Page No.# 1/8 vs Banjit Kumar
2025 Latest Caselaw 3634 Gua

Gauhati High Court

Page No.# 1/8 vs Banjit Kumar on 3 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/8

GAHC010015832025




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

                             Case No. : CRP/25/2025

         THE UNION OF INDIA AND 2 ORS
         REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
         GUWAHATI-11.

         2: ESTATE OFFICER
          MALIGAON
          N.F. RAILWAY
          MALIGAON
          GUWAHATI-11.

         3: DIVISIONAL ENGINEER
          MALIGAON
          N.F. RAILWAY
          MALIGAON
          GUWAHATI-11

         VERSUS

         BANJIT KUMAR
         SON OF LATE NABA KUMAR, RESIDENT OF VILLAGE- PADUMBORI, P.O.-
         GOTANAGAR, P.S- JALUKBARI, GUWAHATI- 781033, DIST- KAMRUP (M),
         ASSAM.

Advocate for the Petitioners     : Mr. K. Gogoi, Advocate

Advocate for the Respondent : Mr. B. Kaushik, Advocate
                                                        Page No.# 2/8


                          BEFORE
     HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                 Date of Hearing       : 03.03.2025

                Date of Judgment       : 03.03.2025
                JUDGMENT AND ORDER (ORAL)

Heard Mr. K. Gogoi, the learned counsel appearing on behalf of the petitioners and Mr. B. Kaushik, the learned counsel appears on behalf of the respondent.

2. The petitioners herein have assailed the judgment and order dated 31.08.2024 passed in Misc. Appeal No.81/2021 by the learned Additional District Judge No.1, Kamrup (M) at Guwahati whereby the order dated 25.08.2021 passed in Misc. Eviction Case No. EO/MLG/06/2021 by the Estate Officer, N.F. Railway, Maligaon was set aside.

3. This Court has duly perused the judgment and order dated 31.08.2024 passed in Misc. Appeal No.81/2021 whereby the learned Appellate Authority had held that the eviction order impugned in the said proceedings was bad in law on the ground that the judgment passed in Misc. Appeal No.27/2015 dated 05.06.2018 having attained finality for which the Estate Officer could not have passed the eviction order dated 25.08.2021. The learned Appellate Authority further observed in the impugned judgment and order that during the pendency of the said eviction Page No.# 3/8

proceedings, a representation was submitted by the respondent herein which was disposed of on 18.08.2021 and subsequent thereto, the eviction order was passed on 25.08.2021. On the basis thereof the learned Appellate Authority observed that as the respondent herein who was the appellant in the said proceedings had submitted a representation and that representation was disposed of without giving an opportunity of hearing, the impugned eviction order dated 25.08.2021 was bad in law and accordingly was set aside.

4. This Court has duly taken note of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as, "the Act of 1971"). From a perusal of the provisions of Section 4 and Section 5 of the Act of 1971, it is seen that the Estate Officer can exercise its jurisdiction only over a public premises as defined in Section 2(e) of the Act of 1971. Under such circumstances, if there is an unauthorized occupant over a public premises, the Estate Officer so appointed is required to issue notice in terms with Section 4 of the Act of 1971 calling upon the person who is an unauthorized occupant to show cause as to why an order of eviction should not be made.

5. In the instant case, it is seen that the respondent herein had submitted his objection to the show cause to the effect that the land in question was not a railway land but a Sarkari land. The Page No.# 4/8

Estate Officer had been conferred jurisdiction under the Act of 1971 to decide as to whether the premises which includes land is a public premise or not and in the instant case, as to whether, the land was a railway land. The Act of 1971 further empowers the Estate Officer if not satisfied with the reply to the show cause notice issued under Section 4 of the Act of 1971 to pass an order of eviction under Section 5 of the Act of 1971. Therefore, from the perusal of the Act of 1971, it is seen that in respect to a public premises, the Estate Officer is empowered to initiate action under Section 4 of the Act of 1971 and if not satisfied, for reasons to be recorded in an order and pass an order of eviction in terms with Section 5 of the Act of 1971.

