IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1246 of 2004(B)
1. SMT.T. NAFEESA, D/O.LATE KUNHIMOIDEEN,
... Petitioner
2. SMT.T. ASMABI, D/O. KUNHIMOIDEEN,
3. SRI. T. ABDUL RASHEED, S/O. KUNHIMOIDEEN
4. SMT.T. NASEEMA, D/O. KUNHIMOIDEEN,
5. SMT.T. RASHEEDA, D/O. KUNHIMOIDEEN,
Vs
1. THE ESTATE OFFICER, SOUTHERN RAILWAY,
... Respondent
2. THE DIVISIONAL MANAGER, SOUTHERN
3. THE KANNUR MUNICIPALITY, REPRESENTED
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.M.C.CHERIAN,SR.SC.,RAILWAYS
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :04/06/2008
O R D E R
HARUN-UL-RASHID, J.
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C.R.P No. 1246 of 2004
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Dated this the 4th day of June 2008
ORDER
The revision petitioners 1 to 5 are the appellants in C.M.A. 27/1998
on the file of the District Judge Thalassery. By the impugned judgment
under revision the appellate court confirmed the order dated 23.2.1998 of
the Estate Officer of the Souther Railway Divisional Office, Palakkad in
the proceedings directing the eviction of the revision petitioners from Bunk
No. 2 which is allegedly installeld in the premises of the Kannur railway
Station The Estate Officer passed Orders directing the revision petitioners
to vacate the said premises in the proceedings initiated against them
under the provisions of the Public Premises (Eviction of Unauthorised
Occupants) Act 1971 .
The revision petitioners are the legal heirs of one Kunhalima who
was the licensee in respect of Bunk No. 2 belonging to Kannur
Municipality. According to the revision petitioners their predecessor-in-
interest was in occupation of the Bunk from the year 1970 onwards. It is
also contended that the Licencee received a notice in the year 1989 to
show cause why she should not be evicted from the site where the bunk
is situated. Pursuant to the proceedings initiated the first respondent
passed order on 29.7.1992 whereby the licencee was directed to vacate
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the said premises within 15 days. The matter was taken up in appeal as
C.M.A. 7/1994 . Prusuant to order passed by the lower appellate court
the present order was passed by the Estate Officer which was confirmed
by the lower apepllate court in C.M.A. No. 27/1998.
It is contended by the southern Railway that the Kannur
Municipality have constructed the Bunk No. 2 near to the Kannur Railway
station by encroaching an area of 10 Sq. meters into the railway land.
During the survey the encroachment was noticed by the Southern Railway
and therefore eviction proceedings were initiated on the then licencee.
Smt. Kunhalima. The Municipality issued notice to the revision petitioners
stating that the Southern Railway wants to get the land evicted and
therefore directed the revision petitioners to evict the property .
The Estate Officer of the Souther Railway by the impugned order
dated 23.2.1998 passed an order of eviction by resorting to the provisions
of Public Premises ( Eviction of Unauthorised Occupants Act) 1971 . The
Estate Officer on a perusal of the records found that the Bunk is located
partly in the Municipal area and partly in the railwayy land. Admittedly the
Bunk was constructed by the Municipality and the revision petitioners are
the one time licencee for conducting the business in the bunk. The
Estate Officer also noticed the facts that the licence period of the Bunk
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has expired on 31.3.1994. and now the occupation of the Bunk itself is
unauthorised. The Railway issued notice to the Municipality to direct the
revision petitioners to evict the premises and to hand over the possession
of the railway rand to the Southern Railway. In the meanwhile the
revision petitioners filed O.S. 159/1996 before the Munsiff Court Kannur.
The Munsiff Court disposed of the said suit that the Estate Officer of the
Southern Railway is at liberty to initiate necessary action under Public
Premises ( Eviction of unauthorised occupants ) Act 1971 against the
revision petitioners who are the plaintiffs in that suit. In that suit filed by
the revision petitioners, whether the action of the respondents for eviction
of the plaintiff is illegal or not whether an area of an extent of 10Sq.
meters of railway land was encroached while constructing the Bunk by
the Municipality whether the 3rd defendant (Estate Officer) is competent to
initiate eviction proceeding as per the provisions of law and a number of
other issues were formulated and decided by the Munsiff Court.
At the time of final hearing before the Estate Officer the counsel
for the revision petitioners admitted that they do not possess any title
deed or documents to substantiate their ownership or to legalise the
occupation of the Bunk. The Estate Officer found that in such
circumstances no valid grounds are made out to substantiate or to justify
the unauthorised occupation of the public premises. The Estate officer
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also noted the submission made on behalf o the Muncipal Engineer tha
the has no objection to evict the unauthorised encroachers in the area
under dispute. The Municipality also submitted a detailed plan before the
Estate Officer The said plan shows that the area under dispute is in the
Railway premises and the revision petitioners are unauthorised
occupants of the same. On the factual position as stated above the Estate
Officer rightly found that ta portion of the area covered by the location of
the Bunk belongs to the Southern railway and therefore the revision
petitioners are in unauthorised occupation
The revision petitioners appealed to the District Court Thalassery .
The appellate court also examined the file and the two sketches
concerning the land in question. The sketches produced will go to show
that the Bunk has been constructed encroaching a portion of the railway
land. The appellate court taken note of all the findings entered by the
Munsiff Court in O.S. 159/1996 and held that an extent of 10 sq. maters of
railway land has been encroached by the Municipality while constructing
the Bunk in question. The learned Munsiff rejected the contention of the
revision petitioners that the railway has no right to initiate proceedings
for eviction of the occupants in accordance with the provision of the said
Act. The appellate court also noted the findings of the Munsiff Court
which has become final that the Bunk is situated by 10 Sq. meters into the
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railway land .
This Civil Revision petition is filed by the occupants challenging orders
passed by the Estate Officer . The finding entered by the Estate Officer
and the District Judge Thalassery are based on sufficient materials .
The Municipality also has no case that the entire property wherein the
bunk is situated belongs to it. They have also admitted that a portion of
the Bunk which is encroached into the railway property is an
unauthorised and illegal Act. The occupants of the Bunk are continuing
their business even now long after the expiry of the license issued to them.
Having invited a decision against them in the Civil suit filed by them they
have no locus standi before this Court. They are not entitled to continue
in the premises in spite of the fact recorded by the railway authorities that
a portion of the property is unauthorisedly encroached by the
Municipality. The revision petitioners have produced true copies several
documents with a petition for receiving the additional documents ( I.A.
No. 1182 of 2008). The documents relates to the period from the year
1989 to 1993 and 1996 etc. I find no reason to receive those documents
in evidence at this distance of time. The revision petitioners have every
opportunity to produce whatever documents before the Estate Officer or
before the appellate Court or before this Court. There is no bonafides in
submitting these records during the course of final hearing. Therefore this
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petition to receive the additional documents is dismissed. I find no
grounds to interfere with the orders under challenge. This Civil Revision
petition is without merit and it is accordingly dismissed. There will be no
order as to costs.
Considering the fact that revision petitioners are in occupation of the
licensed bunk right from 1970 onwards, I direct the Municipality to
consider the case of the revision petitioners sympathetically and take a
lenient decision regarding shifting of the Bunk to any other convenient
place and also to renew the expired licence.
HARUN-UL-RASHID, JUDGE
es