Allahabad High Court
Smt. Manju Arora vs Estate Officer, Meerut Cantonment And ... on 22 August, 2017
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on 22.05.2017 Judgment Delivered on 22.08.2017 Court No. - 34 Case :- WRIT - C No. - 16655 of 2017 Petitioner :- Smt. Manju Arora Respondent :- Estate Officer, Meerut Cantonment And Another Counsel for Petitioner :- Kiran Kumar Arora Counsel for Respondent :- A.S.G.I.,Satish Kumar Rai With Case :- WRIT - C No. - 16653 of 2017 Petitioner :- Smt. Usha Rani Respondent :- Estate Officer, Meerut Cantonment And Another Counsel for Petitioner :- Kiran Kumar Arora Counsel for Respondent :- A.S.G.I.,Santosh Kumar Shukla Hon'ble Saumitra Dayal Singh,J.
These two writ petitions have been filed against identical order passed by the Defence Estate Officer. The facts of the two cases are similar. For convenience facts of Writ Petition No. 16655 of 2017 are being noted. The only difference in two cases being the the petitioner in Writ Petition No. 16653 of 2017 claims to be a tenant of the original HOR while petitioner in Writ Petition No. 16655 of 2017 claims to be a transferee of the legal representatives of the recorded HOR.
Writ-C No. 16655 of 2017 has been filed against the order of the Estate Officer, Cantonment Board, Meerut dated 05.02.2014 and also the judgment and order passed in appeal there from, dated 08.03.2017, by the Additional District Judge, Court No. 7, Meerut. These orders arise from proceedings under Section 5A(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the P.P. Act').
Petitioner had filed Misc. Appeal No. 37 of 2014 against the order dated 05.02.2014 passed by Estate Officer, Cantonment Board, Meerut in which the judgement and order dated 08.03.2017 has been passed by the Additional District Judge, Meerut. Earlier, there were certain judgments of this Court, wherein that the order passed by the Estate Officer under Section 5A of the P.P. Act was held to be appealable. However, a Full Bench of this Court in Writ-C No. 40360 of 2015, vide judgment dated 12.01.2016, held such an appeal is not maintainable. In the present case also the petitioner's appeal has therefore been dismissed, as not maintainable, vide order dated 08.03.2017.
Thus, while there is no error in the order of the Appeal Court dated 08.03.2027, yet, the delay/laches if any in filing the present writ petition, is fully explained, in so far as it raises challenge to the order dated 05.02.2014.
The petitioner claims to have purchased a constructed residential quarter ad-measuring 56 sq. meter (hereinafter referred to as 'public premises in question') from one Narendra Kumar Agarwal son of Late Jai Prakash Agarwal, vide sale-deed dated 30.05.2000. A copy of such sale-deed has been annexed with the supplementary affidavit filed by the petitioner in these proceedings.
According to the petitioner, there is a recital in the sale-deed :- the property thus sold belonged to the father of the vendor, namely, Sri Jai Prakash and on his death, upon a mutual settlement between the heirs of the deceased, the 'offending structure' came to the share of the said Narendra Kumar Agarwal; the vendor gave to the petitioner a right to obtain mutation in the records of the Cantonment Board on the strength of the sale-deed. However, it is admitted to the petitioner, such mutation has not been obtained; the constructed area being transferred to the petitioner measured 23 square meter (hereinafter referred to the 'offending structure') and the remaining was an open area.
Admittedly, the 'public premises in question' forms part of the bungalow no. 64-A Chapel Street (Church Road), Meerut Cantt. recorded as survey no. 212 in General Land Register (hereinafter referred to as 'GLR') maintained by the respondent authorities. The nature of the land of the said bungalow is shown as B-3.
According to the record produced by the respondent during the course of these proceedings, including copy of the Governor General Order no. 179 of 12.09.1836, entry of Holder of Occupancy Right (hereinafter referred to as 'HOR') is shown in favour of M/s Sri Ramesh Chandra, Chandra Prakash, Anand Prakash, Jai Prakash, Smt. Salekia Devi and Prem Prakash. Last mutation of date 22.02.1972 has been shown recorded.
It is in the above back ground, the petitioner first received a show cause notice under Section 5-A (2) of the P.P. Act, dated 03.02.2011. As much argument has been advanced on this notice and scope of the proceedings, it would be beneficial to quote it's contents.
"COURT OF THE ESTATE OFFICER, 29-J, THE MALL, MEERUT CANNT.
NO. ESTATE/PPE/UA/5/2011 DATED 03 FEB. 2011 To, Smt. Manju Arora W/o Sh. Sanjay Arora, R/o B.No. 64, Meerut Cantt.
NOTICE UNDER SUB-SECTION (2) OF SECTION 5-A OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971.
Whereas, I the undersigned, am of the opinion, on the grounds specified below, that the structures erected on the Public Premises mentioned in the Schedule below are in contravention of the provisions of sub-section (I) of section 5-A and the said structures erected on the said Public Premises should be removed from the said premises.
GROUNDS The site comprising GLR Sy. No. 212, known as Bungalow No. 64, Church Street, Meerut Cantt admeasuing 1.569 acres. Is held by S/Shri Sri Ramesh Chandra, Chandra Prakash, Anand Prakash, Jai Prakash, Smt. Salekia Devi and Sh. Prem Prakas S/o Late Sh. Shiam Lal under Old Grant terms. The land is classified as B-3 and placed under the management of DEO, Meerut Circle, Meerut Cantt. The land belongs to Government of India. Ministry of Defence. The Old Grant terms and contained in GGO-179 dated 12.09.1836.
You were never authorized by or on behalf of Government of India, Ministry of Defence to occupy the aforesaid site and raise any building/structures thereon.
It has been reported by the DEO, Meerut that despite not having been authorized, to occupy the land and without obtaining sanction from the competent authority you have raised the following unauthorized constructions at site without any authority.
(I) Room - 11'-2" X 9'-11'
(ii) Room - 10'-0" X 9'-11"
(iii) Kitchen - 5'-2" X 6'-6"
(iv) Bath - 5'-3" X 3'-2"
(v) Latrine - 4'-3" X 3'-2"
(vi) Open - 9'-0" X 6'-0"
(vii) Staircase - Standard Now, therefore, in pursuance of sub-section (2) of Section 5-A of the said Act, I hereby call upon you to remove the said structure erected on the said Public Premises mentioned in the Schedule below on or before the 15 Feb, 2011 or to Show cause why this should not be removed on or before the above mentioned date. In the event of your refusal or failure to comply with this notice within the period specified above, the said work, etc. shall be removed by the Estate Officer or the Officer authorized by him and the cost of such removal shall be recovered from you as arrears of land revenue.
SCHEDULE The Defence land area measuring 1.569 acres comprising GLR Survey No 212 known as Bungalow No. 64 Church Street, Meerut Cantt bounded as under:-
East by Sy. No. 459 West By Sy. No. 459North by Sy. No. 459 & 212/1
South by Sy. No. 459 & 246
Sd/-
Signature & Seal of Estate Officer,
Meerut Circle.
Copy to:-
The Chief Executive Officer- for initiating action under the Cantt Board, Meerut Cantt. provisionsofthe Cantonments Act, 2006"
Thus, first, it was disclosed to the petitioner, the property in question is held by M/s Sri Ramesh Chandra, Chandra Prakash, Anand Prakash, Jai Prakash, Smt. Salekia Devi and Prem Prakash (persons being HORs).
Second, it was alleged, the petitioner had not been authorized to occupy the aforesaid site and raise any building/structure thereon.
Third, it was alleged though the petitioner had not been so authorized, she had raised the 'offending structure' specified as two rooms; a kitchen; a bathroom; a latrine; a staircase and; some construction which has been strangely described as 'Open'.
Based on the aforesaid allegation, the Estate Officer then called upon the petitioner, in terms of section 5-A(2) of the P.P. Act, to remove the 'offending structure' - alleged to have been erected on a public premises, by the petitioner. For ready reference the provisions of Section 5-A(2) of the P.P.Act is quoted herein below:-
"5A(2) 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 (1), 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 structure or fixture 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 or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue."
Upon receipt of the aforesaid notice, the petitioner submitted a reply/objection on 16.02.2011, wherein she disclosed to have acquired rights in the 'public premises in question' ad-measuring 56 sq. meters; she had not made any construction thereon and; she had only got the house cleaned, painted and repaired.
It is this objection, which has been decided by the impugned order dated 02.02.2014. In that order, the Estate Office relied extensively, first, on the report of the Defence Estate Officer, Meerut dated 02.02.2011 (referred to above); an inspection report dated 02.06.2011 alleged to have been made by Sri Ram Kumar, SDO-III and S.C.Pant, SDO-II and; other documents being GGO no. 179, extract of GLR survey no. 212 and extract GLR survey no. 212 .
Having relied on the aforesaid documents, the Estate Officer then noted, the notice issued to the petitioner dated 03.02.2011 had not been complied, as petitioner did not remove the 'offending structure'. Thereafter, as to the reply furnished by the petitioner, the Estate Office noted its contents and discussed, the petitioner is not a recorded HOR and further she is not a recorded occupancy holder of HOR. It was therefore, concluded that she has no legal right in the 'public premises in question'.
