Madhya Pradesh High Court
Smt. Zehra Victor vs Union Of India Through The Secretary on 31 January, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 31 st OF JANUARY, 2023
WRIT PETITION No. 30228 of 2022
BETWEEN:-
SMT. ZEHRA VICTOR W/O LATE SHRI PATRICK
VICTOR, AGED ABOUT 72 YEARS, OCCUPATION:
DOCTOR BUNGLOW NO. 69 R BHAYAJI ROAD,
MHOW DISTRICT INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI RISHI TIWARI- ADVOCATE)
AND
1. UNION OF INDIA THROUGH THE
SECRETARY MINISTRY OF DEFENCE SOUTH
BLOCK, NEW DELHI (DELHI)
2. ESTATE OFFICER, MHOW CIRCLE, MHOW
CANTT. ADD. T-4/1 TELEGRAPH ROAD,
MHOW DISTRICT INDORE (MADHYA
PRADESH)
.....RESPONDENTS
( SHRI HIMANSHU JOSHI - ADVOCATE ALONG WITH
SHRI SAPAN KUMAR , DEFENCE ESTATE OFFICER WHO IS
PRESENT IN PERSON )
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This petition coming on for Admission this day, JUSTICE
SUSHRUT ARVIND DHARMADHIKARI passed the following:
ORDER
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 2/3/2023
6:31:34 PM
2
Heard finally with the consent of both the parties.
2. In this petition, under Article 226 of the Constitution of India, the petitioner has not challenged any specific order but has challenged the arbitrary and illegal action of the respondents in forcefully dispossessing the petitioner from the legally owned property without providing any opportunity of hearing and without following the due process of law as specified under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971(hereinafter referred as "Act of 1971").
3. The brief facts of the case are that the property in question i.e. Bunglow No. 69 R, Bhaya Road, Mhow (M.P.) admeasuring 1143.5 sq.ft. was purchased by the petitioner vide sale deed dated 20.02.1996 from one Shri Ann Chandiramni w/o Brigadier G. Chandiramni and Aruna Rodrigues. The sellers were owners of the subject property. On 07.05.1997, Smt. Aruna Rodrigues filed a civil suit before the learned Ist Civil Judge, Dr. Ambedkar Nagar, District Indore seeking declaration of ownership of Bunglow No. 69 R, Bhaya Road, Mhow (MP) and also declaration to the effect that notices and orders issued in respect of Bunglow No. 69 were illegal. A relief of permanent injunction was also sought in the civil suit. On 02.09.2004, the petitioner made an application to the Cantonment Board, Mhow requesting for permission to repair/construct the old house. Vide letter dated 08.09.2004, the CEO Cantonment Board informed the Defence Estate Officer, Mhow for granting such permission to the petitioner.
4. Learned counsel for the petitioner submitted that the respondents Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/3/2023 6:31:34 PM 3 issued notice to the petitioner in Form No. "AB" under Proviso to sub- Section (1) of Section 5B of the Act, 1971, on 29.10.2004, which was not received by the petitioner. However, to the utter surprise of the petitioner, a lock was put by the respondents on the subject property on 21.12.2022 and the petitioner was forced to leave the property without their being any eviction order against her and without even giving any breathing time in most arbitrary manner. Though, notice under sub Section (2) of Section 5B of the Act, 1971 was issued in Form "BB-I" directing the petitioner to stop the construction work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under section 9 of the Act, 1971. However, no order of demolition was passed/served against the petitioner. As per order sub-Section (1) of Section 5B of the Act, 1971, no order in form B was ever issued/served on the petitioner. In absence of the aforesaid, the action of the respondents in putting the lock on the premises in question is also in utter violation of the provisions of the Act, therefore, the lock deserves to be opened forthwith. The respondents cannot take any action under the Act, 1971 without following the due procedure of law. On these grounds, issuance of appropriate direction/writ/order has been sought against the respondents seeking direction to open the lock of the house of the petitioner and also to grant opportunity of hearing prior to taking any action under the Act, 1971. Learned counsel for the petitioner further contended that the show cause notice under sub-Section (1) of Section 5B of the Act in Form "AB" was issued on 29.10,.2004 but thereafter, no action was initiated for a period of more than 19 years after the show Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/3/2023 6:31:34 PM 4 cause notice.
5. It is a settled legal position that unless and until a person in illegal occupation of a premises is evicted, no question for demolition would arise.
6. For the purpose of convenience, Section 5B of the Act 1971, is reproduced below:-
[5B. Order of demolition of unauthorised construction (1)here 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 21 [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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/3/2023 6:31:34 PM 5 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 whom the order has been made shall comply with the order within the period specified therein, or, 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 authorised 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 instalments, as may be specified in the order.]"
7. On perusal of sub-Section (1) of Section 5B, there has to be an order for demolition in Form "BB", which is missing. This Court has gone through the original file of the case wherein no such notice/order in Form "BB" has been issued. This fact has also not been denied by the respondents' counsel as well as the CEO, present before this Court. Admittedly, the respondents have also not initiated any proceedings under Section 4 of the Act seeking eviction of the petitioner from the premises in question. In the present case, opportunity of hearing has not been granted to the petitioner which amounts to violation of the principles of natural justice.
8. The concept of reasonable opportunity essentially has three ingredients:-
(i) Communicating the allegations to the person against whom they Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/3/2023 6:31:34 PM 6 are made in precise and concise manner to enabling her/him to respond:
(ii) To give him/her reasonable opportunity to respond to the allegations which may be a few days or more depending upon the attending factual scenario:
(iii) reply orally or in writing if submitted by a person concerned should be taken into consideration before deciding the question of eviction/demolition.
9. The respondents have neither issued any notice to the petitioner nor granted her opportunity of hearing nor passed any order of demolition. In such a situation, even though the petitioner may not have asked for the relief, this Court can very well mould the relief and grant the same to the petitioner to see that complete and effective justice is done to the petitioner. Accordingly, the notice dated 29.10.2004, issued under sub- Section(1) of Section 5B of the Act as well as order under sub-Section (2) of Section 5B of the Act, 1971, dated 10.11.2004 in file No. PPE/MHOW/LAND/B. NO. 69/124, are hereby set aside.
10. The Respondents are directed to open the lock of the premises in question forthwith and handover the possession to the petitioner. However, the respondents would be at liberty to initiate fresh proceedings for eviction/demolition strictly in accordance with the provisions of the Act, 1971, if so advised. Accordingly, the petition stands allowed.
11. Looking to the fact that the petitioner is an old lady aged about 72 years and a Doctor by occupation, was made to run from pillar to post to seek justice and also looking to the fact that there has been material Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/3/2023 6:31:34 PM 7 suppression in the reply filed by the respondents, this Court directs the Defence Estate Officer, Shri Sapan Kumar to deposit the cost of Rs. 10,000/- with the High Court Legal Services Committee, Indore, within a period of 30 days from today, for placing incorrect facts before this Court in their reply. The cost be recovered in personal capacity.
12. It is made clear that if the cost is not deposited within the aforesaid period, the Registry is directed to list this matter in the caption "Direction Matters" so that appropriate orders with regard to recovery of cost can be passed.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
VD
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 2/3/2023
6:31:34 PM