IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6537 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DEN (W) & 1 - Petitioner(s) Versus JIGNABEN S. PANDYA & 2 - Respondent(s) ========================================================= Appearance :
MR MUKESH A PATEL for Petitioner(s) : 1 - 2. MR DEEP D VYAS for Respondent(s) : 1 - 2.
RULE SERVED for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/03/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition under Article-227 of the Constitution of India the petitioner seeks to challenge judgment and order dated 31/5/2004 passed by the Joint District Judge, Fast Track Court, Surendranagar and there by allowed the Appeal filed by the respondents herein under Sec. 9(3) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1974 quashing and setting aside order dated 31st March, 2004 passed by the Estate Officer and Divisional Officer, Western Railway, Rajkot.
2. Facts shortly stated are as under :-
The respondents herein purchased land of City Survey Ward No.1 Nondh no.4673/A admeasuring 167.20 sq. mtrs. vide Registered Sale Deed No.675 dated 26th February,2004 and on the very same day also purchased land admeasring 411.80 sq. mtrs. of the said Survey number vide Registered Sale Deed No.676 dated 26th February,2004. The respondents herein thereafter started constructions on the land purchased by them vide registered sale deeds. It appears from the records that the petitioner herein i.e. Railways put- forward a claim that the land in question is of the ownership of Railways and the respondents have no right, title or interest over the same. Record reveals that as the respondents were already in possession of the land, the petitioners initiated proceedings under the Public Premises Eviction (Unauthorized) Occupants Act, 1971 by issuing notice. The respondents appeared before the Estate Officer under the Act, 1971 and adduced documentary evidence in support of their claim that they are the true owners of the land in question and they have bought the land from its erstwhile owner by way of a registered sale deed. However, it appears that all contentions of the respondents were negatived by the Estate Officer and ultimately the Estate Officer, Western Railway, Rajkot passed an order of eviction against the respondents herein under sec. 5(1) of the Act, 1971.
The respondents feeling aggrieved by the order of eviction passed by the Estate Officer, Western Railway, Rajkot in exercise of powers under Sec. 5(1) of the Act, 1971, preferred Regular Civil Appeal No.9/2004 in the Court of District Judge, Surendranagar as provided under Sec. 9(3) of the Act, 1971. The learned Joint District Judge, F.T.C., Surendranagar (Persona Designata under the Act) allowed the appeal preferred by the respondents herein by quashing and setting aside the order passed by the Estate Officer, Western Railway, Rajkot. While allowing the Appeal, the Appellate Authority held as under in para-12 :– “12. All the revenue verdicts right from the order of City Survey Superintendent, order of appeal by the Dy. Collector and against that order, verdict rendered by the Collector in his revisional jurisdiction have become the subject matter of revision before the Revenue Tribunal, Ahmedabad. Therefore, that matter of ownership of the adjoining land bearing survey no.4674 is under the doctrine of seisin. When the construction work is under progress and has been raised considerably well in height and season of monsoon appears there by end of current month and all kind of raw material for construction lying on the site then in that case Court cannot ignore the balance of convenience as well as irreparable loss likely to be occurred to the appellants because at present the disputed land nearby which Railway line is shown to be there, admittedly is non-use and it is not the case of the respondents-Western Railway that, that line which was meant for meter railway gauge has not been discontinued far back, hence even under the doctrine of irreparable loss the construction work cannot be restrained as submitted by the learned advocate for the respondents-Western Railway. I cannot give a go-by to the contention raised by learned advocate Mr.Sheth for the appellants which is to the effect that present Western Railway had in the past filed Civil Suit No.28//85 against Neminath Co-operative Housing Society Ltd., Surendranagar, and Surendranagar Joint Municipality for declaration and permanent injunction that Neminath Co-operative Housing Society Ltd. made encroachment upon Railway land situated nearby Joravarnagar Railway Station yard and further for declaration that construction work which was in progress was within the limit of 100 fts. From Railway boundary which was illegal, null and void because no sanction, i.e., no objection certificate taken from Western Railway, Rajkot, but ultimately the same had been dismissed by the appellate Court in RCA No.24/92. Hence, it is vehemently submitted that the Estate Officer of Western Railway has no authority to initiate summary inquiry under the Act and similarly the present respondent has to initiate regular Civil battle to obtain possession of the disputed land from the present appellants as there is a serious dispute regarding title of the disputed land, hence the order impugned passed by the learned Estate Officer cannot be sustained. Hence, considering the legal principles referred to by me in the foregoing para of legal principles, considering the judgment of Hon’ble Apex Court referred to above, I have no option but to allow this appeal in-toto restraining the respondents from preventing the appellant from raising construction over the disputed land which appears to be with the plaintiffs in their real and physical possession coupled with their title under registered sale-deed right from the year 1946.”
