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Hargovind Sharma Vs. Divisional Engineer Railway Administration South Eastern Railway and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 301 of 1963
Judge
Reported inAIR1966MP7
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1958 - Sections 5, 9(1) and 10; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantHargovind Sharma
RespondentDivisional Engineer Railway Administration South Eastern Railway and anr.
Appellant AdvocateA.H. Saifi, Adv.
Respondent AdvocateJ.N. Sinha, Adv.
DispositionPetition dismissed
Cases ReferredKailashchandra v. District Judge
Excerpt:
- - 5. having heard both the learned counsel, i am of the view that the preliminary objection is well founded. district judge, bhopal, air 1963 madh pra 218. however, the decision taken in that case is clearly distinguishable......by the estate officer. south eastern railway, bilaspur. and which was, on appeal, confirmed by the district judge. raigarh, be set aside, and the estate officer be directed to proceed with the case according to law 2. briefly stated, the facts are that the applicant hargovind sharma who carries on his business under the name and style of 'ramavtar hargovind sharma' was given a tea stall contract at kharasia railway station, from 1-1-1961 for a term of three years. on account of extension of the railway platform, the land on which the tea stall originally was to be located could not be given to the applicant and he was given some other land behind the railway station he was put in occupation of that land under the orders of the assistant engineer, south eastern railway, raigarh, dated.....
Judgment:
ORDER

S.P. Bhargava, J.

1. The applicant has filed this revision petition under Section 115 of. the Code of Civil Procedure praying that the order, dated 20-3-1963, of ejectment of the appellant-applicant from the suit premises which was initially passed by the Estate Officer. South Eastern Railway, Bilaspur. and which was, on appeal, confirmed by the District Judge. Raigarh, be set aside, and the Estate Officer be directed to proceed with the case according to law

2. Briefly stated, the facts are that the applicant Hargovind Sharma who carries on his business under the name and style of 'Ramavtar Hargovind Sharma' was given a tea stall contract at Kharasia railway station, from 1-1-1961 for a term of three years. On account of extension of the railway platform, the land on which the tea stall originally was to be located could not be given to the applicant and he was given some other land behind the railway station He was put in occupation of that land under the orders of the Assistant Engineer, South Eastern Railway, Raigarh, dated 6-3-1962 It is urged on behalf of the applicant that thereafter, only the formality of preparing a written agreement of lease was to be gone through The applicant constructed some structure over the land According to him, it was a valuable construction costing him about Rs. 5000/- However, the District Engineer, subsequently refused to accord his consent to this grant of lease to the applicant and an order was passed on 31-12-62 requiring him to show cause by 28-1-1963 as to why he should not be evicted from the said premises, his occupation being held to be unauthorised On 4-2-1963. actually the Estate Officer in pursuance of the said show cause notice purported to determine his lease of the said premises.

3. Shri A.H. Saifi, learned counsel for the applicant, contended that he (the applicant) was not an unauthorised occupant of the said premises within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act. 1958 (hereinafter called the Act), that the notice of ejectment given to the applicant was not valid for the reasons that it was not actually received by him and that it was not a clear 10 days' notice as contemplated under Section 4(2) (b) of the Act; that no proper opportunity to adduce evidence was given to the applicant and, therefore, the orders passed against him were vitiated.

4. Shri J.N. Sinha, learned counsel for the non-applicants, raised a preliminary objection to the effect that the revision petition under Section 115 of the Code of Civil Procedure was not maintainable, it being barred under Section 10 of the Act.

5. Having heard both the learned counsel, I am of the view that the preliminary objection is well founded. Section 10 of the Act provides that

'save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding'.

Under Section 9 Sub-section (1), an appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or Section 7 to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the District Judge may designate in this behalf. It is clear from the language of the above mentioned provisions that an appeal lies to the District Judge as a persona designata and not to a Court of the District Judge. This means that the decision of the District Judge does not give rise to a revision application under Section 115 of the Code of Civil Procedure. The language used in Section 10 of the Act provides a very wide prohibition by enacting that the order of the appellate officer shall not be called in question in any original suit, application or execution proceeding. The word 'application' is wide enough, in my opinion, to cover an application made under Section 115 of the Code of Civil Procedure.

6. In Hadha Nath v. Hari Mohan, AIR 1938 Cal 465, the question as to competency of a revision petition against an order of District Judge in a proceeding under Sections 36 to 40 of Bengal Municipal Act, 1932, was considered in view of the provisions of Sections 39 (b) and 43 of the Act. Section 39 (b) provided for the decision of the District Judge in proceedings to set aside election to be final and under Section 43 thereof, interference with the order passed in connection with election matters by any Court was barred In spite of these provisions, it was contended in that case that the revisional jurisdiction of the High Court was not barred. It was held by the Division Bench of the Calcutta High Court in that ease that in view of the terms of Sections 39(b) and 43, no revision petition under Section 115 of the Code of Civil Procedure lay to the High Court. The decision of that case was approved of by the majority decision of the Full Bench of this Court in Anand Rao v. Board of Revenue, Madhya Pradesh, Gwalior, Misc. Petn. No. 58 of 1958 D/-26-7-1962: (AIR 1965 Madh Pra 237 (FB) ).

7. On the other hand, Shri Saifi relied on the decision of this Court in Kailashchandra v. District Judge, Bhopal, AIR 1963 Madh Pra 218. However, the decision taken in that case is clearly distinguishable. In that case, the question for consideration was whether in view of the provisions of Section 12 of the M. P. Accommodation Control Act, 1955, which read as under

'...only one appeal shall lie against the decision given by the Rent Controlling Authority in the Court of the District Judge within thirty days of the decision and the decision of the Appellate Court shall be final'.

the applicant should have filed a revision petition under Section 115 of the Code of Civil Procedure. It was held that from the wording of Section 12 of the M. P. Accommodation Control Act, it was clear that an appeal lay to the Court of the District Judge and not to the District Judge acting as persona designata and that the mere provision that the decision of the appellate Court shall be final did not preclude the decision being challenged in an application under Section 115 of the Code of Civil Procedure. The language of Section 10 of the Act is materially different from the one used in Section 12 of the M. P. Accommodation Control Act and, in my view, the wide language used in Section 10 of the Act has been used to negative the power of revision of the High Court.

8. As the preliminary objection raised by Shri Sinha on behalf of the non-applicants succeeds, it is not necessary to consider the other contentions raised on behalf of the applicant on merits of the case.

9. The result is that the revision petitionfails and is dismissed but considering all thecircumstances of the case. I make no order asto costs.


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