RENU BALA MONDAL Vs. TEHSILDAR & ORS

JUDGEMENT

(1.) Appellant was a rank trespasser in respect of a Government land. She constructed a hotel on the said land-in- question and is carrying on business there at. The Administration allotted a large chunk of land including 63 square metres, now under wrongful occupation of the appellant, to the Transport Department for the purpose of construction of their office. The appellant was asked to vacate the land-in-question, which he denied resulting in a summary proceeding for eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said Act of 1971) being initiated by issuance of a show cause notice under Section 4 thereof. The appellant approached the learned Single Judge by filing a writ petition challenging the show cause notice.

(2.) From the records it appears that the Transport Department earlier approached the Tehsildar for summary eviction. The Tehsildar declined to issue any order of summary eviction as the appellant was in occupation of the land for more than two years. The Transport Department thereafter took steps through the appropriate authority for eviction of the appellant by taking recourse to the said Act of 1971. The appellant contended before the learned Single Judge that the authority did not have jurisdiction to issue such notice. Hence, the proceeding was void ab initio. The learned Judge, however, dismissed the petition by observing that the appellant came at an early stage when only a show cause notice was issued to explain as to why the appellant would not be evicted. According to the learned Judge, the issues raised by the appellant could well be agitated before the Estate Officer who issued the notice. Being aggrieved, the appellant preferred the instant appeal that was heard by us on the abovementioned dates. Mr. K.M.B. Jayapal, learned counsel appearing for the appellant contended that under section 2 of the said Act of 1971, the estate officer would mean an officer appointed by the Central Government under section 3. Section 3 would stipulate appointment of persons being gazetted officers to act as an Estate Officer for the purpose of the said Act through notification in the Official Gazette. According to Mr. Jayapal, the notification issued by the Central Government dated March 28, 1991 would denote that the Block Development Officer, Diglipur was appointed as an Estate Officer in respect of the public premises comprising of residential and non-residential buildings belonging to the Administration. According to Mr. Jayapal the notice issued by the Estate Officer would relate to the land for whom he was not appointed by the notification dated March 28, 1981. Hence he was not authorised to act as an Estate Officer in respect of land at Diglipur for which he sought to have issued notice under Section 4. According to Mr. Jayapal, such notice was bad and invalid and the appellant was well within her right to challenge the same at the threshold without waiting for an official adjudication by him on his authority. To support his contention Mr. Jayapal relied upon two Apex Court decisions in the case of Carl Still G.m.b.H v. State of Bihar, 1961 AIR(SC) 1615 and in the case of Special Director v. Mohd. Ghulam Ghouse, 2004 3 SCC 440. Per contra, Mr. S.K. Mandal, learned Government Pleader appearing for the Administration relied on the Apex Court decision in the case of Union of India v. Kunisetty Satyanarayana, 2007 AIR(SC) 906 and contended that the Court should be slow in interfering at a stage when a mere show cause notice was issued calling upon the appellant to show cause why she would not be evicted. She was well within her right to raise all pleas including the plea of jurisdiction as raised herein. On merits, Mr. Mandal contended that the appellant constructed a hotel and carrying on business there at. Hence it would come within the mischief of "building". In any event the land on which the building was situated was allotted to the Transport Department as contended in the notice to show cause. Hence, the plea raised by Mr. Jayapal was thoroughly misconceived.

(3.) If we look to the factual scenario we would find that a mere show cause notice was issued by the authority. The appellant admitted that she was a rank trespasser. Hence she was not entitled to possess any government land or withhold possession thereof. It being a public premises, the said Act of 1971 would squarely apply. If we look to Section 2(c) of the said Act of 1971 we would find that the "premises" would mean any land or any building or part of a building and "public premises" would mean any premises belonging to the government. Hence, the subject property would squarely come within the mischief of the Act of 1971 and the notification dated March 28, 1981 would obviously empower the Block Development Officer, Diglipur to issue such notice. In course of hearing Mr. Jayapal relied on Regulation 161 of Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and tried to contend that the subject issue should have been covered under Regulation 161. Looking to the said Regulation we would find that if someone was allotted a land and was dispossessed he would be entitled to approach the Tehsildar within two years of dispossession for redressal. Tehsildar upon making an enquiry, if satisfied, is entitled to pass order for restoration of the possession. In the instant case, the Transport Department was allotted the said land. The possession could not be given at least to the extent occupied by the appellant. The land admittedly belongs to the Administration. By virtue of such allotment the Transport Department, another government wing, became entitled to possess the same as a licensee. The said Act of 1971 would thus be appropriate and not Regulation 161. Hence, the Tehsildar was right in not entertaining such application made earlier.