The petitioner Railways being aggrieved by the order passed by the Appellate Authority under the Act has come-up by way of this petition under Article-227 of the Constitution of India.
I) Contentions of the Petitioner :
Learned advocate Mr.Siraj Gori appearing with learned Advocate Mr.Mukesh A. Patel, vehemently submitted that the Appellate Authority has committed substantial error of law in quashing and setting aside the order passed by the Estate Officer under Sec. 5 of the Act. The main plank of submission on behalf of Mr.Gori has been that the appellate authority has completely overlooked the map which was produced during the course of the proceedings and which is suggestive of the fact that the ownership of the land in question vests with Railways. Mr.Gori relying on the map submitted that the same has been approved and sealed by the Collector as well as the Competent Authority in the year 1969. Mr.Gori would submit that even if the land in question is dealt with by private parties by way of inter se transactions, the purchaser would not get any legal and valid title as the Seller cannot be said to be holding any legal valid title with respect to the land in question. Mr. Gori relied on Sec. 83 of the Evidence Act which speaks about presumption as to maps or plans made by authorities of Government. Mr. Gori, thus, submitted that the appellate Authority has committed an error in up-setting the order passed by the Estate Officer under the Act and, therefore, this petition deserves to be allowed.
II) Contentions of Respondents :
Mr. Deep D. Vyas, learned Advocate appearing for the respondents, vehemently submitted that this Court in exercise of its supervisory jurisdiction under Article-227 of the Constitution of India, may not disturb the order passed by the Appellate Authority as no error, much less an error of law can be said to have been committed by the appellate authority. Mr.Vyas submitted that the impugned judgment of the appellate Authority under the Act is a very well reasoned judgment and the appellate Authority has taken into consideration all relevant aspects of the matter including the correct position of law as explained by Supreme Court as well as other High Courts of the Country. Mr. Vyas submitted that the transfer of the land in question by way of two sale deeds in favour of the respondents was not the first transfer, but the land in question, way back in the year 1946 was running in the name of one Vora Amiji Lukmanji and for the first time on 19/3/1946 vide registered Sale Deed No.82 the land in question was purchased by one Mistri Mohanlal Kanjibhai. Mr.Vyas has invited my attention to the transactions which have taken place, so far as the land in question is concerned. The details are as under :-
1) Regd.Sale deed no.82 dt. 19-3-1946 Vendor : Vora Amiji Lukmanji Purchaser : Mistri Mohanlal Kanjibhai
2) Regd. Sale deed no.138 dt. 30-1-1959 Vendor : Mistri Mohanlal Kanjibhai Purchaser : Patel Arjanbhai Bhagwanbhai
3) Regd. Sale deed no.139 dt. 30-1-1959 Vendor : Mistri Mohanlal Kanjibhai Purchaser : Jituben Devjibhai Chavda
4) Regd. Sale deed no.800 dt. 16-5-1961 Vendor : Patel Arjanbhai Bhagwanbhai Purchaser : Shree Majirajba Mansinhji
5) Regd. Sale deed no. 801 dt.16-5-1961 Vendor : Jituben DEvjibhai Chavda Purchaser : Shree Majirajba Mansinhji
6) Regd. Sale deed no.496 dt. 28-3-1974 Vendor : Shree Majirajba Mansinhji Purchaser :(1) Bhikhabhai Popatlal (2) Daudbhai Ranmalbhai
7) Regd. Sale deed no. 675 dt. 26-2-04 Vendor : (1) Bhikhabhai Popatlal
(2) Daudbhai Ranmalbhai Purchaser : (1) Jignaben S. Pandya (2) Sanjay B. Pandya
8) Regd. Sale deed no.676 dt.26-2-04 Vendor : (1) Bhikhabhai Popatlal
(2) Daudbhai Ranmalbhai Purchaser : (1) Jignaben S. Pandya (2) Alkesh V. Vora.
9) Regd. Sale deed no. 3370/1 dt. 25-06-07 Vendor : (1) Alkesh V. Vora. Purchaser : (1) Sanjay B. Pandya.
Mr. Vyas submitted that when there is a serious dispute as regards title over the property in question, then in that case Railways could not have taken a unilateral decision in its own favour that the property belongs to it and on the basis of such decision could not have taken recourse to the summary remedy provided for evicting the person who is in possession of the property under a bonafide claim or title. He, therefore, submitted that there is no merit in this petition and the same deserves to be rejected.
