Case Note & Summary
The petitioner, Bharat Purohit Mithaiwala, challenged an eviction order dated 25.7.2003 passed by the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which was upheld by the appellate court on 3.10.2003. The petitioner had an unauthorised structure on railway land that existed since 1978. The petitioner argued that the proceedings under Section 5A of the Act, which was inserted by Act 61 of 1980 and came into force on 20.12.1980, could not be applied to a structure that existed before that date. The High Court rejected this argument, holding that Section 5A is procedural and applies to all unauthorised constructions, regardless of when they were erected. The court found no merit in the petitioner's contention and dismissed the writ petition, upholding the eviction order. The decision was delivered by Justice S.A. Bobde on 4 February 2005.
Headnote
A) Public Premises - Eviction of Unauthorised Occupants - Section 5A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Applicability to Pre-existing Structures - The petitioner contended that Section 5A, inserted by Act 61 of 1980 with effect from 20.12.1980, could not be applied to a structure existing since 1978. The Court rejected this contention, holding that Section 5A is procedural in nature and applies to all unauthorised constructions regardless of when they were erected. The power to remove unauthorised constructions under Section 5A is not limited to constructions made after its commencement. (Paras 3-4)
Issue of Consideration
Whether the Estate Officer can issue a notice under Section 5A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for removal of unauthorised construction that existed prior to the insertion of Section 5A with effect from 20.12.1980.
Final Decision
The High Court dismissed the writ petition, upholding the eviction order and the appellate order. The court held that Section 5A is procedural and applies to pre-existing unauthorised constructions.
Law Points
- Section 5A of the Public Premises (Eviction of Unauthorised Occupants) Act
- 1971 is procedural and applies to pre-existing unauthorised constructions
- Eviction order under the Act does not require the structure to be erected after the provision came into force
Case Details
2005 LawText (BOM) (02) 133
Writ Petition No.8582 of 2003
Mr. B.P. Panday for the petitioner, Mr. Suresh Kumar for the respondents
Bharat Purohit Mithaiwala
Union of India, through the Western Railway Administration, Sr. Section Engineer (Land), Lower Parel, Mumbai; The Estate Officer & Divisional Engineer (Estate), Western Rly., Mumbai Central, Mumbai
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Nature of Litigation
Writ petition challenging eviction order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
Remedy Sought
Petitioner sought to quash the eviction order dated 25.7.2003 and the appellate order dated 3.10.2003.
Filing Reason
Petitioner's structure on railway land was alleged to be unauthorised and an eviction notice was issued under Section 5A of the Act.
Previous Decisions
The Estate Officer passed an eviction order on 25.7.2003, which was upheld by the appellate court on 3.10.2003 in Misc. Appeal No.201 of 2003.
Issues
Whether Section 5A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 can be applied to unauthorised constructions that existed prior to its insertion on 20.12.1980.
Submissions/Arguments
Petitioner argued that the structure existed since 1978, before Section 5A was inserted, and thus the notice under Section 5A was invalid.
Respondents argued that Section 5A is procedural and applies to all unauthorised constructions regardless of when they were erected.
Ratio Decidendi
Section 5A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is procedural in nature and applies to all unauthorised constructions, including those erected before its commencement. The power to remove unauthorised constructions under Section 5A is not limited to constructions made after the provision came into force.
Judgment Excerpts
I see no merit in this contention.
Section 5A of the Act reads as follows:-
Procedural History
The Estate Officer passed an eviction order on 25.7.2003 under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The petitioner appealed to the City Civil Court, Mumbai, which dismissed the appeal on 3.10.2003 in Misc. Appeal No.201 of 2003. The petitioner then filed a writ petition in the Bombay High Court, which was dismissed on 4.2.2005.
Acts & Sections
- Public Premises (Eviction of Unauthorised Occupants) Act, 1971: 5A
