Allahabad High Court
Union Of India vs Viith Additional District Judge ... on 23 January, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- WRIT - C No. - 48479 of 1999
Petitioner :- Union of India
Respondent :- VIIIth Additional District Judge And Another
Counsel for Petitioner :- Shitla Sahai,N.C.Tripathi
Counsel for Respondent :- S.C.,A.R.Singh,Ramesh Singh
Hon'ble Rohit Ranjan Agarwal,J.
1. List revised. Sri N.C.Tripathi, learned counsel for the petitioner is present but no one is present on behalf of private contesting respondent though the names of Sri Ramesh Singh and Sri A.R.Singh, Advocates have been shown as counsel for the respondent.
2. This writ petition has been filed assailing the order dated 18.03.1999 passed by VIIth Additional District Judge, Kanpur Nagar.
3. A prayer has been made for filing an application for converting the petition under Article 227 of the Constitution from Article 226 of the Constitution and relied upon judgment of Apex Court in Radhey Shyam & Anr. v. Chhabi Nath & Ors. (2015) 5 SCC 423.
4. The prayer is accepted and the petition stands converted under Article 227 of the Constitution of India.
5. The facts in brief are that the proceedings against the private respondent was initiated by the Railway Authorities dated 18.8.1988 under Section 7(3) of Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The Estate Officer, Northern Railways, Kanpur found service of notice upon respondents to be sufficient on the ground that publication was made in daily newspaper Dainik Jagran published on 17.10.1988, which was widely circulated in Kanpur Nagar and the date for final hearing was fixed. When no one appeared, the officer concerned exercising power conferred under Section 5(1) of the Act, proceeded to hear the matter and passed the order for eviction. Against the eviction order dated 05.01.1989, Misc. Appeal No.7 of 1992 was preferred before the Court of VIIth Additional District Judge, Kanpur Nagar. The appeal was allowed vide order impugned dated 18.3.1999.
6. Sri Tripathi, learned counsel for the petitioner submitted that the Court below solely on the basis that the Estate Officer without any material on record as to the publication of notice made in Dainik Jagran, proceeded to hold service of notice upon the private respondent to be sufficient and passed order for eviction. He further contended that the Court below has observed that the matter in the light on the said fact should have been remanded back to the Estate Officer, Northern Railways, Kanpur but without remanding the matter, had allowed the appeal.
7. I have heard counsel for the petitioner and perused the material on record.
8. From perusal of the order impugned, it is clear that the Court below has recorded a categorical finding that there is no material before the Estate Officer as to the publication made in the daily newspaper Dainik Jagran and merely on surmises, he proceeded to hold the service upon private respondent to be sufficient. The Court below should have remanded the matter back to the Estate Officer once it had recorded a finding that notice upon the private respondents was not sufficient.
9. Considering the facts and circumstances of this case, I find that the order passed by Appellate Court dated 18.3.1999 is unsustainable in the eyes of law and the same is hereby set aside. The matter is remanded back to the Estate Officer, Northern Central Railways, Kanpur Nagar to issue proper notice to the contesting private respondent and, if necessary, make an order for publication in daily newspaper having wide circulation and after that, proceed with the matter and decide the same strictly in accordance with law.
10. With the aforesaid direction, the writ petition stands partly allowed.
Order Date :- 23.1.2023
Kushal