Mr. Vyas in support of his contentions has relied upon the following decisions:
1. State of Rajasthan v. Padmavati Devi and others, reported in 1995 Supp (2) SCC 290.
2. S.R.B. Gaikwad V. The Union of India and others, reported in AIR 1997 Bombay 220.
3. Government of Andhra Pradesh v.Thummala Krishna Rao and another,reported in AIR 1982 SC 1081.
4. M/s. Bajrang Hard Coke Manufacturing Corporation, Petitioner v. Ramesh Prasad and others, reported in AIR 2003 Jharkhand 17.
5. Podduturi Vasantha Reddy and etc. v. Estate Officer, Airports Authority of India, N.A.D. Hyderabad, reported in AIR 2010 Andhra Pradesh 46.
In the judgment relied upon by the learned counsel for the respondents in the case of S.R.B.Gaikwad (AIR 1977 Bom 220) (supra), a Division Bench of Bombay High Court, while considering the scope of the definition of 'public premises' under Section 2 (e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, has held to the effect that 'public premises' means any premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government. In the said judgment, it is further held that the enactment, as indicated in the preamble, is intended to provide for eviction of unauthorized occupants from public premises and for certain incidental matters. The enactment is not so much concerned with the title as with the possessory rights vested in the Central Government, and Section 2 (e) only indicates the sources by which such right to possession can be acquired, one such being, the taking of the premises on lease, from its owner. The definition, thus, is descriptive of the source or origin of the possessory rights acquired by the Central Government. It is the continuance of the vesting of this possessory right in Government and not so much more the origin thereof, that makes any premises, a public premises under the Act. In the same judgment, it is held that the enactment is thus aimed at ensuring the continuance of possessory rights acquired through the modes indicated in the definition clause.
In another judgment relied upon by the learned counsel in the case of Govt. of A.P. v. Thummala Krishna Rao (AIR 1982 SC 1081) (supra), while elaborately considering the scope of similar such provision under Sections 6 and 7 of the A.P. Land Encroachment Act, 1905, the Hon'ble Supreme Court has held as under :
"The summary remedy for eviction which is provided for by S.6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". If there is a bona fide dispute regarding the title of the government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by S.6 for evicting the person who is in possession of the property under a bona fide claim or title. The summary remedy prescribed by S.6 is not the kind of legal process which is suited to an adjudication of complicated questions of title.
Held, that the questions as to the title to the three plots could not appropriately be decided in a summary inquiry contemplated by Ss.6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of those plots raised a genuine dispute between them and the Government on the question of title, remembering specially that the property, admittedly, belonged originally to the family of Nawab Habibudin from whom the respondents claimed to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession had to be decided in a properly constituted suit and until the Government succeeded in establishing its title to the property, the respondents could not be evicted summarily."
Reference is also made to the judgment in the case of M/s. Shree Bajrang Hard Coke Manufacturing Corporation (AIR 2003 Jhar 17) (supra), wherein, a Division Bench of Jharkhand High Court, while considering the scope of provision under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, has held in paras 14 and 19 as under :
"14. From what has been discussed and quoted above, it is abundantly clear that an authority under the aforementioned Act has a very limited jurisdiction and it has to determine only a dispute that may arise, vis-a-vis a public premises. Upon an application made before it, it has to proceed in a summary disposal thereto. The question, as to whether the area formed part of the Royal Tisra Colliery or not, consequently making it a public premise is a question that becomes the focal point of the instant case and it, therefore, obviously involve determination/finding of fact. Undoubtedly, while attempting to come to such finding, the authority may be faced with complicated question of title as is involved in the instant case. The authority in the aforementioned case cannot be said to have the jurisdiction to embark upon the domain of the Civil Court for the purposes of adjudicating on a question of a complicated title, which can only be done by a Civil Court. It would be extremely unreasonable to allow a Court vested with summary procedure to give a finding, which can only be arrived at by a Civil Court having the necessary judicial competence.
19. .....Now, under Section 5 of the aforementioned Public Premises (Eviction of Unauthorised Occupants) Act, 1971, it is clear that a Estate Officer after following the procedure required to be followed therein and after reaching to a conclusion that a person is in unauthorized occupation of a public premises, he may make an order of eviction. The catch words that cannot be lost track of in this provision are that, all that the Estate Officer is required to do is that he must come to a conclusion that a person is in occupation of an area which is already confirmed or which has already been declared to be a public premises. He cannot nor does he have the jurisdiction to identify a particular piece of property and then give a finding that, that piece of property is a public property. This power is vested only with a Court of competent civil jurisdiction and not in a statutory authority, such as Estate Officer, who has been conferred only with summary powers. If such Estate Officers are allowed to give such finding, it would amount to conferring them with the powers of adjudication and delivery of judgments within the meaning of Section 2(a) read with provisions of Order XIV of the Code of Civil Procedure and/or principles/provisions analogous thereto."
