ORDER

1. This petition u/Art. 226 of the Constitution has been filed assailing the order dated 6.6.2019 (Annexure-P/7) passed by the Defence Estates Officer (Respondent No.2) exercising powers u/S. 5A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for brevity “Act of 1971”).

1.1. By the impugned order, the structure measuring 8 ft. 10 inch X 31 ft. = 272 sq. ft. standing on GLR Survey No.82, Jabalpur Cantt. is held to be unauthorized construction and petitioner found in occupation is directing to be evicted.

1.2. Since there is no remedy of appeal u/S.9 of the Act of 1971 against an order passed u/S.5A, petitioner has approached this Court in this writ petition.

2. Learned counsel for rival parties are heard on the question of admission so also final disposal.

3. Learned counsel for petitioner primarily submits that the land on which the construction in question is standing was leased out to petitioner by respondent No.3/Society. Petitioner has denied that any unauthorized construction was raised by him at any point of time. It is alleged that instead of invoking the power u/S. 5 of the Act of 1971, the Defence Estates Officer has intentionally with mala fide intention invoked section 5A. It is submitted that reasonable opportunity of being heard is also denied during inquiry conducted by the Defence Estates Officer u/S. 5A. Petitioner has also relied upon the decision of Single Bench rendered in Mrs. Brena Fernandez and another u. Union of India and others (W.P. No.2311/2004) decided on 20.8.2013 wherein, Single Bench of this Court interfered with an order passed u/S. 5A on the ground of violation of principles of natural justice.

4. Learned counsel for respondent Nos.1 & 2 denying the averments made in this petition and submits that the land in question, on which unlawful construction has been made by petitioner, was in fact allotted to respondent No.3-Society. It is further informed that the lease hold rights awarded to the respondent No.3-Society vide lease deed had expired on 31.8.2017 and requisite renewal is pending till date. It is also informed by counsel for respondent Nos.1 & 2 that executive orders were issued by Ministry of Defence for extending the tenure of leases in the Cantonment Areas and, therefore, the respondent No.3-Society continues to hold lease hold rights till date, based on such extensions by executive order.

4.1. Learned counsel for respondent Nos.1 & 2, however, supports the impugned order of Defence Estates Officer by contending that the construction made by petitioner was not only found to be unauthorized but the land on which construction was made was never allotted to petitioner and, therefore, petitioner is a trespasser.

5. We have perused the record and have heard the contentions of counsel for rival parties. This Court, in fact, is not dealing with a case u/S.5 which relates to eviction of unauthorized occupants but instead is dealing with the case of unauthorized construction u/S. 5A. Thus, the only aspect which needs to be gone into is as to whether the construction in question was unauthorized or not.

5.1 A show-cause notice issued to petitioner dated 20.12.2018 (AnnexureP/1) reveals that on inspection of the site in question, unauthorized construction of house with thatched roof ad-measuring 8 ft. 8 inch X 31 ft. = 272 sq. ft. was found which had been erected without prior permission of competent authority.

5.2 Petitioner in response preferred an application dated 18.1.2019 u/S. 8 of the Act of 1971 (Annexure-P/2) seeking supply of copy of lease along with annexed map, which was reiterated by Annexure-P/3 dated 1.2.2019. Thereafter, petitioner preferred an application dated 15.2.2019 (AnnexureP/4) for adducing evidence in support of his contention.

5.3 Vide order dated 17.1.2019 (Annexure-P/5), the respondent No.3/Society (lessee) informed the Defence Estates Officer that if the unauthorized constructions made by several persons including petitioner are removed, responden