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2014 DIGILAW 906 (GAU)

Meehak Brey v. State of Arunachal Pradesh & Ors.

2014-09-25

M.R.PATHAK

body2014
1. The petitioner claims that she is a Schedule Tribe of East Kameng District of Arunachal Pradesh and since 2003, she with her husband, are in occupation of Government land at Type-III Colony, near GREF Canteen, at Seppa, East Kameng District, by constructing an Ordinary Bamboo Type House ('OBT') over it, residing therein with their family members. She also stated that, though application for allotment of land was made in the year 2004, same is still pending before the Deputy Commissioner, Seppa without any outcome and that from the month of August 2014 the petitioner is constructing an Assam Type House (semi RCC) over the said land. The petitioner further stated that there was no hindrance from any quarter regarding the position of the land in question, which is at a distance of 6 mtrs. away from the GREF premises, that is more than the requirement as per Government Guidelines in force. She also stated that she has electricity and water connection in her said house and pays electricity and water bills regularly. 2. The petitioner alleged that on the basis of a complaint lodged by the Superintendent of Police, Seppa with regard to said encroachment of Government land of GREF Premises in Type-III Colony, Seppa with some construction of RCC over it, the Additional Deputy Commissioner-cum-Estate Officer, East Kameng District, Seppa vide Order No. LM/ESTATE-06/2014-15 dated 2nd September, 2014 directed petitioner's Husband namely, Sri Nibi Brey to dismantle the illegal structure on the Government land completely within 10 days from the issue of the said order and further informed him that otherwise strict action would be taken against him as per Public Premises Act, 2003 (Annexure-III to the petition). The petitioner stated that on 1.9.2014 she filed a representation before the Additional Deputy Commissioner-cum-Estate Officer, East Kameng District, Seppa with regard to the aforesaid order dated 2.9.2014, submitting her grievances, which according to her was received on 12.9.2014 has not yet been disposed of on till date. 3. Hence, this writ petition by the petitioner praying for setting aside and quash the aforesaid impugned eviction order the Additional Deputy Commissioner-cum-Estate Officer, East Kameng District, Seppa. dated 2.9.2014. 4. 3. Hence, this writ petition by the petitioner praying for setting aside and quash the aforesaid impugned eviction order the Additional Deputy Commissioner-cum-Estate Officer, East Kameng District, Seppa. dated 2.9.2014. 4. As the matter relates with an order of dismantling of illegal structure on Government land made by the petitioner and as the parties to the case have agreed and consented for disposal of the matter, it is finally heard at the Motion stage itself. 5. Heard Mr. T. Gyadi, learned counsel for the petitioner. Also heard Ms. M. Tang, learned Government Advocate appearing for the State respondent Nos. 1, 3, 4 and 5 and Mr. K. Jini, learned Standing Counsel, Department of Land Management, appearing for the respondent No. 2. 6. That by the Act No. 2 of 2003, the Government of Arunachal Pradesh brought in to force "The Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003” ('the said 2003 Act'), an Act to provide for eviction of unauthorized occupants from public premises and matters connected therewith. 7. 'Premises' has been defined in section 2(iii) of the said 2003 Act as -"Premises" means any land or any building or part of a building and includes (a) the houses, gardens, grounds and the building or part of a building; and (b) any fittings affixed to such building or part of a building for more beneficial enjoyment thereof. 8. Section 2(iv) of the said 2003 Act defines "Public Premises" as "Public Premises" means any land or structure belonging to (a) the State Government, and (b) any other Corporation or Public Sector Undertakings owned or sponsored and controlled by the State Government. 9. Again “Unauthorized Occupants” has been defined under section 2(vii) of the said 2003 Act as - "Unauthorized Occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. 10. 10. Section 4 of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003 provides for issuance of a show-cause notice in writing by the Estate Officer to any unauthorised occupant as to why an order of eviction against him should not be made, giving minimum of ten days time for reply from the date of issuance of such notice and section 5 of the said 2003 Act provides that after submission show-cause reply if any by the said unauthorised occupant pursuant to section 4 notice of said 2003 Act and if any evidence is produced by him in support of his claim and after giving personal hearing if any and on considering the same, if the Estate Officer is satisfied that the public premises is in unauthorised occupation, he may make an order of eviction, with the reasons recorded therein, directing that the public premises shall be vacated on a precise date, specified in the said order. 11. Sections 4 and 5 of the said 2003 Act read as follows: "4. (i) If the Estate Officer is of opinion that any person is in unauthorized occupation on any public premises and that he should be evicted, the Estate Officer 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. (ii) 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 - (i) 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 issued thereof; and (ii) to appear before the Estate Officer on the date specified in the notice alongwith the evidence which they intend to produce in support of the cause shown and also for personal hearing, if such hearing is desired. (iii) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (iii) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (iv) Where the Estate Officer known or has reasons to believe that any person is in occupation of the public premises, then without prejudice to the provisions of sub-section (iii), he shall cause a copy of the notice to be served on very such-person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. “5. (i) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under, clause (b) of sub­section (ii) of section 4, the Estate Officer is satisfied that the public premises are in unauthorized occupation, the Estate Officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as my be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the' public premises. (ii) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of its publication under sub-section (i) whichever is later, the Estate Officer or any other officer duly authorized by the Estate Officer in his behalf may evict that person from, and take possession of, the public premises and, may, for that purpose, use such force as may be necessary." 12. Section-6 of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003 gives the power to the Estate Officer to remove of unauthorised construction - movable or immovable or fixtures raised on any public premises. Said section 6, of the 2003 Act reads as follows: “6. (i) No person shall - . Section-6 of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003 gives the power to the Estate Officer to remove of unauthorised construction - movable or immovable or fixtures raised on any public premises. Said section 6, of the 2003 Act reads as follows: “6. (i) No person shall - . (a) erect or place or raise any building or any movable or immovable structure or fixture, (b) display or spread any goods, (c) bring or keep any cattle or other animals on, or against or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. (ii) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub-section (i), the Estate Officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove or to show-cause why he shall not remove such building or other structure or fixture, from the public premises within such period not being less than seven days, as he may specify in the notice, and on the omission or refusal of such person either to show-cause, or to remove such building or other structures or fixtures from the public premises,, or where the cause shown is not, in the opinion of the Estate Officer sufficient, the Estate Officer may, by order, remove or cause to be removed the building and recover the cost of such removal from the person aforesaid as an arrear of land revenue. (iii) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept, on any public premises, in contravention of the provisions of sub-section (i) by any person, the Estate Officer may, by order, remove or caused to be removed without notice such structure, fixture, goods, cattle or other animals as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue." 13. From the petition it is found that since the year 2003, the petitioner with her husband admittedly are in occupation of Government land in question at Type-III Colony near GREF Canteen at Seppa, East Kameng District, and as such the petitioner with her husband are in occupation of "Public Premises" as per section 2(iv) of the said 2003 Act. The petitioner also admitted that they have constructed an OBT house over the land involved in the case and residing on it with their family and now with effect from August 2014, they are constructing an Assam Type House (semi RCC) over the said plot and that she applied for allotment of the said land in the year 2004, which has not yet been sanctioned/granted to them by the Deputy Commissioner, East Kameng District, Seppa. 14. As such the petitioner with her husband are in occupation of the Government land involved in this case without any authority for such occupation and, therefore, they are in "Unauthorized Occupation" to the public premises involved in the case as per section 2(vii) of the said 2003 Act and more over they had already raised an OBT Hose over the land in question and now they are erecting/raising/constructing a building [Assam Type House (semi RCC)] on the said public premises without any authority which is in clear violation of the provisions of section 6 of the said 2003 Act. 15. From the reading of sub-sections (i) and (ii) of section 6 of the 2003 Act, issuance of notice by the Estate Officer for removal of unauthorised construction over public premises though discretionary in nature, but the Estate Officer first must come to the conclusive opinion that the land in question is a public premises and that such occupants over the said public premises are unauthorised occupants and are erecting-/raising/ constructing/building or other immovable structure or fixture on the said, public premises in contravention of provisions the concerned section, the Estate Officer must follow the relevant provisions of Public Premises (Eviction of Unauthorised Occupants) Act. 16. 16. In the present case, while issuing the impugned order dated 2.9.2014, there was nothing before the Estate Officer for his conclusive opinion that the land in question is a public premises and that the petitioner or her husband or any person is in unauthorised occupation of the same and said unauthorised occupants are erecting/raising/constructing/ building or other immovable structure over the said public premises. For his conclusive opinion with regard to the land in question to be a public premises, that the occupants of the said public premises are unauthorised occupants and for eviction of such unauthorised occupants from-the said public premises, the Estate Officer must follow the provisions of sections 4 and 5 of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003. 17. In the present case, as the Estate Officer-cum-Additional Deputy Commissioner, East Kameng District, Seppa, the respondent No. 4, prior to the issuance of the impugned order dated 2.9.2014 (Annexure III to the petition) did not comply with the provisions of sections 4 and 5 of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003 as above noted, the same is hereby set aside and quashed. 18. From the submission, as made by the petitioner in this petition/ it is clear that she and her husband are in occupation of a plot of Government land in an unauthorised manner, which is a public premises in terms of section 2(iii) of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003, as noted above. Therefore, in the interest of justice, the Estate Officer-cum-Additional Deputy Commissioner, East Kameng District, Seppa shall take proper action against such unauthorised/illegal occupants of public premises, including the petitioner and her husband following the provisions of the sections 4 and 5 of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003 at the earliest. It is also made clear that the petitioner or her husband shall not alter and/or alienate and/or develop the land involved in this case without due permission from the authorities concerned as provided under the aforesaid 2003 Act as well as the relevant Act and Rules in force. 19. This writ petition is disposed of in terms of the above. No order as to cost. 2.0. 19. This writ petition is disposed of in terms of the above. No order as to cost. 2.0. Registry shall communicate this order to the Deputy Commissioner, East Kameng District, Seppa as well as the Estate Officer-cum-Additional Deputy Commissioner, East Kameng District, Seppa forth with for their necessary action.