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Gaj Raj Vs. Estate Officer (Divisional Superintendent), Western Railways, Ajmer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1676 of 1976
Judge
Reported inAIR1982Raj283; 1982()WLN223
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; ;Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Sections 9
AppellantGaj Raj
RespondentEstate Officer (Divisional Superintendent), Western Railways, Ajmer and ors.
Appellant Advocate S.C. Bhandari, Adv.
Respondent Advocate A.K. Mathur, Addl. Adv. General
DispositionPetition allowed
Cases ReferredB) and Ranjeet Mal v. General Manager
Excerpt:
public premises (eviction of unauthorized occupants) act, 1971 - sections 9 & 5 and public premises (eviction of unauthorized occupants) rules, 1971--rule 9 and civil procedure code--order 1, rule 10-and constitution of india--article 226--appeal-necessary parties--general manager w. rly. and union of india impleaded as a party--words head of department cannot be equated to 'union of india' or 'head of state'--held, union of india was not a necessary party and district judge acted illegally in dismissing petitioner's appeal under section 9;the words 'head of the department' or 'authority in administrative control' cannot be equated with the union of india or state government of the state. authority in administrative control of the plot in question, cannot be said to be the union of..........in it. non-petitioner no. 1 divisional superintendent, western railways, ajmer was appointed as estate officer under section 3 of the act. the aforesaid plot which will for the sake of brevity hereinafter be referred to as 'the plot in question' was claimed as railway land. a notice under section 4 (1) of the act was issued to the petitioner to show cause why an order of eviction be not made in respect of the plot in question, which was public premises. the petitioner filed the reply before the estate officer stating that the plot in question was not public premises within section 2(e) of the act. the estate officer after considering the reply filed by the petitioner, passed the order ex. 1 dated april 17, 1974 for eviction. the relevant part of the order reads as under:--'now.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. By this writ petition under Article 226 of the Constitution, the petitioner seeks to quash the order Ex. 2 dated August 10, 1976 of the District Judge, Pali passed under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act (Act No. XL of 1971) (for short 'the Act' herein).

2. The petitioner has alleged himself to be the owner in possession of a plot of land measuring 90' x 75' situate at Falna, District Pali. The plot is bounded on all sides and there is a constructed room in it. Non-petitioner No. 1 Divisional Superintendent, Western Railways, Ajmer was appointed as Estate Officer under Section 3 of the Act. The aforesaid plot which will for the sake of brevity hereinafter be referred to as 'the plot in question' was claimed as railway land. A notice under Section 4 (1) of the Act was issued to the petitioner to show cause why an order of eviction be not made in respect of the plot in question, which was public premises. The petitioner filed the reply before the Estate Officer stating that the plot in question was not public premises within Section 2(e) of the Act. The Estate Officer after considering the reply filed by the petitioner, passed the order Ex. 1 dated April 17, 1974 for eviction. The relevant part of the order reads as under:--

'Now therefore, in exercise of the powers conferred on me under sub-section (1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act. 1971 I hereby order the said Shri Gaj Raj Chhajar-Prop. Rajasthan Match Factory, Falna and all persons who may be in occupation of the said premises or any part thereof to vacate the said premises within forty-five days of the date of publication of this order. In the event of refusal or failure to comply with this order within the period specified above, the said Shri Gaj Rai Chhajar-Prop. Rajasthan Match Factory, Falna and all other persons concerned are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary.

SCHEDULE

Railway land measuring 6750 sft. or 627.1 sq. metres.'

3. Aggrieved, the petitioner filed an appeal under Section 9 of the Act. In the appeal, the petitioner impleaded the General Manager, Western Railway, Church Gale, Bombay-1 and the Estate Officer (Divisional Superintendent, Western Railways, Ajmer) as respondents Nos. 1 and 2, who are non-petitioners No. 2 and 1 in this writ petition. On October 5, 1974, a preliminary objection was raised on behalf of non-petitioners Nos. 2 and 1 that the appeal was not maintainable as Union of India, which was a necessary party was not added as respondent in the appeal. For the purpose of meeting the above objection, an application under Order 1. Rule 10 read with Section 151. C.P.C. was moved on December 6, 1974 on behalf of the appellant praying therein that the mis-description in the title in place of General Manager may be ordered to be corrected as Union of India through the General Manager.

