IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3475 of 2004
Om Narayan Singh @ Tun Tun Singh Petitioner
Versus
1. Union of India represented by General Manager,
South Eastern Railway, Kolkata
2. The Estate Officer, South Eastern Railway,
Tatanagar Railway Station, Jamshedpur Respondents
---
CORAM: The Hon'ble Mr. Justice D.G.R. Patnaik
For the Petitioner: M/s. P.K. Prasad, Sr. Advocate, Ayush Aditya, Advocate
For the Respondents: Mr. Pradip Modi, Advocate
---
10. 02.09.2009
Heard Shri P.K. Prasad, learned Senior Counsel for the petitioner and Shri
Pradip Modi, learned counsel for the respondents.
2. The petitioner in this writ application, has prayed for an order quashing
the appellate order dated 13.4.2004 (Annexure-9), by which the Appellate
Authority had dismissed the petitioner’s appeal against the order dated 2.9.1993
(Annexure-4) whereby the respondent authority had passed an order of eviction
against the petitioner from the premises in question, under the provisions of the
Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Prayer has also
been made for quashing the aforesaid order dated 2.9.1993 (Annexure-4) passed
by the Estate Officer.
3. As it appears from the submissions of the learned counsel for the parties, a
similar order was passed against the petitioner for his eviction from the premises
in question by the Estate Officer on 4.5.1979. Being aggrieved, the petitioner had
preferred an appeal which was also dismissed and thereafter, the petitioner had
approached this court by filing a writ application vide CWJC No. 1173 of
1985(R).
4. After considering the submissions of the learned counsel for the parties,
this court while disposing of the writ application, had by order dated 7.11.1990
quashed the impugned orders of the Estate Officer and that of the Appellate
Authority and remanded the case to the Estate Officer with a direction to afford
one opportunity to the petitioners to adduce evidence in support of their case to
enable disposal of the matter in accordance with law. A further observation was
recorded on the basis of the assurance given by the learned counsel for the parties,
that they would appear before the Estate Officer on the dates specified i.e. on
23.11.1990, where-after, the Estate Officer shall fix an appropriate date for
enabling the parties to adduce evidences and shall proceed to dispose of the
matter in accordance with law.
5. After the matter was remanded back to the Estate Officer, the petitioner
and the concerned representative of the respondents, appeared before the Estate
Officer on 23.11.1990, where-after, the Estate Officer had fixed dates for
enabling the petitioner to adduce evidence.
2
6. Shri P.K. Prasad, learned senior counsel for the petitioner, while referring
to the copy of the order sheet of the proceedings before the Estate Officer vide
E.C. Case No. 66 of 1978, would inform that though, the petitioner had appeared
before the Estate Officer, but almost on every occasion, the Estate Officer was not
available to hold office on account of his pre-occupation with other matters and
the proceedings remained adjourned for several dates. Learned counsel submits
further that even though, vide order dated 25.6.1993, the Estate Officer fixed the
next date for hearing on 28.7.1993 and had also directed to inform the date
accordingly to the parties concerned, but no such information was conveyed to
the petitioner. A similar order was passed on the next date i.e. on 28.7.1993 fixing
the case for hearing on 2.9.1993 and to inform the date to both the parties, but no
such information regarding the date fixed, was conveyed to the petitioner. Yet, by
the impugned order dated 2.9.1993 (Annexure-4), the Estate Officer had passed
an ex-parte order of eviction against the petitioner.
Referring to the impugned order of eviction, as passed by the Estate
Officer, learned counsel submits that the impugned order suffers from serious
perversity in as much as, the ex-parte order was passed without issuing prior
notice to the petitioner and furthermore, no discussion on the issues involved in
the proceedings, was made at all by the Estate Officer.
Assailing the impugned order of the Appellate Authority, learned counsel
submits that the Appellate Authority has also committed serious error in law by
totally ignoring the fact that the petitioner was not offered adequate opportunity
of producing evidence and neither was the petitioner informed about the dates
fixed in the case for hearing and yet, the ex-parte order was passed against him
and that too, without assigning adequate reason or recording satisfaction, as
required under the law.
7. Counsel for the respondent Union of India vehemently opposes the prayer
of the petitioner and would want to controvert the entire grounds advanced by the
petitioner.
Shri Pradip Modi, learned counsel for the respondents, would want to
inform, by reference to the earlier order passed by this court in the earlier writ
application, that while remanding the case to the Estate Officer, this Court had
directed the parties to appear before the court below with a corresponding
direction to the Estate Officer to afford opportunity to the petitioner to adduce
evidence, but in spite of repeated chances given to the petitioner, no show-cause
replies at all was filed by the petitioner and neither was any evidence sought to be
adduced. Learned counsel adds that under the provisions of law, lands have been
declared as public land and the petitioner having been informed about his
unauthorized occupation and if such occupant fails to offer any explanation as to
under what circumstances, he comes in unauthorized possession of the land, the
concerned authorities of the respondents can have the competence to issue an
order of eviction straightway against the encroacher. Learned counsel in this
3
context, would refer to the provisions of sections 4 and 5 of the Public Premises
(Eviction of Unauthorized Occupants) Act, 1971 and argue that the grounds
advanced by the petitioner alleging that he was not provided adequate opportunity
of being heard, is misleading, as it would appear from the impugned order of the
Estate Officer itself which indicates that the petitioner was given advance
information regarding the dates fixed and yet, the petitioner did not choose to
appear before the Estate Officer or to adduce any evidence or even to file show-
cause replies. The Appellate Authority had considered this ground and after
perusing the records, had dismissed the appeal by assigning reasons and thus, the
petitioner’s claim of not being informed about the dates fixed or not being
afforded adequate opportunity, is therefore, not tenable.
