Madhya Pradesh High Court
Mrs.Brena Fernandez & Ors. vs The Union Of India & Ors. Judgement Given ... on 20 August, 2013
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
1 Writ Petition No.2311 of 2004
HIGH COURT OF MADHYA PRADESH JABALPUR
SINGLE BENCH:
Hon'ble Shri Justice A.K. Shrivastava
Writ Petition No.2311 of 2004
PETITIONERS: 1. Mrs. Brena Fernandez, Aged
about 36 years W/o Mr. John
Fernandez
2. Augustine Vellis, Aged about
43 years, S/o Late Shri Fredrick
Vellis.
Both residents of Beach Avenue,
Jabalpur Cantt.
Versus
RESPONDENTS: 1. Union of India Through the
Secretary Ministry of Defence,
Raksha Bhavan, New Delhi
2. Defence Estates Officer, Near
Kalpana Cinema, Jabalpur
Cantt.
3. Ashok Mehrotra
4. Raj Mehrotra
5. Dr. Mukesh Mehrotra
Nos. 3 to 5 are sons of Late Mr.
R.D. Mehrotra, and residents of
2, Beach Avenue, Jabalpur
Cantt. (M.P.)
______________________________________________________
Shri Girish Shrivastava, Advocate for the petitioners.
Shri Vikram Singh, Advocate for the respondents No.1
and 2.
2 Writ Petition No.2311 of 2004
ORDER
(20.08.2013) The order passed in this petition shall also govern the disposal of connected W.P. No.28791/2003 (Javed Anwar and another Vs. Union of India and another) and W.P. No.28973/2003 (Riyazuddin vs. Defence Estate Officer and others) since the common questions of fact and law are involved in all these petitions.
2. By this petition under Articles 226 and 227 of the Constitution of India the petitioners have challenged the order dated 7.10.2002 (Annexure P/15) passed by respondent No.2 which has been affirmed by learned IX Additional District Judge, Jabalpur vide order dated 16.2.2004 (Annexure P/1).
3. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this petition. Suffice it to say that a show cause notice dated 30.11.1999 under the provisions of the Public Premises (Eviction of Un-authorised Occupants) Act, 1971 (in short 'the Act of 1971') was issued by respondent No.2- Defence Estate Officer to the petitioners. According to the show cause notice the petitioners are unauthorized occupants in the premises and they have raised certain construction without obtaining permission from the Cantonment Board, hence, why the structure should not be dismantled. In reply to the show cause notice, the petitioners submitted an application praying to give copy of old Grant document so as to enable them to file the reply. But, the copy of the document 3 Writ Petition No.2311 of 2004 was not supplied and eventually the petitioners were not able to file reply against the show cause notice. The respondent No.2 after recording the evidence of the department passed the order Annexure P/9 on 24.1.2000. The first appeal which was filed under Section 9 of the Act of 1971 before the IX Additional District Judge, Jabalpur has been dismissed by the impugned order dated 16.12.2004 (Annexure P/1). In this manner this petition has been filed.
4. Inter alia, Shri Girish Shrivastava, learned counsel appearing for the petitioners submits that proper opportunity of hearing was not provided to the petitioners because the copy of the document of old Grant terms was not provided to the petitioners and, therefore, they were unable to file the reply. It is also put forth by him that specific application in that regard was filed but it was rejected by respondent No.2. Learned counsel further submits that without providing property opportunity to the petitioners to adduce evidence, the order has been passed. Hence, it has been prayed that since point was also raised before the appellate court which has been turned down by the impugned order (Annexure P/1), this petition be allowed and the case be remanded to the respondent No.2. He has also raised several contentions on the merit of the case that the original owner Sir William Dalrymplo Haq Lady Ibary Honriotta Dalrynplo Haq and Mr. Henry John Hunda sold the land long back in the year 1921 by registered sale deed dated 12th August, 1921 to the predecessor of 4 Writ Petition No.2311 of 2004 the vendor of the petitioners Phoolchand Mehrotra and after his death his son, namely, R.D. Mehrotra and grandsons, namely, Ashok Mehrotra, Raj Mehrotra and Mukesh Mehrotra became the owner of the property in question who sold the part of it to the present petitioners. Learned counsel submits that had the copy of the document of old Grant, for which prayer was made by the petitioners by filing application, been given to them, it would have acted like a tool to file an effective reply which the petitioners were supposed to file opposing the show cause notice effectively. Since this has not been done, the entire proceedings came to an end by passing demolition order by respondent No.2 and affirmed by the appellate authority, which is illegal and there is a legal defect of the procedure in arriving such a conclusion that the petitioners are unauthorized occupants.
