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2003 DIGILAW 15 (CHH)

Kamal Narayan Khandelwals v. Union Of India (Uoi)

2003-02-06

FAKHRUDDIN

body2003
ORDER Fakhruddin, J. 1. This revision has been filed by Kamal Narayan Khandelwal and Dilip Kumar Khandelwal under Section 115 of the Code of Civil Procedure. The proceedings for eviction were drawn against the petitioners and eviction order was passed as far back as on 8-10-1987 by the Competent Authority. An appeal was preferred before the District Judge under Section 9 of the Public Premises (Eviction of unauthorized Occupants) Act, 1971. The appeal was dismissed on 8-10-1996. Thereafter, W.P. No. 1471/1997 was filed which was held to be not maintainable. Pursuant to the order passed by the Division Bench of High Court, an application for conversion of writ petition into Civil Revision was filed which was allowed and this revision has been registered as C.R. No. 2407/2000 in the High Court of Madhya Pradesh and after formation of State of Chhattisgarh, this has been received on transfer from High Court of Madhya Pradesh. 2. It is submitted that there are various persons against whose encroachments in front of main station and the circulating area, various orders evicting these persons were passed. They were challenged by Civil Revision Nos. 739/97, 553/2000, 555/2000, 557/2000, 558/2000 and 559/2000 and revisions were decided by common order dated 19-6-2000. It is pointed out that in the other case, the petitioners were given licence and possession of the Railway plot whereas in the present case petitioner was not given any licence. The plot in question was originally granted to Hem Narayan Singh s/o Late Lab Singh in the year 1980 as temporary licence. The said Hem Narayan left the plot and alleged to have given its possession by giving power of attorney which is contrary to various conditions laid in the "Licence for temporary occupation of Railway Land" and is contrary to law as well as public policy. 3. Counsel for the Railways referred to and it is relevant here to mention the condition Nos. 3, 4, 5, 6, 7 and 8 which are quoted hereinbelow:-- "3. That the land can only be occupied for which it is allotted. 4. That the land is not to be assigned, transferred or sub-let by the occupier nor shall part with the actual possession thereof. 5. 3, 4, 5, 6, 7 and 8 which are quoted hereinbelow:-- "3. That the land can only be occupied for which it is allotted. 4. That the land is not to be assigned, transferred or sub-let by the occupier nor shall part with the actual possession thereof. 5. That the Government only agrees to give temporary occupation of the land of three years only and the occupier is liable to have this licence cancelled at any time upon such notice as is mentioned in Clause 7. This is without derogating the right of termination reserved in Clause 13 thereof. 6. That no building of any kind shall be erected by the occupier without the previous permission in writing of the Chief Engineer of the South Eastern Railway or a duly authorized officer of the South Eastern Railway, the general arrangement of such building must also be approved by the officer giving permission and such permission will in all cases apply only to the erection of a building or buildings of a purely temporary character and all buildings erected by the occupier on the land occupies by him under this Agreement shall for the purpose of this licence be regarded and treated as temporary buildings. 7. The Government shall be entitled at any time to give notice to the occupier of its intention to resume possession of the land and subject to the proviso hereinafter contained the occupier shall vacate the land, remove all materials and buildings belonging to the occupier and restore the land to its original state within 30 days after the date such notice and the Government shall not be responsible for any inconvenience, loss or damage that may be caused or done to occupier by reason of his having to vacate on such notice. Provided always and it is agreed that the Government upon giving notice to the occupier of its intention in that behalf concurrently with the said notice of intention to resume possession shall be at liberty to purchase from the occupier and take over all or any buildings erected on the land by the occupier at fair value. Provided always and it is agreed that the Government upon giving notice to the occupier of its intention in that behalf concurrently with the said notice of intention to resume possession shall be at liberty to purchase from the occupier and take over all or any buildings erected on the land by the occupier at fair value. Such value shall be ascertained and fixed by any District Engineer of the South Eastern Railway appointed for that purpose by the Chief Engineer of the South Eastern Railway and the value so ascertained and fixed shall be accepted both by the Government and the occupier as the fair value of such building or buildings. 