The Estate Officer then discussed the title documents of the respondent Union of India concluded the land belonged to it. At present there is no dispute to the same.
Having thus concluded, title over the land belonged to the Union of India, the Estate Officer then concluded, the petitioner had no right to occupy the 'public premises in question' and is a trespasser with no locus-standi in the matter.
Thereafter, the Estate Officer recorded his conclusion, without anything more that the petitioner had raised the 'offending constructions' (as described in the show cause notice), unauthorisedly, over the 'public premises in question'. Accordingly he ordered for removal of all the aforesaid 'offending structures', under section 5A(2) of the P.P. Act.
Sri K. K. Arora, learned counsel for the petitioner first submitted, the impugned order suffers from the breach of fundamental principle of natural justice. The petitioner was supplied with either the alleged report dated 06.01.2011 or 03.02.2011 at any time before the impugned order was passed. She never had an opportunity to rebut the same or to deny the correctness of the facts stated therein. Yet, both reports have been referred to and relied upon in the impugned order, as an ex-parte evidence.
Also, he submits, besides the aforesaid two reports, there is no other material to support the conclusions drawn by the Estate Officer that the structure has been raised by the petitioner in violation of the law. Therefore, he submits, the impugned order is liable to be struck down for this reason only.
Sri Arora then submits, the proceedings under the Act are summary in nature, yet, at the same time they involve very valuable rights of the petitioner. According to him, consequences of the impugned order are severe. If allowed to stand, the impugned order would not only result in demolition of the 'offending structure' alleged to have been raised by the petitioner, involving severe financial loss to the petitioner, (who purchased the property for valuable consideration), but, more than that, it would result in rendering the petitioner homeless without any adjudication of her rights over the 'public premises in question', that too despite there being no doubt as to the genuineness of the sale deed produced by her.
In view of the aforesaid, learned counsel for the petitioner further submits, the minimum requirement of the rules of natural justice ought to have been strictly complied with by the respondent authority before passing the impugned order dated 05.02.2014. Thus, he submits, the petitioner should have been confronted with copies of the inspection reports stated to be dated 06.02.2011 and 02.02.2011 which are claimed to be adverse to the petitioner. Not only that, once the petitioner had been confronted with such adverse material, she should have been given full and fair opportunity to rebut the same before her reply was treated as full and final.
Learned counsel for the petitioner further submits, since the petitioner was not confronted with the inspection report dated 02.02.2011 before she submitted her reply and since she has yet not been confronted with the report dated 06.01.2011 also relied upon in the impugned order, the entire proceeding conducted by the Estate Officer suffers from violation of fundamental requirement of rule of natural justice and is therefore liable to be quashed.
In the above regard, the petitioner further submits, the aforesaid reports, as have been relied upon by the respondents were not even prepared in her presence and she was not supplied with any detail of the same at any point of time either before issuance of the show cause notice or even after issuance of the impugned order.
In support of his submission, learned counsel for the petitioner has then relied upon a judgment of this Court in the cases of Afzal Vs Cantonment Board, Meerut 2014 (1) ADJ 696 where, in a case arising under similar provisions under the Cantonments Act, 2006, it was held as below:-
"32. Some of the notices issued under Section 248 of the Act indicate that the Board has considered such erection or re-erection of the building as an offence under Section 247 of the Act. The Court is of the opinion, that merely by stating that such construction or erection or re-erection of a building is an offence under Section 247 of the Act is not sufficient by itself. Something more is required to be done, namely, that the order/resolution of the Board indicating that it is an offence should also be attached to the said notice. The inquiry report of the inspection team on the basis of which a resolution was passed under Section 247 of the Act should also be annexed to the notice. It is a mandatory requirement that the notice should contain the reasons and the documents in support of such assertion made in the notice. This is primarily that the person receiving such notice is made aware of the factual controversy and the proposed evidence that is being used against him.
33. The Court has perused the notices under Section 248 of the Act in all the writ petitions, and finds that the notices relating to illegal construction are vague. Specific assertion as to the alleged construction has not been made. Whether it is a new construction, which is being raised from the plinth and is not a minor repair should be clearly indicated in the notice alongwith the evidence such as the inspection report, photographs, resolution of the Board, which in all these cases are lacking. The Court finds that most of the orders under Section 248 of the Act have been issued on a printed format and blank spaces have been filled up by incorporating the name, house number, etc. with minor deviation, wherever necessary.
.......
......
36. In the light of the discussion made above and upon a harmonious construction of Section 248 of the Act and Section 185 of the old Act, the Court is of the opinion, that the notices issued for stopping the constructions and the notices issued for demolition have not been passed in a correct manner and consequently, is violative of Article 14 of the Constitution of India. The appellate orders have been mechanically issued without giving an opportunity of hearing and consequently, cannot be sustained.
Consequently, the impugned orders are quashed. The writ petitions are allowed leaving it open to the Cantonment Board or the Chief Executive Officer to proceed afresh in the light of the observations made above in respect of the procedure to be adopted under Section 248 of the Act or under the old Act".
(emphasis supplied) Also, reliance has been placed on another judgment of this Court in the case of Sachin Agarwal which was a case under the P.P. Act, in respect of similar proceedings, it was held as below:-
"Notice specifically mentions that the construction has been raised in violation of the statute. Having said so it was obligatory on the part of the respondents to have indicated in the notice the date of initiation and completion of construction along with requisite report of the concerned officer. Notice does not disclose the date as to when the petitioner had initiated the construction. Show cause notice issued to the petitioner also does not disclose as to whether the petitioner was served nor does it disclose the date as to when the notice was issued. It also does not disclose that the despite the service the petitioner had failed to file his reply. Notice is not accompanied by the report of the Officer. It also does not disclose that report has been submitted by the Officer of the Board. It was incumbent upon the respondents to have disclose the date of initiation and its completion which has not been mentioned therein. Non disclosure of these facts disabled the petitioner to submit his reply. Date of completion of work by the petitioner was necessary to be indicated before any proceedings for alteration or demolition of structure can be issued. Prima facie no reasonable opportunity has been given to the petitioner.
From the aforesaid discussion following things clearly emerges that (a) there is no proof to show that the erstwhile owner had raised construction and even if it is assumed that such a construction was raised by the said owner, it was obligatory on its part to communicate the date of initiation and completion of such construction as indicated in Section 183 B of the Act which has not been done; (b) that the respondents have failed to indicate in the notice the date of completion of construction raised by the petitioner; (c) that the notice issued to the petitioner under Section 184 and 185 of the Act is not accompanied by the report submitted by official of inspecting team which indicates that construction was started on 4.12.1998; (d) that both the impugned order as well as the proposed show cause notice does not indicate the date as to when the said construction is alleged to have been completed by the petitioner and (e) in view of the deficiency found in the proposed show cause notice and the impugned order no reasonable opportunity has been given to the petitioner to defend his case.
Under these circumstances, it would be proper that before proceedings under Section 185 of the Act are brought to its logical end petitioner is to be given reasonable opportunity to defend himself. Board is consequently enjoined upon to hear the petitioner afresh by issuing a show cause notice to him indicating the date of initiation of constructions and its completion along with report of the Officer dated 4.12.1998. Petitioner is also entitled to produce such evidence in support of his contention as raised by him in this writ petition. He will be entitled to lead evidence which is relevant for the purpose of determining the proceedings, however, the Board shall complete the proceedings within a period of four months from the date of production of certified copy of this order. It is made clear that in case any delay is caused by the petitioner in leading evidence the Board shall be well within its right to close the right of the petitioner."
He then submits, a bare perusal of the notice in the instant case reveals, the Estate Officer, merely stated, it had been "reported by the DEO, Meerut", to him, about constructions having been allegedly raised by the petitioner. However, it was not made clear when such report was made and also it has not been made clear when (i.e. the point of time) the petitioner is alleged to have made the 'offending structure'. No details of report if any or a copy of such report were supplied to the petitioner or mentioned in the notice and it's copy was not supplied to the petitioner alongwith that notice.
However, subsequently, i.e. after the order dated 05.02.2014 came to be passed, the petitioner claims to have obtained a copy of a report dated 2.2.2011, of the Defence Estate Officer. Alongwith that report, two maps are appended. The second map has been relied, in these proceedings, by Shri. Ashok Mehta, learned ASGI, appearing for the respondent Union of India, to assert that unauthorised construction have been raised by the petitioner.
The description of the 'offending structure' mentioned in the show cause notice may be compared with the description of the 'offending structure' in the map thus relied by the respondent.
Details given in the show cause notice do not match with those contained in the map relied upon by the respondents. Brief comparison of the description of the 'offending structure' as given in the show cause notice and the said map is shown in the table below:-
Sl. No. Structure Size As per map As per notice As per map As per notice 1 Room Room 11'-2''X 9'-11"
11'-2''X 9'-11"2
Room Room 10'X 9'-11"
10'X 9'-11"3
Kit.
