Allahabad High Court
Radha Soami Satsang Beas vs Union Of India And 2 Others on 30 September, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No.2
Civil Misc. Writ Petition No. 24801 of 2013
Radha Soami Satsang Beas ........ Petitioner
Vs.
Union Of India and Others ........ Respondents
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Hon'ble Tarun Agarwala,J.
The petitioner has challenged the notice dated 12th March, 2013 issued by the Estate Officer, Agra under Section 5-A(2) of the Public Premises Eviction of Unauthorized Occupants Act, 1971(hereinafter referred to as the Act of 1971).
A perusal of the said notice indicates that the land belongs to the Government of India and is in the cantonment area and that the occupancy rights were only given under the old grants for residential purposes. It was alleged in the notice that the bungalow was transferred without seeking prior permission from the Competent Authority under the Governor General Regulations No.179 and, that as per the site inspection, the petitioner has raised a brick wall surrounding the bungalow without prior permission, on the night of 9th and 10th March, 2013. The Estate Officer, accordingly, issued a show cause notice to the petitioner to remove the structure or show cause as to why the structure should not be removed by the authorities at the expense of the petitioner.
Heard Sri Navin Sinha, the learned Senior Counsel assisted by Sri Sudeep Harkauli and Sri A.D. Srivastava, the learned counsel for the petitioner and Sri S.K. Rai, the learned counsel for the respondents.
The learned Senior Counsel contended that the impugned notice was patently without jurisdiction and was liable to be quashed, inasmuch as no permission was required under the Cantonments Act, 2006 (hereinafter referred to as the Act of 2006) for erection of a boundary wall. The learned Senior Counsel contended that as per Section 234, 235 and 238 of the Act of 2006 sanction, if any, was only required for the construction of a building and not for a boundary wall. In support of his submission, the learned Senior Counsel placed reliance upon the definition of the word "building" as defined under Section 2(d) which means a house, outhouse etc. and does not include a boundary wall. The learned Senior Counsel consequently submitted that since no permission was required, the impugned notice issued under the Act of 1971 was ex facie illegal and was liable to be quashed.
Sri S.K. Rai, the learned counsel for the respondents submitted that under the Act of 2006, the land and buildings are managed by various authorities. The Act of 2006 applies to such bungalows, which are managed by the Cantonment Board. In the instant case, admittedly, the petitioner's bungalow is under the old grants, which is managed by the Defence Estate Officer and, therefore, the Cantonment Land Administration Rules, 1937 (hereinafter referred to as the Rules 1937) is applicable, which has been framed under Section 280 of the Cantonments Act, 1924 and inspite of the repeal of the said Act, the Rules of 1937 are saved by virtue of Section 360 of the Act of 2006. The learned counsel for the respondents submitted that from a bare perusal of the sale deed annexed to the writ petition, the land is an old grants and is classified as a B-III land as per the extract from the General Land Register. Under Rule 6 of the Rules of 1937, B-III land is managed by the Defence Estate Officer and not by the Cantonment Board and, therefore, the Act of 2006 was not applicable.
The learned counsel further submitted that the Governor General Regulations No.179 dated 12th September, 1836 would apply which still has the force of law as per the decision of the Supreme Court. The learned counsel submitted that for the purpose of management of defence land under old grants, the Defence Estate Officer is the Competent Authority, who manages the land under the Cantonments Land Administration Rules, 1937 read with Governor General Regulations No.179 dated 12th September, 1836. The learned counsel further submitted that in the alternative the contention of the learned counsel for the petitioner that the Act of 2006 did not require any permission to be given for construction of a boundary wall was patently erroneous, inasmuch as under Section 261 of the Act of 2006, necessary permission was required to be obtained from the Chief Executive Officer, which in the instant case had not been obtained.
The learned counsel submitted that since no permission was taken under clause-(1) of the Governor General Regulations No.179 and that the bungalow was transferred without previous approval from the Competent Authority, the Estate Officer was competent to issue a notice under Section 5-A of the Act of 1971. It was also brought to the knowledge of the Court that the Estate Officer has been notified as the Competent Authority to issue such notice under notification dated 5th August, 1978.
In rejoinder, the learned Senior Counsel submitted that the Governor General Regulations applies only to "unoccupied ground" and not appurtenant land attached to a bungalow or a building and, consequently, the Governor General Regulations No.179 dated 12th September, 1836 was not applicable.
Having heard the learned counsel for the parties, the Court finds that the notice issued by the Estate Officer under Section 5-A(2) of the Act of 1971 is a valid notice. The Court was also informed that the petitioner has submitted a reply and the matter is pending before the authority concerned. The Court has also been informed that some suit has also been filed by the petitioner before the civil court, which is pending. Prima facie, the contention of the respondents that the property is managed by the Defence Estate Officer and not by the Cantonment Board vis-a-vis the Chief Executive Officer appears to be correct. However, these questions can be raised and addressed by the petitioner before the Estate Officer and, if such grounds are taken, the Estate Officer will consider and decide the same. The Court is also not expressing any opinion on the impact of clause-(1) of the Governor General Regulations No.179 with relation to the word "unoccupied ground" and "open ground" used in Rule 2(c) of the Cantonments Land Administration Rules, 1937 and leaves it open to the parties to make such arguments or averments before the authority concerned, inasmuch as these are factual matters, which can be best considered by the Estate Officer pursuant to the notice issued under Section 5-A(2) of the Act of 1971.
For the reasons stated aforesaid, the Court does not find it to be a fit case to entertain the writ petition on the question of validity of notice at this stage.
The writ petition is dismissed with the observation that all observations made above are only tentative in nature and that the Estate Officer will not be swayed by an observation made by the Court.
Date:30.9.2013
Bhaskar
(Tarun Agarwala, J.)
