Allahabad High Court
Vijay Sharma vs Union Of India And 2 Others on 8 October, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - C No. - 14488 of 2020 Petitioner :- Vijay Sharma Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Sumit Daga Counsel for Respondent :- A.S.G.I.,Ankit Gaur,Chandra Prakash Yadav,Satish Kumar Rai Hon'ble Ashwani Kumar Mishra,J.
1. Heard Sri Sumit Daga, learned counsel for the petitioner, Sri Chandra Preshrank Yadav for respondent nos. 1 and 3 and Sri Satish Kumar Rai for respondent no. 2.
2. This petition is directed against a notice dated 4.8.2016 and the consequential order dated 28.2.2020 (Annexures- 1 and 3 to the writ petition), whereby alleged constructions raised by the petitioner has been directed to be demolished. This order has been passed invoking the provisions contained in Section 5A(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act of 1971). The order records that petitioner is an unauthorised occupant and has no semblance of right to remain in possession and, therefore, the constructions raised by him are unlawful.
3. The writ petition was heard on 6.10.2020 and following orders were passed:-
"One of the ground urged on behalf of petitioner is that in view of repeal of the Cantonments Act,1924, the provisions of Public Premises Act itself will not be attracted upon the Cantonment property, inasmuch as by virtue of Section 2(e)(2)(viii) of the Act, the only property covered within the definition of Public Premises is one belonging to Cantonment Board under 1924 Act. Learned counsel for the parties require further time to examine this aspect of the matter.
Put up on 8.10.2020 in the additional cause list."
4. Sri S.K. Rai, learned counsel appearing for the Cantonment Board has invited attention of the Court to Section 360 of the Cantonments Act, 2006 ( hereinafter referred to as the Act of 2006), which contains the repeal and savings clause in the Act of 2006. Sub-section 2 (a) of Section 360 of the Act of 2006 provides that notwithstanding the repeal of the Cantonment Act,1924, any appointment made or notification issued there under in so far as it is not inconsistent with the provisions of the Act of 2006 shall continue to remain in force and be deemed to have been made under the provisions of the Act of 2006. With reference to Section 3 of the 2006 Act learned counsel submits that cantonment with its boundary is specified by way of a notification, issued in the official gazette by the Central Government. A co-joint reading of the above two provisions, according to Sri Rai, makes it explicit that cantonment having been constituted by way of a notification issued under the Cantonment Act, 1924 it shall continue and would not stand repealed even under the Act of 2006. Reliance is placed upon para-17 of the Supreme Court judgment in Cantonment Board and another Vs. Church of North India, reported in (2012) 12 SCC 573, which is reproduced herein after:-
"Section 2(e) of the Public Premises Act defines "public premises." This section is split into two sub-sections. Sub-section (1) covers thereunder any premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government. Sub-section (2) deals with premises belonging to or taken on lease or on behalf of various entities such as Government Companies, Universities, Major Ports etc. which are mentioned in that sub-section, and Cantonment Boards have come to be covered under sub-section (viii) by amendment with effect from 1.6.1994. The case of the respondent has been that the premises belong to Union of India, and, therefore, are public premises. The Estate Officer did have the jurisdiction over such premises. It is another matter that the premises of Cantonment Boards have also come under the definition of public premises since 1.6.1994. It cannot mean that the premises of Union of India which were always under the Public Premises Act, but under the Management of a Cantonment Board, since prior to this amendment, would not be covered under the Public Premises Act. This has been the plea of the appellants right from the beginning."
5. A division bench judgment of Delhi High Court in Jagat Singh Vs. The Estate Officer, Delhi is also relied upon to submit that the property in the management of cantonment since is otherwise vested in the Central Government as such the provisions of the Act of 1971 shall continue to apply even if the property is not a cantonment.
6. The submission advanced in that regard clearly has substance inasmuch as the cantonment notified under the Act of 1924 are clearly saved even under the Act of 2006. Even otherwise 'public premises' defined in Section 2 (e) (1) of the Act of 1971, means any premises belonging to the Central Government, whether or not it is under the management of the Cantonment Board. Property of the Central Government would otherwise continue to be covered under the Act of 1971. A notification has otherwise been issued on 18.7.1978 in the Act of 1971 specifying the designated officer to act as the estate officer in respect of the premises under the administrative control of the Ministry of Defence.
7. In view of the above discussion, the objection raised on behalf of petitioner regarding applicability of the Act of 1971, in respect of the property in question, noticed in the order dated 6.10.2020 lacks merit and is rejected.
8. That demolition order is also assailed on the ground that exercise of power under Section 5A(2) of the Act of 1971 is impermissible in the facts of the case as the status of petitioner as an unauthorised occupant has not been determined under section 5 of the Act. Petitioner's right of appeal under Section 9 of the Act of 1971 has also been denied. It is submitted that in the facts of the present case the power under Section 5 of the Act has been impliedly invoked without following the procedure stipulated therein, and based thereon the power under Section 5A(2) of the Act has been exercised in such a manner that the petitioner's right of appeal is also denied.
