In eviction proceedings under public premises legislation, the occupant bears the burden of proving a legal right to possession. A writ court will not interfere with appellate findings unless they are patently erroneous or lack jurisdiction, as it does not function as a court of appeal.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

The instant petition under Article 226 of the Constitution of India has been filed challenging an order dated 20.03.2019 passed by the learned District Judge, Kamrup (M) in Misc Appeal No. 10/2017. The said Appeal was instituted by the petitioner under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (herein after Act) which was dismissed.

2. As per the facts projected, an eviction proceeding was initiated by the respondent - Railways in the year 2010, which was followed by a number of litigations including some in the High Court. Thereafter, a show cause notice was issued on 22.11.2017 culminating in the order dated 15.02.2018 directing eviction of the petitioner from the land of the Railways. The said order was put to challenge in the appeal indicated above which has been dismissed vide the impugned order dated 20.03.2019.

3. I have heard Shri P.J. Phukan, learned counsel for the petitioner. I have also heard Ms. R. Bora, learned Standing Counsel, Railways, Ms. A. Gayan, learned C.G.C., Shri J. Handique, learned State Counsel and Ms. N. Bordoloi, learned Standing Counsel, Revenue Department.

4. At the outset, this Court would like to record the submission of Shri Handique, the learned State Counsel, who has raised the preliminary objection that orders passed in an appeal under Section 9 of the Act by the learned District Judge can be challenged only by an application under Article 227 of the Constitution of India. In this connection, Shri Handique has referred to the decision of the Hon’ble Supreme Court in the case Life Insurance Corporation of India vs. Nandini J. Shah reported in (2018) 15 SCC 356.The following observations have been pressed into service.

“49. In other words, the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. …”

5. While the aforesaid submission would definitely warrant merit, this Court is of the opinion that the aspect of maintainability of this petition would not be gone into as the writ jurisdiction has been tried to be invoked by the petitioner.

6. Shri Phukan, the learned counsel for the petitioner has submitted that the learned District Judge while deciding the appeal did not take into consideration the relevant factors and had proceeded on the basis of surmises and conjectures. He has submitted that certain documents were applied under the RTI Act which would have relevancy in the adjudication process and that aspect has not