Heard learned counsel for the petitioner and the learned State counsel.
The present writ petition has been filed for the following main reliefs:-
"(i) Direct the Respondent No. 2 and 3 to restore the possession of the Petitioner in his shop no.7 in the premises of Purana Vidhayak Niwas-2, Lucknow;
(ii) Set aside the impugned order dated 09.12.2015 passed by the Respondent No.1 i.e. District Judge, Lucknow in M.C.A. No.128 of 2015;
(iii) Set aside the impugned orders dated 10.07.2008 and 01.10.2012 passed by the Prescribed Authority Estate Department, U.P. Jawahar Bhawan, Lucknow in Case No.222/2004 under Section 5(1) of the U.P. Public Premises Act, 1972."
The relevant facts, in brief, of the case are that the proceedings against the petitioner were initiated under U.P. Public Premises (Eviction of Unauthorized Occupant) Act, 1972 (hereinafter referred to as "Act, 1972") before the Prescribed Authority, Estate Department, U.P., Jawahar Bhawan, Lucknow/respondent No. 3, which was registered as Case No. 222 of 2014 (State of U.P. through Managing Officer, Old Vidhayak Niwas-2, Lucknow v. Abdul Kalam Ansari).
The respondent No. 3 in the proceedings initiated under the Act, 1972 passed an ex-parte order dated 12.08.2004, whereby directed the petitioner to vacate the premises.
Aggrieved by the order dated 12.08.2004, the petitioner filed Misc. Civil Appeal registered as M.C.A. No. 170 of 2004 (Abdul Kalam Ansari v. State of U.P. and others), which was allowed vide order dated 22.05.2006 and the matter was remanded back to the Prescribed Authority to decide the matter on its merits and demerits. After the order dated 22.05.2006, passed in M.C.A. No. 170 of 2004, the respondent No. 3 passed an order dated 10.07.2008 holding therein that the petitioner is an unauthorized occupant and directed him to vacate the premises and pay the damages.
Thereafter, the petitioner moved an application dated 22.07.2008 for recall of the order dated 10.07.2008, which was also rejected by the respondent No. 3 vide order dated 01.10.2012.
Being aggrieved by the order dated 10.07.2008 and the order dated 01.10.2012, the petitioner filed an appeal under Section 9 of the Act, 1972 before the District Judge, Lucknow, which was registered as Misc. Civil Appeal No. 128 of 2015 (Abdul Kalam Ansari v. State of U.P.). The District Judge after considering the material available on record dismissed the appeal vide order dated 09.12.2015. The relevant observation of the judgment dated 09.12.2015 on reproduction reads as under:-
"After remand of the matter by appellate Court, the learned Prescribed Authority has recorded statement of Vimla Kashyap, Vyathadhikari, Purna Vidhyak Nivas-2, Lucknow on 27.11.2007 wherein it was stated that the appellant is carrying on his business on public premises without any allotment, his possession is unauthorized and is liable for eviction. This statement was recorded, but the appellant did not cross examine the witness, although written statement was filed by the appellant on 26.09.2007. It is admitted that no allotment order in favour of the appellant was ever issued and no allotment order is on record. The appellant has failed to file any allotment order, although it is written in the written statement that the land was allotted to him in the year 1983, then burden lies upon the appellant to prove the allotment, but no such allotment order is filed. After recording statement on 27.11.2007, learned Prescribed Authority has again given an opportunity to the appellant, but he did not avail it, then the learned Prescribed Authority has passed the impugned order on 10.07.2008. This order was served upon the appellant on 21.07.2008 vide report of the process server Radhey Shyam Tewari. Appellant refused to accept the same, then it was affixed on the place of business of the appellant. An application for recall of the order was moved on 22.07.2008 which was duly considered and impugned order dated 28.09.2012 was passed, rejecting the application for recall of the order dated 10.07.2008. This order was again served upon the appellant on 15.10.2012 by refusal.
Learned counsel for the appellant has placed reliance upon "State of U.P. (Nazul) v. 7th A.D.J., Lucknow and Others, 2006 (24) LCD 733."
The Competent Authority i.e. Prescribed Authority has issued the notice U/S 4(2) of the Act in Form A. Ground for issuing the notice were mentioned in the notice. Specific and categorical ground is indicated in the notice for eviction. Thereafter when notice was duly served and no reply was filed by the appellant, Order under Section 5(1) was passed by the learned Prescribed Authority on 19.08.2004, which was challenged before the Appellate Court. After judgment of the remand by the Trial Court, statement of witness Vimla Kashyap was recorded. There was no requirement of issuing a fresh notice U/S 4(2) of the Act as the same was duly issued in prescribed proforma and was duly served upon the appellant. Even Appellate Court has not issued a direction for issuance of a fresh notice U/S 4(2) of the Act. In compliance of the direction of the Appellate Court, statement of witness has been recorded. Thereafter impugned order dated 10.07.2008 was passed, holding that the appellant is an unauthorized occupant of the public premises. This order was again served upon the appellant, who filed an application for recall of the order, which application was ultimately rejected by the learned Prescribed Authority vide order dated 28.09.2012. Conduct of the appellant specifically shows that he has adopted all the methods to stall the process of law. He has even misused the process of law by moving one after the other application. He absented himself during the proceeding. Thereafter moved an application for recall of the order. Due procedure prescribed under the law as well as in the aforesaid case State of U.P. (Nazul) v. 7th A.D.J., Lucknow and Others was duly followed.