Kitchen 5'-2"
5'-2" X 3'-6"4
L+B Bath 5'X 3' 5'-3" X 3'-2"
5Lat Latrine 4'X 3' 4'X 3'-2"6
Open Open
-
9'X 6' 7
-
Staircase
-
Standard Sri Arora, submits apparently, there are differences, both, in the description of the different constructions alleged to have been raised by the petitioner as also their respective measurements. While differences in description of the rooms/constructions, are mostly inconsequential, arising perhaps on account of necessity to use abbreviations on the map, but there are material differences in the measurement specified in the map and in the notice, in respect of three rooms, staircase as also open area. These differences are relevant because according to the respondents, the notice dated 3.2.2011 is based on the report (including the map) dated 2.2.2011, submitted to the Estate Officer.
Also, the notice does not appear to be based on the map as the map does not mention area of the aforesaid three rooms as mentioned in the notice issued subsequently. It only mentions length of the room described as 'Kit.' i.e. kitchen. Also, there are discrepancies in the measurements of the rooms described as 'Lat' and 'L+B' on the map. Addition of 3'' to measurement, made at notice stage without supporting report is inexplicable. Again, while the map does not mark out the dimensions of open area, the notice does refer to exact area thereof.
The noticeable difference is not so much the difference in marking of dimensions in the two documents or the area, as the fact the notice was allegedly issued in pursuance of the map measurements. Thus, the notice issued later appears more exact than the map itself.
Had the notice been issued relying solely on the map, it would have contained the same dimensions of the 'offending structure' as are contained in the map. The increase in measurements mentioned, howsoever minor, could not have occurred if the notice was based on the map. At any rate, the dimensions not mentioned in the map i.e. the breadth of the Kitchen (referred to as Kit. in the map) and of 'Open' area could never have been mentioned in the notice. Clearly, the notice is not based on the map annexed with the writ petition. Also, no other material has been shown to exist on the record, before the Estate Officer.
The respondents have not helped this situation in these proceedings by categorically stating, they do not wish to file a counter affidavit to the writ petition. This statement is reflected from the order dated 27.4.2017, in this writ petition. It has then to be assumed, other than the map dated 2.2.2011, the impugned order passed by the Estate Officer, dated 05.02.2014 is not based on any other map/report/material.
Then, a second violation of principle of natural justice is alleged by learned counsel for the petitioners. He submits, the impugned order is wholly non-speaking. It does not give any reason whatsoever to conclude, it was the petitioner who has raised the 'offending structures'. In this regard, he further submits, it was necessary to do so because a notice under Section 5A(2) could be issued only to a person who raised the constructions. In this regard, it is his case, the petitioner purchased the constructed property in year 2000 and has not made any new/further constructions.
Responding to the above submission, learned counsel for the petitioner Sri Ashok Mehta, Additional Solicitor General of India assisted by S.K. Rai submits, the petitioner always had a copy of the inspection report dated 02.02.2011 which has been annexed with the writ petition and therefore, it is not right on part of the petitioner to contend such report was not available.
However, he does not dispute, the report dated 06.01.2011 has not been supplied to the petitioner. In this regard he submits, with great vehemence, proceedings before the Estate Officer, by virtue of Section 8 of the P.P. Act, are Court proceedings the notice and all other material was available before the Estate Officer and it was for the petitioner to obtain copies of the same. That material was not required, by law, to be supplied to the petitioner. Having not done so, the petitioner cannot turn around and claim, the proceedings have been completed in violation of rule of natural justice. Therefore, according to him, the argument raised by learned counsel for the petitioner based on violation of natural justice, is misconceived.
In this regard he also relies on Rule 5 of the Rules framed under P.P. Act to submit, the Estate Officer records summary of evidence tendered before him and that forms part of the record of proceedings.
However, no material has been placed on record to indicate, if the material relied upon by the Estate Officer was actually tendered in evidence and recorded by way of summary of evidence. The impugned order only states those documents were "produced to prove that the premises in question are public premises and land in question......". Neither there is any recital in that order of actual evidence having been recorded or of the date when it was done or that any evidence was led to establish fact of petitioner having raised the constructions.
Having considered the arguments advanced by learned counsel for the parties, I find under Section 5A(2) of the P.P.Act itself prescribes action to remove any offending building or structure or fixture from a public premises has to be preceded by notice. The Act clearly mandates, such notice be first served and the noticee be given at least seven days time to remove the 'offending structure'. Thus, at first the notice preceding removal of any building or structure or fixture from a public premises is mandatory. In this regard, the Supreme Court, in the case of SD Bandi Vs. Karnataka SRTC reported in 2013 (12) SCC 631 did observe, "principle of natural justice have to be followed while serving the notice" under the P.P. Act.
Then, in the second place, notice issued under Section 5A(2) of the P.P. Act has to be issued with reference to the contravention specified in Section 5A (1) of the P.P. Act. This is clear from a plain reading of the first part of Section 5A(2) of the P.P. Act which provides for initiation of action only if any building or structure or fixture has been erected, placed or raised on any public premises in contravention of Sub-section (1) of Section 5 A of the P.P. Act.
Under Section 5A (1) of the P.P. Act the prohibition arises amongst others against erecting or placing or raising any building or any movable or immovable structure or fixture (Clause A of Sub-section (1) of the P.P. Act), amongst others on any public premises except in accordance with the authority under which the noticee may have been allowed to occupy such public premises. Thus, the notice required to be issued under Sub-section 2 of Section 5A of the P.P. Act contemplates that the authority i.e. the Estate Officer would have to issue a notice containing full details and particulars of the building or structure or fixture as is/are claimed to be offending the authority given to the noticee to occupy such public premises.
For an authority to allege that a building, structure or fixture has been erected or placed or has been raised in contravention of authority to occupy given to the noticee, such authority will have to then specify and describe in exact terms the building or structure or fixture which according to it has been erected or raised or placed in contravention of law.
Knowledge as to such fact cannot arise on its own. The Estate Officer, in his normal functioning has no reason or method to acquire such knowledge. Such information would come to him from some source upon which he would have to get an inspection of the public premises in question, done. Such proceedings may be of inspection or survey. In absence of any inspection or survey, it is difficult to believe how and when the Estate Officer may acquire knowledge necessary for issuance of a valid notice under Section 5A (2) of the P.P.Act. Also, the power under Section 5A (2) of the P.P.Act includes power to forcibly remove any offending building or structure or fixture, it cannot be exercised on a vague or nebulous information. In this regard, the Supreme Court in the case of Madhavrao Scindia (Dead) By LRS Vs. Ramesh Jatav and Others reported in 2006 (1) SCC 379 provided:-
"1. The learned Senior Counsel for the petitioners submits that the impugned order of the High Court has been passed with undue haste. Some of the directions made by the High Court are vague and premature. As to para 11, it is submitted that no encroachment could have been directed to be removed and no demolition could have been ordered without recording a specific finding in that regard. The Municipal Corporation ought to have been directed to carry out a survey in the presence of the parties and identify encroachment and unauthorized construction, if any, so that the aggrieved party could have the remedy of approaching the civil court. As to para 10, it is submitted that direction, if any, was called for against O.P. Saraswat who is illegal possession of land in excess of what he is entitled to.
2. Issue notice to Respondents 1 to 11. The learned counsel for the petitioners submits that for the present notice is not required to be issued to Respondents 12 to 24.
3. Until further orders, it is directed that the direction made by the High Court shall remain stayed until the Municipal Corporation has identified the boundaries of the land alleged to be public park and clearly identified, by taking measurements, the encroachment, if any. Needless to say such survey and identification shall have to be done in the presence of the parties likely to be affected adversely by the action of the Municipal Corporation."
In the instant case it is admitted to the respondent, the show cause notice under Section 5A(2) of the P.P. Act was issued to the petitioner on the basis of a report made by the DEO, Meerut. The notice does not specify and it does not contain details of any particular report of the DEO, Meerut. Thus, at the stage of issuance of notice, it was not made clear to the petitioner as to how and on what basis the Estate Officer had alleged that the petitioner had raised any construction contrary to the law. Unless the petitioner was first confronted with such material, it is difficult to contemplate how the petitioner could have effectively denied or replied to the same.
The plain allegation in the notice cannot be accepted as a gospel truth. For the authority to allege that a violation had been made by the petitioner requiring action under Section 5A(2) of the P.P.Act, it was incumbent on the Estate Officer to confront the petitioner with adverse material on the basis of which allegation had been made in the show cause notice. Absence of adverse material giving rise to the notice, renders it incompetent and vague.
Leaving that aside even otherwise, for an allegation of the nature contemplated under Section 5A (2) read with Section 5A(1) of the P.P. Act, it would be necessary for the authority to confront the noticee with material that is not only considered adverse to the noticee but also, as has been contended in the instant case, is the foundation of the proceedings.
Having not confronted the petitioner with the adverse material and the basis of the notice, the consequential order passed with serious consequences involving demolition of entire structure under the occupation of the petitioner, cannot be upheld.
In this regard, it is further to be noted that the Estate Officer, in the impugned order dated 05.02.2014 has referred to two inspection reports with the following description:-
"(iii) The site plan of B.No. 64, Church Road, Meerut cantt. Showing unauthorized constructions.
(iv) Inspection report dated 06.01.2011 of Sh. Ram Kumar, SDO-III & Shri S.C.Pant, SDO-II."
