# Babboo Khan v. The District Judge, Rampur and others

- **Citation:** (2003) 3 ILRA 721
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-08
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babboo-khan-v-the-district-judge-rampur-and-others-40182
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226Findings of fact-interference in- writ
jurisdiction-only when such findings are
perverse having error of law.

Held- Para 9

Other argument advanced by learned
counsel for the petitioner assailing the
findings of the prescribed authority as
well as of the appellate authority also
deserves to be rejected. It is settled that
the findings of fact arrived at, are not to
be easily interfered with under Article
226 of the Constitution, unless the same
are demonstrated to be perverse, or
suffers from manifest error of law.
Case law discussed:
AIR 1975 All 315 (FB) relied on
1984 All LJ pg. 1022 referred to

## Text

3 All] Babboo Khan V. The District Judge, Rampur and others
721
Station House Officer, Aitmadaula, Agra.
Full security and protection must be
provided to the petitioner till further
orders

Let a copy of this order be issued to
learned standing counsel free of charge
today.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 961 Of 1985

Babboo Khan

...Petitioner
Versus
The District Judge, Rampur and others

 ...Respondents

Counsel for the Petitioner:
Sri N.A. Kazmi
Sri Nazar Bokhari

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226Findings of fact-interference in- writ
jurisdiction-only when such findings are
perverse having error of law.

Held- Para 9

Other argument advanced by learned
counsel for the petitioner assailing the
findings of the prescribed authority as
well as of the appellate authority also
deserves to be rejected. It is settled that
the findings of fact arrived at, are not to
be easily interfered with under Article
226 of the Constitution, unless the same
are demonstrated to be perverse, or
suffers from manifest error of law.
Case law discussed:
AIR 1975 All 315 (FB) relied on
1984 All LJ pg. 1022 referred to
(Delivered by Hon'ble Anjani Kumar, J.)

1. Heard learned counsel for the
petitioner and Shri Nazar Bokhari for the
respondents.

2. By means of this writ petition,
petitioner has challenged the order passed
under Section 4 of U.P. Public Premises
(Eviction of Unauthorised Occupants)
Act, 1972 in Case No. 20 of 1984 P.SKotwali, District-Rampur dated 7th May,
1984. whereby the prescribed authority
after hearing the petitioner and State has
passed the order of eviction of the
petitioner from the premises in question,
which is admittedly a public premises. In
appeal the appellate authority affirmed the
findings of the prescribed authority and
directed for eviction of the petitioner from
the premises in question.

3. Learned counsel for the petitioner
has contended that a perusal of Section 4
of U.P. Public Premises (Eviction of
Unauthorised
Occupants)
Act,
1972
provides that the notice in the manner
prescribed should have been served on the
petitioner before the proceedings are
initiated. Section 4 is reproduced below:-

"4. Issue of notice to show cause
against order of eviction.- (1) If the
prescribed authority, either of its own
motion or on an application or report
received
on
behalf
of
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 why an order of
eviction should not be made.
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722 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
(2) The notice shall-

(a) specify the grounds on which the
order of eviction is proposed to be made;
and

(b) require all persons concerned, that is
to say, all persons, who are, or may be, in
occupation of, or claim interest in, the
public premises, to show cause, if any,
against the proposed order on or before
such date as is specified in the notice,
being a date not earlier than ten days from
the date of issue thereof.

(3) The prescribed authority shall cause
the notice to be served either personally
on all those persons concerned or by
having it affixed on the outer door or
some other conspicuous part of the public
premises and in any other manner,
provided in the Code of Civil Procedure,
1908.

(4) Where the prescribed authority knows
or has reasons to believe that any persons
are in occupation of the public premises,
then, without prejudice to the provisions
of sub-section (3), he shall cause a copy
of the notice to be served on every such
person by registered post or by delivering
or tendering it to that person or in such
other manner as may be prescribed."

4. Learned counsel for the petitioner
relied upon a decision of Division Bench
of this Court reported in 1984 All. L.J.
page
1022;
Bikarama
Versus
IV
Additional District Judge, Varanasi
and others. Para 7 and 8 on which
learned counsel has placed reliance are
quoted below:
"7. Learned counsel appearing for the
State of U.P. before the Courts below
fairly conceded that the impugned
notice issued under S. 4 of the Act
was not a valid notice and was not in
the prescribed form as it did not
disclose the ground upon which it has
been issued. Before us however, the
learned Standing Counsel contended
that the notice, if read as a whole,
clearly confirmed to the requirements
of S. 4 of the Act.

8. We do not agree. The notice has been
quoted above and it is obvious that a
vital requirement of S. 4 is missing.
The notice does not profess, directly
or indirectly, to state the ground upon
which the eviction of the petitioner is
being sought. In our opinion the
provisions of S. 4 are mandatory and
a valid notice specifying the grounds
on which the order of eviction is
proposed to be made is sine qua non
for an order of eviction. We do not
agree with the learned Standing
Counsel that the notice if read as a
whole can be construed to be a valid
notice under S. 4 of the Act. It does
not disclose the grounds on which
eviction is sought. It is not in the
prescribed form either. The defects
invalidate the notice ab initio."

