Summary eviction proceedings under special legislative acts cannot be invoked where there is a bona fide dispute concerning property title. The government must establish its ownership through a competent civil court before exercising its power to remove occupants who possess a colorable claim of right.

CORAM: HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE.

(JUDGMENT)

01. The Petitioners, through the medium of the present Petition filed under Article 226 of the Constitution of India, have challenged Order dated 8th of August, 2022 issued by the Estates Officer, Cantonment Board under sub-section (2) of Section (5A) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 [for short “the Act of 1971”]. Besides, the Petitioners seek a direction in the name of the Respondents, thereby directing them to desist from invoking the Act of 1971 in order to dispossess the Petitioners from their proprietary land in future and not to remove the existing structures of the Petitioners raised on the proprietary land falling under Survey No. 176/165 situate at Mozai Bonamsar, Sonawar, Srinagar.

02. The Petitioners claim to be in continued possession of land falling under Khasra No. 176/165 situate at Bonamsar, Sonawar, Srinagar, prior to the year 1950. It is pleaded that in the year 2003, the Respondent Cantonment Board started causing interference in the peaceful possession of the land of the Petitioners measuring 06 Marlas and 06 Sirsai located at Bonamsar, Sonawar, Srinagar, which constrained the Petitioners to move the Civil Court seeking restraint against the Respondents with respect thereto, wherein the Civil Court decreed the Suit in favour of the Petitioners and restrained the Cantonment Board from causing any interference in the possession of the Petitioners, with a further direction that the Decree, however, shall not affect the action under the provisions of the Cantonment Act; that in terms of the Judgment of the Civil Court, the rights of the Petitioners have been determined after considering the Written Statement filed by the Respondent-Cantonment Board in which the Respondents submitted that the land in question is classified as B4 land (Defence Land); that, in May, 2022, the Respondents issued a show cause notice to the Petitioners in terms of sub-section (2) of Section 4 of the Act of 1971 alleging therein that the Petitioners are encroachers of the Cantonment land and, accordingly, directed them to submit evidence which the Petitioners would intend to produce in support of their case; that in response to the aforesaid show cause notice, the Petitioners submitted all the relevant documents in order to satisfy the Respondents that the land in question is their proprietary land and that there is no question of encroachment of any Defence Land; and that, instead of considering the reply so submitted by the Petitioners to the show cause notice, the Respondents have issued the impugned Order under sub-section (2) of Section (5A) of the Act of 1971, directing the Petitioners to remove the structures /fixtures on the said premises falling under their Survey No. 40/6 instead of 176/165 as per UT Revenue record, within 15 days from the date of publication of the Order impugned.

03. Objections stand filed on behalf of all the Respondents.

04. In their Objections, the Respondent-Union of India (Respondents No. 1 and 2) have averred that the instant Petition raises disputed questions of facts which cannot be adjudicated in Writ proceedings, as such, the Writ Petition is liable to be dismissed; that the Petitioners have encroached Defence Land measuring 1805.31 Sqft bearing GLR Survey No.40/6 classified as B-4 land under the management of Cantonment Board, Badamibagh; and that the entries made in General Land Register maintained under Cantonment Land Administration