Shri Modi would further submit that the purview of a writ application
under Article 227 of the Constitution is limited only to see as to whether the
impugned order suffers from any perversity, illegality or infirmity and since
apparently, there is no such infirmity or illegality pointed out by the petitioner,
this writ application is liable to be dismissed. Learned counsel adds further that
even if petitioner would have been able to point out some error or perversity in
the impugned orders, yet, this court has to see as to whether any substantial
injustice has been caused by the purported error or perversity and if no such
substantial injustice has been caused, then this court should not interfere with the
impugned orders. Learned counsel refers in this context to the Division Bench
Judgments passed by the Patna High Court in the case Vijay Kumar vs. State of
Bihar [1993 (1) PLJR 99] and in the case of Sheikh Abraham vs. State of
Bihar [1993(1) PLJR 255].
8. Having heard learned counsel for the parties and also having gone through
the impugned orders, I find that, while disposing of the earlier writ application,
this court had quashed the earlier impugned orders of the Estate Officer and that
of the Appellate Court and had given the petitioner an opportunity of producing
evidence in the proceeding before the Estate Officer. The intention apparent in the
order of this court passed by the Division Bench was to enable the parties a
reasonable opportunity of being heard and also to enable the Estate Officer to
consider the evidences, if adduced by the parties, and to take an appropriate
decision on the basis of such evidences.
9. From the copy of the order sheet annexed to the writ application,
pertaining to the proceedings before the Estate Officer which was resumed after
remand of the case, it appears that though, the parties hade appeared before the
Estate Officer on 21.5.1993 and dates were fixed thereafter by the Estate Officer
to enable the parties to adduce evidence, but on each of such dates, the
proceeding could not be taken up on account of absence of the Presiding Officer
and this feature continued for almost three years. The order dated 25.6.1993
indicates that the case was fixed for hearing of both the parties on 28.7.1993 and
the Estate Officer had directed the office to inform the next date to the parties. On
4
the next date i.e. on 28.7.1993, though, the representative of the petitioner therein,
namely, the Works Supervisor was present, but the opposite party namely, the
petitioner in the present writ application, was not present. The matter was
adjourned to 2.9.1993 for evidence with a further direction that it be informed to
both the parties. In the order sheet, it is nowhere recorded that the information
conveying the next date fixed in the case, was sent or served upon the petitioner.
10. Furthermore, from the impugned order dated 2.9.1993, it appears that the
case was taken up for ex-parte order and while doing so, the Estate Officer had
recorded his order in the following manner:
“Now, I take up the case for exparte decision and Eviction
Order dated 18.5.1979 passed by the then Estate Officer, South
Eastern Railway, Bilaspur at Chakradharpur in this case under
Section 5(1) of the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971, hereby confirmed under the facts and
circumstances of the case.
Copy of the order sheet send to the petitioner department
and opposite party for serving according to the rules”.
11. It is manifest from a bare reading of the aforesaid order that the Estate
Officer has proceeded to confirm the order, which was earlier set aside by the
order of this court passed in the earlier writ application. The Estate Officer has
not discussed the materials placed on record, nor has recorded his satisfaction for
passing the order of eviction against the present petitioner.
12. From perusal of the impugned order of the Appellate Authority, it appears
that though, the petitioner had pleaded the aforesaid ground but the Appellate
Authority did not consider the same in proper perspective and had allowed itself
to be swayed by the purported claim of the respondent that despite being granted
several opportunities, the petitioner intentionally failed to appear and submit his
show-cause replies and evidences in the proceedings before the Estate Officer.
13. As was observed above, even if the Estate Officer had reason to decide the
case ex-parte, but the final decision could be taken and order could have been
passed only after discussing the materials before him and after recording his
satisfaction that the materials brought before him do justify the order of eviction
against the petitioner, from the lands under reference.
14. In the light of the above facts, I find that the impugned order of the Estate
Officer suffers from serious perversity and infirmity. Accordingly, the impugned
order of Estate Officer as contained in Annexure-4 and of the Appellate
Authority as contained in Annexure-9, are hereby quashed.
15. The matter is remanded back to the Estate Officer with a corresponding
direction both to the petitioner and to the opposite party to appear before the
Estate Officer on 10th September 2009. The petitioner shall submit his show-
cause replies, if any, on that date. Where-after, the Estate Officer shall fix a date
within one week from the date of appearance of the parties to enable them to
5
adduce evidence, if any and within two months from the date of this order, shall
take a final decision in the matter by passing a reasoned and speaking order in
accordance with law. If the petitioner does not comply with the order in the terms
stated above, or fails to file his show-cause replies or to adduce evidence on the
date fixed and within the period granted by the Estate Officer, then it will be
deemed that the petitioner does not want to raise any defence and thereafter, the
Estate Officer shall be at liberty to pass appropriate order in accordance with law.
This order shall, however, be subject to payment of cost of Rs. 10,000/- by the
petitioner to the counsel for the Respondents.
(D.G.R. Patnaik, J)
Ranjeet/