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2013 DIGILAW 851 (GAU)

Megha Babu Sinha v. Union of India and Ors.

2013-12-06

UJJAL BHUYAN

body2013
1. Heard Mr. Y.S. Mannan, learned counsel for the petitioner and Ms. B. Das, learned Central Government Counsel. This petition, under article 226 of the Constitution of India, has been filed for quashing of eviction order dated 22.5.2012 issued by the Estate Officer and for a direction to the respondents to allow the petitioner to continue possession over his land and premises. 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 Dag Nos. 105 and 102 of Village Batahghuli, Mouza-Beltola in Guwahati. The said land is near the Army Cantonment at Narengi. Accordingly, petitioner wrote to the Administrative Commandant of the Army on 23.12.2002 requesting the said authority to inform him as to whether the purchased land would, in any way, come in contact 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 boundary. On receipt of above clarification, petitioner started construction of his house. However, petitioner was served with an eviction notice dated 15.7.2003 issued by the Administrative Commandant asking him to remove the structure constructed by him over the land, declaring such construction to be unauthorized. At that stage, petitioner approached this court by filing WP(C) No.5686/ 2003. This court by order dated 29.7.2003 passed an interim order to the effect that petitioner should not be ousted unless the Defence Estate Officer was satisfied that the land under occupation of the petitioner is situated within the defence area. Respondents did not contest the said proceeding by filing affidavit or by filing any application for vacation of the interim order. By order dated 19.9.2006, this court disposed of WP(C) No.5686/2003 with the direction that the petitioner shall not be evicted save and accept in accordance with law and without following the procedure established under the law. Six years thereafter, the impugned order dated 22.5.2012 was passed by the Estate Officer. Hence, the writ petition. This court by order dated 8.6.2012 issued notice and directed, as an interim measure, that no coercive measure shall be taken pursuant to the eviction order dated 22.5.2012. Six years thereafter, the impugned order dated 22.5.2012 was passed by the Estate Officer. Hence, the writ petition. This court by order dated 8.6.2012 issued notice and directed, as an interim measure, that no coercive measure shall be taken pursuant to the eviction order dated 22.5.2012. Impugned order dated 22.5.2012 reads as under : "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 in the Schedule below Reasons (a) The land in question is defence acquired land (b) You were told to submit the supporting documents by 30th April, 2012, as proof during the meeting which was held on 16th April, 2012. You have submitted the documents as a proof of ownership of land but it is invalid since the same is not authenticated by the competent authority. 2. Now, therefore, in exercise of the powers conferred on me under subsection (1) of section 5B of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971,I hereby order the said Ex Nk M.B. Sinha and all persons who may be in occupation of the said premises or any part thereof to vacate the said premises within 15 days of the publication of this order. In the event of refusal or failure to comply with this order within the period specified above the said Ex Nk M.B. Sinha and all other persons concerned are liable to be evicted from the said 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) SI.No.Area Type Description (a) Panjabari Assam type permanent house, Mandir permanent Full blidg & Mandir" It is, thus, seen that the impugned order was passed in exercise of power conferred under sub-section (1) of section 5B of the Public Premises (Eviction of Unauthorized 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 order does not exist. This fact was clarified by the Defence Estate Officer himself way back on 7.2.2003 following which petitioner started construction of his house. Defence authorities now cannot turn around and say that his land falls inside the defence boundary and invoke the provisions of the 1971 Act. This fact was clarified by the Defence Estate Officer himself way back on 7.2.2003 following which petitioner started construction of his house. Defence authorities now cannot turn around and say that his land falls inside the defence boundary and invoke the provisions of the 1971 Act. Learned Central Government Counsel, on the other hand, referring to the affidavit filed by the respondents on 27.6.2012 submits that following routine survey conducted on 27.4.2011 and 15.3.2012, 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 opportunity of showing cause was given to the petitioner, whereafter impugned order was passed. Petitioner has also not been able to show any building permission either from Guwahati Municipal Corporation or from Guwahati Metropolitan Development Authority 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 upon defence land covered by Dag No. 10. 3. Submissions made have been considered. Having regard to the rival I submissions, it is evident that the dispute raised in the writ petition as I to whether petitioner has encroached upon defence land is factual in I nature and adjudication of the same would require adducing of evidence, I site verification, etc. Section 5B of the 1971 Act deals with order of demolition of unauthorized construction. 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 authority, and such erection of building or execution of work is found to be in contravention of, or not authorized by, such authority, then, the estate officer may, in addition to any other action that may be taken, make an order for demolition of such erection or construction. Such order should however indicate the reasons warranting demolition and should not be made without affording reasonable opportunity of showing cause to the person concerned. 4. An order passed under section 5B of the 1971 Act is an appealable order under section 9. Such order should however indicate the reasons warranting demolition and should not be made without affording reasonable opportunity of showing cause to the person concerned. 4. An order passed under section 5B of the 1971 Act is an appealable order under section 9. Such appeal shall lie to the District Judge of the district in which the public premise is situate, or such other judicial officer of the district having 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 appellate 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 available, a writ court would not ordinarily invoke its jurisdiction under article 226 of the Constitution of India. Here, the statute itself provides an efficacious 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 adjudication on facts, which should be best left to the statutory appellate authority to decide. 5. Since the petitioner has pursued this writ petition and this court had also issued notice with interim protection, the court is of the considered opinion that in the event, the petitioner prefers an appeal, the appellate authority would take note of the aforesaid factum while deciding condonation of delay and admissibility 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 8.6.2012 is extended for a further period of 30 days. 6. It is, however, made clear that in the event, the petitioner files appeal, the appellate 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.