9. Contention of the learned counsel for the petitioner, in this regard, is disputed by Sri S.K. Rai, learned counsel appearing for the respondent Cantonment Board.
10. In order to appreciate the contentions advanced, it would be appropriate to take note of the statutory scheme as it exists of the Act of 1971. Section 5 of the Act provides for eviction of unauthorised occupant. Sub section (1) of Section 5 of the Act provides that the estate officer after considering the cause shown pursuant to the notice under section 4 is satisfied that person is in unauthorised occupation, he can pass an order of eviction. Section 5 of the Act must precede a notice to the person concerned. The reply to notice needs to be considered where after a satisfaction has to be arrived at by the estate officer that the person is an unauthorised occupant. Such opinion of the estate officer is not conclusive under the Act but is subject to exercise of appellate jurisdiction in terms of Section 9 of the Act. The appeal lies before the District Judge of the concerned district. It is admitted that no notice has been issued to the petitioner under section 4 of the Act and determination of question whether the petitioner is an unauthorised occupant has not been made in the manner contemplated under the Act. In the event such determination was made a crucial right of appeal was also available which has not been provided to him.
11. Sri S.K. Rai, learned counsel for the Cantonment Board, on the other hand, submits that Section 5A (2) of the Act of 1971 contemplates an inquiry whether constructions have been raised in terms of the authority (whether by way of grant or by any other mode of transfer) under which the person was allowed to occupy such premises and would include the question as to whether such person is an unauthorised occupant? It is then urged that an unauthorised occupant since has no authority to remain in possession, therefore, the constructions raised by him are unlawful and can always be demolished in exercise of jurisdiction under Section 5-A (2) of the Act of 1971. Reliance is placed upon a Division Bench judgment of this Court in Special Appeal No. 121 of 2015 ( Union of India through Defence Estate Officer and another Vs. Shri Arun Saluza), reported in 2015 (3) ADJ 594, as also the Full Bench of this Court in Writ-C No. 40360 of 2015 (Yogesh Agarwal Vs. Estate Officer and 2 others).
12. Unlike Section 5 of the Act of 1971, which contemplates an inquiry in the nature of right of occupant to be in occupation of the property in question so as to determine his status as an unauthorised occupant, the power under Section 5A of the Act is distinct. Section 5 and 5A of the Act are reproduced:-
"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 1[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 1[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 1[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.
5-A. 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 of spread any goods,
(c) bring or keep any cattle or other animal.
on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises.
(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.
(3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept, on any public premises, in contravention of the provisions of sub-section (1) by any person, the estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue."
13. Section 5A (1) of the Act provides that in the event any of the exigency specified in sub clauses (a), (b) and (c) occurs over any public premises inconsistent with the authority (whether by way of grant or by any other mode of transfer) under which the occupant was allowed to occupy such premises, then the structure so raised or offending action undertaken in terms of Sub clause (a), (b) and (c) could be removed. No remedy of appeal is contemplated in such exigency. The question is as to whether the estate officer can pass an order under Section 5A (2) of the Act solely on the ground that occupant is an unauthorised occupant even without holding him so in proceedings under Section 5 of the Act?
14. The statutory scheme is very clear. Determination of question with regard to the status of occupant as unauthorised occupant precedes an inquiry by issuing him notice under Section 4 of the Act and determination of his status after considering such reply, by the estate officer, subject to an order passed in appeal. Unlike the exigency dealt with under Section 5 of the Act, the power under Section 5A of the Act can be exercised in case of violation of Clauses (a), (b) and (c), in respect of public premises where the occupant is in possession of the premises pursuant to any grant or any other mode of transfer, where under he was allowed to occupy such premises, but the condition of such occupation has been breached. Section 5A(2) of the Act will not be attracted where exigency specified in Section 5A(1) of the Act is not attracted and the only allegation is that occupant is an unauthorised occupant. Unless the determination with regard to status of occupant as unauthorised occupant has been undertaken after following the procedure contemplated in Sections 4 and 5 of the Act, the direction to demolish construction under Section 5A(2) of the Act would not be permissible.
