Gopal Das Choudhary And Others vs Union Of India And Others
2022 Latest Caselaw 2003 Cal

                     In the High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                           W.P.A. No. 5095 of 2022

                    Gopal Das Choudhary and others
                                  Vs.
                       Union of India and others



     For the petitioners            :     Mr.   Kishore Dutta,
                                          Mr.   Kumar Gupta,
                                          Mr.   Rajesh Gupta,
                                          Mr.   Debjit Mukherjee,
                                          Mr.   Meghajit Mukherjee


     For the respondents-           :     Mr. Ashok Kr. Chakraborty,

Ms. Mary Datta

Hearing concluded on : 30.03.2022 Judgment on : 18.04.2022

Sabyasachi Bhattacharyya, J:-

1. The petitioner has challenged an order passed by the Estate Officer of

the Eastern Railway for eviction of the petitioner from a passage vide

order dated February 17, 2022 and the notice preceding the same

dated May 16, 2019, passed and issued respectively under Sections 5

and 4 the Public Premises (Eviction of Unauthorised Occupants) Act,

1971 (hereinafter referred to as "the 1971 Act"). The petitioners also

prayed for filing the writ petition in representative capacity on behalf

of the all the flat owners of the multi-storied complex which is the

subject-matter of dispute.

2. At the outset, learned senior counsel appearing for the respondent-

Authorities raises an objection regarding maintainability of the writ

petition. It is contended by the respondents that the petitioners

cannot claim representative capacity on behalf of all flat owners before

the second forum of challenge. It is argued that Order I Rule 8 of the

Code of Civil Procedure, even on principle, is not maintainable before

the writ court, which is the second forum, the first forum being the

Estate Officer issuing the notice and passing the order impugned.

3. It is further argued that since the estate of the flat owners was

sufficiently represented before the Estate Officer by the Company,

which is the developer in respect of the multi-storied complex, the

present writ petition ought to be dismissed in limine.

4. It is further contended by learned senior counsel for the respondents

that it is a well-settled proposition of law that the remedy under

Article 226 of the Constitution of India cannot be resorted to for

bypassing an alternative remedy, when the said alternative remedy is

clearly barred by limitation.

5. Learned senior counsel places reliance on the judgment of A. V.

Venkateswaran, Collector of Customs, Bombay Vs.

RamchandSobhrajWadhwani and another, reported at AIR 1961 SC

1506 delivered by a five-Judge Bench of the Supreme Court.

6. It is contended that since Section 9 of the 1971 Act provides for an

appeal from every order of the Estate Officer made under Section 5 of

the said Act and that sub-section (2)(a) of Section 9 stipulates twelve

(12) days from the date of publication of the order as the limitation for

preferring such appeal, the writ petition, specifically sought to get

indirectly what the petitioners cannot get directly under law, ought to

be turned down.

7. Learned senior counsel appearing for the writ petitioners submits, at

the outset, that the present writ court is not the second forum in

respect of the matter, since the challenge has been preferred on the

ground of inherent lack of jurisdiction of the person passing the order

in the capacity of an Estate Officer under the 1971 Act.

8. It is contended that the Estate Officer was not appointed in terms of

Section 3(a) of the 1971 Act, hence, denuding the person passing the

impugned order and issuing the impugned notice, under Sections 5

and 4 of the 1971 Act respectively, of the authority/jurisdiction to do

such acts within the contemplation of the 1971 Act.

9. That apart, the order impugned is not tenable in the eye of law, since

the satisfaction of the Estate Officer that the public premises are in

unauthorised occupation, as required under Section 5(1) as a pre-

requisite of an eviction proceeding, is absent in the order passed

purportedly under Section 5 of the 1971 Act.

