For The vs Padmavati Devi (Smt.)(Dead) By ...
2021 Latest Caselaw 163 Cal

13.01. 2021
 Rc/Ct.No.10
 Item No.09




                               W.P.A. 10419 of 2020


                    Mr. Arik Banerjee
                    Mr. Joyjit Dutta

                                        .... For the Petitioners

                    Mr. Y.J. Dastoor
                    Mr. Sidhartha Lahiri
                                       .... For the UOI


                    This is the third round litigation initiated by the

              petitioners.

                    In this petition, the petitioners assails a show

              cause notice dated July 2, 2019 issued by the Estate

              Officer, Sukna Military Station. By the impugned notice

              the Estate Officer had sought for removal of illegal

              encroachment on Defence land at Mouza Sainikpuri. A

              notice has been issued under Section 5A (2) of the

              Public Premises (Eviction of Unauthorised Occupants)

              Act, 1971 (the Act). The contention of the petitioners is

              that there is a dispute in respect of the title of the land

              which forms the subject matter of the impugned notice.

              It is further contended on behalf of the petitioners that

              the Estate Officer had no jurisdiction to decide on

              question of the title to the said land. The petitioners

              assert that the remedy of the Estate Officer is to file a

              civil suit. The petitioners also rely on two judgments
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reported in 1995 Supp. (2) SCC 290 [State of Rajasthan

vs. Padmavati Devi (Smt.)(Dead) by Lrs. & Ors.] and

(1998) 8 Supreme Court Cases 483 (State of U.P. & Anr.

vs. Zia Khan). Accordingly, the petitioners pray for

quashing of the impugned notice.

      Mr. Dastoor, Learned Additional Solicitor General

along with Mr. Sidhartha Lahiri, Advocate represent the

Union of India. It is submitted on behalf of the

respondents    that   there       is    a   serious   issue    of

encroachment by the petitioners on defence land. It is

further submitted by the respondents that the

petitioners have illegally and unauthorisedly occupied

defence land and encroached upon the same without

any authority of law. It is further submitted on behalf of

the respondents that a date i.e. 15 February, 2021 has

been fixed for a joint survey of the parties. It is further

pointed out on behalf of the respondents that on an

earlier occasion a date had been fixed for joint survey

but the same could not be carried out due to problems

created by local villagers at the behest of the petitioners.

I have heard the parties and I have also perused

the pleadings. At the outset, I am of the view that the

impugned notice is merely a show cause notice issued

under the provision of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971. The matter is at a

nascent stage before the Authority. It is well settled that

ordinarily a Writ Court ought not to interfere with a

show cause notice. I am fully mindful of the fact that

the said rule is not without exceptions. However, in the

facts of the instant case, I find no exceptional ground

which warrants interference with the impugned notice.

The interference at the show cause notice stage by a

Writ Court should be the rare and not in a routine

manner. Abstinence from interference at the stage of

issuance of show cause notice in order to relegate the

parties to the proceedings before the authorities

concerned is the normal rule. The mere fact that the

petitioners allege that there is a dispute as to title does

not automatically warrant interference by this Court.

There is a complete machinery provided under the

aforesaid Act which is a complete Code itself in so far as

the eviction of unauthorised occupants from public

premises is concerned. The section itself pertains to

removal of unauthorised construction and illegal

encroachment. The petitioners have a full and complete

opportunity to take all points including the question of

jurisdiction before the Estate Officer. No prejudice can

be said to have been caused to the petitioners at this

stage. It appears from the records that the petitioners

have themselves participated and attended a joint

survey conducted on November 26, 2020. It is

unfortunate that the petitioners themselves are Ex-

army personnel and their acts tend to interfere with the

smooth functioning of the Defence authorities.

The reference to the two decisions relied on by the

petitioners are misplaced and inapposite to the facts of

the present case. In the decision reported in (1998) 8

Supreme Court Cases 483, the High Court had come to

the rescue of the petitioners and had remanded the trial

to a pending suit on merits. Moreover, in the decision

reported in 1995 Supp. (2) SCC 290, the Court had

found bona fide disputes to exist which warranted

interference. The factual scenario in the present case is

totally distinguishable.

I am of the view that the petitioner has an

available alternative remedy and should take all the

points available to them in law before the Estate Officer.

For the foregoing reasons, I am not inclined to interfere

with the impugned show cause notice and do not

exercise my discretion in favour of the petitioners. On

the contrary, I am of the view that the petitioners are

deliberately trying to procrastinate the proceedings

initiated before the Estate Officer. Accordingly, WPA

No.10419 of 2020 is dismissed.

(Ravi Krishan Kapur, J.)