Act 40 of 1971 has an overriding effect on The Cantonments Act, 1924, due to its aim to provide a speedy process for eviction of unauthorized occupants from 'public premises'.

L.K. Mohapatra, A.C.J.

Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Udayan Nandan, learned counsel appearing for the appellant and Sri R.B. Singhal, learned Senior Counsel assisted by Sri Satish Kumar Rai, learned counsel appearing for the respondents.

2. This special appeal has been filed questioning the legality of the order dated 22.8.2013 passed by the learned Single Judge in Writ Petition No. 39732 of 1996. The writ application and this special appeal arise out of a proceeding under provisions of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short 'Act 40 of 1971').

3. The disputed premises is a part of Bungalow No. 49, Taj Road, Agra. The appellant who was the petitioner in the writ petition is a tenant and Sri N.K. Patni is the landlord. Notice was issued to both of them under Section 5-A of Act 40 of 1971 for removal of construction made on a portion of land of the said bungalow on the allegation that the petitioner-appellant had raised the above unauthorised construction without obtaining sanction of Union of India. Notice was issued by the Estate Officer on 10.10.1994 under Section 5-B of Act 40 of 1971 to both, the petitioner-appellant as well as the landlord N.K. Patni inviting objection. It appears that the petitioner-appellant had constructed a hall-cum-shop measuring 41 X 31 ft. covering an area of 1271 sq. ft.

4. Objection was filed on behalf of the petitioner-appellant and it was contended in the objection that the allegation of unauthorised construction was not correct and initiation of the proceeding under Act 40 of 1971 was without jurisdiction. According to the petitioner-appellant, the disputed premise lies within the Cantonment Area and as such the Estate Officer acting under the provision of Act 40 of 1971 in issuing notice has no jurisdiction to issue such notice. It was further contended that since the disputed premise is located within the Cantonment Area, the provisions of The Cantonments Act, 1924 are applicable and no proceeding under Section 5-A(2) of Act 40 of 1971 could be initiated.

5. Union of India also filed the reply to the objection of the petitioner-appellant and stated that the land is vested in the Ministry of Defence, Government of India though it lies within the Cantonment limits of Agra. Therefore, before making any kind of construction, the landlord N.K. Patni was required to obtain sanction from the competent authority under the provisions of The Cantonments Act, 1924. It was also stated that the disputed premise belongs to Union of India and therefore is a 'public premise' as defined under Act 40 of 1971 and therefore, a proceeding under Section 5-A of Act 40 of 1971 was maintainable.

6. The proceeding initiated by the Estate Officer was registered as Case No.4/314/PPE Act/49 and Estate Officer after consideration of the objection filed by the petitioner-appellant, the reply to the said objection filed by the Union of India, passed an order in terms of Section 5-A(2) of Act 40 of 1971. Challenging the said order of the Estate Officer, the petitioner-appellant preferred an appeal under Section 9 of the said Act 40 of 1971. Though, the Appellate Court held that such an appeal was not maintainable against the order passed under Section 5-A(2) of Act 40 of 1971, it also decided the case on merit against the petitioner-appellant. Challenging the order of the Estate Officer as well as the Appellate Court, writ application was filed by the appellant.

7. A preliminary objection was raised by Sri R.B. Singhal, learned Senior Advocate appearing for Union of India assisted by Sri Satish Kumar Rai, learned counsel with regard to maintainability of the special appeal. It was contended by Sri Singhal, learned Senior Counsel appearing for Union of India that the petitioner-appellant having filed an appeal against the order of the Estate Officer and thereafter having filed a writ application challenging the order of the Estate Officer as well as the A

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