10. In view of the registered agreement dated May 4, 1987, whereby the

President of India, representing the Eastern Railway Administration,

had specifically granted easement right to the developers of the

property in dispute in consideration of the lands, comprised of the

building as well as the passage-in-question, being rendered vacant by

the Company, thereby granting easement rights to the developer-

company to use the disputed passage and/or road solely for the

purpose of passage. Such agreement was totally overlooked by the

Estate Officer. Moreover, since it has not been evinced from the

materials-on-record that the said agreement was terminated as per

law at any point of time, the developers and the defendants, who

purchased such rights from the developers, cannotbe labelled to be in

"unauthorised occupation" as defined in Section 2(g) of the 1971 Act.

11. That apart, the easement of necessity conferred by the said

agreement, it is argued, is not, in itself,"public premises" within the

contemplation of Section 2(e) of the 1971 Act. As such, the purported

Estate Officer had no authority to invoke the provisions of the 1971

Act at all, which renders the notice and eviction order, purportedly

under Sections 4 and 5 of the 1971 Act, de hors jurisdiction.

12. Learned counsel for the petitioner further contends that the cited

judgment did not lay down any ratio on the doctrine of coram non

judice and, as such, is not applicable to the present case at all.

Moreover, since the action impugned in the writ petition was entirely

without jurisdiction, the present writ petition has been preferred as

the first challenge. As such, it is argued, the writ court, in the present

case, is not thesecond forum but the first, original forum of challenge.

13. To answer the question of maintainability of the writ petition, the

nature of the petitioners' right in the property has to be ascertained

first.

14. Section 2(c) of the 1971 Act defines 'premises' as follows:

"(c) "premises means any land or any building or part of a building and includes,--

(i) the garden grounds and outhouses, if any, appertaining to such building or part of a building, and

(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;"

15. Again, public premises under Section 2(e) of the Act contemplates any

premises belonging to or taken on lease or requisitioned by or on

behalf of the Government/authorities as stipulated in Section 2(e).

16. Since the basic qualifier of a proceeding under Sections 4 and 5 of the

1971 Act essentially contemplates premises, the operation of the 1971

Act cannot be divorced from the definition of premises under Section

2(c). In the present case, however, the right claimed by the petitioner

on the basis of the registered agreement dated May 4, 1987 (annexure

P/12 at page 154 of the writ petition) does not confer ownership rights

to any land, building, part of building and/or fittings affixed thereto

and/or other ancillary property but merely grants a limited right of

common passage over the servient heritage. Essentially, a plain

reading of the said agreement shows that the right did not comprise of

the entire bundle of rights associated with the concept of"ownership",

which is hinted by the expressions "belonging to", "taken on lease" or

"requisitioned by or on behalf of", as used in Section 2(e) of the 1971

Act. The mere right of easement of necessity granted by the

agreement to the petitioner, for the sole purpose of using the passage

and/or road for access to the premises where the petitioners live,

cannot come within the contemplation of "premises", let alone "public

premises" as envisaged in the 1971 Act.

17. It is evident from the registered agreement itself, which creates a

prima facie presumption of such easement right of necessity of the

petitioner conferredby the President of India, representing the Eastern

Railway Administration, that the developer-company removed a good

number of Hutments and Bustees which originally existed over plot

no.218, and the lands belonging to the administration were vacated

and walled up at the instance and cost of the developer-company.

18. It is clearly recognized in the agreement that, in consideration of

mutual benefits and inconsideration of the lands being rendered

vacant by the developers, a right of user in respect of a 20 feet wide

passage was granted by the Administration to the developers, from

whom the present petitioners purchased their respective flats.

19. That apart, the order passed by the Estate Officer on May 12, 1987 in

Eviction Case No. EP/SDAH/4, annexed at page 161 (Annexure P/13)

of the writ petition, makes it evident that the entire land comprised of

RS Dag No.218 at Mouza -Sahapur, Police Station-Behala was walled

up and handed over by the developers in vacant possession in favour

of the Railways and the Railways took over the same on May 1, 1987.