8. All buildings erected and all materials merchandise or goods brought in or stored by the occupier upon the said land shall remain charged unto the Government as continuing security for the payment of the occupation money herein reserved and the observance by the occupier of the stipulations on his part herein contained and the occupier shall not be entitled to remove the same after receipt of the notice referred to in Clause 7 herein without first payment and satisfying all dues of the Government for occupation money or otherwise. If at the expiration of the said period of thirty days referred to in Clause 7 any building shall be left on the land which the Government shall not have elected to purchase as aforesaid or if the occupier shall have then failed to remove any materials or goods or to restore the said land to its original condition then and in any or either of such cases the Government shall be at liberty to sell such buildings materials and goods or to demolish or remove the same or otherwise to deal therewith in such manner as the Government may think fit and all costs and expenses incurred by the Government in or about such sale removal or disposal, shall be paid by the occupier to the Government on demand and the Government shall be at liberty to recoup such costs and expenses as also any occupation money or other money which may be due to it hereunder from and one of the proceeds of any such sale as aforesaid." A plain reading of the aforesaid conditions shows that this land/plot was only for a temporary occupation and was not to be assigned, transferred or sublet by the occupier. He could not part with the actual possession thereof. The conditions laid down in the "Licence for temporary occupation of Railway Land" are for protection and preservation of Railway Property. 4. Counsel for the Railways pointed out that here in the instant case, the plot is just opposite to the heritage building within the circulating area. The original licence holder as mentioned in the agreement could not have entered into the agreement with the applicants and he would not have any right to assign, transfer or sub-let the land in question and after expiry of the stipulated time, he was under obligation to vacate and hand over the said plot/ land to the Railways. 5. So far as Railway Administration is concerned, there should be proper access to and from the station for the commuters. Since thousands of commuters are required to come and go daily by Rickshaws, Auto Rickshaws and other vehicles movement of which is required to be maintained properly for free flow of traffic without any obstruction, therefore proper maintenance is necessary. 6. Counsel for the respondents submits that proper space arrangements are required. Since thousands of commuters are required to come and go daily by Rickshaws, Auto Rickshaws and other vehicles movement of which is required to be maintained properly for free flow of traffic without any obstruction, therefore proper maintenance is necessary. 6. Counsel for the respondents submits that proper space arrangements are required. He has highlighted the difficulties faced by the Railway authorities and submitted that in absence of proper arrangements, people suffer due to stampede or over-crowding. 7. So far as the question of competency and jurisdiction of the Officer is concerned, the said question was raised before the High Court of M.P. in Civil Revision No. 471/2000 [Khiyaldas (deceased) through L.Rs. Girdharilal and Ors. v. Union of India and Ors.] and has been held against the applicants. Copy of that order has been filed and is on record. Section 3 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, which deals with appointment of Estate Officers, is relevant and quoted herein below:-- "3. Appointment of Estate Officers.