Keshab Das vs The Union Of India And 2 Ors
2021 Latest Caselaw 3123 Gua

                                                                     Page No.# 1/7

GAHC010024962019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP/23/2019

            KESHAB DAS
            S/O LATE RATAN DAS
            R/O UZANBAZAR, JAHAJGHAT, GUWAHATI -1, KAMRUP (METRO).



            VERSUS

            THE UNION OF INDIA AND 2 ORS.
            REP. BY THE SECRETARY RAILWAYS, RAIL BHAWAN, NEW DELHI.

            2:THE GENERAL MANAGER

             N.F. RAILWAYS
             MALIGAON HEADQUARTERS
             MALIGAON
             GUWAHATI-11
             DIST. KAMRUP (METRO)
             ASSAM

            3:THE ESTATE OFFICER

             N.F. RAILWAYS
             MALIGAON HEADQUARTERS
             MALIGAON
             GUWAHATI-11
             DIST. KAMRUP (METRO)
             ASSAM

            4:DEPUTY COMMISSIONER CUM COLLECTOR
             KAMRUP (M)
            ASSAM

Advocate for the Petitioner   : MR. A BORBORA
                                                                 Page No.# 2/7


Advocate for the Respondent : SC, NF RLY




            Linked Case : CRP/25/2019

           TUNU DAS
           W/O- LATE BASUDEV DAS
           R/O- UZANBAZAR
           JAHAJGHAT
           GUWAHATI- 01
           KAMRUP (M)


            VERSUS

           THE UNION OF INDIA AND 2 ORS
           REP. BY THE SECRETARY
           RAILWAYS
           RAIL BHAWAN
           NEW DELHI

           2:THE GENERAL MANAGER
           NF RAILWAYS
            MALIGAON HQ
            MALIGAON
            GUWAHATI- 11
            DIST- KAMRUP(M)
           ASSAM
            3:THE ESTATE OFFICER
           N F RAILWAYS
            MALIGAON
            GUWAHATI- 11
            DIST- KAMRUP (M)
           ASSAM
            4:DEPUTY COMMISSIONER CUM COLLECTOR
           KAMRUP (M)
           ASSAM.
            ------------
           Advocate for : MR. A BORBORA
           Advocate for : SC
            NF RLY appearing for THE UNION OF INDIA AND 2 ORS
                                                                            Page No.# 3/7

                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                        ORDER

Date : 26-11-2021

Heard Mr. S. Bharali, learned counsel for the petitioner as well as Mr. B. Sarma, learned counsel appearing on behalf of the respondents.

2. This is an application under section 115 of the CPC challenging the order dated 09.11.2018 passed in Misc. App.No.57/2014 whereby the appeal filed by the petitioner was dismissed, thereby directing the appellant to vacate the public premises within a period of 15 days from the date of receipt of the order.

3. The brief facts for the purpose of disposal of the instant petition is that the Estate officer of N.F. Railway had issued an eviction notice dated 16.04.2012 and 18.04.2012 in Eviction Case No.EO/MLG/2348/2012 asking the petitioner herein to show-cause along with evidence/documents. Against the said eviction notice, the petitioner did not file any show-cause reply. However, an appeal was preferred along with other persons before the District Judge, Kamrup which was registered as Misc. App.3/2012. In the said appeal the challenge was to the jurisdiction of the Estate officer in issuing the said show- cause notice to the petitioner along with the other persons. However, by an order dated 10.02.2014 the said appeal was dismissed thereby directing the petitioners along with the other appellants therein to appear before the Estate officer and submit their show-cause. Inspite of the said order passed by the learned District Judge, Kamrup dated 10.02.2014 in Misc. App. No.3/2012 no show-cause notice was filed. The Estate officer thereupon passed an order dated 18.09.2014 whereby directed the petitioner to vacate the premises within Page No.# 4/7

15 days from the date of receipt of the order. Interestingly, neither in the notice issued to the petitioner nor in the order dated 18.09.2000 there was any Dag number mentioned and only a boundary has been mentioned along with Plan number being T/13/2010. Thereupon the petitioner along with others submitted a representation to the General Manager, NF Railway on 29.09.2014 on the ground that the Estate Officer did not provide an opportunity of hearing to the petitioner alongwith others while passing the order dated 18.09.2014. Subsequent thereto, the petitioner along with others approached this Court by way of writ petition being WP(C) No.5218/2014 challenging the order dated 18.09.2014 in Eviction Case No.EO/MLG/2348/2012. This Hon'ble Court however, without expressing any opinion on merit granted the petitioner along with others the liberty to file an appeal under the appropriate provision of law before the Appellate authority within a period of 30 days from the date of order passed by this Court i.e. 09.10.2014. At this stage it may be relevant herein to quote the relevant portion of the said order for the sake of convenience as the same is relevant for deciding the instant case:

"Under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 petitioners have their remedy of filing appeal. Without expressing any opinion on merit, liberty is granted to the petitioners to file appeal under the appropriate provision before the appellate authority. To enable filing of such appeal, the impugned eviction notices dated 18.09.2014 shall remain in abeyance for a period of 30 (thirty) days from today.