20. The agreement was entered into immediately thereafter, that is, on

May 4, 1987. Thus, in the absence of any challenge to the veracity of

the agreement and the order-in-question dated May 12, 1987, that the

entire premises were handed over in favour of the Railways by the

developers contemporaneously with the execution of the agreement

granting easement right, as recorded in the order dated May 12, 1987.

Hence, there cannot arise any question of the present right claimed by

the developers and, through them, the petitioners, being anything

more than a right of easement of necessity on the strength of the

agreement dated May 4, 1987 which cannot be termed, by any stretch

of imagination, as premises or public premises.

21. On the other hand, Section 2(g) of the 1971 Act defines "unauthorised

occupation" as follows:

"(g) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant of any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."

22. In the present case, however, none of the notices given to the

petitioners' association contain a whisper about the termination of the

agreement conferring easement rights. Clause 7(a) of the agreement

specifically mentions that the developers have no right, title or interest

in respect of the portion of RS Dag No.218 which had been cleaned

and walled up and that the Administration in all eventualities shall

use the said lands for the purpose to be decided by them in their sole

discretion. Clause 7(b) reiterates the handing over vacant possession

of the said portion to the Railway Administration.

23. Clause 8 of the agreement further stresses that nothing contained in

the agreement shall connote a titular right of the developer-companies

in respect of the passage or the land contained in the portion of RS

Dag No.218 save perennial common users' right and that the

ownership of right of the scheduled-land of the passage squarely vests

with the Administration.

24. It is evident from the description of the scheduled land in the

agreement that the plot of land, where the building housing the

petitioners and the other members of the Flat Owners' Association,

whom the petitioner seek to represent, was raised immediately behind

the plot no.218, of which the Railway-authorities are the undisputed

owners. As per the petitioners' claim, the petitioners' plot of land is

the dominant heritage, while plot no.218, which belongs to the

Railway-authorities, is the servient heritage, over which the 20 feet

passage, regarding which easement right was granted to the

developers through whom the petitioners claim, was the only route of

ingress and egress to and from the residence of the petitioners.

25. Hence, the nature of right claimed by the petitioners is not ownership

but merely an easementary right. In the absence of any concrete

rebuttal by cogent evidence, it cannot but be presumed that the

nature of the right sought to be curtailed by the respondent-

Authorities is such easement right, since admittedly the petitioners

and/or their predecessor-in-interest, that is the developers,did not

haveownership rights over the plot-in-question.

26. Hence, there cannot be any iota of doubt that the subject-matter of

the present lis does not concern 'public premises', which could have

brought the matter within the purview of 1971 Act.

27. The 1971 Act is not applicable in the present case, at least prima

facie, on another ground. As per Section 2(g) of the 1971 Act, for an

occupation to be unauthorised, in the event the occupant had been

continuing in occupation by dint of any authority (whether by way of

grant of any other mode of transfer), under which the petitioners were

allowed to occupy the premises, has expired or has been determined

for any reason whatsoever.

28. Neither the notice under Section 4 of the 1971 Act, annexed at page

208 (Annexure P/30) of the writ petition, nor the notice purportedly

under Section 5 of the said Act, issued to the petitioners' Association,

at page 213 (Annexure P/34) of the writ petition mentions anything

about the determination of the jural relationship or authority

conferred by the agreement by virtue of which the petitioners stake

their claim to their easement right over the property.

29. The notice dated May 16, 2019, purportedly under Section 4 of the

1971 Act,merely states that the Mani Towers Flat-Owners'

Association, to which the petitioners belong, even without any right,

title to or interest whatsoever in the quarter/land, were occupying the

same "unauthorisedly".

30. The purported notice under Section 5, signed on February 1, 2022,

mentions that the said Association is in occupation without any right,

title or interest whatsoever in the land occupying 4848.25 sq. ft. in the

structure, by constructing such multi-storied structure.