The date of the site plan showing unauthorized construction, referred to in the aforesaid order has not been disclosed. However, during the course of the argument Sri Mehta has stated that the site plan is the map annexed to the writ petition dated 2.2.2011. As discussed above, the said map does not support the allegations made in the show cause notice dated 3.2.2011. Some of the measurements of the 'offending structure' mentioned in the show cause notice are not to be found in the map measurements.
Also, the order refers to earlier inspection report dated 06.01.2011 of Sri Ram Kumar and Sri S.C. Pant which is not available with the petitioner and which has also not been brought on record by the respondent by choosing to not file counter affidavit in the present writ petition.
Thus, it emerges, while show cause notice was issued to the petitioner without confronting him with any adverse material and without giving him opportunity to rebut such material or information, the impugned order has been passed by relying on certain material which has in the first place been shown to be not supporting the fact allegation in the notice, inasmuch it cannot be said that the fact allegation made in the impugned order and/or the notice is supported by the inspection report and the map dated 2.2.2011. Also, at the same time, it cannot be said those fac allegations are supported by other inspection report dated 6.1.2011, as that report was neither supplied to the petitioner nor has been shown to this court.
Therefore, the impugned order cannot be allowed to stand on these facts and reason alone. The Estate Officer, howsoever right, it may claim to be and whatever be the bonafide of the action of that authority, he cannot be permitted to demolish a construction standing on a public premises without affording the noticee i.e. the petitioner a fair chance to defend the action. Demolition of structure, as has been rightly contended by Sri Arora would not only involve a financial loss to the petitioner but it would also render the petitioner homeless. Such serious consequences cannot be allowed to be visited upon any citizen without complete fairness in procedure being followed by the authority vested with such powers.
In fact, it is not clear in this case, whether the constructions has been raised by the petitioner or her vendor or the HOR themselves.
The reasoning given in the impugned order, the petitioner does not have an authority to occupy the public premises and therefore, the constructions standing on the public premises are liable to be demolished, is reason in the eyes of law as it cannot lead to the conclusion sought to be drawn. If it was the belief of the Estate Officer, the petitioner did not have a right to occupy the public premises, the proper course and the only course open to the Estate Officer may have been to initiate proceedings under Section 5 of the Act to evict the petitioner, being an unauthorised occupant. Had such proceedings being initiated it would have been open to the petitioner to establish, she had authority to occupy the premises on the basis of the sale deed. The existence of occupancy right is therefore an issue to be examined in proceedings under Section 5 of the Act. However, even in the proceedings title issue may not be examined and adjudicated. Therefore, in conclusion, the notice dated 3.2.2011 and the impugned order dated 5.2.2014 have been passed in violation of essential principles of natural justice.
In this regard, it may also be noted that the argument of Sri Mehta that the authority was not obliged to supply to the petitioner copies of the adverse material and report and it was of the petitioner to obtain copies of the same from the Estate Officer, cannot be accepted. The aforesaid argument rests on the premise that proceeding before the Estate Officer is akin to suit proceedings. Also, he asserts, the reports relied the petitioner were filed in evidence before the Estate Officer. Therefore, it has been contended by Sri Mehta, the petitioner had full opportunity to obtain copies of the same and the petitioner having failed to obtain copies, she cannot turn around to contend the Estate Officer was at fault in not supplying her copies of the adverse material before the proceedings to pass the order of demolition.
In this regard, first it is noticed the Act contemplates only a minimum of seven days notice to be given to the noticee before the proceeding to pass the order of demolition. Specification of seven days time itself makes clear that the proceedings are essential and truly summary. In this context, it is then difficult to believe that a noticee would have enough time such as to, upon receipt of notice, apply for copies of the adverse material which it is claimed existed on record and thereafter to file his rebuttal and reply within a period of seven days. Also, there is nothing in the language of the Act to suggest that the proceedings initiated under Section 5A(2) of the P.P. Act are such as may require leading of exhaustive evidence or the conduct of proceedings in the like manner as in the suit.
Second, the argument made by Sri Mehta is founded on the language of section 8 read with Rule 5 of the Rules. Section 8 essentially gives to the Estate Officer certain powers to summon and enforce attendance of any person whose evidence may be necessary and also power requiring discovery and production of a documents etc. Rule 5 (2) of the Rules only states that the Estate Officer shall record the summary of evidence and relevant documents filed before him. The Rules nowhere provide that the complainant i.e. Estate Officer would file alongwith complaint all the copies of such evidence be it oral or documentary that proposes to rely an against the noticee. In fact Rule 5(2) of the Rules does not appear to have been made for this purpose. This Rule appears to be only to enable the Estate Officer to record a summary of evidence, during the course of the proceedings, if required. Thus, in a given case, if the report forming the basis of the official show cause notice had been supplied to the noticee/petitioner and she had disputed the correctness of the same, then, the Estate Officer would, under Rule 5(2) of the Rules, have the power to record a summary of evidence to prove the contents of the report.
In that view of the matter the foundation of the argument made by Sri Mehta does not exist. Thus, the proceeding conducted by the Estate Officer under Section 5A(2) read with Section 5A(1) of the P.P.Act are not akin to those in a original suit. Merely because certain powers of Civil Court have been vested in the Estate Officer for the limited purpose specified in the Rules itself, it cannot be said that the proceedings before the Estate Officer are akin to those of a civil suit.
In any case it has not been established on record that the document relied in the impugned order were ever received in evidence by the Estate Officer. It is so because the order itself does not state so and than the respondent, have not filed any counter and have not produced the record of the proceedings. Again, the recital contained in the impugned order is only to the effect as quoted below:-
"The documentary evidence filed on behalf of the DEO clearly proves that the OP has no right to occupy the said portion of the premises. It has been stated on behalf of the DEO that the OP is trees-passer and has no locus-standi. Accordingly, I hold that the OP is unauthorized occupants of the premises in question and he has no locus-standi. The OP does not possess occupancy rights."
On the aforesaid reasoning, it cannot be said that any evidence had been received by the Estate Officer to hold that the 'offending structure' had been raised contrary to law. The only conclusion has been drawn by the Estate Officer is that their exists evidence to suggest that the petitioner did not have the authority to occupy the public premises.
Based on the aforesaid conclusion the Estate Officer has then rushed to the conclusion as under:
"I am satisfied that Smt. Manju W/o Sanjay Arora has carried out following unauthozed constructions without authority on the public premises held on old grant land of Bungalow No. 64, Church Road, Meerut Cantt and she has no locus-standi as she is trespasser over Defence Land"
Thus, it can be clearly seen, the Estate Officer himself did not read any part of the reports dated 2.2.2011 and 6.1.2011 to be evidence of unauthorized constructions having been raised by the petitioner. Whatever documents the Estate Officer examined, he only did so for the purpose of determination whether the petitioner had any occupancy rights over the 'public premises in question'.
Also, the impugned order does not contain any reason to conclude, the petitioner had raised any unauthorized constructions. Neither petitioner's objection raised in writing has been considered nor it has been rejected nor there is any discussion or finding recorded in the impugned order as to the date when the 'offending structure' came into existence or the date on which the petitioner is alleged to have occupied the public premises in question.
The next submission made by learned counsel for the petitioner is, the petitioner had purchased valuable rights in the 'public premises in question' under a sale deed wherein the total area of the property is mentioned at 56 sq. mts. The area of the 'offending structures' is mentioned in that document at 23 sq. mts.
Then, learned counsel for the petitioner submits, the notice dated 03.02.2011, according to him has been issued to the wrong person. He submits, the language of Section 5A(2) is specific. It contemplates "the estate officer may serve upon the person erecting such building or other structure or fixture, a notice". Therefore, from a plain reading of language of sub-section 2 of Section 5A of the P.P. Act, notice could have been issued only to the person who is alleged to have himself erected or to have got erected any building, structure or fixture. Since, in the instant case, the notice had been issued to the present petitioner only, she could not have been called upon to show cause in respect of the constructions raised by her vendor more than ten years ago. Once the petitioner, denied having raised those constructions, the proceedings against her ought to have been confined to determination of this fact alone. However, no determination has been done till date to ascertain the person who raised the ''offending structure' or the date of erection of the 'offending structures'. Bolstering his submission, learned counsel for the petitioner then submits, under the P.P. Act, different proceedings are contemplated for different purpose. Thus, proceedings for eviction from public premises are contemplated under section 5 of that Act. In those proceedings, occupancy rights of the person in occupation of the public premises could be examined. In this regard, it is seen, while section 5 is an original provision under the P.P. Act, and it has remained in force since 1971, when that Act was first enforced. It reads :
"5. Eviction of unauthorised occupants.-(1) 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 sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised 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 may 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.
(2) 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 the date of its publication under sub-section(1), whichever is later,] the estate officer or any other officer duly authorised by the estate officer in this behalf [may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person]from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."
However, even in such a case, if issue of title arises, it is to be borne in mind, by virtue of an earlier decision of this Court in the case of Madan Mohan Sharma and others Vs VII ADJ and others reported in 2006 (8) ADJ 615 it has been held proceedings under section 5 of the P.P. Act are summary in nature and therefore title cannot be decided in those proceedings. That question could be decided in a proper suit proceeding only.
