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2012 DIGILAW 319 (RAJ)

Idibai v. Estate Officer, Nasirabad

2012-02-07

BELA M.TRIVEDI

body2012
JUDGMENT 1. - The petitioner by way of present petition filed under Articles 226/227 of the Constitution of India has challenged the legality and validity of the notice dated 18.11.1999 issued by and the order dated 8.11.2004 passed by the Estate Officer, Nasirabad Chhawni and also the order dated 12.12.2006 passed by the District Judge, Ajmer in Civil Misc. Appeal No. 179/2004. 2. The short facts giving rise to the present petition are that the petitioner was served with the noticed dated 18.11.1999 by the Estate Officer, Nasirabad under Section 5-A of the Public Premises (Eviction) of Unauthorized Occupant Act, 1975 (hereinafter referred to as the 'the said Act') calling upon the petitioner to remove the encroachment made by her at the public premises i.e. the land comprising Survey No.280/4485, classified as B-4, under the management of the Cantonment Board, Nasirabad. Pursuant to the said notice, the petitioner had filed reply before the Estate Officer, however, had not produced any documentary evidence in support of her reply, despite several opportunities were granted to her. The Estate Officer, therefore, passed the order dated 8.11.2004 under section 5A(2) of the said Act. Being aggrieved of the said order, the petitioner had preferred the appeal being No. Civil Misc. Appeal No.179/2004 before the District Judge,Ajmer under Section 9 of the said Act. The learned District Judge vide order dated 12.12.2006 dismissed the said appeal on the ground that appeal was not maintainable. Being aggrieved by the said notice, and order passed by the Estate Officer and the order passed by the District Judge, the present petition has been filed invoking extraordinary jurisdiction of this court under 226 as well as 227 of the Constitution of India. 3. It has been vehemently submitted by learned counsel Mr. Vishwajeet Mantri for the petitioner that the Estate Officer had mentioned wrong provision i.e. 5A of the said Act instead of Section 4 of the said Act and hence the order passed by the Estate Officer should have been treated as the order passed under section 5 of the said Act, against which the appeal under section 9 was maintainable before the District Judge. According to Mr. Mantri, there was dispute regarding the title of the said land and therefore only civil court would have jurisdiction to resolve the dispute. According to Mr. Mantri, there was dispute regarding the title of the said land and therefore only civil court would have jurisdiction to resolve the dispute. Learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Govt. of Andra Pradesh v. Thummala Krishna Rao and another ( AIR 1982 SC 1081 ) and in the case of M/s. Shree Bajrang Hard Coke Manufacturing Corporation v. Ramesh Prasad and others (AIR 2003 Jharkhand 17 ), to submit that the bona fide claim regarding title of the property was required to be decided by the civil court. 4. Having regard to the submissions made by learned counsel for the petitioner and to the documents on record, more particularly, the impugned notice and orders, it transpires that the Estate Officer had issued the notice under Section 5A of the said Act calling upon the petitioner to remove the encroachment made by her on the land classified as Class-B-4, under the management of Cantonment Board, Nasirabad which was the public premises. It was alleged that she had put up an unauthorized erection/construction of latrine, bathroom and staircase on the Government land admeasuring 6ft x 24 ft. Though the petitioner had filed reply before the Estate Officer, she did not produce any documentary evidence in support of her reply despite many opportunities having been granted to her, as transpiring from the order dated 8.11.2004 passed by the Estate Officer. The Estate Officer has therefore passed the said order dated 8.11.2004 under section 5A (2) of the said Act holding that the petitioner had encroached upon the Government land which was the public premises and therefore the said encroachment was required to be removed. The petitioner therefore filed an appeal before the District Judge, Ajmer under section 9 of the said Act. The District Judge has rightly considered the scope of section 9 of the said Act while holding that the appeal was not maintainable against the order passed under Section 5A(2) of the said Act. As transpiring from the section 9 itself, the appeal would lie from the order of Estate Officer in respect of the public premises under section 5 or 5B or 5C or section 7 of the said Act before the appellate officer i.e the District Judge and not against the order passed by the Estate Officer under section 5A of the said Act. Hence, the District Judge has rightly dismissed the said appeal of the petitioner by holding that the appeal was not maintainable under section 9 of the said Act. There being no illegality or infirmity in the said order passed by the District Judge, the appeal deserves to be dismissed. It is pertinent to note that though the said order of the District Judge was passed on 12.12.2006, the same had remained unchallenged for about 6 years as the petitioner has filed the present petition only in February,2012. The petition, therefore, deserves to be dismissed on the ground of the gross delay also. 5. There is no substance in the submissions made by learned counsel for the petitioner that there was wrong mentioning of section in the notice issued by the Estate Officer. The case of the Estate Officer being that the petitioner carried out the illegal unauthorized construction over the public premises, the Estate Officer had rightly invoked section 5A of the said Act. There is no substance in the submission made by learned counsel for the petitioner that there was dispute regarding title of disputed premises, inasmuch as no such dispute has been raised by the petitioner by filing any proceedings in any civil court. It is specifically stated in the notice as well as in the order passed by the Estate Officer that the land in question was Government land and being managed by the Cantonment Board, Nasirabad and was therefore public premises. There is also no documents whatsoever produced by the petitioner showing that she was occupying the disputed premises as the owner. Under the circumstance, the present petition filed by the petitioner has no merits. The judgments cited by learned counsel for the petitioner have no application to the facts and circumstances of the present case and are not of any help to the petitioner. 6. In that view of the matter, the present petition being devoid of merits deserves to be dismissed and is accordingly dismissed.Petition dismissed. *******