V.P. Tyagi, J.
1. Petitioner Mohanlal has filed this writ petition under Article 226 of the Constitution praying that by issuing an appropriate writ, order or direction, Sections 4 and 5 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter called the Act) be declared void and the order passed by the Estate Officer, Udaipur, on 6th January, 1969, and upheld by the District Judge, Udaipur, by his Judgment dated 27th February, 1969, be quashed and the respondents may be directed to restore the possession of shop No. 69 to the petitioner.
2. The facts giving rise xo this writ petition are as follows. The petitioner was resident of village Karia. He wanted a shop to start his business in the town of Udaipur, but since the petitioner was an outsider, the Public Works Department which owned shop No. 69 refused to let out shop to the petitioner unless somebody who was a resident of the town of Udaipur executed a rent deed in favour of the Executive Engineer who was managing the State shops. The petitioner approached one Nandlal Mahajan who was in the service of Government and Nandlal agreed to oblige the petitioner by executing a rent note for shop No. 69. That rent note was written by Nandlal on 30th of October, 1962, and it was agreed that yearly rent of Rs. 165/- shall be paid to the State Government. Accordingly to the petitioner's averments it was the petitioner for whom the shop was taken on rent and he started his grain business in that shop from 31st of October, 1952 and since then he had been in possession of this shop. Nandlal died in the year 1966 but after his death the rent was paid by the petitioner on behalf of Nandlal and the Department passed on the receipts in the name of Nandlal. In the year 1956 it is alleged that the petitioner entered into a partnership business with one Ambalal and that that partnership business was carried on from the shop which was rented out by the Executive Engineer, Public Works Department to Nandlal. On 13th of December, 1968, a notice was served on the petitioner by the Estate Officer, Udaipur, asking him to attend his office on the 30th of December, 1968. It is said that the Estate Officer recorded the petitioner's statement without giving him any opportunity to show cause to why ejectment proceeding under the Act may not be taken against him. It is said that Ambalal was also examined by respondent No. 3 the Estate Officer and then he passed an order on 6th of January, 1969, declaring the petitioner and Ambalal as unauthorised occupants of the shop and directed both the petitioner and Ambalal to be ejected from that shop within 30 days from the date of the said order. Petitioner filed an appeal against the said order before the District Judge, Udaipur, challenging the validity of the impugned order on the ground that it was passed without giving him any notice under Section 4 of the Act, but the learned Judge held that the notice issued to the petitioner on 13th of December, 1968 informing the petitioner about the next date was sufficient compliance of Section 4 of the Act and, therefore, the learned Judge rejected the petitioner's appeal. The petitioner has, therefore, come to this Court challenging the vires of Sections 4 and 5 of the Act as well as the correctness of the impugned order and the appellate order passed by the District Judge on the ground that the noncompliance of the mandatory provisions of Section 4 of the Act vitiates the proceedings taken by the Estate Officer.
3. There is no reply on behalf of the respondents on the file, but the learned Deputy Government Advocate submits that he had filed a reply on behalf of the respondents. However, he contested the petition on the ground that notice issued on the petitioner on 13th of December, 1968, was a sufficient compliance of Section 4 of the Act. As regards the objection about the validity of Sections 4 and 5 of the Act, the contention of the respondents is that in the view of the amendment of Section 5 of the Act by enacting the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1970 the objection regarding the vires of Section 5 cannot now sustain.
4. Learned Counsel for the petitioner, however, did not press his objection regarding the vires of Sections 4 and 5 of the Act.
5. It is not disputed by the parties that the petitioner was served with a notice Ex. 2 dated 13th of December, 1968, and no other notice was given to him by the Estate Officer to initiate the proceedings under the Act. This notice simply informs the petitioner that the next date of hearing in the matter of eviction under the Act pending before the Estate Officer is 30th of December, 1968, and that the petitioner had to present himself before the said authority. This notice, however, does not require the petitioner to show cause against the proceedings of eviction taken by the Estate Officer under the provisions of the Act, nor does it disclose any ground for taking such proceedings
6. The contention of the petitioner's counsel is that this notice does not comply with the requirements of Section 4 of the Act. Section 4 require that if the Estate Officer is of opinion that any parsons are in unauthorised occupation of any public premises and that they should be evicted he 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. It further requires that the notice shall specify the grounds on which the order of eviction is proposed to be made and such a notice has got to be served on all persons concerned, that is all persons who are or may be in occupation of claim interest in public premises.
7. Under Section 5, the person concerned, who has been served with a notice under Section 4, has a right to show cause against the proposed action and he can by producing his evidence in support of his case satisfy the estate Officer that the person concerned is not an unauthorised occupant or that the premises from where he is sought to be evicted is not public premises. The person who is sought to be evicted from the alleged public premises can act under Section 5 only when he has been served with a notice as envisaged by Section 4 of the Act.
8. It is contended by Mr. Singhvi that in the scheme of this Act the provisions of Section 4 are mandatory and unless the requirements of that section are complied with by the Estate Officer he cannot take any proceedings to evict a person who, in the opinion of the Estate Officer had occupied the public premises in an unauthorised manner I have carefully perused (Section 4) and 1 am of opinion that it (contains the mandate of the legislature that before taking any proceedings evicting a person from the premises the Estate Officer must form an opinion that the person against whom eviction proceedings are going to be initiated is an unauthorised occupant and the premise from where he is sought to be evicted is public premises. After forming such opinion a show cause notice must be served on the alleged unauthorised occupant of the public premises why he should not be evicted from such premises In the present case, the notice that was served on the petitioner cannot be said to be said to be a notice in terms of Section 4 of the Act as it simply informs the petitioner about the next date of the proceedings. In these circumstances this finding of the learned D strict Judge that the notice Ex. 2 was already served on the petitioner and therefore proceedings cannot be declared illegal, cannot be sustained. A notice in the form of Ex. 2, in my opinion, cannot lend validity to the proceedings initiated by the Estate Officer to evict the petitioner from the premises as it did not comply the mandatory requirements of Section 4 of the Act.
9. Learned Deputy Government Advocate urged that actually the other partner of the petitioner, namely, Ambalal was in occupation of the premises and, therefore, no notice was necessary to be served on the petitioner in terms of Section 4 I regret. I cannot accept this contention of the learned Deputy Government Advocate in the light of the circumstances that have been brought on the record. The very order of the Estate Officer shows that the petitioner was also in occupation of the shop because he has ultimately passed the order of eviction of the petitioner also. If the petitioner had not been in possession of the ship, thin their was no necessity for the Estate Officer to pass the order of eviction in the form in which he has passed it directing the petitioner to De ejected from the shop.
10. Besides this, the mandate of Section 4 in this respect is unambiguous and the section requires that everybody who may be or is in occupation or claims interest in the property must be served with a notice under Section 4 of the Act. The petitioner, even if for the sake of argument, it is accepted that he was not actually occupying the shop, was undoubtedly a person who had an interests in the property and who was sought to be evicted therefrom by the Estate Officer by initiating proceedings under the Act and, therefore, in the light of the provisions of Section 4 he was a person on whom notice should have been served before starting eviction proceedings under the Act. In this view of the matter, this contention of the learned Deputy Government Advocate that no notice was necessary to be served on the petitioner cannot be said to be correct.
11. For the reasons mentioned above, the writ petition is allowed. The order impugned passed by the Estate Officer, Udaipur, on 6th of January, 1969, and the judgment of the District Judge, Udaipur dated 27th February, 1969, upholding the impugned order are set aside. The possession of the shop shall be restored to the petitioner who has been illegally evicted from it. The petitioner shall get his costs from the respondents.