-- The Central Government may, by notification in the Official Gazette,-- (a) appoint such persons, being gazetted officers of Government or of the Government of any Union Territory or officers equivalent rank of the statutory authority as it thinks fit to be Estate Officers for the purpose of this Act: Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with the Speaker of the Lok Sabha: Provided further that an officer of a Statutory Authority shall only be appointed as an Estate Officer in respect of the Public Premises controlled by that Authority; and (b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officer by or under this Act." 8. The Central Government vide notification dated 23-7-1983 has appointed the Estate Officer under Section 3 of the Act which deals with the appointment of the Officers. Relevant portion of the said notification is to the following effect:-- "S.O.......... The Central Government vide notification dated 23-7-1983 has appointed the Estate Officer under Section 3 of the Act which deals with the appointment of the Officers. Relevant portion of the said notification is to the following effect:-- "S.O.......... in exercise of the powers conferred by Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971) and in supersession of the notification of the Government of India in the Ministry of Works, Housing and Supply number s.os. 493, 568, 2760, 787 and 1050, dated the 22nd Feb., 1961,13th of February, 1962, 29th July, 1968, 18th Feb., 1969 and 6th May, 1978 respectively, in the Ministry of Health and Family Planning and Works and Housing and Urban Development, Notification Nos. 1925 and 2344, dated the 22nd April, 1969 and 3rd July, 1970 respectively. The Ministry of Works and Housing Notification s.os. 5258 and 3342, dated the 8th December, 1972 and 26th August, 1976 respectively and in the Ministry of Railways Notification numbers s.os. 663, 2875, 1036, 2708, 1559, 2646, 1190, 1204, 2346 and 236, dated the 20th February, 1963, 23rd September, 1974, 10th March, 1977, 11th August, 1978, 26th May, 1980, 7th September, 1980, 28th March, 1981, 3rd March, 1982, 14th June, 1982 and 11th December, 1982 respectively, the President hereby appoints the Officers mentioned in Column No. 1 of the Table below being Gazetted Officers of the Government to be Estate Officers for the purpose of the said Act and further directs that the said Officers shall exercise the powers conferred and perform the duties imposed on a Estate Officer by or under the said Act within the local limits of their jurisdiction in respect of the Public Premises specified in the corresponding entry in column (2) of the said Table." 9. In this connection, the decision of the High Court of M.P., rendered in M.P. No. 2336/85, decided on 3-12-1985 has been referred to, wherein it has been held as under:-- "It has been found by the Courts below that the petitioner is a rank trespasser. The only ground for challenge being that there is no notification under Section 3(a) of the Act appointing Estate Officer and the Estate Officer who passed the impugned order of eviction was not a Gazetted Officer. There is no merit in this contention. The only ground for challenge being that there is no notification under Section 3(a) of the Act appointing Estate Officer and the Estate Officer who passed the impugned order of eviction was not a Gazetted Officer. There is no merit in this contention. By notification dated 23-7-83 the Estate Officer, South Eastern Railways who was a Gazetted Officer, was notified to be the Estate Officer under Section 3(a) of the Act. This was published in the Government of India Gazette on 6-8-83. As such, the petition is without any merit and it is accordingly dismissed summarily. The ad-interim stay granted on 2-8-1985 is vacated." Similar view was taken in M.P. No. 3824/1987, decided on 10-1-1991 wherein High Court of Madhya Pradesh, had occasion to deal with the matter in great detail and held as under :-- "It was urged that the person, i.e., Shri N.K. Dutta, before whom the eviction proceedings are pending and who issued the notice under Section 4 of the Act was not competent to do so. This ground is wholly untenable in view of the Notification No. 82/2/14/4, dated 13-12-1983, issued by the Ministry of Railways, Government of India, produced at the time of hearing by the learned Counsel. A notification dated 23-7-1983, issued by the Ministry of Railways, Government of India was also placed before us. According to this notification, persons mentioned in column (1) of that notification, being Gazetted Officers, were nominated to be Estate Officers for purposes of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. According to Item 8 of that notification, the Estate Officer, S.E. Railways, Bilaspur, is to be the Estate Officer for the purposes of the Act. It was contended that Shri Dutta is the Estate Officer. This notification came for consideration in Misc. Petition No. 2336/85. By order dated 3-12-1985, the Estate Officer, S.E. Railway, was held as the Gazetted Officer. That notification was held to be duly appointing him as Estate Officer for the purposes of the Act. It could not be shown that the person acting as Estate Officer was not Gazetted Officer. This contention also, therefore, fails." Mr. Petition No. 2336/85. By order dated 3-12-1985, the Estate