JUDGMENT Sabyasachi Bhattacharyya, J. - The petitioner has challenged an order passed by the Estate Officer of the Eastern Railway for eviction of the petitioner from a passage vide order dated February 17, 2022 and the notice preceding the same dated May 16, 2019, passed and issued respectively under Sections 5 and 4 the Public Premises (Eviction of Unauthorised Occupants) act, 1971 (hereinafter referred to as 'the 1971 act'). The petitioners also prayed for filing the writ petition in representative capacity on behalf of the all the flat owners of the multi-storied complex which is the subject-matter of dispute. 2. at the outset, learned senior counsel appearing for the respondent-authorities raises an objection regarding maintainability of the writ petition. It is contended by the respondents that the petitioners cannot claim representative capacity on behalf of all flat owners before the second forum of challenge. It is argued that Order I Rule 8 of the Code of Civil Procedure, even on principle, is not maintainable before the writ court, which is the second forum, the first forum being the Estate Officer issuing the notice and passing the order impugned. 3. It is further argued that since the estate of the flat owners was sufficiently represented before the Estate Officer by the Company, which is the developer in respect of the multi-storied complex, the present writ petition ought to be dismissed in limine. 4. It is further contended by learned senior counsel for the respondents that it is a well-settled proposition of law that the remedy under article 226 of the Constitution of India cannot be resorted to for bypassing an alternative remedy, when the said alternative remedy is clearly barred by limitation. 5. Learned senior counsel places reliance on the judgment of a. V. Venkateswaran, Collector of Customs, Bombay Vs. RamchandSobhrajWadhwani and another, reported at aIR 1961 SC 1506 delivered by a five-Judge Bench of the Supreme Court. 6. It is contended that since Section 9 of the 1971 act provides for an appeal from every order of the Estate Officer made under Section 5 of the said act and that sub-section (2)(a) of Section 9 stipulates twelve (12) days from the date of publication of the order as the limitation for preferring such appeal, the writ petition, specifically sought to get indirectly what the petitioners cannot get directly under law, ought to be turned down. 7. 7. Learned senior counsel appearing for the writ petitioners submits, at the outset, that the present writ court is not the second forum in respect of the matter, since the challenge has been preferred on the ground of inherent lack of jurisdiction of the person passing the order in the capacity of an Estate Officer under the 1971 act. 8. It is contended that the Estate Officer was not appointed in terms of Section 3(a) of the 1971 act, hence, denuding the person passing the impugned order and issuing the impugned notice, under Sections 5 and 4 of the 1971 act respectively, of the authority/jurisdiction to do such acts within the contemplation of the 1971 act. 9. That apart, the order impugned is not tenable in the eye of law, since the satisfaction of the Estate Officer that the public premises are in unauthorised occupation, as required under Section 5(1) as a pre-requisite of an eviction proceeding, is absent in the order passed purportedly under Section 5 of the 1971 act. 10. In view of the registered agreement dated May 4, 1987, whereby the President of India, representing the Eastern Railway administration, had specifically granted easement right to the developers of the property in dispute in consideration of the lands, comprised of the building as well as the passage-in-question, being rendered vacant by the Company, thereby granting easement rights to the developer-company to use the disputed passage and/or road solely for the purpose of passage. Such agreement was totally overlooked by the Estate Officer. Moreover, since it has not been evinced from the materials-on-record that the said agreement was terminated as per law at any point of time, the developers and the defendants, who purchased such rights from the developers, cannotbe labelled to be in 'unauthorised occupation' as defined in Section 2(g) of the 1971 act. 11. That apart, the easement of necessity conferred by the said agreement, it is argued, is not, in itself,'public premises' within the contemplation of Section 2(e) of the 1971 act. as such, the purported Estate Officer had no authority to invoke the provisions of the 1971 act at all, which renders the notice and eviction order, purportedly under Sections 4 and 5 of the 1971 act, de hors jurisdiction. 12. as such, the purported Estate Officer had no authority to invoke the provisions of the 1971 act at all, which renders the notice and eviction order, purportedly under Sections 4 and 5 of the 1971 act, de hors jurisdiction. 