D.K.Seth, J. - (1.) Through a notice dated 30.11.1995 proceeding was initiated against the petitioner under Section 4 of U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1952, being Case No. 9 of 1995. The Prescribed Authority by his order dated 22.7.1997 had passed order of eviction against the petitioner. An appeal being Misc, Appeal No. 17 of 1996, was preferred by the petitioner before the learned District Judge, Tehri Garhwal. By an order dated 18th December, 1997 the said appeal was dismissed affirming the order dated 22.7.1996 passed by the Prescribed Authority, Tehri in Case No. 9 of 1995. This order has been challenged in this petition.
(2.) Sri Anurag Blsaria, learned counsel for the petitioner contends that similar proceeding under Section 4 of the said Act was initiated against the petitioner in respect of the self same property which was dismissed in default. But the respondents did not apply for restoration and setting aside of the order dismissing the proceeding in default. According to him, by reason of Order IX, Rule 9 of the Code of Civil Procedure the said order having not been set aside the respondents are precluded from bringing fresh suit in respect of the same cause of action. According to him the present case is hit by the mischief of Order IX, Rule 9 of the Code. He secondly contends that since the issue was involved in the earlier case, the same cannot be re-opened once again between the same parties in respect of the self same property in view of principle of res Judicata. He next contends that the petitioner having been in possession of the land under valid licence granted by the lessee in whose favour the land was settled by the Government, he is not in unauthorised occupation as defined in Section 2 (g) of the said Act. Therefore, he cannot be evicted pursuant to the said proceeding. He also contends that the notice should give atleast ten days time to reply : as provided in Section 4 (2) (b), whereas in the present case only four days time was given and, therefore, the notice is void and the proceeding based on such notice is nullity. He also contends on the basis of material produced before the Court, that the Court could not have come to the conclusion that the petitioner was in unauthorised occupation. According to him the finding is wholly perverse and cannot be sustained.
(3.) So far as the question of notice as contemplated under Section 4 (2) (b) of the Act is concerned, the record does not disclose that such an objection was taken in the written statement filed before the Prescribed Authority or even before the Appellate Authority. Sri Bisaria very fairly concedes that such a question was not taken in the written statement nor in any of the Courts below. Section 4 (2) provides particulars of notice specifying grounds on which order of eviction was proposed to be made and all persons concerned are required to show cause why the proposed order should not be made against them specifying the date for showing cause which shall not be a date earlier than ten days, from the date of issue of notice. Relying on Annexure-T to the notice he contends that 4.12.1995 was the date fixed for showing cause while notice was issued on 30.11.1995. The provision contained in clause (b) of sub-section (2) of Section 4 of the Act requires sufficient time for showing cause. Admittedly', in the present case the petitioner had shown cause. It is not the case that he was not given sufficient opportunity to show cause. The fixing of date within four days, may be an irregularity, but the same cannot be an illegality to the extent of rendering the proceeding void. The scheme of Section 4 does not provide that such giving of less than ten days time would render the proceeding void. The reason behind such fixing of ten days embargo was to provide sufficient opportunity to the party concerned. In the present case, it is not alleged that by reason of such short notice the petitioner was unable to show cause or that he was not given sufficient opportunity. On the other hand from the records, it appears that the petitioner had filed written statement and produced all the documents and that he was heard and given opportunity. At the same time the petitioner also did not take this objection either in the written statement filed in the proceeding before the prescribed authority or before the Appellate authority. After having submitted to the jurisdiction and availing of the opportunity of contesting the same it is no more open to him to take such a point for the first time in the writ petition. Then again the same being an irregularity, and when it is found that he had full opportunity to contest the case, only on such technicalities, proceeding cannot be said to be void.;