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2019 DIGILAW 134 (JHR)

Duryodhan Rewani v. Union Of India

2019-01-15

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition has been filed under Articles 226 & 227 of the Constitution of India, wherein order dated 18.07.2016 passed in Misc. Appeal No. 64 of 2013 by the District Judge-XII, Dhanbad, has been assailed, whereby and whereunder, the order passed by the Estate Officer, South Eastern Railway, Dhanbad dated 27.09.2013, has been declined to be interfered with. 2. The case of the petitioner in brief, as per the pleading made in the writ application is that on 08.12.1981 the petitioner made an application before the Divisional Engineer, South Eastern Railway, Mahuda for allotment of Railway plot at Mahuda for opening a shop, being considered, vide communication dated 21.12.1981 the Divisional Engineer has allowed the petitioner to take possession of the said part of the portion of the land and forwarded the matter for its sanction before the competent authority. In pursuance thereto, the petitioner is in possession of the aforesaid portion of the land and has constructed a shop therein, since there is no dispute regarding possession of the land in question, but the authority has referred the said matter before the Estate Officer, constituted under the provision of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred as the Act, 1971) but on consideration of the factual aspect, who on consideration, has passed an order on 27.09.2013, declaring the petitioner as unauthorized occupant and directed to him to be evicted, the petitioner being aggrieved with the same, has filed appeal before the District Judge, Dhanbad, being Misc. Appeal No. 64 of 2013, which has been dismissed, vide judgment dated 18.07.2016, against which this writ petition has been filed. 3. Mr. Indrajit Sinha, learned counsel for the petitioner has argued by taking the grounds that the Estate Officer has passed a mechanical order, since the same has been passed in a Cyclo Style Copy, therefore, the proper application is not there. The appellate Court has not considered the communication dated 24.12.1981, by which, the petitioner has allowed to continue over the possession of the aforesaid portion of land and if that would have been taken into consideration in right prospective, the declaration with respect to unauthorized occupant would not have been given either by the Estate Officer of the appellate court. The appellate Court has not considered the communication dated 24.12.1981, by which, the petitioner has allowed to continue over the possession of the aforesaid portion of land and if that would have been taken into consideration in right prospective, the declaration with respect to unauthorized occupant would not have been given either by the Estate Officer of the appellate court. He has further submitted that the petitioner is continuing since 1981 and, therefore, by virtue of the adverse possession he has accrued a right. 4. While, on the other hand Mr. Gautam Rakesh, learned counsel appearing for the respondent-Railway, has submitted that there is no error in the decision taken either by the Estate Officer or by the Appellate Court, since the petitioner has failed to establish his valid right, claiming possession over the land in question and in absence thereof, the finding given by the Estate Officer with respect to unauthorized occupancy cannot be said to suffer from any infirmity. He submits that the reliance has been placed by the petitioner upon the communication dated 24.12.1981, cannot be said to be a valid allotment order justifying the legal physical possession over the land in question, rather it is merely a forwarding letter made before the competent authority for its sanction, but nothing has been brought by the petitioner either before the Estate Officer or before the appellate court or before this Court, the valid sanction order issued by the competent authority in his favour. He, therefore, submits that there is no perversity in the finding and hence the same may not be interfered with. 5. Having heard the learned counsel for the parties and on appreciation of their rival submissions the fact, which is not in dispute that the petitioner is claiming his right over the portion of land, where he has constructed a shop, is the communication dated 24.12.1981 and, therefore, the same needs to be reflected hereunder: "Page 31- Your application for sanctioning plot has already been forwarded to Divisional Railway Manager (Administration) for sanction. You may conduct your structure to avoid unauthorized occupation by others." 6. You may conduct your structure to avoid unauthorized occupation by others." 6. It is evident from the quoted part of the communication dated 24.12.1981, that the same is forwarding of the application of the petitioner for sanctioning the plot to the Divisional Railway Manager (Administration) for sanction, hence the same cannot be said to be a sanction order basing upon which the petitioner is claiming his right to treat him authorized occupant of the premises in question. The respondent Railway has initiated proceeding under the provision of Act, 1971 by referring the same before the Estate Officer. In pursuance thereto, notice has been issued to the petitioner in the light of the provision, as contained under Section 4 of the Act. The petitioner having replied the same, the Estate Officer has passed order in terms of the provision of Section 5 of the aforesaid Act and directed for eviction. The petitioner being aggrieved with the same, has preferred an appeal in the light of the provision as contained under Section 9 of the Act, which has been dismissed by the appellate court, against which, the instant writ petition has been filed. 