Officer, S.E. Railway, was held as the Gazetted Officer. That notification was held to be duly appointing him as Estate Officer for the purposes of the Act. It could not be shown that the person acting as Estate Officer was not Gazetted Officer. This contention also, therefore, fails." Mr. Pathak, learned Counsel has referred to notification dated 8-10-1985 which reads as under :-- "In exercise of powers conferred by Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971) the Central Government hereby appoints the Officers mentioned in column (1) of the Table below, being Gazetted Officers of the Government to be Estate Officers for the purpose of the said Act, who shall exercise the powers conferred and perform the duties imposed on the Estate Officers by or under the said Act within the local limits of their jurisdiction in respect of the Public Premises specified in corresponding entry in column (2) of the said Table : Designation of the officers Categories of Public Premises and Local Limits of Jurisdiction (1) (2) (i) Chief Engineer, Chief General Engineer, Chief Planning and Design Engg. Chief Track Engineer-I, Chief Track Engineer-II and Chief Bridge Engineer South Eastern Railway. Public Premises owned or acquired or hired by the South Eastern Railway which are under their respective administrative control. (ii) Additional Chief Engineer, Track Planning and Addl. Chief Engg. (Track Modernisation) S.E. Railway. Public Premises owned or acquired or hired by the South Eastern Railway which are under their respective administrative control. (iii) Deputy Chief Engg. (Tr.) Deputy Chief Engg. (Tr. Modernisation) Deputy Chief Engineer (Br.) Deputy Engg. (Br. Line), Deputy Chief Engg. (General) Deputy (Product) and Deputy Chief Engg. (Flood and Water Supply) S.E. Railway. Public Premises owned or acquired or hired by the S.E. Railway which are under their respective Chief Administrative control. (iv) Chief Engg. (Const.), Bilaspur, S.E. Railway. Public Premises owned oracquired or hired by the S.E. Railway within his Administrative Control. His submission is that Chief Engineer has been appointed as Estate Officer who can deal with the eviction proceedings. Submission of Mr. Mukherjee is that the second notification is in addition to the earlier notification, but not in supersession of the earlier one. Public Premises owned oracquired or hired by the S.E. Railway within his Administrative Control. His submission is that Chief Engineer has been appointed as Estate Officer who can deal with the eviction proceedings. Submission of Mr. Mukherjee is that the second notification is in addition to the earlier notification, but not in supersession of the earlier one. Regard being had to the facts of the case, I am of the considered view that the second notification does not annul the first one. In fact it is an additional one. Hence, I repel the submission of Mr. Pathak and accept the submission of Mr. Mukherjee." 10. Counsel for the applicants was not able to show any authority taking contrary view. This Court has reconsidered that matter and is of the opinion that the second notification is in addition to the earlier notification and not in supersession of the latter one and in this regard the law declared by the Court in those writ petitions still holds good. 11. The matter was heard on various dates and pursuant to the direction issued by this Court, the Railway Authorities had put up the map and in fact they had demonstrated the proposed Bilaspur Railway Model Station. Annexure R-7 is to that effect. Let the area be cleared and the Station as per the model be made for the larger public interest as expeditiously as possible with co-operation of all. 12. Counsel for the applicants submitted that he is entitled for consideration of any alternative accommodation. Counsel for the respondents on the other hand has vehemently opposed the prayer on the ground that the applicant were not temporary licensees, it was Hemnarayan from whom the applicants obtained just power of attorney, as such, they arc in illegal possession for the last about 10 years and they are not entitled for any alternative accommodation. So far as consideration of alternative accommodation is concerned, in the opinion of this Court let the applicants vacate and deliver the vacant peaceful possession and obtain acknowledgment thereof and thereafter he may apply afresh and the railway authorities may consider the case of the applicants in case such an occasion arises. 13. In view of what has been stated above, this revision fails and is dismissed with costs. Counsel fee Rs. 1000/- if certified. 14. Before parting, this Court appreciates the assistance rendered by learned Counsel for the parties.