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2005 DIGILAW 571 (JHR)

DIWAKAR v. UNION OF INDIA

2005-08-03

ALTAMAS KABIR, R.K.MERATHIA

body2005
Judgment : ( 1 ) THIS appeal is directed against judgment and order dated 21st April, 2005, passed by the learned single Judge in the writ application being W. P. (C) No. 1781/ 2005 filed by the appellant herein, seeking a direction upon the respondents not to demolish any part of the petitioners property. Recording the fact that several other applications filed earlier has been dismissed one after other that had been withheld from the writ Court, the learned single Judge came to a finding that the petitioner had not come to the Court with clean hands, and on the other hand, had not even produced a single chit of paper to show even a prima facie title or possession over the land in question. The learned single Judge, therefore, not only dismissed the writ application but also imposed cost of Rs. 20,000/- on the writ petitioner. ( 2 ) AGGRIEVED by the said judgment and order of the single Judge, the writ petitioner has moved the instant appeal on the ground that the land forming the subject-matter of the writ applications was not in any way, connected with the subject-matter of the writ applications, which had been filed earlier and which has been dismissed and consequently, the question of suppression of fact did not arise. ( 3 ) APPEARING in support of the appeal. Mr. Ughal submitted that separate notices has been issued and separate proceedings had been taken in respect of other portions of the plot other than portions now involved in the present writ application and being the subject-matter of Case No. EC/adrm 585 of 2002 pending before the Estate Officer, South Eastern Railway, chakradharpur. Mr. Ughal submitted that the learned single Judge has been prejudiced by earlier orders passed in different matters in passing the order, which has been impugned in the appeal. ( 4 ) MR. Ughal also submitted that apart from proceedings pending before the Estate officer, South Eastern Railway, chakradharpur, a Title Suit is also pending before the Civil Court the same is yet to be disposed of. Mr. Ughal submitted that as the entire approach of the learned single judge was biased and prejudiced, the order passed in the writ application of the appellant was liable to be set aside. ( 5 ) APPEARING for the respondents-Railways, Mr. Mr. Ughal submitted that as the entire approach of the learned single judge was biased and prejudiced, the order passed in the writ application of the appellant was liable to be set aside. ( 5 ) APPEARING for the respondents-Railways, Mr. Pradip Modi, on the other hand urged the writ petitioner/appellant had deliberately tried to confuse the issue by introducing the facts pertaining to the other proceedings which had attained finality and which in respect of other portions of the plot in question. Mr. Modi submitted that the appellant had encroached an area of 550 sq. ft. for running a hotel and in respect whereof, eviction Case, being E. C. 68/1978, was filed against him and an order of eviction was passed therein on 5th April, 1979 and the appeal preferred by the appellant was also dismissed by the appellate Court. According to Mr. Modi, the appellant also encroached another area comprising 1295 sq. ft. of Railway lands, for which a separate Eviction case being E. C. No 99/1984 was filed against him. In the said case also, an order of eviction was passed on 31st October, 1985, and the appeal preferred therefrom was dismissed by the appellate Court. Mr. Modi submitted that it was only after the said two eviction matters had attained finality, had notice been issued to the appellant to hand over possession of the lands forming subject-matter of the said two Eviction cases. ( 6 ) MR. Modi further conceded that a third proceeding involving another portion of the land comprising the Khatian in the question was the subject-matter of the case now pending before the Estate Officer, South eastern Railway, Chakradharpur and in respect whereof, notice has been issued to the petitioner on 18th January, 2005. Mr. Modi submitted that the respondents had not issued any notices of eviction in respect of the lands forming the subject-matter of the said proceedings, because the same was sub judice. Mr. Modi further urged that in respect portions of the plot, since the orders had attained the finality, the respondents should not be restrained from taking follow up action for obtaining possession of the lands in question. ( 7 ) HAVING considered the submissions made on behalf of the respective parties and after perusing the averments made in different affidavits, we are inclined to agree with mr. ( 7 ) HAVING considered the submissions made on behalf of the respective parties and after perusing the averments made in different affidavits, we are inclined to agree with mr. Modi that the appellant had tried to mislead the Court by introducing various facts relating to the proceedings which had already attained finality in order to confuse the issue regarding the pending proceedings before the Estate Officer, South Eastern railway, Chakradharpur, which was another portion of the land in question and which was totally different from the subject-matter of the earlier proceedings in respect whereof a Title Suit is also pending. ( 8 ) THE authorities cannot, in our view, be prevented from taking steps to recover possession of the portion of the plot, in respect of which proceedings had been taken and attained finality. However, as far as the lands covered by the pending proceedings before the Estate Officer, South Eastern railway, Chakradharpur, is concerned, Mr. Modi has himself submitted that the respondents have stayed their hands having regard to the pendency thereof. We, therefore, dispose of the appeal by modifying the order of the learned Single Judge to the extent that as far as pending proceeding before the Estate Officer, South Eastern Railway, chakradharpur, being EC/adrm 585 of 2002, is concerned, the same is to be disposed of expeditiously. The appellant-petitioner has assured the Court that he will co-operate with the Estate Officer, South eastern Railway, Chakradharpur, in disposing of the matter at an early date. In the event the appellant fails to co-operate, Estate Officer, South Eastern Railway, chakradharpur, will be at liberty to proceed and dispose of the matter even in absence of the appellant but in accordance with law. We make it clear that this order will not, in any way, prejudice the parties in the pending Title Suit, which is to be disposed of by the court below also in accordance with law. In our view, the cost imposed on the appellant was on a slight misreading of the fact which does no absolve the appellant/writ petitioner completely of the manner in which an attempt has been made to mislead the court. We accordingly reduce the cost as imposed by the learned single Judge from rs. 20,000/- to Rs. 5,000/- to be paid within four weeks from date. Order accordingly. --- *** --- .