Allahabad High Court
Smt. Sayerabano & Others vs Union Of India Thru. Secy. Min. Of ... on 23 February, 2021
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 6 Case :- MISC. SINGLE No. - 5268 of 2021 Petitioner :- Smt. Sayerabano & Others Respondent :- Union Of India Thru. Secy. Min. Of Defence & Others Counsel for Petitioner :- Abhishek Dwivedi Counsel for Respondent :- C.S.C.,A.S.G. Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the petitioners, Sri S.B. Pandey, Assistant Solicitor General of India assisted by Sri Varun Pandey, learned counsel for the respondent nos.1 to 4 and learned standing counsel for the respondent no.5.
2. This petition has been filed challenging the order dated 29.03.2019 passed by the respondent no.4 and also praying for quashing of the Execution Proceedings arising out of the impugned order.
3. It is the case of the petitioners as argued by learned counsel for the petitioners that the petitioners are having pakka houses duly constructed over General Land Survey No.97, belonging to the Cantonment Board/ Central Government. The petitioners have been paying charges for civic amenities including water charges to the local municipal Board and electricity charges. The adjoining land belongs to respondent no.6- Agarwal Sabha Chawani, Sadar Bazar, Cantonment, Lucknow, which is a Society. The Agarwal Sabha filed a petition before this Court, namely, Writ Petition No.7784 (M/B) of 2010 and this Court has passed an order on 08.08.2017 directing the respondent no.4 to expedite the proceedings initiated against the petitioners for removal of encroachment. In pursuance of such orders passed by the Division Bench, the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the Act of 1971") were initiated against the petitioners and notices were issued to them. The petitioners participated in the proceedings and submitted their reply stating that notices could not have been issued to them as no permission had been taken from the Ministry of Defence, Government of India as required under the Government Order No.10(60/2012-D (Q&C) dated 06.06.2003 and the proceedings may be dropped.
4. However, the respondent no.4 invoked the powers under Section 5A of the Act of 1971 and passed an order summarily on 29.03.2019 against the petitioners. Separate orders were passed which have been collectively filed as annexure-5 to the petition. In pursuance of such orders, Execution Proceedings have also been initiated and notices been pasted on the wall of the petitioners' house for carrying out demolition drive on 09.02.2021. On 09.02.2021, the respondent no.5 demolished most of the houses. Proceedings were initiated for a total of 28 encroachers. In the case of the petitioners, however the notice was affixed on the wall of their houses on 15.02.2021 and it is proposed to demolish their houses on 25.02.2021. The petitioners are very poor persons who do small business activities for living and it will be too harsh an action on the part of respondent nos.4 and 5 in demolishing the houses constructed by the petitioners.
5. It is the case of the petitioners that under the Government Order dated 06.06.2003 issued by the Ministry of Defence, Government of India, demolition/ eviction of encroachments on the defence land cannot be carried out without prior permission from the Central Government. A copy of the said Government Order is filed at page 29 of the paper book. Learned counsel for the petitioners has placed reliance upon paragraph (c) sub clause (i) thereof and said that without prior permission of the Ministry of Defence, no action can be taken for removal of encroachment in case where encroachment is of 20 years or more duration and where permanent structures have come up and where civil amenities have been provided from time to time by the agencies concerned. It has been submitted that the petitioners have constructed their houses for more than 30 years and are living in them for more than 30 years now and paying electricity charges and water charges to the Municipal Board.
6. This Court finds that the land in question i.e. General Land Survey No.97 is situated in the Cantonment area and is managed by the Defence Estate Officer and all civil amenities for properties situated in the Cantonment area are looked after by the Cantonment Board. Therefore, if any water charges has to be charged, the same could have been charged by the Cantonment Board. If the petitioners have been able to get the electricity and water connections from the local Municipal Board, the validity of such connections seem to be doubtful. Besides, the petitioners have not placed any documentary evidence before this Court by annexing copies in this petition that valid electricity and water connections have been given to them.
7. The second argument raised by learned counsel for the petitioners is that notices have not been issued under Section 5A(1) of the Act of 1971 to the petitioners and the orders have been passed for demolition under Section 5B of the Act of 1971.
8. This Court finds that under Section 5A(2), the Defence Estate Officer can serve a notice upon persons erecting unauthorized structures and he may direct the structures to be removed from the premises or show cause, when cause is shown which is not sufficient in the opinion of the Defence Estate Officer to withdraw such notices, the Defence Estate Officer may by an order remove or cause to be removed other structures and recover the cost of removal from the persons as the arrears of land revenue.
9. It is not disputed by the learned counsel for the petitioners that the Defence Estate Officer has the power under Section 5A(2) to pass the orders for removal/ demolition of the constructions raised by the petitioners in an unauthorized manner. However, it is the case of the petitioners that a wrong section had been quoted in the order impugned.
10. It is settled law that if any Authority has power to pass any order under the provisions of the Statute but a wrong section has been quoted inadvertently by the authority concerned, it would not vitiate the order so passed.
11. Learned counsel for the petitioners has prayed for some time to allow the petitioners to remove their constructions and their personal effects from the structure so erected and undertaking has been given that the same shall be done within one month from today.
12. Sri S.B. Pandey, learned Assistant Solicitor General, appearing on behalf of the respondent nos. 1 to 4, has been fair enough and generous to say that the petitioners may find alternative accommodation within one month from today and the demolition drive shall not be carried out till 23.03.2021.
13. Time as prayed for is granted to the petitioners to remove their personal effects and find alternative accommodation till 23.03.2021. If the petitioners are unable to find such accommodation within the time frame, the Authorities shall not be prevented from carrying out demolition drive which it is proposed to be carried out on 25.02.2021.
14. The petition is accordingly disposed of.
Order Date :- 23.2.2021 Rahul