6. This Court further finds it relevant to take note of that in the judgment and order dated 05.06.2018 in Misc. Appeal No. 27/2015, the learned Additional District Judge No.4, FTC, Kamrup (M) at Guwahati had interfered with the order of eviction passed earlier on the following grounds:

(a) The Estate Officer did not consider the representation so submitted by the respondent herein.

(b) The Estate Officer failed to consider any of the documents submitted on behalf of the respondent herein.

(c) The description of the land disclosed in the notice as Page No.# 5/8

well as the eviction order was indefinite and not clear and the Estate Officer came to a conclusion in a perfunctory manner without considering the representation/communication given by the respondent herein and without considering the documents submitted by the respondent herein.

(d) It was further opined that when there is a dispute as regards the claim of a Railway Authority over the land in question, the Estate Officer ought to have decided this said aspect of the matter as to who was the actual owner of the land before passing the eviction order.

7. This Court further finds it relevant to observe that the learned Appellate Authority while passing the judgment and order dated 05.06.2018 in Misc. Appeal No.27/2015 did not come to an opinion that the land in question was not a railway land. The judgment and order dated 05.06.2018 was passed interfering with the Estate Officer's order of eviction on the grounds as aforementioned meaning thereby that the Estate Officer passed the order without coming to a finding as to whether, the land in question was a railway land or not and further without considering the representation/show cause reply submitted by the respondent herein/the appellant therein. In view of the said findings, as there was no categorical finding by Page No.# 6/8

the learned Appellate Authority in its judgment and order dated 05.06.2018 that the land was not a railway land, it was open to the Estate Officer to further pursue with the eviction proceedings by following the mandate of Sections 4 and 5 of the Act of 1971 which was done so as would be seen from the order dated 25.08.2021.

8. This Court had perused the order dated 25.08.2021 and a perusal thereof, it is seen that the Estate Officer had came to a categorical finding that the land in question is a Railway land. The Respondent herein could not show any document authorizing him to occupy the land in question.

9. The learned Appellate Authority therefore ought to have considered as to whether the land in question was a railway land or not. However, the learned Appellate Authority vide the impugned judgment and order went on the question of the judgment and order dated 05.06.2018 passed in Misc. Appeal No. 27/2015 having attained finality which was not at all relevant taking into consideration that the judgment and order dated 05.06.2018 did not address the issue whether the land was Railway land or Government land. This in the opinion of this Court is a perverse finding in the impugned judgment and order dated 31.08.2024 passed in Misc. Appeal No. 81/2021.

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10. Additionally, the learned Appellate Authority had taken into consideration certain irrelevant matters as regards, a representation submitted for allotment of land which was not disposed properly and had no relevance or bearing in respect to a proceedings initiated under the provisions of the Act of 1971. The question which ought to have been adjudicated by the learned Appellate Authority is as to whether the land in question was a Sakari land or a Railway land and secondly, if the land was a Railway land, then whether the appellant before the Court had produced any document which would permit him to occupy the Railway land. The learned Appellate Authority failed to take relevant consideration in passing the order dated 31.08.2024 passed in Misc. Appeal No. 81/2021. Accordingly, this Court therefore interferes with the judgment and order dated 31.08.2024 passed in Misc. Appeal No. 81/2021.

11. Taking into account that the learned Appellate Authority did not decide the crucial questions as to whether the land in question is a Railway land or a Government khas land and if it is a Railway land, whether the appellant therein had the right to occupy on the basis of any legal document, this Court remands the matter back to the learned Appellate Authority to decide afresh Misc. Appeal No.81/2021 on the above aspect.

12. It has been submitted by Mr. B. Kaushik, the learned Page No.# 8/8

counsel appearing on behalf of the respondent that when the appeals were admitted by the learned Appellate Authority, there was a stay as regards the eviction in terms with the eviction order dated 25.08.2021.

13. Taking into account the above, this Court directs that status quo be maintained as regards the possession over the land in question till the disposal of the Appeal. This Court further directs both the parties to appear before the learned Appellate Authority on 24.03.2025 and the petitioners herein shall produce a certified copy of the instant judgment. The learned Appellate Authority shall thereupon proceed with the adjudication of the Appeal in the manner above stated and the said appeal be disposed of as expeditiously as possible and preferably within 4 (four) months from 05.03.2025.

14. With above observations and directions, the instant petition stands disposed of.

JUDGE

Comparing Assistant