On the other hand, section 5A(1) of that Act was first incorporated by Act No. 61 of 1980 w.e.f. 20.12.1980. It provides for prohibition against - erecting any building or other structure or fixture; display or spread of any goods and; bringing or keeping any cattle or other animal, on any public premises. Specifically, it does not contemplate any power to remove any building, structure or fixture. As originally enacted, it read :
"5A. Power to remove unauthorised constructions, etc. -(1) 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 animal, on, or against, or in front of, any public"
Similarly, Section 5B was introduced to the P.P. Act, by the aforesaid Act. No. 61 of 1980 to provide for power to demolish unauthorised constructions. It reads :
"5B. Order of demolition of unauthorised construction:- (I) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed on any public premises by any person in occupation of such public premises under an authority (whether by way of grant or any other mode of transfer), and such erection of building or execution of work is in contravention of, or not authorized by, such authority, then, the estate officer may, in addition to any other action that may be taken under this Act or in accordance with the terms of the authority aforesaid, make an order, for reasons to be recorded therein, directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced, or is being carried on, or has been completed, within such period, as may be specified in the order.
Provided that no order under this sub-section shall be made unless the person concerned has been given by means of a notice [of not less than seven days] served in the prescribed manner, a reasonable opportunity of showing cause why such order should not be made.
(2) Where the erection or work has not been completed, the estate officer may, by the same order or by a separate order, whether made at the time of the issue of the notice under the proviso to sub-section (1) or at any other time, direct the person at whose instance the erection or work has been commenced, or is being carried on, to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under section 9.
(3) The estate officer shall cause every order made under sub-section (1), or, as the case may be, under sub-section (2), to be affixed on the outer door, or some other conspicuous part, of the public premises.
(4) Where no appeal has been preferred against the order of demolition made by the estate officer under sub-section (1) or where an order of demolition made by the estate officer under that sub-section has been confirmed on appeal, whether with or without variation, the person against who, the order has been made shall comply with the order within the period specified therein, as the case may be, within the period, if any, fixed by the appellate officer on appeal, and, on the failure of the person to comply with the order within such period, the estate officer or any other officer duly authorized by the estate officer in this behalf, may cause the erection or work to which the order relates to be demolished.
(5) Where an erection or work has been demolished, the estate officer may, by order, require the person concerned to pay the expenses of such demolition within such time, and in such number of installments, as may be specified in the order."
By a still subsequent amendment made by Act No. 35 of 1984 w.e.f. 13.11.1984, the Parliament first enacted section 5A(2) to the Act and created and vested with the Estate Officer, a further power, in addition to that existing under section 5A(1) read with section 5B of the Act - to require removal of any building, structure or fixture, erected or being erected in violation of sub-section (1) of section 5A of the P.P. Act.
Also, by that amending Act, another section 5C, was introduced to the P.P. Act, creating a power to seal unauthorised constructions. Those provisions read as below :
"5C. Power to seal unauthorized constructions:- (1) It shall be lawful for the estate officer, at any time, before or after making an order of demolition under section 5B, to make an order directing the sealing of such erection or work or of the public premises in which such erection or work has been commenced or is being carried on or has been completed in such manner as may be prescribed, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such erection or work.
(2) Where any erection or work or any premises in which any erection or work is being carried on has, or have been sealed, the estate officer may, for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed.
(3) No person shall remove such seal except-
(a) under an order made by the estate officer under sub-section (2); or
(b) under an order of the appellate officer made in an appeal under this Act."
Learned counsel for the petitioner submits, different provisions have been enacted by the Parliament, to the P.P. Act, to remedy different situations involving persons belonging to or falling in different classes, claiming different nature of rights with respect to public premises. Each such provision appears to be different from the other, in scope object and nature though each such power is to secure public premises.
I find, initially upon its enactment, section 5 of the P.P. Act only contemplated a power to evict unauthorised occupants from any public premises, that being the main object of the enactment. Under section 6 of that Act, it also provided for an incidental power to dispose of property left on public premises by unauthorised occupants.
Later, by amendments made to the P.P.Act, in year 1980, a new section 5A(1) was enacted. It provided, w.e.f. 20.12.1980, amongst others, no building, structure or fixture shall be erected except with authority under which the person (raising such a building, structure or fixture) was allowed to occupy the public premises on which such erection may have been made. The language of this provision clearly indicates, the authority to raise constructions must be traceable to and/or arise from the authority to occupy a public premises.
Also, by enacting section 5B to that Act, a power was created to demolish erection of any building or execution of any work that is commenced, or is carried on, or is completed on any public premises, by any person in occupation of the same, in contravention of or without authority under which such person is in occupation of the public premises in question.
From a plain reading of sections 5A (1) and 5B, referred to above, it is clear, those provisions were enacted with reference to persons in occupation of the public premises under a valid authority. Thus a person enjoying occupancy rights under a grant or a transferee of such a person, could raise only such constructions as may be authorised under a grant in his favour or in case of his transferee by virtue of a valid transfer read with the grant. If such a person, however, raised any constructions, either without such an authority or contrary to it, then, the same were liable to be demolished under section 5B of the P.P. Act.
Both provisions were, however, person specific, that is they applied to the person holding an authority to occupy the public premises under a grant or his transferee. The transferee of the grant holder was treated on the same footing as the person to whom the grant was originally issued. However, in either case, the provision of section 5A (1) provides a restraint on the right to raise constructions and section 5B creates a power to demolish certain unauthorised constructions against a person occupying a public premise, either under a grant made under his name, or as a transferee of such person and to no other.
Thus, section 5B compliments section 5A(1) of the Act. While section 5A(1) provides restraint on raising unauthorised constructions, section 5B provides for the consequence of raising such unauthorised constructions, being demolition of unauthorised constructions. However, both sections, by use of specific words, "under which he was allowed to occupy such premises", used in section 5A (1) and; "by any person in occupation of such public premises under an authority" , used in section 5B restrict the applicability and obligations created under those sections to persons having a authority to occupy the public premises.
Though the term 'authority' has not been defined under the Act, however, in the context of the Act, it must be understood as the document or deed whereunder the occupant derives a right to occupy a public premise. In the context of the facts of this case, it must be understood as either the grant - whether old or new and/or a valid transfer deed executed by such holder of the grant or his transferee. It cannot however include a simple document creating tenancy or licensee rights, executed by a person holding the grant. Also, an unauthorised occupant of a public premises would have no authority in his favour to occupy the same.
To include such a persons within the description of a person occupying a public premise with the authority, would be to render redundant the words 'under' appearing before and after the word 'authority' used by the legislature in those sections. A simple tenant or a licensee of the person holding a grant does not come into occupation of the premises held by his landlord, under an authority of the Union. He occupies the premises by virtue of his private arrangement with the landlord.
On the other hand, if a tenant or licensee or other person being in occupation of a public premise except by authority under a grant or any other mode of transfer, if found to have erected any building, structure or fixture on a public premise, could not be proceeded with under section 5A(1) read with section 5B of the P.P.Act, for the aforestated reasons.
Thus, it appears, in 1984, by further amendments, the Parliament enacted section 5A(2) by which pre-existing power under section 5A(1) was sought to be enlarged. A power was created to direct - any person who had erected a building, structure or fixture contrary to provisions of sub-section (1) thereto, to remove such structure. This power is directed against the person who raised the offending structure, irrespective of his occupancy rights, if any, on the public premises on which they may have been erected.
Thus, by virtue of this provision, a person who may not hold a grant and who may not be a transferee of such person - such as a tenant, licensee or an unauthorised occupant, of a public premises was obligated not to raise any construction contrary to the authority existing in respect of that public premises.
Upon enactment of section 5A(2) of the Act, the Parliament enlarged the pre-existing power under section 5A(1) of the Act and made it applicable to any person who may have, amongst others, erected a building, structure or fixture on a public premise, whether or not such a person had any authority to occupy those premises. Then again, as before, the legislature provided, such unauthorised constructions may, in the first instance, be directed to be removed by the person erecting them. Still, upon failure on part of such person to remove them, power was given to the Estate Officer to remove the same, after issuing prior notice to such person, i.e. the person who, though may not be holding an authority to occupy the public premises in question, but who may be found to have erected the offending building, structure or fixture, thereon.
It may also be seen, unless such distinction, on the basis of authority to occupy a public premise is recognised and maintained to differentiate between section 5A(1) read with 5B of the P.P. Act on one hand and section 5A(2) of that Act on the other, the two provisions may become completely overlapping. Resultantly, the provision of section 5A(2) introduced by later amendment would, in effect, become redundant.
However, whether under section 5A(1) read with 5B of the P.P. Act or section 5A (2) of that Act, in either case, the power is exercisable only against the person who it is claimed or alleged, to have raised unauthorised erections of a building, structure or fixture. Also, those erections may be removed after issuance of prior notice to him.
On the other hand, under section 5 of the P.P. Act, a person, if found to be in unauthorised occupation of a public premise, may be evicted therefrom upon an order being passed in that regard, against him. Again, as in case of demolition, so in this case as well, the notice and order must be against the person entering unauthorised occupation of a public premise.