Reference is also made to the case of State of Rajasthan (supra), wherein, the Hon'ble Supreme Court, while considering the provisions under Section 91 of Rajasthan Land Revenue Act, 1956, which provides for summary proceedings for eviction of unauthorized occupants, has observed that where there is a bona fide dispute, the matter cannot be decided under the said Section, and it is held that in such cases, proper course would be to have the matter adjudicated by the competent Court of Law.
III) Analysis :
It is a settled position of law that the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is intended for the eviction of unauthorized occupants from public premises, which clearly indicates that if only the occupation of a person of a public premises is unauthorized, the provisions of the Act comes into operation and the Act is intended to prescribe a special procedure for evicting unauthorized occupants, occupying public premises, namely the premises belonging to the Government and other public bodies. As held by the Supreme Court in the Govt. of Andhra Pradesh Vs. Thummalal Krishna Rao & Anr. reported in AIR 1982 SC -1081, the summary remedy for eviction which is provided for by the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is “the property of Government”. If there is a bonafide dispute regarding the title of the Government to any property, the Government can not take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse of the summary remedy provided for evicting the person who is in possession of the property under a bonafide claim or title. The summary remedy prescribed is not the kind of legal process which is suited to an adjudication of complicated question of title.
In the present case I very pin-pointedly inquired with learned Advocate Mr.Ghori as to whether Railways has any evidence in support of their claim over and above the map on which heavy reliance has been placed. Mr.Ghori with all fairness at his command replied that except the map there is no other document evidencing title over the property. Mr.Ghori also very fairly conceded that a bare look at the map would go to show that it is not an accurate map. Thus, the position seems to be absolutely clear. The petitioners are relying upon a map said to have been prepared by the Collector in support of their claim that Railways is the owner. Whereas on the other hand there are sale deeds right from 1946 till the last sale deed in favour of the respondents to show that at no point of time Railways has been shown as owners of the property in question.
Sec. 83 of the Indian Evidence Act provides that the court shall presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate, but maps and plans made for any other cause must be proved to be accurate. In this case there is nothing to show that the map was prepared under the authority of any Government. So, no presumption of accuracy can also be attached to it. There is no other evidence that the map is accurate. I am of the firm view that title over the property cannot be decided solely on the basis of a map. If the Railways are of the view that they are the true owners of the land in question, then it is upto them to challenge the legality and validity of the sale deeds by filing appropriate civil suit in this regard, but could not have taken resort to a summary remedy provided for evicting a person who is in possession of the land under a bonafide claim or title.
In Podduturi Vasantha Reddy (Supra), Andhra Pradesh High Court took the following view:
“The Public Premises (Eviction of Unauthorised Occupants), Act has been designed and intended for ordering evictions and removal of encroachments in cases where there is no dispute with regard to title and possession of property in question. The powers conferred on authorities under said Legislation are only to order eviction and removal of constructions with regard to premises which belong to them. But in cases, where there is a bona fide dispute with regard to title/boundaries of land belonging to the Government or its Corporations or companies, such disputes are outside scope of said Legislation, and authority constituted under said enactment cannot be said to have jurisdiction to embark upon the domain of the Civil Court for purpose of adjudicating civil disputes, the power of which, is exclusively vested in such Courts, and it would be unreasonable to allow such authority to decide such disputes by invoking the provisions of Public Premises Act, 1971, which provides for a summary procedure to conduct inquiry and order for eviction and removal of constructions. In that view of the matter, when the said provisions are read with reference to the object of the Legislation, it is clear that the said piece of Legislation never intended to give its authorities the power to decide such complicated questions of title disputes, so as to decide the same by passing orders under Section 5 of the said Act.”
“11. In that view of the matter, the definition pre-supposes that the premises shall belong to the Government or the Government- owned Company, so as to construe the same as a 'public premises', and the said Legislation is enacted for the purpose of taking steps for eviction and removal of constructions on such public premises. Section 5 of the said Act empowers the authorities to order eviction of the unauthorized occupants, whereas Section 5-A empowers the authorities to remove the unauthorized constructions, etc.”
Thus, taking into consideration all relevant aspects of the matter I am of the view that no interference in the present case is warranted as I do not find any error much less an error of law said to have been committed by the appellate authority in allowing the appeal preferred by the respondents. In the result, the petition fails and is hereby rejected. However, in the facts and circumstances of the case there shall be no order as to costs.
Rule discharged.
(J.B.Pardiwala, J) mehul