5. Much emphasis has been laid on
the manner of service of notice as
observed by the Division Bench, as in the
present case it is not disputed that parties
had knowledge of the proceedings and has
also contested the proceedings. A Full
Bench of this Court consisting of five
Judges in a case reported in AIR 1975
Allahabad 315 (FB); Gyan Singh
Versus The District Magistrate, Bijnor
and others, has explained the purpose of
notice wherein it has been held by full
bench that once the party concerned
acquires
the
knowledge
of
the
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3 All] Babboo Khan V. The District Judge, Rampur and others
723
proceedings
though
mandatory,
the
purpose of notice stood served.

6. Paragraphs 15 and 19 of the
aforesaid case are being quoted here-inbelow :-

"15. We, however, do not agree with
the observations of the learned Judge that
the actual service of the notice of the
meeting should be proved. It would be
sufficient compliance with the provisions
of Section 87-A (3) if notice is sent to the
members and the members acquire
knowledge about the time, date and place
of the meeting. The facts involved in
Vishwanath Tripathi's case 1968 All WR
114 are different than those available in
the present case. The observations of R.
S. Pathak, J., that Section 87-A (3) was
mandatory in its entirety does not
represent correct view for the reasons
stated earlier. If notice is sent by
registered post and publication of the
notice is done, the legal fiction enacted by
the legislature would at once come into
play and thereupon every members shall
be deemed to have received notice even
though a member may not have actually
received the same. On the material on
record of that case, R.S. Pathak, J. held
that neither the notice of the meeting was
actually served upon one of the petitioners
nor the notice was published in any other
manner as directed by the District
Magistrate, therefore the meeting was not
validly constituted. The learned Judge
further held that even if the member had
knowledge of the meeting he was under
no obligation to take notice and for that
reason he was not disentitled to relief
under Article 226 of the Constitution. We
are not in agreement with this view of the
learned Judge. As already stated the
purpose of sending notice is to give
information to the members to attend the
meeting convened for the purpose of
considering the motion of no-confidence,
and once it is established that the member
concerned had notice and had acquired
knowledge of the date and time of the
meeting convened for considering the
motion of no-confidence, the purpose for
which notice is required to be sent would
be fulfilled and the member concerned
will not be entitled to any relief from this
Court
under
Article
226
of
the
Constitution
for
nullifying
the
proceedings of the meeting.

19. The President is elected by the
members of the Municipal Board in
accordance with Section 43 of the Act. A
member of the Board or any elector, who
is not less than 30 years of age is qualified
to be chosen as President of the Board.
Thus a non-member may be elected
President of the Board. But once an
elector is elected President he becomes
member of the Board ex-officio under
Section 49 of the Act which lays down
that the President of a Board if he is not
already a member of the Board shall be
ex-officio member of the Board. The
President presides over the meetings of
the Board. All questions which come up
before the meeting of the Board are
decided by majority of the members at the
meeting. Section 92 of the Act lays down
that in case of equality of the Board the
President of the Board shall have a second
or casting Board these provisions clearly
indicate that a President is a member of
the Board for all purposes even though he
may not be an elected member of the
Board. Section 87-A (3) enjoins a duty on
the District Magistrate to convene a
meeting for consideration of the motion of
no-confidence against the President. It
further lays a duty on him to send notice
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724 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
of the meeting by registered post to every
member of the Board at his place of
residence.
The
District
Magistrate
therefore must send notice of the meeting
to the President also by registered post at
his place of residence even though he may
not be an elected member. The motion of
no-confidence is directed against the
President he is the most affected party in
the matter. He is entitled to take part in
the debate at the meeting and to defend
himself. Thus, principles of natural justice
require that he should be given notice of
the meeting so that he may get an
opportunity of defending himself."

7. Here in the present case, it has not
been disputed by the petitioner that he had
knowledge of the proceedings and he
contested the proceedings. This aspect of
the matter has not placed before the
Division Bench relied by the counsel for
the petitioner.

8. In this view of the matter, in view
of the Full Bench referred to above, which
is binding on me and couple with the fact
that the decision of Division Bench relied
on by learned counsel for the petitioner
does not apply to the facts of the present
case. Therefore, this argument deserves to
be rejected.

9. The argument having failed, other
argument advanced by learned counsel for
the petitioner assailing the findings of the
prescribed authority as well as of the
appellate authority also deserves to be
rejected. It is settled that the findings of
fact arrived at, are not to be easily
interfered with under Article 226 of the
Constitution,
unless
the
same
are
demonstrated to be perverse, or suffers
from manifest error of law. That having
not been shown, learned counsel lastly
argued that this Nazool property, which is
under the management of the local body
concerned and the local body would not
let out the same on a higher rent or
premium and petitioner who has also
submitted an application for allotment
may also be allowed to offer before this
Court and if this is the only criteria, his
case may also be considered. However, if
the respondents are inclined to let out or
lease out the property in question for rent,
the application of the petitioner may also
be considered in accordance with law.

10. In view of what has been stated
above, the writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 3734 of 1985

Sri Deo Narain Misra

...Petitioner
Versus
The Director of Education, Allahabad and
others

 ...Respondents

Counsel for the Petitioner:
Sri Daya Shanker
Sri K.D. Tripathi
Sri B.B. Jauhari
Sri S.K. Mehrotra
Sri U.N. Khare

Counsel for the Respondents:
Sri V.S. Dwivedi
Sri R.S. Dwivedi
S.C.

Constitution of India-Article 226-U.P.
State
University
Act
1977-petitioner
appointed
clerk
in
Sanskrit
Maha
Vidyalaya prior to grant in add- Whether
petitioner entitled for payment from
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