Under Section 5A and 5B of the Act, the issue to be examined is whether the structures that are standing on the public premises have been raised in accordance with the authority that may have been granted to the original occupant or his trustees to raise such constructions. It is further clear, under Section 5B of the Act, the noticee may show cause that the constructions had been raised in accordance with the authority given to occupy the public premises. Thus, the scope of Section 5B is limited to examine whether the offending structures were permitted to be raised under the authority given to occupy the public premises. The scope is not to examine whether there existed an authority to occupy the public premises. In fact, proceedings under Section 5B of the Act appear to proceed on a presumption as to existence of authority to occupy premises.
On the other hand, Section 5A(2) of the Act contemplates proceedings against a person who may be in occupation of a public premises otherwise than under a authority to occupy the public premises. The proceedings are confined to demolition if such a person himself raised the offending constructions. In the instant case, the petitioner having disputed the fact of it having raised the 'offending structure', it was not open to the Estate Officer to order demolition on the reasoning that the petitioner did not have occupancy rights.
If the adjudication as to occupancy right was to be made against the petitioner she ought to have been issued a notice in that regard as is mandatory under Section 5 of the Act. The impugned notice was itself only to show cause on the offending structure may not be demolished. It was not a notice to show cause on why the petitioner may be evicted being an unauthorised occupant. The Estate Officer therefore could not have recorded a finding, the petitioner was an unauthorised occupant and he further could not have passed an order to demolish the offending structure for that reason, in a proceeding which had arisen under Section 5A(2) of the Act.
Separate powers having been given to the Estate Officer to proceed for eviction against an unauthorised occupant and for demolition of structures raised thereon, the stipulation of the P.P. Act to do particular acts in a particular way cannot be allowed to be diluted in the manner it has been done.
In absence of a notice under Section 5 the petitioner could not have been visited with an order, stating she has not occupancy rights. To allow the Estate Officer to do so, would be to allow him to indirectly evict a person from the public premises without following the mandatory provision of Section 5 of the Act. It would be so because once the proceedings of demolition are allowed to be completed and the constructions are to be demolished on such reasoning and finding, there would be nothing standing on the public premises over which the petitioner could enjoy the occupancy rights.
In the instant case, it is seen, the petitioner's defence has been, she never raised any construction over the public premises in question. On other hand, she claims to have purchased constructed building from the legal heir of the recorded HOR. Here it may be noted, respondents do not dispute the fact, the vendor of the petitioner as per sale deed annexed her supplementary affidavit is the legal representative of late Jai Prakash one of the 6 joint HOR as per GLR entries recorded by the said respondents.
A plain reading of the sale deed itself suggests, the petitioner purchased the constructions on 30.05.2000 inasmuch as the sale deed clearly records, it is in respect of construction existing on 23 sq. meters and remaining part of 56 sq. meters being open land.
Consistent with the above, the petitioner submitted in her reply to the notice dated 03.02.2011, she had not raised any construction and that she had purchased the same from the son of Sri Jai Prakash. She further clarified, the existing structures are the same as had been purchased by her.
This being the specific case of the petitioner, the only course open to the Estate Officer was to record a specific finding, based on evidence and reason/s that the claim of the petitioner, of the offending structures standing on the public premises from before her purchase on 30.05.2000, is false and that it is the petitioner who has raised these constructions herself. Only to that extent proceedings under Section 5A(2) of the P.P. Act could be validly initiated against the petitioner and not if the proceedings were initiated with respect to constructions raised earlier.
Thus, there would have to come on record evidence to establish, that the constructions had been raised by the petitioner after she came to occupy the public premises. It would involve a finding as to the date when the petitioner came into occupation of the public premises and also most materially the date of the constructions being so raised by her. No such finding has been recorded in the present case. Hence, the impugned order cannot stand.
Next, Sri Arora submits, the petitioner has not made any further constructions over and above that recorded in the sale deed dated 30.05.2000. Therefore, he further submits, the structures/constructions in respect of which the notice had been issued had been standing for more than 10 years before issuance of the show cause notice as the show cause notice was first issued only on 03.02.2011. He submits, therefore, no notice could have been issued to the petitioner under section 248 of the Cantonments Act, twelve months having long passed from the date of constructions. Therefore, in his submission, the notice under section 5A (2) of the P.P. Act has been issued to indirectly do that which cannot be done directly under section 248 of the Cantonment Act.
In this regard, he submits, the scope of the provisions under the P.P. Act and the Cantonments Act, 2006 (hereinafter referred to as Cantonments Act) is overlapping. According to him P.P. Act applies to all public premises. Under that Act term "public premises" has been defined under section 2(e). It reads:
"2. Definitions:- In this Act, unless the context otherwise requires,
(e) "public premises" means:-
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorized Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,-
(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent. of the paid up share capital is held by the Central Government or any company which is subsidiary (within the meaning of that Act) of the first-mentioned company;
(ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) or a local authority) established by or under a Central Act and owned or controlled by the Central Government;
(iii) any University established or incorporated by any Central Act.
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963);
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when re-named as the Bhakra-Beas Management Board under sub-section (6) of section 80 of that Act;
(vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory;
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and] (3) in relation to the [National Capital Territory of Delhi]-
(i) any premises belonging to the Municipal Corporation of Delhi, or any Municipal Committee or notified area committee;
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;] [and] any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory;]"
In so far as, it is indisputable in the instant case, the land over which the "offending structure" stands belongs to the Union of India, it is a "public premises" under section 2(e) of the P.P. Act.
Also, at the same time, the Cantonments Act, is an Act providing for complete management, control and development of all land falling under the territorial limits of a cantonment, notified under section 3 of that Act. Once such notification is issued, the cantonment board constituted under Chapter III of that Act, and its authorities exercise complete control over, amongst others, over town planning and control over buildings, etc. falling under the territorial limits of such a cantonment board. These provisions are contained under Chapter X of that Act.
Under the Cantonments Act the powers are wider and or more comprehensive, inasmuch as while under the P.P. Act, the only power is to either evict or to demolish or both. There is no power to grant sanction to raise any construction or to compound certain offences in respect of constructions etc. being raised.
Arising from the above, learned counsel for the petitioner submits, the proceedings under the P.P. Act are limited in scope and operation to attach against persons who either come to occupy a public premises either under an authority creating occupancy rights or otherwise and who; themselves erect or get erected building, etc. of a public premises. It does not therefore apply to person who may have purchased such property from another.
Further, he would submit, the lack of sanction, if any, for the purpose of raising the constructions is in irregularity which is curable under the Cantonments Act whereas under the P.P. Act, there is no provision for the same. Accordingly, he would submit, since the demolition had been sought on account of constructions having been raised without permission, the proper proceedings to be drawn in this case should have been under the Cantonments Act and not the P.P. Act. Those proceedings being time barred, the respondents cannot be permitted to seek the same result by adopting proceedings under section 5A of the P.P. Act.
Sri Arora further submits, after the amendment made to the P.P. Act, though an unauthorized construction has not defined under the Act, sub-section 2 read with sub-section 1 of Section 5A only states that no building, structure or fixture shall be erected on a public premises except in accordance with the authority under which the person making such erections was allowed to occupy the premises.
The provision for authority to raise constructions arises under only Section 34 of the Cantonments Act. He would therefore, submit, in any case, the issue of authority to raise construction could be gone into the proceedings under the Cantonments Act. Therefore, the present proceedings are incompetent and further if these are allowed stand it would preclude a decision as to existence of authority to raise the constructions or even as to if such constructions, even if raised without authority can be permitted to continue to stand after payment of compensation fee.
On the other hand Sri Arora submits, in the facts of the present case, the petitioner had bona fide purchased the property from a person who according to the respondents themselves is a legal representative of one of the deceased recorded HOR, the petitioner having purchased such property, it is wholly unjust on part of the respondents and it would result in gross illegality to the petitioner if the present proceedings are allowed to stand and attain finality without allowing for remedies to establish existence of the authority to raise the construction or for permission to let such constructions stand in lieu of payment of compensation fee.
Elaborating his submission, learned counsel for the petitioner submits, in the given facts of this case where the petitioner had purchased the property in the year 2000 and the first notice under Section 5A(2) was issued on 03.02.2011, is wholly unreasonable to accept that the petitioner could have within the limited time granted to her produced the authority that may have been granted to the vendor from whom she purchased the said property.
In this regard, he would further submit, since the vendor had sold the property to the petitioner 11 years prior to the issuance of the notice, and the vendor was not a party in the present proceedings. At the same time proceedings under Cantonments Act had became time barred.
Under chapter 10 of the Cantonments Act, under Section 233 the Chief Executive Officer with approval of the Cantonment Board concerned, may first prepare a spatial plan to earmark different zones for different activities within a cantonment area. Second, section 234 of the Cantonments Act contemplates grant of sanction for erection and re-erection of building of any cantonment land. Third, section 235 requires a person intending to erect or re-erect a building of cantonment to apply for sanction by giving notice in writing of his intention to do so. Fourth, under Section 238 the cantonment board has the power either to sanction or refuse to sanction any permission sought to erect or re-erect any building.
Then, section 247 of the Cantonment Act provides, whoever brings, continues or complete the erection or re-erection of a building, without a valid sanction, of the Cantonment Board, be punishable with fine etc. Also, by Section 248 of the Act the Board is authorized to direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of the building in case the board considered such erection or re-erection is an offence under Section 248 (1) of that Act. Then, under Section 248 (2) the Board is further authorized to stop erection or re-erection of building in case in which sanction obtained under Section 238 may have been suspended and it may also direct for demolition or alteration as the case may be.
