The main legal point established is that the nature of the right claimed and the absence of mention of agreement termination in eviction notices determine the applicability of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to the case.

JUDGMENT :

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 prerequisite 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 tha