12. Learned counsel for the petitioner further contends that the cited judgment did not lay down any ratio on the doctrine of coram non judice and, as such, is not applicable to the present case at all. Moreover, since the action impugned in the writ petition was entirely without jurisdiction, the present writ petition has been preferred as the first challenge. as such, it is argued, the writ court, in the present case, is not thesecond forum but the first, original forum of challenge. 13. To answer the question of maintainability of the writ petition, the nature of the petitioners' right in the property has to be ascertained first. 14. Section 2(c) of the 1971 act defines 'premises' as follows: '(c) 'premises means any land or any building or part of a building and includes,-- (i) the garden grounds and outhouses, if any, appertaining to such building or part of a building, and (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;' 15. again, public premises under Section 2(e) of the act contemplates any premises belonging to or taken on lease or requisitioned by or on behalf of the Government/authorities as stipulated in Section 2(e). 16. Since the basic qualifier of a proceeding under Sections 4 and 5 of the 1971 act essentially contemplates premises, the operation of the 1971 act cannot be divorced from the definition of premises under Section 2(c). In the present case, however, the right claimed by the petitioner on the basis of the registered agreement dated May 4, 1987 (annexure P/12 at page 154 of the writ petition) does not confer ownership rights to any land, building, part of building and/or fittings affixed thereto and/or other ancillary property but merely grants a limited right of common passage over the servient heritage. Essentially, a plain reading of the said agreement shows that the right did not comprise of the entire bundle of rights associated with the concept of'ownership', which is hinted by the expressions 'belonging to', 'taken on lease' or 'requisitioned by or on behalf of', as used in Section 2(e) of the 1971 act. Essentially, a plain reading of the said agreement shows that the right did not comprise of the entire bundle of rights associated with the concept of'ownership', which is hinted by the expressions 'belonging to', 'taken on lease' or 'requisitioned by or on behalf of', as used in Section 2(e) of the 1971 act. The mere right of easement of necessity granted by the agreement to the petitioner, for the sole purpose of using the passage and/or road for access to the premises where the petitioners live, cannot come within the contemplation of 'premises', let alone 'public premises' as envisaged in the 1971 act. 17. It is evident from the registered agreement itself, which creates a prima facie presumption of such easement right of necessity of the petitioner conferredby the President of India, representing the Eastern Railway administration, that the developer-company removed a good number of Hutments and Bustees which originally existed over plot no.218, and the lands belonging to the administration were vacated and walled up at the instance and cost of the developer-company. 18. It is clearly recognized in the agreement that, in consideration of mutual benefits and inconsideration of the lands being rendered vacant by the developers, a right of user in respect of a 20 feet wide passage was granted by the administration to the developers, from whom the present petitioners purchased their respective flats. 19. That apart, the order passed by the Estate Officer on May 12, 1987 in Eviction Case No. EP/SDaH/4, annexed at page 161 (annexure P/13) of the writ petition, makes it evident that the entire land comprised of RS Dag No.218 at Mouza -Sahapur, Police Station-Behala was walled up and handed over by the developers in vacant possession in favour of the Railways and the Railways took over the same on May 1, 1987. 20. The agreement was entered into immediately thereafter, that is, on May 4, 1987. Thus, in the absence of any challenge to the veracity of the agreement and the order-in-question dated May 12, 1987, that the entire premises were handed over in favour of the Railways by the developers contemporaneously with the execution of the agreement granting easement right, as recorded in the order dated May 12, 1987. Thus, in the absence of any challenge to the veracity of the agreement and the order-in-question dated May 12, 1987, that the entire premises were handed over in favour of the Railways by the developers contemporaneously with the execution of the agreement granting easement right, as recorded in the order dated May 12, 1987. Hence, there cannot arise any question of the present right claimed by the developers and, through them, the petitioners, being anything more than a right of easement of necessity on the strength of the agreement dated May 4, 1987 which cannot be termed, by any stretch of imagination, as premises or public premises. 