A separate notice U/S 4 as well as Section 5 of the Act was issued as was held in the case of "State of U.P. vs. D.C. Gupta, 1983 (2) ARC 124," which is referred in para 67 of the judgment of "State of U.P. (Nazul) v. 7th A.D.J., Lucknow and Others," which is quoted below:-
"Section 4 of the U.P Act 22 of 1972, provides that if the prescribed authority either of its own motion or on an application of report received on behalf the State Government or the corporate authority, is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the prescribed authority shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause by an order of eviction should not be made. Section 5 provides that if, after considering the cause, if any, shown by any person in pursuance of a notice issued under Section 4 and any evidence he May produce in support of the same and after giving him a reasonable opportunity or being heard, the prescribed authority is satisfied that the public premises are in unauthorised occupation, the prescribed authority may make an order of eviction."
U.P. Pubic Premises (Eviction of Unauthorized Occupant) Act, 1972 is a Special Act. The provision contained therein contains a specific procedure to evict the unauthorized occupant. The provision contained in Section 4, 5 & 7 of the Act are mandatory in nature. It is settled law that when law prescribes a procedure to do a certain act in a certain manner then that must be done in a same way and not otherwise.
In the present case specific notice U/S 4(2) of the Act was given thereafter compliance of Section 5 and 7 of the Act was also made by the learned Prescribed Authority. Appellant is an unauthorized occupant. Procedure, as specified under the law, has been duly followed. At this stage specific direction issued by the Apex Court in the case of S.D. Bandi (SUPRA) also assumes a great significance, although there was a controversy regarding the Central and the State Government in regard to the unauthorized occupant but the directions were issued under the U.P. Public Premises (Eviction of Unauthorized Occupant) Act, 1972. Those directions also cover the matter of unauthorized occupants, wherein Hon'ble the Apex Court has shown great concern about the unauthorized occupants of the public premises. I do not find any substance in the appeal. It is devoid of any merit and is liable to be dismissed. Accordingly appeal is dismissed."
Being aggrieved by the order dated 09.12.2015 as also the order dated 01.10.2012, the present writ petition has been filed in the Registry of this Court on 15.04.2021.
Learned State counsel, at the very outset, submitted that the present writ petition is liable to the dismissed on the ground of delay and latches as the same has been filed against the order(s) dated 09.12.2015 and 01.10.2012 in the month of April, 2021 i.e. after more than 5 years and the explanation in regard to approaching this Court after this inordinate/huge delay is neither proper nor sufficient.
In response to the aforesaid, learned counsel for the petitioner stated that the delay and latches have been explained in paragraph 22 and 23 of the writ petition, wherein it has been specifically stated that on account of illness and missing of relevant documents, the petitioner could not approach this Court within reasonable time. Paragraph 22 and 23 of the writ petition on reproduction read as under:-
"22. That after passing of the order dated 09.12.2015 the petitioner had approached another advocate for challenging the aforesaid order and thereafter had fallen ill and was suffering from various aliments such as Influenza infection, sleeping sickness, Elephantaitis and yellow fever disease and as such has shifted back to his hometown in Bihar for proper care and assistance. The copy of the Medical Certificates of the petitioner is herewith annexed as Annexure No. 15 to this petition.
23. That thereafter the petitioner had contacted her advocate and she was informed that her file has been lost in shifting of the office and thereafter the petitioner started collecting all the documents from different offices and approached the present counsel for filing the said petition and as such the delay in filing the present petition is neither intentional no deliberate."
It appears from the above quoted paragraphs that the petitioner has tried to explain the delay and latches on the ground of illness as also on the ground of missing of relevant documents related to the present case.
In support of explanation/cause for approaching this Court after more than 5 years on the ground of illness, the petitioner has filed three Medical Certificates. Medical Certificate dated 19.07.2017 has been given by Dr. Amit Kumar, M.B.B.S., M.D. (DMCH, BIHAR), Specialist Gastrologist, for the treatment of Influenza Infection and the period of treatment mentioned therein is w.e.f. 16.08.2015 to 19.07.2017. Medical Certificate dated 09.11.2018 has been given by Dr. A.K. Gupta, M.B.B.S. (Orthologist), for the treatment of Yellow Fever and High Blood Pressure and the period of treatment mentioned therein is w.e.f. 11.12.2017 to 09.11.2018. Medical Certificate dated 16.02.2020 has been given by Dr. Arun Kumar, M.B.B.S., M.S. (KMCH, BIHAR), Heart Specialist, for the treatment of Elephantaitis and the period of treatment mentioned therein is w.e.f. 24.04.2019 to 16.02.2020.
It appears from the aforesaid that the Medical Certificates have been obtained by the petitioner only for the purposes of filing the present writ petition after inordinate/huge delay of more than 5 years and in fact he was not suffering from any illness.
So far as the averments made in paragraph 23 of the writ petition are concerned, the same appear to be vague, as the petitioner has not mentioned the date(s) on which he contacted his previous counsel, who was engaged by the petitioner for challenging the orders in issue, for providing the relevant documents as also for receiving the same. He has also not mentioned that who was the previous counsel.
In addition to above, in paragraph 22, the petitioner has also not mentioned the date on which he contacted the present counsel for challenging the orders in issue.
For the reasons aforesaid, this Court is of the firm view that the petitioner has failed to explain the inordinate/huge delay and latches in approaching the Court for seeking the reliefs aforesaid.
For the foregoing reasons, this Court is not inclined to entertain this writ petition. It is accordingly dismissed with no order as to costs.
Order Date :- 6.5.2021 Arun/-