7. The scope of the promulgation of Act, 1971 is to provide speedy machinery for the eviction of unauthorized occupants from the public premises. 8. Unauthorized occupants have been defined under Section 2(G) which speaks that in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever. 9. 9. This definition suggests that the unauthorized occupant pertains to the public premises and the public premises has been defined under the provision of Section 2 (e) which speaks as follows:- "2(e) Public Premises means- (1) Any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorized Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of- (i) any company as defined in section 3 of (the Companies Act, 2013 (18 of 2013)], in which not less than fifty-one per cent. Of the paid-up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the First-mentioned company, (ii) any corporation (not being a company as defined in section 3 of [the Companies Act, 2013 (18 of 2013], or a local authority) established by or under a Central Act and owned or controlled by the Central Government. (iii) any company as defined in clause (20) of Section 2 of the Companies Act, 2013 (18 of 2013) in which not less than fifty-one per cent. Of the paid up capital is held partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary (within the meaning of that Act) of the first-mentioned company and which carries on the business of public transport including metro railway. 10. It further suggests that a person said to be unauthorized occupant if in possession without authority, Authority means a valid order passed by the competent authority. 11. The whole case of the petitioner revolved around the communication dated 24.12.1981 (Annexure-1) as has been stated hereinabove, that the same is not valid order of allotment showing the legal vested right to occupy the said premises and therefore the Estate Officer, by treating the petitioner as unauthorized occupant of the said premises, has passed order under provision of Section 5 of the Act, 1971. 12. 12. This Court after considering the definition of unauthorized occupant along with the public premises is of the view that the petitioner''s occupation over the area in question cannot be said to be authorized occupant rather it will be treated to be unauthorized occupant in absence of any valid document of allotment passed by the competent authority in his favour. 13. Learned counsel for the petitioner at this juncture has raised objection to the order passed by the Estate Officer as he has passed the order in Cyclo Style Copy. 14. This Court after appreciating his argument and going across the judgment passed by the appellate court has found that this point has not been raised before the appellate court and also not before this Court showing therein that he is in valid occupation on the strength of valid document issued by the competent authority. Such type of document, as has not been produced before the appellate court, rather the appellate court after discussing the argument and factual aspect in detail, has passed wellreasoned order. 15. The Court has taken into consideration the copy of the order passed by the Estate Officer said to have been passed by way of Cyclo Style, even accepting the said action of the Estate Officer, cannot be approved but the material on evidence suggests that the petitioner has not been able to prove his right, on the basis of valid document, even if, on technical ground, it would be remitted before the Estate Officer, no purpose would be served and if remitted it will lead to futile exercise and empty formality in absence of valid document and that is core issue to establish his right so that he may come within the purview of the definition of authorized occupant, as per the definition stipulated under the Act, 1971, reference in this regard may be made to the judgment rendered in the case of Escorts Farms Ltd. V. Commissioner, Kumaon Division, Nainital, U.P. & Others, (2004) 4 SCC 281 wherein The Hon''ble Apex Court has held at paragraph64 which is being quoted herein below: "64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of tranferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India." 16. In the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519 wherein their lordships have held at paragraph-39 which is being quoted herein below: "39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reasonperhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker;" Moreover the order passed by the Estate Officer has not assailed by the petitioner in the writ petition, since this issue has been raised the same is being answered herein. 17. In view of and for reason stated hereinabove, in the considered view of this Court, there is no error in the impugned order, therefore, declined to exercise extraordinary jurisdiction, conferred under Article 226 of the Constitution of India. 18. 17. In view of and for reason stated hereinabove, in the considered view of this Court, there is no error in the impugned order, therefore, declined to exercise extraordinary jurisdiction, conferred under Article 226 of the Constitution of India. 18. Accordingly, the writ petition stands dismissed.