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2003 DIGILAW 301 (RAJ)

State of Rajasthan v. Suresh Chandra

2003-02-25

N.N.MATHUR, SUNIL KUMAR GARG

body2003
JUDGMENT 1. - This special appeal is directed against the judgment of the learned Single Judge relegating the writ petitioner State of Rajasthan to the alternate remedy under section 9 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as the Act of 1964). 2. The necessary facts giving rise to the special appeal are that in the city of Udaipur there is a Government Ayurvedic Hospital. The State Government sold 9 plots for commercial purpose by public auction, from the open space of the hospital. Bhanwarlal father of the first respondent Suresh Chandra purchased the Plot No. 9 measuring 96 square feet. The Executive Engineer, PWD noticed that Suresh Chandra while raising construction on plot No. 9 had encroached some piece of land towards mortuary, therefore, the proceedings were initiated against the respondent under the provisions of the Act of 1964 before the Estate Officer. On appreciation of material on record the Estate Officer found that the respondent Suresh Chandra had encroached upon the public land. However, instead of passing an order of eviction, he directed the respondent to regularise the encroachment on deposit of price of the land at the rate of Rs.6.20 square feet by the respondent. This part of the order of Estate Officer dated 27.11.1987 was challenged by the State of Rajasthan by way of writ petition u/Art. 226 of the Constitution of India before this Court. The writ petition has been dismissed by the impugned order of the learned Single Judge on the ground of alternate remedy. 3. It is contended by Mr. R.P Vyas, Additional Advocate General that the order of the Estate Officer directing to regularise the unauthorised possession on payment of cost prevailing on the date of the order is illegal and void being without authority of law. It is submitted that the learned Single Judge has committed error in not considering the impugned order was wholly without jurisdiction and as such the appellant could not be relegated to the alternate remedy. On the other hand, it is submitted by Mr. Lalit Kawadia learned counsel for the first respondent that any order passed by the Estate Officer under section 5 of the Act of 1964 can be challenged by way of appeal before the district Judge under section 9 of the Act. Thus, according to Mr. On the other hand, it is submitted by Mr. Lalit Kawadia learned counsel for the first respondent that any order passed by the Estate Officer under section 5 of the Act of 1964 can be challenged by way of appeal before the district Judge under section 9 of the Act. Thus, according to Mr. Kawadia there is no illegality in the order of the learned Single Judge. It is further submitted that the Estate Officer has taken a practical view of the matter, inasmuch as, that the construction has already been raised on small piece of land adjacent to the land already allotted to the respondent which cannot now be pulled down. Thus, the only equitable view (that) can be taken is to regularise the alleged unauthorised possession. It is further submitted that the equitable view taken by the Estate Officer does not call for interference by this Court in exercise of powers u/Art. 226 of the Constitution of India. 4. We have considered the rival contentions. The Act of 1964 has been enacted to check the tendency of the people of garbing the public land. See. 5 of the Act provides that the Estate Officer after giving a reasonable opportunity to the person alleged to have been an unauthorised occupant of a public premises and on being satisfied that the premises in unauthorised occupation, make an order of eviction, for the reasons recorded therein. For the convenience Section 5 of the Act is extracted as follows:- "5. Eviction of unauthorised occupants. - (1) If after considering the cause, if any, shown by any person in pursuance of notice under section 4 and any evidence he may produce in support of the same and after giving him, a reasonable opportunity of being heard, the Estate Officer is satisfied that the public premises are in unauthorised occupation, the office may. on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction within thirty days of the date of its publication under sub-section (1), the Estate Officer or any other officer duly authorised by the Estate Officer in this behalf may evict that person from, and take possession of, public premises and may for that purpose, use such force as may be necessary." 5. An appeal to the order under section 5 is provided under section 9 of the Act which reads as follows:- "9. Appeals. - (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 or Section 7 to an appellate officer who shall be the District Judge of the District in which the public premises are situate or such other Judicial Officer in that District of not less than ten years standing as the District Judge may designate in this behalf. (2) An appeal under sub-section (1) shall be preferred - (a) in the case of an appeal from an order under section 5, within 15 days from the date of the publication of the order under sub-section (1) of that section; and (b) in the case of an appeal from an order under section 7 within fifteen days from the date on which the order is communicated to the appellant. Provided that the appellate officer may entertain the appeal after the expiry of the said period of 15 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit. (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. (5) The cost of any appeal under this section shall be in the discretion of the appellate officer." 6. A bare reading of Section 5 clearly shows that an Estate Officer on being satisfied that a person is in unauthorised possession of a public premises can pass an order for eviction. But he does not have any power to regularise the unauthorised possession. In our view such a power is vested only with the State Government. A bare reading of Section 5 clearly shows that an Estate Officer on being satisfied that a person is in unauthorised possession of a public premises can pass an order for eviction. But he does not have any power to regularise the unauthorised possession. In our view such a power is vested only with the State Government. Thus, apparently the order of the Estate Officer directing to regularise the unauthorised possession of the first respondent is illegal. It is well settled that in a case where the order under challenge is without jurisdiction, the alternate remedy is not a bar for exercise of powers u/Art. 226 of the Constitution of India. Reference be made to decision of this Court in Guljag Industries v. State, reported in 129 STC 3. 7. Thus, in our view, the learned Single Judge has committed error in relegating the appellant State of Rajasthan to the remedy of appeal under section 9 of the Act of 1964. So far as the submissions of the learned counsel of taking an equitable view in the matter is concerned, it can be better appreciated by the State in the facts of the case. 8. Consequently, the special appeal is allowed. The order of the learned Single Judge dated 5.3.1998 is quashed and set aside. We also set aside the order of the Estate Officer dated 27.11.1987. The Estate Officer is directed to pass afresh order on the basis of the material already existing on record after giving a reasonable opportunity of hearing to the parties concerned. If any of the parties move an appropriate application for bringing the additional material on record the same shall also be considered in accordance with law by the Estate Officer. If a representation is made by the first respondent to the State Government for regularisation of unauthorised possession the same shall also be considered by the appropriate authorities in accordance with law. There shall be no order as to costs.Appeal Allowed - Order of single judge and that of estates officer set aside. *******