The learned District Judge held that Union of India was necessary party in the appeal. He did not grant permission to the petitioner to add the Union of India at the belated stage and dismissed the petitioner's application under Order 1. Rule 10 read with Section 151 C.P.C. In view of the aforesaid conclusions the learned District Judge dismissed the appeal without going into its merits on August 10, 1976. The petitioner has filed the writ petition questioning the legality and correctness of the aforesaid order passed under Section 9 of the Act. No reply has been filed on behalf of the non-petitioners contesting the writ petition.

4. I have heard Mr. S. C. Bhandari, learned counsel for the petitioner and Mr. A. K, Mathur, learned counsel for non-petitioners Nos. 1 and 2.

5. Learned counsel for the petitioner contended that the learned District Judge has committed an illegality which has resulted in miscarriage of justice when he held that the appeal filed by the petitioner under Section 9 of the Act against the order made under Section 5(1) of the Act of the Estate Officer was not maintainable in the absence of the Union of India, which was a necessary party to the appeal.

6. Mr. A. K. Mathur, learned counsel for non-petitioners Nos. 1 and 2 supported the impugned order Ex. 2. He submitted on the basis of the decision in Ranjeet Mal v. General Manager. Northern Rly., New Delhi, AIR 1977 SC 1701 that the appeal filed under Section 9 of the Act was incompetent in the absence of Union of India, which was a necessary party to it. Here it may be mentioned that the learned District Judge has relied on Kerala State v. General Manager. Southern Rly., Madras, AIR 1965 Ker 277 (FB) and Ranjeet Mal v. General Manager, Northern Rly., 1974 Raj LW 415. The latter decision was affirmed in Ranjeet Mal's case.

7. I have given my earnest consideration to the rival contentions raised by the learned counsel. The important question of law that emerges for my consideration is whether on the facts and in the circumstances of the case, the Union of India was a necessary party in the appeal, which was filed against the order passed under Section 5(1) of the Act when the Estate Officer and the General Manager, Western Railways, Church Gate, Bombay had already been impleaded as respondents in the appeal under Section 9 of the Act. To answer this question, it is necessary to examine the relevant provisions of the Act as well as the rules contained in the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 (which will hereinafter be referred to as 'the Rules').

8. 'Public premises' have been defined in Section 2(e) of the Act. Section 3 provides for the appointment of Estate Officers, by the Central Government by notification in Central Gazette, Section 4 deals with issuing of show cause notice against order of eviction to the person/persons in unauthorised occupation of the public premises. It further provides for the contents of the notice and the service thereof Section 5 provides for eviction of unauthorised occupants and reads as under:--

'Section 5. Eviction of unauthorised occupants.-- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing of any, given under Clause (b) of Sub-section (2) of Section 4 the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under Sub-section (1), whichever is later the estate officer or any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may for that purpose, use such force as may be necessary.'

Section 7 confers power to require payment of rent or damages in respect of public premises. Section 9 deals with appeals and it is as under:--

'Section 9: Appeals (1) An appeal shall lie from every order, of the estate officer made in respect of any public premises under Section 5 or Section 5B 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.

(2) An appeal under Sub-section (1) shall be preferred:--

(a) and (b) ...............

Provided that the appellate officer may entertain the appeal after the expiry of the said period if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(3) to (6) ...............'.

9. The only important section of the Act that deserves mention is Section 10, which deals with finality of orders. It inter alia, provides that except as otherwise provided in the Act every order made by the Estate Officer or appellate officer under the Act shall be final. According to the aforesaid provisions of the Act, the Estate Officer is required to give a show cause notice to the person in unauthorised occupation of the public premises as to why he should not be evicted therefrom. After considering the cause shown by such person, the Estate Officer on being satisfied, has been empowered to order eviction for the reasons to be recorded therein. Under Section 5(1) of the Act, an order of eviction against the person in unauthorised occupation of any public premises by the Estate Officer is contemplated. An appeal against the order passed under Section 5 of the Act by the Estate Officer lies to the Appellate Officer under Section 9.

10. Now, let me advert to Rule 9 of the Rules, laying down procedure for appeals filed under Section 9 of the Act. Rule 9 (2) of the Rules is as follows:--

'On receipt of the appeal and after calling for and perusing the record of the proceedings before the Estate Officer, the Appellate Officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the estate officer against whose orders the appeal is preferred, to the appellant and to the head of the department or authority in administrative control of the premises.'

