This petition, preferred under Article 227 of Constitution of India, challenges the order of learned Principal District Judge, Surat passed below Exh.5 in Appeal from Order No. 49 of 2011 dated 1st October, 2011.
Brief facts as brought on record are indicative that petitioner herein claims possession of the agricultural land, situated at Village Dindoli and Limbayat, Taluka Choryasi, Dist. Surat (hereinafter referred to as "suit land"). The said Land was acquired by the Railway Authorities. Entry also has been mutated accordingly. It has been claimed that no possession of land is taken over and he is still in actual possession.
It is say of the petitioner that respondent initiated proceedings under the Public Premises (Eviction of Unauthorized Occupants)Act, 1971. Petitioner had filed Regular Civil Appeal No. 57 of 1990 before District Court, Surat, challenging the eviction order dated 26.8.94 and the same was set-aside, with the further observations that the Railway Authority shall be at liberty to initiate fresh eviction proceedings, after serving legal and valid notice upon the petitioner.
It is say of the petitioner that no such proceedings were initiated and therefore, those observations have attained finality. He has regularly paid the land revenue. Copies of revenue record was also brought on record. After lapse of 13 years, notice has been served on 18th December, 2007 by Railway Authority where eviction order has been passed against the present petitioner on 8.11.2000. Thereby, he was directed to remove structure, hutments from the railway land within a period of fortnight. Therefore, he approached this Court in SCA 2672 of 2008, challenging such notice and eviction order .
After hearing both the sides, this Court vide its order dated 8th September, 2008, relegated petitioner to the the Railway Authority and not to take coercive action till the petition is pending.
It is say of the petitioner that thereafter show cause notice was issued on 24th April, 2009, and time and again he called upon the authority for fixing an early date of hearing of the suit. However, date was finally fixed on 17.2.2011 and thereafter on 16.3.2011 but he was never heard. In nut shell, it is say of the petitioner that he though was never been heard, he received an order dated 12.5.2011 passed by the respondent No.2 declaring him as unauthorized occupant and thereby also passed an order of eviction against him.
He therefore, approached the District Court by preferring Appeal-from-Order No. 49 of 2011, challenging the order dated 12th May, 2011 on the grounds mentioned in the appeal with interim relief by preferring an application at Exh. 5.
It is contended by the petitioner that his request for injunction has been rejected on 1.10.11 by an order passed below application at Exh.5 where the learned Principal District Judge passed following order :
"Application Exh.5 is hereby partly allowed .
Execution of Order passed by Estate Officer & Sr. Divisional Engineer (North), Western Railway, Mumbai Central in Suit No. PPF/3/2009 dtd. 12.5.2011 is hereby stayed till the final disposal of the appeal so far other occupants are concerned, except the appellant.
Dictated and pronounced in open court today on this 1st Day of October, 2011."
It is needs to be mentioned that till this order passed on 1.10.2011, there was no disclosure of "other occupants" on the suit land, nor were the details available with the Court, as pursuant to the direction of the District Court to reveal those details, Railway Authority has approached this Court by preferring SCA 14586 of 2011 dated 15.11.2011, District Court appears to be rightly not convinced of petitioner occupying huge area of land all by himself and hence, directed to furnish details. However, as such Special Civil Application is separately pending, merits of this case are not being touched. It is the say of learned senior advocate Mr.Joshi that oder under challenge states that respondent and others concerned shall vacate the premises within 15 days from the date of publication of order, the Court stayed execution of order till final disposal of the appeal without protecting the present petitioner and curiously protecting "all other concerned occupants" without any details available of all other occupants in an appeal of petitioner.
As rightly pointed out by both the sides that in the appeal preferred by the petitioner during the pendency of the appeal while staying the execution of the order under challenge before the Appellate Forum. Protection is given to those others whose identity is not being revealed,this order requires reconsideration in the aforementioned background. Alleged version of appellant on merit is not to be gone into at this stage. Since appeal is yet to be heard in Regular Civil Appeal No. 49 of 2011 by this Court. This petition is preferred under Article 227 of Constitution of India. It would be appropriate in the abovementioned circumstances to direct the hearing of the appeal expeditiously and extend benefit of protection to the petitioner as well. .
At this stage, learned advocate Mr.Ravi Karnavat appearing for the Railway Authority submits that pendency of Special Civil Application preferred by Railway Authority may not be hamper, hearing of Regular Civil Appeal NO. 49 of 2011, pending before the Appellate Forum . Under the circumstances, such an appeal being under the The Public Premises (Eviction of Unauthorized Occupants)Act, 1971 shall be heard on merits and shall be disposed of not later than within three months. Petitioner shall be protected as well with 'other occupants' till hearing of the appeal. As his pendency is not disputed by the Railway Authority and proposal on that count eviction has been sought.
(Ms.Sonia Gokani,J) bina Top