15. In the facts of the present case, the estate officer even without issuing notice under Section 4 of the Act and determination of petitioner's status as 'unauthorised occupant' has preceded against him on the ground that he is an unauthorised occupant. In case such a determination was to be made the petitioner had the remedy of filing appeal under Section 9 of the Act. Instead, what has been done is that without following the procedure contemplated under Sections 4 and 5 of the Act, which is subject to right to appeal under Section 9 of the Act, the authority has determined the petitioner's status as 'unauthrorised occupant' and has consequently directed the construction to be demolished. This clearly is a colourable exercise of power. Once the law require a thing to be done in a particular manner, it has to be done in that manner alone and not otherwise. (see : Taylor Vs. Taylor, (1876) 1 Ch.D. 426)
16. The Full Bench of this Court in the case of Yogesh Agrawal (supra) examined the question as to whether an order passed under Section 5A of the Act is appealable under Section 9 of the Act of 1971 and whether the judgment in Sanjay Agrawal's case, which held it to be so, was correctly decided. While observing that right of appeal is a creature of statute observed that in the absence of any appeal stipulated against an order passed under Section 5A the remedy of appeal would not be available.It was also held that the judgment in Sanjay Agrawal's case does not correctly lay down the law. This judgment does not deal with the exigency that has arisen before this Court in the facts of the present case and, therefore, this judgment cannot be relied upon in support of the proposition urged.
17. So far as the judgment in case of Union of India through Defence Estate Officer and another Vs. Shri Arun Saluza (supra) is concerned, the question was with regard to the applicability of Section 5A of the Act. The Division Bench observed as under:-
"Now, it is in this background that we must construe the provisions of Section 5A. Sub-section (1) of Section 5A contains a prohibition on any person erecting or placing or raising any building or any movable or immovable structure or fixture; displaying or spreading any goods or bringing or keeping any cattle or other animal on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises.
In other words, what sub-section (1) of Section 5A does is to ensure, inter alia, that any erection or raising of a building or other immovable structure or fixture shall only be in accordance with the authority under which the person was allowed to occupy the premises. There is nothing in sub-section (1) of Section 5A to indicate that the provision shall not apply to those cases where the authority, whether by way of grant or by any other mode of transfer, under which a person was allowed to occupy the premises, was executed prior to 22 December 1980. The emphasis in sub-section (1) of Section 5A is on compliance with the provisions of the authority, whether by way of grant or any other mode of transfer, under which a person is allowed to occupy the premises by stipulating, inter alia, that no building shall be erected or raised except in accordance with that authority. Sub-section (2) of Section 5A allows the Estate Officer to issue a notice 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), requiring the person erecting such a building, structure or fixture to either remove the structure or to show cause why it shall not be removed within a period which shall not be less than seven days. If the person either refuses to or omits to show cause or to remove the building, structure or fixture, or where the cause shown in the opinion of the Estate Officer is not sufficient, the latter has been empowered to pass an order for the removal thereof and for the recovery of the costs as arrears of land revenue."
18. It was observed by the Court that whether a person has been allowed to occupy the premises even prior to 22.12.1980 even then the provisions of Section 5A of the Act would be attracted though it was notified and make enforceable after 22.12.1980.
19. The fact that a valid permission exists in favour of the occupant to occupy the premises, clearly indicates that the exigency contemplated under Section 5A (1) of the Act did arise in the facts of the that case. None of the two judgments relied upon by Sri S.K. Rai, learned counsel appearing for the respondent Cantonment Board comes to his rescue.
20. Sri Sumit Daga, learned counsel for the petitioner has placed reliance upon the judgment of this Court in Smt. Manju Arora Vs. Estate Officer, Meerut Cantonment and another, reported in 2018 (3) AWC 258. The case in Manju Arora is some what similar inasmuch as notice under Section 5A (1) of the Act of 1971 was issued to the occupant and the exercise of power under Section 5A (2) of the Act was based upon a finding that the occupant, in effect, is an unauthorised occupant. After noticing the rival contentions and upon an elaborate discussion on the question, this Court proceeded to observe as under:-
"51, 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."
52. 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.
53. 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.
54. 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.
55. 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."
21. This Court is in respectful agreement with the view taken in the case of Smt. Manju Arora (supra) and in light of what has been observed above, finds that the order passed by the authority under Section 5A(2) of the Act suffers from colourable exercise of power and cannot be sustained. The estate officer while passing such order has in effect usurped the jurisdiction which otherwise vested in the Statute by virtue of Section 5 of the Act and required a notice for such purposes to be issued under Section 4 of the Act. The consequence of the order passed is that the safeguards contemplated under Sections 4 and 5 of the Act have been ignored and the right of occupant under Section 9 of the Act of appeal has also been taken away. Since the authority competent is yet to adjudicate the status of petitioner with reference to the applicable provisions of law, therefore, this Court is not required to embark upon such inquiry at the first instance directly under Article 226 of the Constitution of India, as contended by Sri Rai, inasmuch as it would result in denial of statutory remedy of appeal etc.
22. Consequently, writ petition succeeds and is allowed. Order impugned dated 28.2.2020 passed by the Estate Officer, Meerut Cantt. Meerut, is hereby quashed. It shall, however, be open for the respondents to determine the question whether petitioner is an unauthorised occupant or not? The petitioner also undertakes not to raise any fresh construction or activity over the plot in question and would also not create any third party rights.
Order Date :- 8.10.2020 n.u.