Anshuman Singh, J. - (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. It appears that the petitioner filed an appeal against the aforesaid order in the court of the District Judge, Varanasi, under section 9 of the Act along with an application under section 5 of the Indian Limitation Act for condonation of the delay inasmuch as the appeal was not filed by the petitioner within fifteen days from the date of the order passed by the Prescribed Authority under section 5 of the Act. The explanation for not filing the appeal by the petitioner within fifteen days of statutory period is that no publication of the order under section 5 of the Act was made and the application for certified copy of the judgment was moved by him on 30-3-1976. The petitioner was under the impression that the certified copy of the judgment would be ready by the second week of May 1976 and he went to Tata and returned only on 4-5-1976. It is pertinent to note that no counter affidavit was filed on behalf of the respondents to controvert the allegations contained in the affidavit filed by the petitioner in support of the application under section 5 of the Indian Limitation Act. The explanation offered by the petitioner did not find favour with the learned District Judge, Varanasi, who dismissed the application for condonation of delay and the appeal as well. The petitioner being aggrieved by the aforesaid orders of the District Judge has approached this Court under Article 226 of the Constitution of India. I have heard Sri Gyan Prakash, learned counsel for the petitioner, and Sri Vijai Manohar Sahai, brief holder for the State of Uttar Pradesh. It has been urged on behalf of the petitioner that no copy of the order of the Prescribed Authority passed under section 5 of the Act directing the petitioner to vacate the premises in dispute was affixed on the outer door or some other conspicuous part of public premises as contemplated under section 5 of the Act. It appears that the intention of the legislature in prescribing this mode of affixation of the order passed by the Prescribed Authority at the outer door or some other conspicuous part of public permises appears to be that the person against whom the order of eviction is passed should have knowledge about the same. Though the aforesaid argument was also raised before the District Judge, which is mentioned in the judgment, but the District Judge did not record any finding whatsoever on the point whether compliance of section 5 of the Act of affixing a copy of the order on the outer door or some other conspicuous part of public premises was made or not. It has been argued on behalf of the State that since the petitioner came to know about the passing of the order of the Prescribed Authority dated 18-3-1976, even if the compliance of section 5 of the Act was not made, that would not give any benefit to the petitioner in not filing the appeal within time in as much as he had knowledge about the impugned order dated 18-3-1976 and the copy of the order was ready on 27-4-1976 itself as regards the compliance of section 5 of the Act regarding affixing the copy of the order is concerned the provision appears to be mandatory and not directory in nature. If the law requires a particular act to be done in a manner prescribed under the Act, the act should be done in that manner alone. The Prescribed Authority after passing the order was duty bound to have got the copy of the order passed by him affixed on the outer door or some other conspicuous part of the public premises. Though in the instant case no finding has been recorded by the District Judge whether the copy was affixed or not but in any way, in my opinion, the compliance of -section 5 is mandatory. The explanations offered by the petitioner in not filing the appeal were not controverted by the respondents before the District Judge and in view of the fact that I have held that there has been non-compliance of section 5 of the Act by the Prescribed Authority, it is expedient in the interest of justice that the appeal of the petitioner should be considered on merit.
(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. In the result the writ petition succeeds and is allowed. Petition allowed.;