21. On the other hand, Section 2(g) of the 1971 act defines 'unauthorised occupation' as follows: '(g) 'unauthorised 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 of any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.' 22. In the present case, however, none of the notices given to the petitioners' association contain a whisper about the termination of the agreement conferring easement rights. Clause 7(a) of the agreement specifically mentions that the developers have no right, title or interest in respect of the portion of RS Dag No.218 which had been cleaned and walled up and that the administration in all eventualities shall use the said lands for the purpose to be decided by them in their sole discretion. Clause 7(b) reiterates the handing over vacant possession of the said portion to the Railway administration. 23. Clause 8 of the agreement further stresses that nothing contained in the agreement shall connote a titular right of the developer-companies in respect of the passage or the land contained in the portion of RS Dag No.218 save perennial common users' right and that the ownership of right of the scheduled-land of the passage squarely vests with the administration. 24. Clause 8 of the agreement further stresses that nothing contained in the agreement shall connote a titular right of the developer-companies in respect of the passage or the land contained in the portion of RS Dag No.218 save perennial common users' right and that the ownership of right of the scheduled-land of the passage squarely vests with the administration. 24. It is evident from the description of the scheduled land in the agreement that the plot of land, where the building housing the petitioners and the other members of the Flat Owners' association, whom the petitioner seek to represent, was raised immediately behind the plot no.218, of which the Railway-authorities are the undisputed owners. as per the petitioners' claim, the petitioners' plot of land is the dominant heritage, while plot no.218, which belongs to the Railway-authorities, is the servient heritage, over which the 20 feet passage, regarding which easement right was granted to the developers through whom the petitioners claim, was the only route of ingress and egress to and from the residence of the petitioners. 25. Hence, the nature of right claimed by the petitioners is not ownership but merely an easementary right. In the absence of any concrete rebuttal by cogent evidence, it cannot but be presumed that the nature of the right sought to be curtailed by the respondent-authorities is such easement right, since admittedly the petitioners and/or their predecessor-in-interest, that is the developers,did not haveownership rights over the plot-in-question. 26. Hence, there cannot be any iota of doubt that the subject-matter of the present lis does not concern 'public premises', which could have brought the matter within the purview of 1971 act. 27. The 1971 act is not applicable in the present case, at least prima facie, on another ground. as per Section 2(g) of the 1971 act, for an occupation to be unauthorised, in the event the occupant had been continuing in occupation by dint of any authority (whether by way of grant of any other mode of transfer), under which the petitioners were allowed to occupy the premises, has expired or has been determined for any reason whatsoever. 28. 28. Neither the notice under Section 4 of the 1971 act, annexed at page 208 (annexure P/30) of the writ petition, nor the notice purportedly under Section 5 of the said act, issued to the petitioners' association, at page 213 (annexure P/34) of the writ petition mentions anything about the determination of the jural relationship or authority conferred by the agreement by virtue of which the petitioners stake their claim to their easement right over the property. 29. The notice dated May 16, 2019, purportedly under Section 4 of the 1971 act,merely states that the Mani Towers Flat-Owners' association, to which the petitioners belong, even without any right, title to or interest whatsoever in the quarter/land, were occupying the same 'unauthorisedly'. 30. The purported notice under Section 5, signed on February 1, 2022, mentions that the said association is in occupation without any right, title or interest whatsoever in the land occupying 4848.25 sq. ft. in the structure, by constructing such multi-storied structure. 