It is however made clear that if the petitioners do not file any appeal within the period specified, the above order would no longer be operative at the expiry of 30 (thirty) days.

Accordingly, writ petition is disposed of."

4. Thereupon the petitioner on 07.11.2014 filed an appeal under section 9 of the Public Premises (Eviction of unauthorized occupants) Act, 1971 against Page No.# 5/7

the order dated 18.09.2014 passed in Eviction case NO. EOML /MLJ/ 2348/ 2012 and the said appeal was admitted for hearing and the order dated 18.09.2014 was also stayed by an order dated 07.11.2014. Subsequent thereto, the Court of the District Judge, Kamrup (M) vide judgment dated 08.11.2018 dismissed the appeal on the grounds of limitation as well as also on the ground of the failure on the part of the petitioner to prove the land in question actually belongs to the State of Assam and not settled with the NF Railway. It is against the said judgment and order dated 08.11.2018 that the petitioner had approached this Court by invoking the revisional jurisdiction of this Court.

5. I have heard Mr. S. Bharali, learned counsel for the petitioner who submits that the Court below while passing the impugned judgment completely failed to take into consideration the order dated 09.10.2014 in the proper prospective in so far as the question of limitation was concerned in as much a perusal of the said order dated 09.10.2014 would clearly go to show that the this Court had permitted the petitioner to file an appeal within a period of 30 days and the petitioner having filed the appeal on 07.11.2014 the said appeal was within the period of limitation. He further submits that there is no denial to the fact that the land of the Railway authorities is Dag no.203 but the petitioner does not possess any part of the Dag No.203. The petitioners are actually in possession of Dag No.204 and the Court below have completely not taken into consideration that very aspect of the matter, moreso, when the impugned notice dated 16.04.2012 as well as order dated 18.09.2014 there was no mention of any dag number and had only referred to a plan numbered T/13/2010.

6. On the other hand, Mr. B. Sarma, learned counsel appearing on behalf of the Railway authorities submits that the documents on the basis of which the Page No.# 6/7

Railways claim that the Dag no.203 is their was duly placed before the Appellate Court and the concerned Jamabandi of Dag No.203 also showed that the Dag No.203 belongs to the respondent Railways and that the petitioner along with others were the encroachers of the Railway land. It is on the basis of the said documents, the Appellate Court had come to a finding in respect to point No.2 and 3 that the petitioner herein is an encroacher and accordingly had rightly passed the impugned judgment thereby directing the petitioner to vacate the premises within a period of 15 days.

7. I have heard the learned counsel for the parties at length and have also perused the impugned order along with the records of the case. The question of limitation in respect to which the Court below had interfered in my opinion was wrongly decided in as much as this Court had under Article 226 of the Constitution of India enlarged the limitation, thereby granting the petitioner a period of 30 days from the date of order passed by this Court i.e. 09.10.2014. Accordingly, the said appeal so filed on 07.11.2014 was within the period of limitation. It is also relevant herein to take note that there was no challenge to the said order dated 09.10.2014 in any other proceedings and as such the said order had attained finality in so far as the petitioner as well as the respondent Railway authorities were concerned.

8. The second aspect of the matter relates to whether the petitioner is encroacher of the Railway land and thereby liable to be evicted under the provision of the Act of 1971. It is the specific case of the petitioner as well as of the respondents that the Dag No.203 belongs to the Railway authorities. However, it is the case of the petitioner that they are not encroaching upon Dag Page No.# 7/7

No.203 rather they are in settled possession in Dag No.204 which is a government of Assam land and that they have no claim or right in respect of Dag No.203. In that view of the matter taking into consideration that it being an admitted fact that the petitioner do not claim any right upon the Dag No.203 and their claim is in respect to Dag No.204 only, it would be in the interest of justice to permit the Railway authorities to go ahead with the eviction in respect to Dag No.203 with the help of revenue authorities.

9. It would be in the interest of justice that the respondent Railway authorities carries out the eviction in respect to Dag No.203 with the assistance of the Revenue authorities who can clearly demarcate Dag No.203. It is made clear that if the petitioner is found to be in possession of the Dag No.203 she shall be evicted.

10. With the above observations the instant petition stands disposed of.

11. No costs.

JUDGE

Comparing Assistant