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2023 Supreme(MP) 487
IN THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
S.A. Dharmadhikari, Prakash Chandra Gupta, JJ.
Smt.Zehra Victor – Appellant
Versus
Union of India Through The Secretary Ministry of Defence South Block, New Delhi (Delhi) & Ors. – Respondents
Writ Petition No. 30228 of 2022
Decided On : 31-01-2023
Shri Rishi Tiwari- Advocate, for the Appellant; Shri. Himanshu Joshi - Advocate Along with Shri. Sapan Kumar, Defence Estate Officer Who is Present in Person, for the Respondent.
The court emphasized the importance of granting a reasonable opportunity of hearing and following due process of law before taking any action under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
Headnote:
Article 226 - Illegal Dispossession - Public Premises (Eviction of Unauthorized Occupants) Act, 1971, Section 5B
Fact of the Case:
The petitioner challenged the arbitrary and illegal action of the respondents in forcefully dispossessing her from the property without following due process of law under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
Finding of the Court:
The court found that the respondents had not followed the due process of law and had violated the principles of natural justice by not granting the petitioner a reasonable opportunity of hearing.
Issues: The issues revolved around the arbitrary dispossession of the petitioner and the violation of principles of natural justice by the respondents.
Ratio Decidendi: The court held that the respondents' actions were in violation of the principles of natural justice and directed them to open the lock of the premises and hand over possession to the petitioner.
Final Decision: The petition was allowed, and the respondents were directed to open the lock of the premises and hand over possession to the petitioner. The court also directed the Defence Estate Officer to deposit a cost of Rs. 10,000 for placing incorrect facts before the court.
ORDER
1. Heard finally with the consent of both the parties.
2. In this petition, under Article 226 of the Constitution of India, the petitioner has not challenged any specific order but has challenged the arbitrary and illegal action of the respondents in forcefully dispossessing the petitioner from the legally owned property without providing any opportunity of hearing and without following the due process of law as specified under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971(hereinafter referred as "Act of 1971").
3. The brief facts of the case are that the property in question i.e. Bunglow No. 69 R, Bhaya Road, Mhow (M.P.) admeasuring 1143.5 sq.ft. was purchased by the petitioner vide sale deed dated 20.02.1996 from one Shri Ann Chandiramni w/o Brigadier G. Chandiramni and Aruna Rodrigues. The sellers were owners of the subject property. On 07.05.1997, Smt. Aruna Rodrigues filed a civil suit before the learned Ist Civil Judge, Dr. Ambedkar Nagar, District Indore seeking declaration of ownership of Bunglow No. 69 R, Bhaya Road, Mhow (MP) and also declaration to the effect that notices and orders issued in respect of Bunglow No. 69 were illegal. A relief of permanent injunction was also sought in the civil suit. On 02.09.2004, the petitioner made an application to the Cantonment Board, Mhow requesting for permission to repair/construct the old house. Vide letter dated 08.09.2004, the CEO Cantonment Board informed the Defence Estate Officer, Mhow for granting such permission to the petitioner.
4. Learned counsel for the petitioner submitted that the respondents issued notice to the petitioner in Form No. "AB" under Proviso to sub Section (1) of Section 5B of the Act, 1971, on 29.10.2004, which was not received by the petitioner. However, to the utter surprise of the petitioner, a lock was put by the respondents on the subject property on 21.12.2022 and the petitioner was forced to leave the property without their being any eviction order against her and without even giving any breathing time in most arbitrary manner. Though, notice under sub Section (2) of Section 5B of the Act, 1971 was issued in Form "BB-I" directing the petitioner to stop the construction work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under section 9 of the Act, 1971. However, no order of demolition was passed/served against the petitioner. As per order sub-Section (1) of Section 5B of the Act, 1971, no order in form B was ever issued/served on the petitioner. In absence of the aforesaid, the action of the respondents in putting the lock on the premises in question is also in utter violation of the provisions of the Act, therefore, the lock deserves to be opened forthwith. The respondents cannot take any action under the Act, 1971 without following the due procedure of law. On these grounds, issuance of appropriate direction/writ/order has been sought against the respondents seeking direction to open the lock of the house of the petitioner and also to grant opportunity of hearing prior to taking any action under the Act, 1971. Learned counsel for the petitioner further contended that the show cause notice under sub-Section (1) of Section 5B of the Act in Form "AB" was issued on 29.10,.2004 but thereafter, no action was initiated for a period of more than 19 years after the show cause notice.
5. It is a settled legal position that unless and until a person in illegal occupation of a premises is evicted, no question for demolition would arise.
6. For the purpose of convenience, Section 5B of the Act 1971, is reproduced below:-
[5B. Order of demolition of unauthorised construction
(1)here the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed on any public premises by any person in occupation of such public premises under an authority (whether by way of grant or any other mode of transfer), and such erection of
