1988 Supreme(Raj) 863
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mahendra Bhusan, Farooq Hasan, JJ.
Mrs. Kulsom Malick & Anr. - Appellants
Versus
District Judge, Jaipur City, Jaipur & ors. - Respondents
D. B. Civil Writ Petition No. 1709 of 1987.
Decided On : 21-11-1988
The Estate Officer must determine whether the property in question is a public premises before passing an eviction order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
Headnote:
PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971 - SECTIONS 2(E), 4, 5, 5A - EVICTION OF UNAUTHORISED OCCUPANTS - DETERMINATION OF PUBLIC PREMISES - NECESSITY - MAP AS EVIDENCE - REQUIREMENTS.
Fact of the Case:
The petitioners were in occupation of two different plots in Suraj Nagar, Jaipur, which were allotted to them by a housing society. The railway authority claimed that the plots were part of its public premises and issued eviction notices to the petitioners under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The Estate Officer and the District Judge upheld the eviction orders.
Finding of the Court:
The court held that the Estate Officer and the District Judge failed to determine whether the property in question was a public premises before passing the eviction orders. The court also held that the map filed by the railway authority was not sufficient to establish that the property was a public premises, as it was not prepared by an expert and was not part of the railway record.
Issues: 1. Whether the Estate Officer and the District Judge erred in failing to determine whether the property in question was a public premises before passing the eviction orders. 2. Whether the map filed by the railway authority was sufficient to establish that the property was a public premises.
Ratio Decidendi: 1. The court held that the Estate Officer and the District Judge erred in failing to determine whether the property in question was a public premises before passing the eviction orders. The court held that the Act authorises the Estate Officer to take action against a person found in unauthorised occupation of public premises, but before doing so, the Estate Officer must be satisfied that the property in question is a public premises. 2. The court held that the map filed by the railway authority was not sufficient to establish that the property was a public premises. The court held that the map was not prepared by an expert and was not part of the railway record, and therefore, it could not be relied upon to prove that the property was a public premises.
Final Decision: The court allowed the petitions and quashed the eviction orders passed by the Estate Officer and the District Judge.
JUDGMENT
1. - These writ petitions Nos. 1709/87 and 2037/87 are directed against a common judgment and order dated 2nd July, 1987 made by the District & Sessions Judge, Jaipur City, Jaipur. in civil misc. appeals Nos. 403 (Shanti Vishnoi) and 404 (Smt. Kulsom Malick) of 1986, upholding the orders (Ann. 11) dated 29-7-1986 passed by the Estate Officer (Sr. Divisional Engineer-II. Western Railway), Jaipur (respondent No. 3) under Sections 5 & 5A of the Public Premises (Eviction of Un- authorised Occupants) Act, 1971, (for brevity. 'the Act'). Since common questions have been raised by the parties, these petitions are disposed of by this common order.
2. Undisputedly, both the petitioners have been in occupation of two different plots (viz. No. 81A - measuring 219.11 sq. yards - Shanti Vishnoi; & No. 73 - 219.11 sq. yards - Mrs. K. Mallick) in Suraj Nagar (Civil Lines), in the alleged Scheme of Gulab Bari Bhawan Nirman Sahkari Samiti Ltd. Jaipur vide allotment letters dated 26-6-1981 which were subsequently modified by letters dated 2-6-1986 allotting 302.22 sq. yds. of land to each of the petitioners. The said land is stated to have fallen in the erstwhile village Chak Sunder Ka Bas in Khasra No. 17. It is the case of the petitioners that the lands in question had been purchased by the aforesaid Sahkari Samiti in 1975 from the khatedars of the land; that after the land was allotted to the petitioners they deposited conversion charges along with penalty determined by the Land Conversion Officer (S.D.O. II), Jaipur on 2-5-1984; that, plots in question situate in Khasra No. 17 as verified by the concerned Patwari on their applications (Ann. 4); that, subsequently, one more application was filed on their behalf before the Collector Jaipur, for issuance of a certificate about the ownership of the land in regard to their respective plots-thereupon on the direction issued by the Additional Collector to the Tehsildar to get the report after enquiry from the Patwari the Patwari concerned had come to the spot on May 24, 1986 who had submitted his report on the very day; and that, after depositing the conversion charges, the petitioners constructed their houses on the alleged plots spending a huge amount.
3. After drawing a thumb-nail sketch of the primary facts, a few facts necessary to lend up to the conclusion which would be reached by us hereinafter may be narrated.
4. The Assistant Engineer (II). Western Railway Jaipur (respondent No. 2) issued a notice to the petitioner, Smt. Kakom Mallick, and in the case of Shanti Vishnoi, to her husband apart from one Shri Ram Karan Singh, under Section 4(1) of the Act calling upon them to show cause as to why they) should not be evicted from the land in question in addition to removal of the constructions made thereon to which, the reply on their behalf was also filed denying the ownership of the railway.
5. In the case of the petitioner, Shanti Vishhoi, second notice of 23rd June, 1986 is also said to have been issued to her husband & the said Shri Ram Karan Singh, for eviction apart from subsequent notice issued by the respondent No. 3 calling upon them to submit the information in regard to the ownership of the land proposing an action under Section 4(1) of the Act vide Annexure 7 to which a reply dated 10-7-86 (Ann. 8) is also said to have been given by them. However, on a subsequent show cause notice dated 14-7-1986 calling upon the petitioner, Shanti Vishnoi, for removal of construction, a detailed reply along with documents is also stated to have been filed before the respondent No. 3 on 24-7-1986 vide Annexure 10.
6. The respondent No. 3 (Estate Officer) thereafter passed an order on 29th July, 1986 under Sections 5 & 5A of the Act. directing eviction of the petitioners from their houses constructed by them on their alleged plots. The respondent No. 3 held that the petitioners have been in an unauthorised occupation of the public premises i. e. railway's. The petitioner went in appeal before t
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