schedule premises was leased to the petitioner for non-residential purpose. it is a public premises falling within the ambit of the public premises (eviction of unauthorised occupants) act, 1971 (central act no. 40 of 1971) as amended by act no. 61/80 and 35 of 1984 (for short, the 'act'). the estate officer in exercise of his power under the provisions of the act, has passed an order on 12-11-1983 directing eviction of the petitioner from the schedule premises. it is not in dispute that the said order was also published in accordance with the provisions contained in sub-section (2) of section 5 of the act.3. being aggrieved by the aforesaid order, the petitioner preferred an appeal before the district judge, madikeri, who, by the order dated 6-7-1985, has dismissed the.....
Judgment:
ORDER

K.A. Swami, J.

1. In this application, the petitioner has sought for a direction to respondent No. 2-Corporation Bank to remove its locks put on the doors of the schedule premises forthwith and to return the petitioner's locks. The schedule premises in question is a non-residential premises bearing Door No. 4-92-1 situated within Madikeri Town limits at College Road, Madikeri.

2. The schedule premises was leased to the petitioner for non-residential purpose. It is a public premises falling within the ambit of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Central Act No. 40 of 1971) as amended by Act No. 61/80 and 35 of 1984 (for short, the 'Act'). The Estate Officer in exercise of his power under the provisions of the Act, has passed an order on 12-11-1983 directing eviction of the petitioner from the schedule premises. It is not in dispute that the said order was also published in accordance with the provisions contained in Sub-section (2) of Section 5 of the Act.

3. Being aggrieved by the aforesaid order, the petitioner preferred an appeal before the District Judge, Madikeri, who, by the order dated 6-7-1985, has dismissed the appeal and affirmed the order of eviction passed by the Estate Officer.

4. After the appeal was dismissed, the person authorised by the Estate Officer has evicted the petitioner from the schedule premises and has put the locks on the doors of the schedule premises on 31-7-1985.

5 The contention of Sri H. G. Hande, Learned Counsel for the petitioner, is that after the appeal was dismissed, fresh notice was required to be served upon the petitioner or the order of the District Judge dismissing the appeal ought to have been published as per Sub-section (2) of Section 5 of the Act, fixing a date for vacating the premises.

6. On the contrary, it is contended on behalf of the respondents that if the order is passed by the Estate Officer holding that the occupant is an unauthorised occupant and is liable to be evicted ; the Estate Officer is required to specify the date for vacating the public premises in the order of eviction, and in case no such date is fixed, the order of eviction is required to be published and the unauthorised occupant is required to vacate within 15 days from the date of publication of the order of eviction, whichever is later; that after the dismissal of the appeal neither the order dismissing the appeal is required to be published nor any notice is required to be given.

7. It appears to me that it is not possible to accept the contention of Sri Hande, Learned Counsel for the petitioner. Section 5 of the Act, is as follows :

'5(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under Clause (b) of Sub-section (2) of Section 4; the estate officer is satisfied that the public premises are in unauthorised occupation the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refused or fails to comply with the order of eviction on or before the date specified in the said order or within 10 days of the date of its publication under Subsection (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.'

Apart from Section. 5 of the Act, there is no other provision in the Act, for evicting the unauthorised occupant of the public premises. Section 9 of the Act, only provides for an appeal against every order of the Estate Officer made in respect of any public premises under Section 5 or Section 7 of the Act, and provides for period of limitation for preferring the appeal, and also to entertain the appeal filed beyond the period of limitation if the appeal filed beyond the period of limitation if the appellate authority is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. It also empowers the appellate authority to stay the enforcement of the order 'appealed against. Section 10 of the Act, provides that every order made by an Estate Officer or appellate officer under the Act, shall be final and shall not be called in question in any original suit, application, execution proceeding and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of the power conferred by or under the Act. Thus, for the manner and mode of eviction of the unauthorised occupant from the public premises, we have to look to only Section 5 of the Act. A plain reading of this Section makes it clear that the Estate Officer, in the order of eviction, has to specify a date for vacating the public premises by the unauthorised occupant and further to cause publication of the order of eviction by getting it affixed on the outer door or some other, conspicuous part of the public premises. If the unauthorised occupant fails to vacate the public premises either on or before the date specified in the order of eviction: or within 15 days from the date of publication of the order of eviction as per Sub-section (1) thereof, whichever is later, the Estate Officer or any other Officer duly -authorised by the Estate Officer in this behalf is entitled to evict the unauthorised occupant from, and take possession of, the public premises. He is also empowered to use force as may be necessary for the purpose of evicting the unauthorised occupant from, and taking possession of, the public premises.

8. In the instant case, the Estate Officer, in the order of eviction has directed the unauthorised occupant to vacate the public premises in question within 15 days from the date of publication of the order. It is also not in dispute that the order of eviction was published as per the provisions of Sub-section (1) of Section 5 of the -Act. The estate officer could not proceed to evict the petitioner from the public premises after the expiry of 15 days from the date of publication of the order of eviction, because there was an interim order passed by the appellate authority staying the enforcement of the order of eviction. The appeal was dismissed on 6th July, 1985. Consequently, the order of eviction stood affirmed. 6th July, 1985 was definitely beyond the period of 15 days from the date the) order of eviction was published. After the appeal is dismissed, it is not necessary to issue notice for eviction nor it is necessary to publish an order passed by the -appellate authority dismissing the appeal. As it is pointed out above on the dismissal of the appeal, the order of eviction passed by the Estate Officer stands affirmed and the provisions of Sub-section (2) of Section 5 of the Act, become operative and the occupant is required to vacate unless the Appellate Authority while dismissing the appeal grants time for vacating. It is not required in law and it is unnecessary to issue fresh notice or publish the order of eviction afresh after the appeal is dismissed. It is not possible to read Sub-section (2) of Section 5 of the Act, in that manner. The Rules framed under the Act also do not give any scope for such an interpretation. It is submitted that Sub-section (2) of Section 5 of the Act, must be interpreted in such a manner that an opportunity is afforded to the occupant even after the dismissal of the appeal, so that the principles of natural justice are not violated. There is no question of violation or application of the principles of natural justice to the situation which is covered by the provisions of the Act and the Rules providing a particular procedure, The original authority holds that the occupant is an unauthorised occupant after holding an enquiry and affording an opportunity of hearing to the occupant. The appeal is decided after hearing the appellant and the Respondents If the appeal is dismissed, the decision of the Estate Officer gets affirmed. Even then the unauthorised occupant does not vacate, an action as per Sub-section (2) of Section 5 of the Act has to be taken as the -unauthorised the occupant is required to vacate the premises immediately after the dismissal of the appeal ; unless the appellate authority grants time for vacating the premises. As the appellate authority has granted no time to vacate the premises, the Estate Officer is justified in proceeding to evict the petitioner. Therefore, it appears to me that it is not possible to grant relief prayed for by the petitioner in this application.

9. However, it is submitted that the goods of the, petitioner are kept in the premises in question and the same be returned. Sri K. Shivashankar Bhat, Learned Counsel appearing for Respondent-2, submits that Respondent-2 has no objection to return all the goods belonging to the petitioner that are kept in the premises in question. Accordingly, it is held that it is open to the petitioner to approach the 2nd Respondent, in this regard. Second Respondent, in turn, is directed to return all the goods that are kept in the schedule premises belonging to the petitioner.


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