31. As such, in the absence of any mention about termination of the

agreement in either of the notices, the occupation of the petitioners

and/or their Association, who claim through the developers, do not

fall within the ambit of "unauthorised occupation" as envisaged in the

1971 Act. Hence, the said Act cannot be attracted to the present case

on such score as well.

32. As for the objectiontaken by the respondents to the challenge thrown

by the petitioners to the authority of the person passing the impugned

order of eviction and issuing the notice, on the ground of Order I Rule

8 of the Code of Civil Procedure being not maintainable before the

second forum of challenge, the sameis not applicable to the present

case. Since the challenge preferred by the petitioners in the present

writ petition do not constitute a valid appeal under Section 9 of the

1971 Act, which lies from an order of the Estate Officer made in

respect of 'public premises' under Section 5 and other sections of the

1971 Act, it cannot be said that the writ court is acting in the capacity

of a second forum of challenge. The challenge preferred is on the

ground of patent lack of jurisdiction of the Estate Officer to pass the

eviction order-in-question and to issue the impugned notice. Hence,

the present writ petition is in the nature of an original proceeding,

challenging such perceived illegal and arbitrary action of the

respondents before the first forum. Hence, the challenge as to the

Estate Officer having acted without authority can validly be taken by

the petitioner.

33. In the absence of any pleading or proof having been brought on record

as yet by the respondent-Authorities, disclosing any detail or

document to establish the appointment of the Estate Officer by a

Gazette Notification within the contemplation of Section 3 of the 1971

Act, this Court can definitely exercise its power of judicial review

under Article 226 of the Constitution of India to interdict and

ascertain the authority of the person issuing the notice and passing

the eviction order, purportedly under Sections 4 and 5 of the 1971

Act respectively.

34. Undoubtedly, the question of such lack of authority on the ground of

non-appointment under Section 3 cannot be decided finally at this

stage, without directing affidavits to be exchanged between the

parties. However, in view of the nature of the issues involved in the

writ petition, all the grounds of challenge taken by the petitioner are

squarely covered within the scope of enquiry under Article 226 of the

Constitution of India.

35. It has been well-settled by several decisions of the Supreme Court

post-A.V. Venkateswaran, Collector of Customs, Bombay (supra) that

availability of alternative remedy is not an absolute bar to the

maintainability of Article 226 of the Constitution of India. Even in

the said cited judgment, the Supreme Court has carved out several

exceptions where the court could interfere under Article 226, for

example, where there was a complete lack of jurisdiction in the officer

or authority to take the action impugned or where the order

prejudicial to the writ petitioner was passed in violation of the

principles of natural justice and could, therefore, be treated as void or

non est, both of which grounds are available to the petitioners in the

present writ petition in view of the nature of issues involved.

36. The unreported judgment dated June 13, 2019 passed in C.O.

No.3271 of 2018 [M/s Debidutt Jalan& Co. and others Vs. Union of

India and others], however, was merely interlocutory in nature and no

ratio was specifically laid down therein. Hence, the said judgment

cannot be considered as germane in the present consideration of

maintainability.

37. Since the provisions of the 1971 Act, including Section 9 thereof, are

not applicable to the present case, there cannot arise any question of

the petitioners' attempting to bypass the limitation prescribed in

Section 9(2)(a) of the 1971 Act, that is, 12 days from the date of

publication of the order passed purportedly under Section 5 of the

said Act.

38. In view of the above discussions, the objection as to the

maintainability of the writ petition, taken by the respondents, is

turned down.

39. W.P.A. No.5095 of 2022 is maintainable in law and in its present form

and is required to be heard on merits. Hence, the respondents are

directed to file their affidavits-in-opposition within May 3, 2022.

Reply, if any, shall be given by May 10, 2022. The matter shall next

be enlisted for hearing on merits on May 11, 2022. The operation of

the impugned notice and order of eviction, purportedly issued/passed

under Sections 4 and 5 of the 1971 Act respectively, shall remain

stayed till disposal of the writ petition.

40. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )