Varun Jain vs The Union Of India & Ors
2021 Latest Caselaw 4808 Cal

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE



BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur

                             W.P.A.10632 of 2021
                                  Varun Jain
                                     -vs-

                            The Union of India & Ors.

For the petitioner              : Mr. Suddhasatva Banerjee,
                                  Mr. Shashwat Nayak,
                                  Mr. Aniruddha Dutta,

For the Railway Authority       : Mr. Subhankar Chakraborty,
                                  Mr. Saptashi Bhattacharjee,


Hearing concluded on            : 22.07.2021, 04.08.2021


Judgment on                     : 14.09.2021

Ravi Krishan Kapur, J.:

   1. The petitioner assails a show cause notice dated 26 March, 2021 ("the

      impugned notice") issued by the Estate Officer, South Eastern

      Railways, Kharagpur under the provisions of the Public Premises

      (Eviction of Unauthorised Occupants) Act, 1971 ("the Act").


   2. The facts of this case pertain to a plot of land being Plot No. TE-137

      situated Gole Bazar, Kharagpur, District-Paschim Medinipur ("the

      premises"). Admittedly, the premises is owned and managed by the

      respondent Railway Board. Initially, by a license the premises was

licensed to one Noor Mohammad (since deceased) exclusively for

commercial use. Thereafter, in or about 1985 the said Noor

Mohammad executed a Power of Attorney in favour of one Mahendra

Kumar Jain (since deceased) for the purposes of carrying on

distributorship business of kerosene oil from the premises.

Subsequently, it is alleged that there was a sale of the premises by

and between the said Mahendra Kumar Jain and his grandson, the

petitioner no.1 for a consideration of Rs.5,00,000/-. It is alleged that

the said Mahendra Kumar Jain also executed a Power of Attorney

dated 30 January, 2013 in favour of the petitioner no.1 authorising

the petitioner no.1 to use the premises for the purposes of running the

said business in the name and style of M/s. Jain Traders. There have

been several attempts by the petitioner no.1 to have the premises

mutated in his name but admittedly there has been no mutation of

the premises in favour of the petitioner no.1 till date. It is further

alleged that the petitioner had written several different letters to the

authorities seeking redressal of his grievances. It is also alleged that

the Power of Attorney by the said Noor Mohammad has never been

revoked at any point of time and the same is still valid, continuing and

binding till date. It is also alleged that the petitioner and his

predecessor-in-interest have continuously paid rent in respect of the

premises to the respondent Railways Authorities and thus a valuable

right has accrued in favour of the petitioner. Subsequently, the

respondent no.5 issued the impugned notice directing the petitioner to

show cause and justify the basis of his occupation in the premises. By

a further letter dated 18 February, 2021 the petitioner was held to be

an "unauthorised occupant" and proceedings under the Act have been

initiated against the petitioner. Hence this petition.

3. It is submitted that the petitioner is not an unauthorised occupant

and has a lawful right in the premises which has also been recognised

by the Railway Authorities. It is also submitted that the petitioner has

obtained an indefeasible right in the premises from the original

licensee and cannot be treated as an unauthorised occupant. It is

further submitted that the respondent authorities have been fully

aware of the rights of the petitioner and a subsisting legal relationship

has been created in view of the fact that the respondent authorities

have received occupational charges from the petitioner.

4. On behalf of the respondent authorities, it is submitted that in view of

the clear embargo contained under the provisions of the Act, the

petition is not maintainable and is liable to be dismissed. It is also

submitted that the petitioner is now participating in the proceedings

initiated under the Act and all questions raised by the petitioner ought

to be adjudicated by the Estate Officer. Accordingly, there is no scope

for entertaining the petition and the same is liable to be dismissed on

the ground that the petitioner has an alternative, efficacious statutory

remedy.

5. At the outset, it is fundamental that the remedy under Article 226 of

the Constitution of India is in general discretionary. Ordinarily, a Writ

Court loathes to exercise its jurisdiction when the petitioner has an

alternative remedy available to him unless exceptional circumstances

are cited. The well settled exceptions are a) where the petitioner seeks

enforcement of any of his fundamental rights, b) where there is failure

of the principles of natural justice, or c) where the orders in the

proceedings are wholly without jurisdiction or the vires of an Act has

been challenged. The Act is a self contained Code and provides that

the Estate Officer has sufficient powers to adjudicate all issues raised

by the petitioner. This would also appear from a plain reading of

Sections 2(g), 4, 5, 8, 9, 10 and 15 of the Act. Article 226 was never

intended to circumvent statutory procedures. Moreover, a mere show

cause notice does not infringe the right of anyone. It is only when a

final order imposing some punishment or otherwise adversely affecting

a party is passed can the rights of the party be said to be infringed.

Accordingly, I find that there are no grounds whatsoever which justify

or warrant entertaining this petition. I am of the view that there are no

exceptional grounds warranting exercising any discretion in favour of

the petitioner. The attempt on the part of the petitioner to raise the

issue as to whether the petitioner is an 'authorised' or 'unauthorised'

occupant is in my view a question fit to be assessed exclusively by the

Estate Officer.

6. In view of the aforesaid WPA 10632 of 2021 is dismissed. However,

there will be no order as to costs. The petitioner is free to urge all

grounds which may be available to him in accordance with law before

the Estate Officer. The Estate Officer is directed to conclude the

proceedings as expeditiously in accordance with law. It is needless to

mention that the Estate Officer will not be bound by any observation

or finding in this order.

7. Urgent certified photostat copy of this judgment, if applied for, be

given to the parties upon compliance of requisite formalities.

(Ravi Krishan Kapur, J.)