At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE ARUN TANDON
For the Appearing Parties:R.V. Pathak, Shashi Kant Shukla, Prem Prakash Yadav, Advocates.
1. ALL substitution applications are allowed. Proceedings under Section 4/5 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 have been initiated against the petitioner on an application made by Nagarpalika, Mainpuri to its Chairman. The proceedings were decided ex-parte under an order date
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19.9.2008 and it was held that the premises was not covered within the definition of public premises.2. AN application for recall was made on behalf of the State on the ground that the order has been passed without hearing the State. The land in fact was Nazul property and, therefore, public premises. This application has been allowed by the Prescribed Authority under order dated 2.3.2009 after recording a finding that the State had to be heard before recording a finding that the property in the facts of the case was not a public premises. Accordingly after setting aside the earlier order, the proceedings has restored the proceedings. It is against this order that the present writ petition has been filed.I have heard learned counsel for the parties and have examined the records.In my opinion, the issue as to whether the premises is covered within the definition of public premises under Section 9 of P.P. Act or not is an issue which did need examination after affording opportunity to the state specifically in the circumstances when it has been stated that the premises was a Nazul property.This Court may only record that such issues require consideration of oral as well as documentary evidence and, therefore, the prescribed authority has rightly set aside its earlier order whereby the proceedings were closed after holding that the premises was not a public premise in absence of the State. This Court finds no good ground to interfere with the order recalling the earlier decision in the matter and restoring the proceedings.3. HOWEVER, learned counsel for the petitioners submits that an observation has been made in the impugned order that the premises being Nazul property is covered within the Public Premises Act which would practically close the issue in the proceedings as restored.I am of the considered opinion that the remarks so made in the order dated 2.3.2009 is only a tentative opinion expressed by the Court while holding that the State was a necessary party to be heard before the issue of the States of the property could be decided. It is clarified that the observation so made in the impugned order will not prejudice the rights of either parties and it will be open to them to establish their respective cases before the Prescribed Authority. It is open to the petitioners to contend that in the facts of the case the premises is not covered within the definition of public premises and it is for the Prescribed Authority to decide on the basis of material evidence to be brought on record whether the objection as taken by the petitioners is legally sustainable or not. The prescribed authority shall proceed with the matter strictly in accordance with law.With the aforesaid observation, writ petition is disposed of.
" 2012 (5) ADJ 263"