J.B.PARDIWALA

1. By way of this petition under Article-227 of the Constitution of India the petitioner seeks to challenge judgment and order dated 31/5/2004 passed by the Joint District Judge, Fast Track Court, Surendranagar and there by allowed the Appeal filed by the respondents herein under Sec. 9(3) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1974 quashing and setting aside order dated 31st March, 2004 passed by the Estate Officer and Divisional Officer, Western Railway, Rajkot.

2. Facts shortly stated are as under :-

The respondents herein purchased land of City Survey Ward No.1 Nondh no.4673/A admeasuring 167.20 sq. mtrs vide Registered Sale Deed No.675 dated 26th February,2004 and on the very same day also purchased land admeasring 411.80 sq. mtrs of the said Survey number vide Registered Sale Deed No.676 dated 26th February,2004. The respondents herein thereafter started constructions on the land purchased by them vide registered sale deeds. It appears from the records that the petitioner herein i.e. Railways put-forward a claim that the land in question is of the ownership of Railways and the respondents have no right, title or interest over the same. Record reveals that as the respondents were already in possession of the land, the petitioners initiated proceedings under the Public Premises Eviction (Unauthorized) Occupants Act, 1971 by issuing notice. The respondents appeared before the Estate Officer under the Act, 1971 and adduced documentary evidence in support of their claim that they are the true owners of the land in question and they have bought the land from its erstwhile owner by way of a registered sale deed. However, it appears that all contentions of the respondents were negatived by the Estate Officer and ultimately the Estate Officer, Western Railway Rajkot passed an order of eviction against the respondents herein under sec. 5(1) of the Act, 1971.

The respondents feeling aggrieved by the order of eviction passed by the Estate Officer, Western Railway, Rajkot in exercise of powers under Sec. 5(1) of the Act, 1971, preferred Regular Civil Appeal No.9/2004 in the Court of District Judge, Surendranagar as provided under Sec. 9(3) of the Act, 1971. The learned Joint District Judge, F.T.C., Surendranagar (Persona Designata under the Act) allowed the appeal preferred by the respondents herein by quashing and setting aside the order passed by the Estate Officer, Western Railway, Rajkot. While allowing the Appeal, the Appellate Authority held as under in para-12:–

“12. All the revenue verdicts right from the order of City Survey Superintendent, order of appeal by the Dy. Collector and against that order, verdict rendered by the Collector in his revisional jurisdiction have become the subject matter of revision before the Revenue Tribunal, Ahmedabad. Therefore, that matter of ownership of the adjoining land bearing survey no.4674 is under the doctrine of seisin. When the construction work is under progress and has been raised considerably well in height and season of monsoon appears there by end of current month and all kind of raw material for construction lying on the site then in that case Court cannot ignore the balance of convenience as well as irreparable loss likely to be occurred to the appellants because at present the disputed land nearby which Railway line is shown to be there, admittedly is non-use and it is not the case of the respondents-Western Railway that, that line which was meant for meter railway gauge has not been discontinued far back, hence even under the doctrine of irreparable loss the construction work cannot be restrained as submitted by the learned advocate for the respondents-Western Railway. I cannot give a go-by to the contention raised by learned advocate Mr. Sheth for the appellants which is to the effect that present Western Railway had in the past filed Civil Suit No.28//85 against Neminath Co-operative Housing Society Ltd., Surendranagar, and Surendran