5. Several contentions have been raised by Shri Vikram Singh, learned counsel appearing for respondents No.1 and 2. He has also submitted that because the petitioners are the unauthorized occupants and they do not have even right to ask for the copy of the document of old Grant, therefore the application was rightly rejected and reasoned order has been passed by respondent No.2 holding that petitioners are encroachers which has been rightly affirmed by the appellate court. Hence it has been prayed that this petition be dismissed.
6. Having heard learned counsel for the parties, I am of the view 5 Writ Petition No.2311 of 2004 that this petition deserves to be allowed and the orders passed by respondent No.2 as well as appellate court i.e. IX Additional District Judge, Jabalpur deserve to be set aside and the case is required to be sent back to re-decide in accordance with law by respondent No.2 after providing proper opportunity to the petitioners to lead oral and documentary evidence and further after providing copy of the old Grant document which they have sought so as to enable them to file the reply.
7. Undisputedly a show cause notice dated 30.11.1999 was sent to the petitioners on the ground that they are the unauthorized occupants and the show cause notice has also been issued on the basis of the old Grant. Indeed a very specific logical prayer was made by the petitioners that they are unable to file the reply against the show cause notice because the document of old Grant is in power and possession of respondent No.2 and, therefore, if copy of the same is provided to the petitioners they may file reply against the show cause. This application has been rejected by the Defence Estate Officer and eventually the right to file reply was closed and oral evidence of the petitioners was also not recorded. According to me, the procedure so adopted by the respondent No.2 is wholly unwarranted under the law. I do not find any merit in the contention of learned counsel for respondents No.1 and 2 that the petitioners are encroachers or unauthorized occupants, therefore, they are not entitled to have copy of the document which they have sought. In 6 Writ Petition No.2311 of 2004 support of his contention, learned counsel has placed reliance upon General Order No.1836 clause 8.9. Be that as it may. Since in order to hold that petitioners are unauthorized occupants or encroachers, according to me, in order to take out the grain from the chaff, proper opportunity ought to have been granted to the petitioners by providing copy of the document of old Grant so as to enable them to file any effective reply against the show cause notice. But this has not been done and by pre-holding that the petitioners are encroachers and unauthorized occupants, therefore, the documents are not required to be given to them. Hence the impugned order Annexure P/15 has been passed by the respondent No.2 and which has been affirmed by the appellate court has been passed against the procedure. On this short ground, the order dated 7.10.2002 (Annexure P/15) passed by respondent No.2 which has been affirmed by IX Additional District Judge, Jabalpur vide Annexure P/ 1 dated 16.2.2004 deserves to be set aside.
8. Resultantly, this petition as well as the connected petitions succeed and are hereby allowed. The impugned order dated 7.10.2002 (Annexure P/15) passed by respondent No.2 which has been affirmed by IX Additional District Judge, Jabalpur vide Annexure P/1 dated 16.2.2004 are set aside and the case is sent back to respondent No.2 who shall provide copy of the document of old Grant terms to the petitioners so as to enable them to file the reply. On providing copy of that document, the petitioners shall file 7 Writ Petition No.2311 of 2004 reply of show cause notice and thereafter the matter may be adjudicated after providing opportunity to lead evidence to the department firstly and then to the petitioners. Needless to say that for the date of hearing, a fresh notice shall be issued to the petitioners.
(A.K.Shrivastava) Judge 20.08.2013 DV