High Court
Case Details
WP(C) 2718/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr. YS Mannan, learned counsel for the petitioner and Ms. B Das, learned C entral Government Counsel. This petition, under Article 226 of the Constitution of India, has been filed fo r quashing of eviction order dated 22.05.2012 issued by the Estate Officer and f or a direction to the respondents to allow the petitioner to continue possession over his land and premises.
Decision
Case of the petitioner is that he is an Ex-Army man and after retirement, he is permanently settled at Guwahati by constructing house over purchased land. Petitioner had purchased a plot of land measuring 1 katha 5 lechas covered by Da g Nos. 105 and 102 of Village Batahghuli, Mouza-Beltola in Guwahati. The said la nd is near the Army Cantonment at Narengi. Accordingly, petitioner wrote to the Administrative Commandant of the Army on 23.12.2002 requesting the said authorit y to inform him as to whether the purchased land would, in any way, come in cont act with the defence land. Petitioner was informed by the Defence Estate Officer , Guwahati Circle that the land was verified both as per record and as per site inspection and it was found that the purchased land was outside the defence boun dary. On receipt of above clarification, petitioner started construction of his house. However, petitioner was served with an eviction notice dated 15.07.2003 issued b y the Administrative Commandant asking him to remove the structure constructed b y him over the land, declaring such construction to be unauthorized. At that stage, petitioner approached this Court by filing WP(C) No.5686/2003. Th is Court by order dated 29.07.2003 passed an interim order to the effect that pe titioner should not be ousted unless the Defence Estate Officer was satisfied th at the land under occupation of the petitioner is situated within the defence ar ea. Respondents did not contest the said proceeding by filing affidavit or by fi ling any application for vacation of the interim order. By order dated 19.09.200 6, this Court disposed of WP(C) No.5686/2003 with the direction that the petitio ner shall not be evicted save and accept in accordance with law and without foll owing the procedure established under the law. Six years thereafter, the impugned order dated 22.05.2012 was passed by the Esta te Officer. Hence, the writ petition. This Court by order dated 08.06.2012 issued notice and directed, as an interim m easure, that no coercive measure shall be taken pursuant to the eviction order d ated 22.05.2012. Impugned order dated 22.05.2012 reads as under: - (cid:28)1. Whereas I, the undersigned, am satisfied for the reasons recorded below that Ex Nk MB Sinha is in unauthorized occupation of the Public Premises specified i n the Schedule below REASONS (a) The land in question is defence acquired land (b) You were told to submit the supporting documents by 30 Apr 2012, as proof du ring the meeting which was held on 16 Apr 2012. You have submitted the documents as a proof of ownership of land but it is invalid since the same is not authent icated by the competent authority. 2. Now, therefore, in exercise of the powers conferred on me under sub-sect ion (1) of Section 5-B of the Public Premises (Eviction of Unauthorized Occupant s) Act, 1971, I hereby order the said Ex Nk MB Sinha and all persons who may be in occupation of the said premises or any part thereof to vacate the said premis es within 15 days of the publication of this order. In the event of refusal or f ailure to comply with this order within the period specified above the said Ex N k MB Sinha and all other persons concerned are liable to be evicted from the sai d premises, if need be by the use of such force as may be necessary. SCHEDULE Dag no./BP No: BP No. 141 to 160 (Dag No. 10) Ser No. Area (a) dg & Mandir Panjabari Type Description Assam type permanent house, Mandir permanent Full bli (cid:29) It is thus seen that the impugned order was passed in exercise of power conferr ed under sub-section (1) of section 5-B of the Public Premises (Eviction of Unau thorized Occupants) Act, 1971. (1971 Act). Learned counsel for the petitioner submits that his land is outside the boundary of the defence estate and, therefore, the very basis of issuing the impugned or der does not exist. This fact was clarified by the Defence Estate Officer himsel f way back on 07.02.2003 following which petitioner started construction of his house. Defence authorities now cannot turn around and say that his land falls in side the defence boundary and invoke the provisions of the 1971 Act. Learned Central Government Counsel, on the other hand, referring to the affidavi t filed by the respondents on 27.06.2012 submits that following routine survey c onducted on 27.04.2011 and 15.03.2012, it came to light that some encroachments were going on over defence land, including encroachment made by the petitioner. Accordingly, proceedings under the 1971 Act were drawn up. Reasonable opportunit y of showing cause was given to the petitioner, whereafter impugned order was pa ssed. Petitioner has also not been able to show any building permission either f rom Guwahati Municipal Corporation or from Guwahati Metropolitan Development Aut hority to back up his contention that his construction is valid. It is the case of the respondents that though petitioner produced documents pertaining to patta No. 105 Dag No. 102, which is not defence land, but petitioner has encroached u pon defence land covered by Dag No. 10. Submissions made have been considered. Having regard to the rival submissions, it is evident that the dispute raised in the writ petition as to whether petitioner has encroached upon defence land is factual in nature and adjudication of the same would require adducing of evidenc e, site verification etc. Section 5-B of the 1971 Act deals with order of demolition of unauthorized const ruction. It provides that where the erection of any building or execution of any work has been commenced, or has been carried on, or has been completed, on any public premises by any person in occupation of such public premises under an aut hority, and such erection of building or execution of work is found to be in con travention of, or not authorized by, such authority, then, the estate officer ma y, in addition to any other action that may be taken, make an order for demoliti on of such erection or construction. Such order should however indicate the reas ons warranting demolition and should not be made without affording reasonable op portunity of showing cause to the person concerned. An order passed under section 5-B of the 1971 Act is an appealable order under s ection 9. Such appeal shall lie to the District Judge of the district in which t he public premise is situate, or such other judicial officer of the district hav ing not less than 10 years’ standing as the District Judge may designate. As per sub-section (2) of section 9, such an appeal is required to be filed within 12 days from the date of publication of the order. As per the proviso, the appellat e authority may entertain an appeal filed after expiry of the appeal period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. It is a settled law that when adequate and efficacious alternative remedy is ava ilable, a writ court would not ordinarily invoke its jurisdiction under Article 226 of the Constitution of India. Here, the statute itself provides an efficacio us remedy to the aggrieved party by way of appeal. Moreover, as already noticed above, resolution of the dispute raised in the writ petition would require adjud ication on facts, which should be best left to the statutory appellate authority to decide. Since the petitioner has pursued this writ petition and this Court had also issu ed notice with interim protection, the Court is of the considered opinion that i n the event, the petitioner prefers an appeal, the appellate authority would tak e note of the aforesaid factum while deciding condonation of delay and admissibi lity of the appeal. Having regard to the above, petitioner is relegated to the alternative forum of appeal as provided in the 1971 Act. To enable the petitioner to file appeal and seek necessary order from the appellate authority, interim order passed by this Court on 08.06.2012 is extended for a further period of 30 days. It is, however, made clear that in the event, the petitioner files appeal, the a ppellate authority shall decide the same on its own merit. Writ petition is, accordingly, disposed of. Record produced by learned Central Government Counsel is returned back. No costs .