31. as such, in the absence of any mention about termination of the agreement in either of the notices, the occupation of the petitioners and/or their association, who claim through the developers, do not fall within the ambit of 'unauthorised occupation' as envisaged in the 1971 act. Hence, the said act cannot be attracted to the present case on such score as well. 32. as for the objectiontaken by the respondents to the challenge thrown by the petitioners to the authority of the person passing the impugned order of eviction and issuing the notice, on the ground of Order I Rule 8 of the Code of Civil Procedure being not maintainable before the second forum of challenge, the sameis not applicable to the present case. Since the challenge preferred by the petitioners in the present writ petition do not constitute a valid appeal under Section 9 of the 1971 act, which lies from an order of the Estate Officer made in respect of 'public premises' under Section 5 and other sections of the 1971 act, it cannot be said that the writ court is acting in the capacity of a second forum of challenge. The challenge preferred is on the ground of patent lack of jurisdiction of the Estate Officer to pass the eviction order-in-question and to issue the impugned notice. The challenge preferred is on the ground of patent lack of jurisdiction of the Estate Officer to pass the eviction order-in-question and to issue the impugned notice. Hence, the present writ petition is in the nature of an original proceeding, challenging such perceived illegal and arbitrary action of the respondents before the first forum. Hence, the challenge as to the Estate Officer having acted without authority can validly be taken by the petitioner. 33. In the absence of any pleading or proof having been brought on record as yet by the respondent-authorities, disclosing any detail or document to establish the appointment of the Estate Officer by a Gazette Notification within the contemplation of Section 3 of the 1971 act, this Court can definitely exercise its power of judicial review under article 226 of the Constitution of India to interdict and ascertain the authority of the person issuing the notice and passing the eviction order, purportedly under Sections 4 and 5 of the 1971 act respectively. 34. Undoubtedly, the question of such lack of authority on the ground of non-appointment under Section 3 cannot be decided finally at this stage, without directing affidavits to be exchanged between the parties. However, in view of the nature of the issues involved in the writ petition, all the grounds of challenge taken by the petitioner are squarely covered within the scope of enquiry under article 226 of the Constitution of India. 35. It has been well-settled by several decisions of the Supreme Court post-a.V. Venkateswaran, Collector of Customs, Bombay (supra) that availability of alternative remedy is not an absolute bar to the maintainability of article 226 of the Constitution of India. Even in the said cited judgment, the Supreme Court has carved out several exceptions where the court could interfere under article 226, for example, where there was a complete lack of jurisdiction in the officer or authority to take the action impugned or where the order prejudicial to the writ petitioner was passed in violation of the principles of natural justice and could, therefore, be treated as void or non est, both of which grounds are available to the petitioners in the present writ petition in view of the nature of issues involved. 36. The unreported judgment dated June 13, 2019 passed in C.O. No.3271 of 2018 [M/s Debidutt Jalan& Co. and others Vs. 36. The unreported judgment dated June 13, 2019 passed in C.O. No.3271 of 2018 [M/s Debidutt Jalan& Co. and others Vs. Union of India and others], however, was merely interlocutory in nature and no ratio was specifically laid down therein. Hence, the said judgment cannot be considered as germane in the present consideration of maintainability. 37. Since the provisions of the 1971 act, including Section 9 thereof, are not applicable to the present case, there cannot arise any question of the petitioners' attempting to bypass the limitation prescribed in Section 9(2)(a) of the 1971 act, that is, 12 days from the date of publication of the order passed purportedly under Section 5 of the said act. 38. In view of the above discussions, the objection as to the maintainability of the writ petition, taken by the respondents, is turned down. 39. W.P.a. No.5095 of 2022 is maintainable in law and in its present form and is required to be heard on merits. Hence, the respondents are directed to file their affidavits-in-opposition within May 3, 2022. Reply, if any, shall be given by May 10, 2022. The matter shall next be enlisted for hearing on merits on May 11, 2022. The operation of the impugned notice and order of eviction, purportedly issued/passed under Sections 4 and 5 of the 1971 act respectively, shall remain stayed till disposal of the writ petition. 40. Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.