S RAJENDRAN Vs. ESTATE OFFICER

JUDGEMENT

(1.) 1. The petitioner has filed this writ petition for issuance of a writ of Certiorari, to quash the order passed by the respondent dated 01.07.2011. The matter arises under the provisions of the Public Premises (Eviction of Unauthorised Occupants ) Act, 1971 (hereinafter referred to as the 'Act').

(2.) THE case of the petitioner is that he is the owner of an extent of 2115 sq.ft., in survey No.284/2A/1A/1, Saram Revenue Village, Puducherry with patta No.3349, he having purchased the same by sale deed dated 08.07.2008, together with a superstructure from one Mr.Antony son of Selvanathan Armel. It is stated that the respondent, who is the Estate Officer, Irrigation Division, Public Works Department, Puducherry served a notice dated 13.09.2010, purportedly under Section 5A(2) of the Act. The petitioner submitted his explanation stating that he is prepared to remove the alleged encroachment, if it is found to exist on ground. Thereafter, the petitioner was served another notice dated 08.12.2010, enclosing copy of survey report and was directed to appear for enquiry on 29.06.2011. It is stated that the petitioner appeared for enquiry and contended that proceedings under Section 5A is not maintainable and the said provision does not apply to the proceedings initiated by the respondent. The respondent by order dated 01.07.2011, directed eviction of the petitioner from the premises on the ground that the petitioner is an encroacher. Aggrieved by such order, the petitioner preferred statutory appeal before the Principal District Court, Puducherry and the appellate authority by order dated 14.11.2011, rejected the appeal on the ground that against an order passed under Section 5A, an appeal under Section 9 is not maintainable. Therefore, the petitioner has challenged the order of eviction dated 01.07.2011, passed by the respondent in this writ petition.

(3.) THE learned Additional Government Pleader appearing for the respondent submitted that the petitioner is an encroacher of public premises and he has no legal right to continue in occupation. It is further submitted that the petitioner by letter dated 21.09.2010, admitted that he is an encroacher and requested the respondent to grant three months time to remove encroachment and thereafter, he is estopped from resisting the eviction proceedings. Further, this letter dated 21.09.2010, was suppressed by the petitioner in the writ petition. It is submitted that improvement to Krishna Nagar drain in Puducherry under phase III was sanctioned by the Government, by order dated 16.10.2006, and while carrying out the said work, the respondent found that the petitioner has encroached an extent of 0.00.3 hect., in R.S.No.284/1, which is classified as "canal" and he has constructed a building and therefore, show cause notice was issued to remove the building. On receipt of show cause notice, the petitioner submitted a reply admitting encroachment and requested three months time to remove the encroachment. Thereafter, another notice was issued by the respondent on 05.10.2010, directing the petitioner to appear for a personal hearing on 14.10.2010. For the first time, the petitioner sent a reply and denied the encroachment and sought to resist the eviction proceedings. Therefore, the respondent by letter dated 15.11.2010, directed the petitioner to appear before the respondent on 25.11.2010, with documents and participate in the survey to be conducted. However, the petitioner did not produce any documents in support of his claim. After survey, it was found that the petitioner had encroached an extent of 0.00.50 hect., and based on which, show cause notice under Section 5A(2) was issued on 08.12.2010. The petitioner submitted his reply on 27.12.2010 and claimed to be in enjoyment of the land for several decades. The petitioner was directed to appear for personal hearing on 12.01.2011, before the respondent along with documents in support of his claim. On 03.01.2011, the petitioner submitted a representation to the Chief Engineer, requesting for change of Estate Office. The Chief Engineer conducted an enquiry in the presence of the petitioner and rejected the representation and directed the petitioner to co-operate in the proceedings. Thereafter, the petitioner appeared before the respondent on 15.02.2011, with his counsel and filed objections and requested to survey the land in question. This request appears to have been accepted and the surveyor who conducted such survey confirmed that the petitioner has encroached the Government canal. After furnishing the survey report, an enquiry was conducted and the respondent passed a detailed speaking order dated 01.07.2011, to remove the building/structure from the public premises. It is submitted that the canal is situated on the western boundary of the petitioner's property which is also evident from the title deed of the petitioner's property and he has encroached the canal and such encroachment was clearly identified by the Government Surveyor. It is further stated that though the petitioner raised several objections, he was unable to produce any document in support of his claim that he is not an encroacher. The learned counsel submitted that the petitioner having failed to establish his title, is liable to be evicted from the public premises. Further, the encroachment on the canal has to be removed so as to prevent flooding in the nearby housing colony. The learned counsel further submitted that the petitioner having admitted that he has constructed a building on a public premises, the respondent rightly issued notice under Section 5A, wherein he is empowered to remove unauthorised construction.