Thus, the analogous provisions do exist under the Cantonment Act to ensure that the structure standing on the land inside a cantonment are built according to sanction accorded by the Cantonment Board and in the event of such structure being contrary to the sanction or in the event of sanction itself, being suspended or withdrawn, such structures may be demolished.
However, the first difference, that exists in the power under the P.P. Act and the Cantonment Act, is while under the P.P. Act separate provisions have been made to restrain and demolish building, structure and fixture erected by persons who have authority to occupy the public premises in question in the shape of Section 5A(1) r/w Section 5-B of that Act, under the Cantonment Act such distinction has not been maintained inasmuch as under section 247 penalties are imposable of all such persons who may begin, continue or complete the erection or re-erection of building contrary to law.
The second distinction appears that the Cantonment Act takes within it's sweep all offenders irrespective of their occupancy right or other rights in the property. It makes no distinction between a persons holding a valid occupancy right or a person not holding such right. Similarly section 248 of the Cantonment Act gives the Board the power to stop any offending construction being made either by the owner or the lessee or the occupier of any cantonment land by issuing notice in that regard. Such structure, if raised may be demolished by the cantonment board. Again, this action takes within its sweep any person who may be found erecting or re-erecting any building over any part of the cantonment land which has been erected or re-erected without due sanction or contrary to the sanction. Power may be exercised against the person under Section 248 in the like manner irrespective of the fact whether the person is the owner, lessee or occupier.
It is also a fact that the Cantonment Act is a subsequent Act having been enforced in the year 2006 the P.P.Act is an Act enforced in 1971.
Based on the aforesaid provisions and scheme, learned counsel for the petitioner submits that the Cantonment Act is a species of the genus represented by the P.P. Act. Thus, he submits, while both Cantonment Act and P.P. Act are special Acts, yet, in view of the fact that they operate in the same field, it is the Cantonment Act which is a special act as compared to the P.P. Act. According to him, all that is required to be done under the P.P. Act can be done under the Cantonment Act as well. Further, he submits the P.P.Act is of general application to all public premises irrespective of the fact whether the public premises are within or outside the cantonment area, the Cantonment Act applies to public premises inside and cantonment area. Therefore, according to him, it is the Cantonment Act, 2006 alone, which shall apply to the facts of the present case and the general provision of P.P. Act, could not have been resorted too.
Responding to the aforesaid submission Sri Mehta contends that the submission so made is wholly misconceived. According to him the area of operation of two Acts and the purpose of two Acts is entirely different. While he concedes that in certain matters similar provisions may exist in both the Acts power to demolish unauthorised constructions exists, yet, the same cannot lead to the conclusion that two Acts are overlapping in entirety.
Elaborating his submission further, Sri Mehta states, the Public Premises Act was enacted for the purpose to provide for a speedy machinery for eviction of the unauthorised occupants of public premises. The Act has been enforced to secure all the public premises from unauthorised occupation and also from unauthorised modification or alteration. The second purpose has been achieved by the amendment made to that Act in the year 1980 and 1984. Thus, while original P.P. Act concerned itself only with the eviction of an unauthorised occupants from public premises and for that purpose section 5 had been enacted, section 6 as originally incorporated existed only to deal with the incidental issue of property left on public premises by unauthorised occupants.
However, he submits, as on date, after the amendment made in the year 1980 and 1984 of the P.P. Act also empowers for removal of any unauthorised constructions on a public premises that may have been raised by a person having authority to raise such construction or another person who may be claiming under the person holding that authority or any other person who may not be claiming under a person having authority to raise construction. These provisions became necessary to be incorporated because of an occurrence of unauthorised constructions being raised on public premises. Coming to the Cantonments Act, Sri Mehta would submit that it is an Act for the purposes of management of cantonments all over the country. The purpose of that Act, according to him is to provide for land management; development impetus; ensure resource generation and; also lend greater democracy in the management of cantonment area. The Act itself is divided into 17 Chapters dealing with different aspects involving definition of cantonment areas; constitution of Cantonment Boards; duties and functions of Cantonment Boards; levy of taxes without fee in cantonment areas; management of fund and property; execution of contracts; sanitation and the prevention of disease; water supply; drainage and sewage management; creation and regulation of markets; slaughter house and operation; sale and composition of liquors and intoxicant; public safety and suppression of nuisances in the cantonment areas, etc. The power of demolition under the Cantonments Act falls under Chapter X providing for town planning and control over building etc. This power is incidental to the power of the Cantonment Board to develop constructions in a cantonment area whether, falling under a cantonment area whether any civil area as defined under Section 2(h) or under sub area defined under Section 2 (ZZB). The same is not for the purposes of securing the public premises from unauthorized occupation or unauthorized erection of a building, structure or fixture.
He therefore, submits, it is the purpose of P.P. Act which makes it a special Act in the context of Cantonment Act and not the fact that the land in respect of which the said enactment is being enforced falls in a cantonment area.
According to him the notification of the cantonment area only creates jurisdiction in special body that is the Cantonment Board for the purposes of making development in that area for the purposes of managing the said area for the benefit of its inhabitants who are both defence as also civil personnel. Therefore, he would submit, merely because the Cantonment Act, 2006 is a subsequent Act and it applies to all cantonment areas including the area where the "public premises in question" are situated, it would not oust the jurisdiction of the authorities under the P.P. Act, in so far as they seek to secure and thus maintain the identity of the premises as the public premises.
He also submits, there is no conflict between P.P. Act and the Cantonments Act and two can easily co-exist. Thus, while, the Cantonments Act provides for grant of sanction to develop constructions over land falling under within the Cantonment Act, there is no clash with that power under the P.P. Act inasmuch as P.P. Act does not provide for grant of sanction to raise any construction. On the other hand, the P.P. Act only speaks of erection of any building etc. in accordance with the authority under which a person was allowed to occupy public premises. Thus, to resist a demolition under the P.P. Act, a person visited with such a notice must only show that he can raise such construction under the permission of the authority whereunder he has come under occupation over the public premises. Thus, in the case a Government servant allotted a government quarter, if found to be raising constructions over the same, he may upon issuance of notice of demolition of such construction be called upon to disclose the permission to raise such construction under the allotment letter by which he came to occupy such quarter. On this reasoning, he would submit, the petitioner, in the instant case was only called upon to show cause the permission to raise the construction, she is alleged to have raised. If the authority were shown, the proceedings would have been dropped. On the other hand, since no such authority was shown, an order was passed to demolish the construction to secure the nature and identity of the public premises.
Sri Mehta thus submits, the proceedings under the two Acts are independent of each other and the respondents had full discretion to initiate proceedings under either Act without any pre-condition or other limitation.
He has further relied on a judgment of the Supreme Court in the case of Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others reported in (1990) 4 SCC 406, wherein the Supreme Court had been pleased to hold that the P.P. Act is a special Act with reference to Delhi Rent Control Act in a comparable situation.
Having considered the argument so advanced by learned counsel for the parties, I find that though the submission made by Sri K.K. Arora, learned counsel for the petitioner is in the first flush attractive, it is difficult to sustain the same. The Parliament has enacted the Cantonment Act with reference to entry 3 and 32 of the list one of schedule 7 to the Constitution of India. The purpose, policy and legislative intent as conveyed by language of the Cantonments Act and the P.P. Act is entirely different. While the P.P. Act has been enacted to protect public premises from unauthorized occupancy and later by amendment made to that Act to protect public premises from unauthorized constructions, the said Act does not show any intent or purpose to look beyond this limited purpose. It operates in a narrow field with limited/special object to secure public premises from unauthorized occupant and or construction.
On the other hand the Cantonments Act, is an Act of wider object and purpose. The legislative intent is clearly to provide for management, development etc. of cantonment areas. It is akin to, in its operation to any other Act providing for urban area development or industrial area development etc. It seeks to ensure planned development and thereafter management of resources within an area which may have residential, commercial, institutional, industrial and other uses. The special feature of the Cantonments Act arises on account of fact that such planing development and management within the cantonment area which have by very nature defence as also civil land area.
Thus, it cannot be said because the "public premises in question" fall within a cantonment area therefore, the provisions of P.P. Act stood automatically excluded. There is no specific provision under either Act that may reflect such intent. Also, from a reading of all provisions of the two Acts it does not appear that such intent is inherent. Further, as noted above, there is no conflict between two Acts. Therefore, there is no question of giving one Act preference over other in respect of its operation over the public premises in question. The impugned order, therefore, does not suffer from any defect of jurisdiction.
In view of the above, the scheme, object and scope of the Cantonment Act is different from that of the PP Act. There is no conflict between the two. If at all one Act is special to the Act, in the context of the present dispute it is the P.P. Act which is the special Act as it relates to eviction from public premises and demolition of unauthorised constructions from the public premises. It is not concerned with a general development and management etc of public premises. The public premises over which the Act applies may be situated in a cantonment or outside. The status of the premises as the public premises governs the applicability of the P.P. Act. Thus, the arguments raised by learned counsel for the petitioner cannot be accepted.
