S.K.Dhaon - (1.) IN these three petitions the sole controversy is common. They are, therefore, being disposed of by a common judgment.
(2.) LONG back the Estate Officer, in the purported exercise of powers under section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act) passed separate orders of eviction of the petitioners from the public premises of which they were found to be in unauthorised occupation. These orders became final. For the purposes of evicting the petitioners from, and taking possession of, the public premises under the occupation of the petitioners the Estate Officer duly authorised one Sri Om Prakash, the Building Officer of the Cantonment Board, Allahabad. This authorisation was challenged by the petitioners by separate appeals. These appeals have been dismissed by the XIIth Additional District Judge by separate but similar orders. The learned Judge has taken the view that the appeals are not competent under section 9 of the Act. The legality of this view is being impugned in these petitions. Section 3 empowers the Central Government to appoint Estate Officers for the purposes of the Act. Section 4 provides that if the Estate Officer is of the opinion that any persons are in unauthorised occupation of a public premises and that they should be evicted, the Estate Officer shall issue a notice in writing calling upon all persons concerned as to why an order of eviction should not be made. The specification of the grounds, the period within which cause should be shown and the manner of serving the notice are laid down in the said provision. Sub-section (1) of Section 5 empowers the Estate Officer to pass an order of eviction. Sub-section (2) thereof enables the Estate Officer or any other Officer duly authorised by him in this behalf, to evict the person against whom an order under sub-section (1) has been passed. Section 5-B talks of an order of demolition of unauthorised constructions. Section 5-C empowers the Estate Officer to seal unauthorised constructions. Section 7 authorises the Estate Officer to pass an order directing any person, who is in arrears of rent payable is respect of any public premises, to pay the same within a specified time. It also authorises the Estate Officer to assess the damages payable by any person, who is or who has been in authorised occupation of any public premises. Section 9 makes every order of the Estate Officer made in respect of any public premises under Section 5 or Section 5-B or Section 5-C or Section 7 appealable. On behalf of the petitioners the emphasis is on the words : "an appeal shall lie from every order of the Estate Officer made in respect of any public premises under section 5" and it is urged that the authorisation made by the Estate Officer under sub-section (2) of Section 5 is appealable. The contention appears to be plausible at the first blus but the same cannot hold water for the reasons to be stated hereafter.
(3.) IT will be convenient to extract sub-section (1) and (2) in extenso and also the relevant portions of section 9 : "5. Eviction of unauthorised occupants.-(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 refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (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 the purpose, use such force as may be necessary." "9. Appeals-(1) An appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or Section 5-B Or Section 5-C or Section 7 to an appellate officer......... (2) An appeal under sub-section (1) shall be preferred, (a) In the case of an appeal from an order under section 5, within twelve days from the date of publication of the order under sub-section (1) of that section ; Provided that the appellate officer may entertain the appeal after the expiry of the said period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time." (2) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit........." In sub-section (1) of section 4 a show cause notice has to be given to an unauthorised occupant of any public premises. In sub-section (2) the requirements- of the notices are mentioned. One is that the grounds on which the order of eviction is proposed to be made shall be specified. The second is that all persons concerned are required to show cause, if any, against the proposed order on or before such date as specified in the notice, being a date not earlier than seven days from the issue thereof. And the last is to appear before the Estate Officer on the date specified in the notice along with the evidence intended to be produced in support of cause shown. Personal hearing is also ensured on the date specified in the notice, if such hearing is desired. IT will be immediately seen that for the purpose of passing an order of eviction under sub-section (1) of Section 5 the giving of a notice is mandatory and a complete opportunity of a hearing too is contemplated. Thus, the Legislature has provided a complete scheme containing in-built safeguards so as to ensure a fair hearing to a person against whom an order of eviction is proposed to be passed. In contrast, neither any notice nor any opportunity of a hearing are contemplated for the purpose of taking an action under sub-section (2) of Section 5. A bare reading of the provisions of sub section (1) of Section 5 indicates that the Estate Officer is enjoined to consider the reply given by a person to the show cause notice, the evidence produced by him in support of the same, and the representation made during the course of the personal hearing, if desired. Therefore, the satisfaction of the Estate Officer as envisaged in the provision under consideration is objective and not subjective. This is doubly ensured by requiring the Estate Officer to record reasons for making an order of eviction. There is also a mandate on the Estate Officer to fix a specified date in the order of eviction for the vacation of the public premises by an unauthorised occupant. The mode of the service of the order has also been indicated by the Legislature.;