11. On an examination of Rule 9 (2) of the Rules, it is clear that the notice of the appeal, which is filed by the person against whom the order has been made under Section 5(1) or Section 7 of the Act is required to be given to the Estate Officer who has passed the order in appeal, to the appellant, the person against whom the order of eviction or payment is made and who has filed the appeal and also to the Head of the Department or Authority in administrative control of the premises. So according to Rule 9 (2), in an appeal by the person against whom an order of eviction has been passed, notices of appeal are required to be given to (1) Estate Officer, (2) Appellant and (3) Head of the Department or the authority in administrative control of the public premises. The Appellate Officer is required to give notices in the appeal to the aforesaid persons.

12. The Act is a special enactment providing for the eviction of unauthorised occupants from public premises and for certain incidental matters. Under Section 18(2) of the Act, the Central Government has been empowered, inter alia, to make rules on a matter relating to the manner in which appeals may be preferred and the procedure to be followed in appeals. Rule 9 of the Rules as stated above deals with procedure to be followed in appeals and the procedure provided in Rule 9 (2) amongst others is for giving notice of the appeal to the persons mentioned therein. The public premises have been defined under the Act and it is the Estate Officer appointed under Section 3 of the Act who is required to give notices to the person in unauthorised occupation thereof. The Estate Officer under Section 5 of the Act passes an order against the person alleged to be in unauthorised occupation of the public premises. Under Section 9 of the Act, the person against whom an order under Section 5 has been made can only prefer appeal and he is the aggrieved person only.

13. Neither under the Act nor under the Rules any provision has been made as to who will be impleaded as respondents to the appeal by the person filing the appeal against the order of eviction under Section 5 of the Act. Under Rule 9 merely a duty has been cast on the appellate officer to give notice:

(1) to the Estate Officer,

(2) to the appellant, and

(3) to the Head of the Department, or the authority in administrative control of the premises.

14. Having regard to the provisions of Section 9 of the Act and Rule 9 of the Rules, it cannot be held that the Union of India was a necessary party in the appeal, which was filed by the petitioner against the order of eviction made under Section 5(1) of the Act.

15. Ranjeet Mal's case (AIR 1977 SC 1701), on which strong reliance was placed by Mr. A. K. Mathur, learned counsel for the non-petitioners Nos. 1 and 2, is of no aid to the non-petitioners. It will be relevant here to excerpt paras 6 and 7 of the report:--

'6. It cannot be disputed that the appellant was a servant of the Union. It is equally indisputable that any order of removal is removal from service of the Union. The appellant challenged that order. Any order which can be passed by any Court would have to be enforced against the Union. The General Manager or any other authority acting in the Railway Administration is as much a servant of the Union as the appellant was in the present case.

7. The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.'

16. The Union of India was held to be necessary party in that case for the reasons that, any order which would have been passed on the petition under Article 226 would have resulted in setting aside the order of the removal which fastened liability on the Union of India and not on any servant or employee of the Union. This decision is of no avail for it is distinguishable

17. It needs to be mentioned here than even under Rule 9 besides the Estate Officer and the appellant, the appellate officer is required to give notice either to the Head of the Department or Authority in Administrative Control of the premises. The words 'Head of the Department' or 'Authority in administrative control' cannot be equated with the Union of India or State Government of the State. Authority in administrative control of the plot in question, cannot be said to be the Union of India so as to represent the Railway Administration.

18. The upshot of the discussion made hereinabove is that it was not necessary for the petitioner to have impleaded Union of India as a party-respondent to the appeal filed by him under Section 9 of the Act, for it was not a necessary party.

19. For the reasons aforesaid. I am of the opinion that the learned District Judge has acted illegally and improperly when he dismissed the petitioner's appeal under Section 9 of the Act on the ground of non-joinder of Union of India, which according to him was a necessary party.

20. In view of the conclusion to which I have arrived at, it is not necessary to examine the other contentions of the learned counsel for the petitioner that on the facts and circumstances of the case, the learned District Judge should have allowed the application filed by the petitioner under Order 1, Rule 10 read with Section 151 C.P.C. or at any rate should have impleaded Union of India as a party-respondent to the appeal after condoning the delay.

21. The result is that I allow this writ petition and quash the order Ex. 2 dated August 10, 1976 of the learned District Judge, Pali (Appellate Officer) dismissing the appeal filed under Section 9 of the Act. The learned District Judge will re-admit the appeal to its original number and decide it on merits after giving an opportunity of hearing to the petitioner (appellant before the District Judge), the Estate Officer (Divisional Superintendent, Western Railway, Ajmer) and the General Manager, Western Railway, Church Gate, Bombay-1. In the circumstances of the case, the parties shall bear their own costs of the writ petition.


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