It is however true, while a notice under Cantonments Act for an similar purpose may have been issued to the petitioner, subject to limitation irrespective of her rights in the "public premises in question", and such a notice could have been issued under Section 248 of that Act, for similar proceedings being initiated under the P.P. Act, the issuing authority has to first decide whether the person to whom notice is to be issued is a person having occupancy rights or is a person who is not having occupancy rights. It is so because as noticed above while section 5 A (1) read with Section 5B of the P.P. Act provides for issuance of such notice to the person having occupancy right over "public premises in question". A notice under Section 5A (2) may be issued to a person who though may not have any occupancy rights over the "public premises in question", is found to be erecting a building or structure or fixture on that public premises.
The consequence of violation found under Section 5A(1) and 5A(2) is the same i.e. demolition. Yet, it appears a notice under Section 5A(2) may be issued only to a person who does not have occupancy rights over the public premises is nevertheless found to be engaged in erecting building, structure or fixture on such public premises.
Consequently, a notice under Section 5A(2) cannot be issued to a person who has not raised offending construction but who may have upon their completion come into occupation of the same. This intent appears, from a plain reading of sub-section 2 of Section 5A which states, the notice "Estate Officer may serve upon a person erecting such building or structure or fixture, a notice..........". It clearly implies, the notice has to be directed against the person offending the law by raising unauthorised constructions.
The case of a person-who comes into occupation of completed/constructed premises, (as has been claimed by the petitioner in this case that she came into possession almost 11 years prior to issuance of notice under Section 5A(2) of the Act) cannot then be noticed to show cause why the constructions may not be demolished would stand on a different footing.
Therefore, the aforesaid issue is being left open to be examined at appropriate stage in appropriate proceedings.
Also, if the Estate Officer was of belief, the offending structure had been raised by the predecessor of the petitioner and the same called for demolition, then, it may have been open to initiate such demolition proceedings under the Cantonments Act where such a notice could, subject to limitation existing, be issued even to occupant of the property that has been constructed against the sanction plan or without the sanction plan.
However, no further finding is being recorded in this regard, at this stage, as in view of what has been held above it cannot be stated, one way or the other, whether it was the petitioner who had raised the offending structure on the "public premises in question" or it was her predecessor who may have done so 11 years prior to her coming into possession.
Then, Sri Mehta has, with great vehemence submitted, the petitioner has no locus to question the correctness of the impugned order inasmuch as she is an unauthorized occupant. For this he has relied on the GGO 179 wherein the holder HOR are Ram Chandra, Chandra Prakash, Anand Prakash, Jai Prakash, Salekia Devi and Prem Prakash. He submits, the vendor from whom the petitioner claims to have acquired occupancy rights over the property is the son of the deceased HOR Sri Jai Prakash and not the recorded HOR herself. He further submits, while the last mutation in respect of the aforesaid property was recorded on 22.02.2012, even the vendor Narendra Kumar Agarwal did not get a mutation entry made in his favour. Therefore, he submits, the petitioner has no locus to question the action been taken by the respondent authorities as she is a complete unauthorized occupant and she cannot be heard to defend the ''offending structure'.
Clause 6 of the GGO number 179 dated 12.09.1836 reads as under:-
"6. No ground will be granted except on the following conditions, which are to be subscribed by every grantee, as well as by those to whom his grant may subsequently be transferred:-
1st. The Government to retain the power of resumption at any time on giving one months' notice and paying the value of such buildings as may have been authorised to be erected.
2nd. The ground, being in every case the property of Government, cannot be sold by the grantee; but houses or other property thereon situated may be transferred by one military of medical officer to another without restriction, except in the case of reliefs, when, if required, the terms of sale or transfer are to be adjusted by a Committee of Arbitration.
3rd. If the ground has been built upon, the buildings are not to be disposed of to any person, of whatever description, who does not belong to the army, until the consent of the officer Commanding the station shall have been previously obtained under his hand.
4th. When it is proposed, with the consent of the General Officer, to transfer possession to a native, should the value of the house, buildings or property to be so transferred exceed Rs. 5,000/-, the sale must not be effected, until the sanction of Government shall have been obtained through His Excellency the Commanger-in-Chief."
I am unable to accept the argument so made. The aforesaid clause of the GGO may be relevant for proceedings under Section 5 of the Act i.e. for determining of the occupancy rights and/or in a civil sit involving title dispute and not for the purpose of proceedings under Section 5A(2) or 5B of the Act. As has been discussed above, while proceedings under Section 5B of the Act proceeds on an assumption as to existence of occupancy rights in favour of the noticee and on an allegation, the noticee had himself raised the offending building or structure or fixture on the public premises. In that case, clause 6 of the GGO number 179 would not be relevant or applicable.
On the other hand, whenever an issue arises, a person found to be an occupant on the public premises is not one who was authorised to occupy the public premises and the noticee in that case claims to have come into occupation through a valid transfer, in that case, at that stage, the scope effect of GGO number 179 may be examined.
The argument advanced by learned Additional Solicitor General of India, questioning petitioner's locus to maintain the present proceedings because she is not recorded HOR and even her predecessor did not obtain mutation entries in his favour, therefore cannot be accepted. Admittedly, the HOR existed in favour of Sri Ramesh Chandra, Chandra Prakash, Anand Prakash, Jai Prakash, Smt. Salekia Devi and Prem Prakash. The vendor from whom the petitioner claims to have gained right over the "public premises in question" is son of recorded HOR namely Jai Prakash.
Also, the petitioner claims to have acquired her rights under a sale deed against valuable consideration. There is also no dispute to the fact, she is herself in occupation of the offending structure. Merely because mutation entries have not yet been shown to exist in favour of the vendor from whom the petitioner had acquired the rights over the "public premises in question", it cannot be concluded, either that he had no right in the same or that he had no right to transfer his rights in favour of the petitioner. These would be matters involving the dispute requiring adjudication and determination in a regular civil suit.
Strict reliance on the clause 6 of the GGO179 issued on 12.09.1836 restraining transfers of immovable properties governed by that order except with consent of the officer commanding, without any exception without providing for any post facto consent, that too in present proceedings under section 5A of the P.P. Act, would result in harsh consequences not contemplated by Section 5A of the P.P. Act.
In this regard it cannot be lost sight of that GGO itself is of date 12.09.1836 which is close to 200 years past and had been issued in a very different socio-political reality when extra restrictions on holding and occupying property and its transfer were accepted norms and the purpose of that GGO itself appears to be to keep a dominant and a complete control over the ownership of certain properties particularly those abounding military settlements. While it cannot be denied, the aforesaid GGO has not been withdrawn till date and it forms the foundation of many a right existing and being enjoyed even today, yet, the absolute embargo on transfer claimed by the respondents, since involves issues pertaining to title, would require consideration in an appropriate suit proceeding, at an appropriate stage.
Suffice at this stage, it would be extremely harsh on the petitioner to throw her out on locus standi by reading clause 6 of the GGO literally when, admittedly no notice was issued to her under Section 5 of the P.P. Act and no notice under Section 5A of that Act has been issued to the vendor from whom she claims to have purchased the property.
Inasmuch admittedly, no notice was issued to the vendor and in fact, notice was issued to the petitioner, there was an assumption raised by the Estate Officer itself, the petitioner was a lawful occupant of the "public premises in question". The scope of the notice issued under Section 5A(2) was then only to seek demolition of the unauthorised construction raised by the petitioner and not to seek eviction of the occupant.
The scope of the provisions under Section 5A(2) of the Act was therefore, very limited i.e. to establish whether the noticee had the authority to raise constructions. The scope of the proceedings is not and it could not be extended to examine whether the noticee had authority to occupy "public premises in question".
At present no proceedings have been initiated against the petitioner, under Section 5 of the P.P. Act, requiring her to show cause if she had the authority to occupy the "public premises in question". She could not have been visited with the order of demolition on the reasoning that she did not have authority to occupy the premise. To allow the respondents to do so would be to allow valuable rights of the citizen to be destroyed by drawing up proceedings under one provision for limited object and to achieve a different and wider object of eviction either directly or colourably. That cannot be done.
The impugned order dated 05.02.2014 is set aside. The matter is now remitted to the Estate Officer to decide the matter afresh after affording complete opportunity of hearing to the petitioner. In this regard, the Estate Officer shall first issue a fresh notice of the date of hearing in the matter so remanded. It shall be accompanied with complete copies of all inspection reports and other material that are to be relied against the petitioner. The petitioner shall be given time of at least three weeks to furnish her written reply/objection to the evidence/material to be relied against her.
The Estate Officer may then allow such further time to the parties as it may be considered necessary for the purpose of making meaningful inquiry and he shall fix the matter for hearing thereafter.
Upon conclusion of hearing, the Estate Office shall pass a speaking and reasoned order supporting each of his finding with specific material relied upon by him and disclosing reasons to accept or reject the grounds of objection raised by the petitioner, in light of observation made above. The Defense Estate Officer may proceed with demolition of the 'offending structure' in continuation of the present proceedings only if and when it is found, the petitioner had raised/erected the 'offending structure' and not otherwise, in which case, appropriate proceedings may be drawn up either against the petitioner or her vendor or both, in accordance with law.
Accordingly, the writ petition succeeds and is allowed. No order as to costs.
Order Date :- 22.08.2017 Lbm/-