Smt. Shaila Devi @ Shaila Kumar vs The Union Of India
2022 Latest Caselaw 4584 Jhar

                                      1


               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              W.P.(C) No.2404 of 2013
                                    ---------

1. Smt. Shaila Devi @ Shaila Kumar

2. Sri Om Narayan Singh @ Tuntun Singh .......... Petitioners Versus

1. The Union of India

2. The Estate Officer, South Eastern Railway, Chakardharpur

3. Sri. S.K. Samal, Estate Officer, South Eastern Railway, Chakardharpur ......... Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioners : Mr. V.P. Singh, Sr. Advocate : Mr. Bhaiya Vishwajeet Kumar, Adv.

: Mr. Ranjeet Kumar, Advocate For the Respondents : Mr. Vikash Kumar, C.G.C.

---

20/17.11.2022 This writ petition is filed under Article 227 of the

Constitution of India for quashing of the order dated 29.09.2011

passed by the Estate Officer, S.E. Railway, Chakardharpur in EC

No.66/1978 holding the petitioners unauthorized occupants of a

total area measuring 3740 Sq. Ft. (68 Sq. Ft x 55 Sq. Ft) of the land

in Plot No.1, Khata No.14, Thana No.1162 in Mouza Susnigaria,

which is of South Eastern Railway and thereby, the ordered to

vacate the said premises within 15 days from the date of

publication of the order. Further, prayer has been made for

quashing of the order dated 2nd April, 2013 passed by the District

Judge-III, East Singhbhum at Jamshedpur in Misc. Appeal

No.17/2011, by which, the order passed by the Estate Officer

dated 29.09.2011 in EC No.66/1978 has been affirmed.

2. The brief facts of the case, as per the pleading made in the

petition, which required to be enumerated read as under:-

It is the case of the petitioners that one Akhilesh Prasad

Singh, deceased husband of the petitioner no.1 and father of

petitioner no.2 was served with a notice dated 06.05.1978 under

Section 4(1) of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971, (hereinafter referred to as the Act, 1971) in

Eviction Case No.66/1978 alleging therein that the land

measuring 1890 Sq. Ft. (675 Sq. Ft. + 1215 Sq. Ft) with specific

boundary belonged to Union of India represented by South

Eastern Railway Administration. The said proceeding

commenced, however, an ex-parte order was passed on 18.05.1979

and in the meanwhile, the said Akhilesh Prasad Singh died.

However, the petitioners filed Misc. Appeal No.14/1979

against the order dated 18.05.1979 before the appellate authority,

as per the provision as contained under the Act, 1971 but the said

ex-parte order was confirmed by the Appellate Court vide order

dated 25.05.1985.

The petitioners preferred CWJC No.1173 of 1985(R) before

the Ranchi Bench of the Patna High Court and the order passed

by the Original as also the Appellate Authority were quashed by

the Division Bench vide order dated 07.11.1990 and the matter

was remitted back to the Estate Officer to decide the matter

afresh after giving opportunity of hearing to the petitioners. The

Estate Officer again has passed order afresh on 02.09.1993, which

was again confirmed by the Appellate Court by dismissing the

appeal of the petitioners vide order dated 13.04.2004. The

petitioners again filed writ petition being W.P.(C) No.3475 of

2004 challenging the aforesaid order and again the writ petition

was allowed in terms of judgment dated 02.09.2009 by remitting

the matter back to the Estate Officer with a direction to pass a

fresh speaking and reasoned order in accordance with law.

The petitioners have filed their show cause pursuant to

notice dated 06.05.1978 and judgment dated 02.09.2009 stating

inter-alia that the land in question was originally recorded in the

name of Pawan Bhumij and aboriginal member of Scheduled

Tribe, the great Grandfather of Digamber Bhumij and since 1930,

the petitioners and their ancestors were coming in the possession

by constructing the shops thereon.

The further point has been raised that the Estate Officer had

no jurisdiction to initiate proceeding as he was not authorized to

pass order under Section 3 of the Act, 1971. Thereafter, the

proceeding proceeded and finally the order passed by the Estate

Officer on 29.09.2011 for eviction of the petitioners from the suit

premises within 15 days from the publication of the order. The

petitioners, being aggrieved with the order of the Estate Officer

dated 29.09.2011 in EC Case No.66 of 1978, have preferred

statutory appeal under Section 9 of the Act, 1971 being Misc.

Appeal No.17 of 2011.

During its pendency, petitioners have filed writ petition

being W.P.(C) No.7609 of 2012 which was dismissed vide order

dated 20.12.2012, against which, the petitioners have filed L.P.A.

No.17 of 2013, wherein, the Division Bench vide order dated

21.02.2013 has been pleased to pass an order granting stay of

eviction from the premises with a direction to decide the appeal

on merit and further, with a direction not to demolish any

structure for a further period of fifteen days after the decision of

the appellate authority. The appellate authority, thereafter, has

passed order on 02.04.2013 by dismissing the Misc. Appeal No.17

of 2011 which is the subject matter of the instant petition.

3. Mr. V.P. Singh, learned Senior Counsel appearing for the

petitioners has taken the following grounds in assailing the order

passed by the Estate Officer confirmed by the appellate authority,

i.e.,:-

(A.) The person/authority, who has passed the impugned

order in Form-'B' under Section 5(1) of the Act, 1971 on

29.09.2011 was not duly notified in "Official Gazette" as "Estate

Officer" and that also for the area where the land in dispute is

situated;

(B.) The notice issued under Section 4(1) of the Act, 1971 in

Form-'A' on 06.05.1978 was vague and was not in conformity

with the provisions of Rule-3 of the Public Premises (Eviction of

Unauthorised Occupants) Rules, 1971;

(C.) The authority who passed the order dated 29.09.2011

adopted a procedure which was unknown to law;

(D.) The proceeding under the Act is a summary

proceeding, but in this case a dispute to title coupled with long

possession has been decided;

(E.) The decision of the authority under Section 5(1) of the

Act as well as of the appellate authority, even on merit was not

legal, valid and justified. The findings recorded therein are also

perverse.

4. While, on the other hand, Mr. Vikash Kumar, learned

counsel appearing for the respondent-South Eastern Railway has

submitted that whatever ground has been raised on behalf of the

learned Senior Counsel for the petitioners more particularly the

ground pertaining to jurisdiction of the Estate Officer, the same is

not worth to be considered, reason being that, this is the 4th round

of litigation, while the writ petition was filed on first occasion

against the proceeding which was commenced in pursuant to

notice dated 06.05.1978, basis upon which, an order was passed

on 18.05.1979.

It has been submitted that the Estate Officer who has

passed the order in Eviction Case No.66/1978 on 29.09.2011 has

well been conferred with the power to act as Estate Officer in

view of notification issued in this regard by the competent

authority on 08.10.1985, as has been appended in Supplementary

affidavit filed on behalf of the respondent on 17.10.2022 and as

such, it is incorrect on the part of the petitioners to agitate the

point about the jurisdiction having not been conferred with the

Estate Officer, who has passed the order dated 29.09.2011 in

Eviction Case No.66 of 1978.

5. So far as the issue on merit is concerned, it has been

contended that the predecessor-in-interest of the petitioners or

the petitioners are trespassers upon a piece of railway land

situated over Plot no.1, Khata No.14, Thana No.1162 in Mouza

Susnigaria which belongs to the South Eastern Railway, wherein,

the land in question was recorded in the name of Bengal Nagpur

Railway (BNR) and in the present settlement, it was recorded in

the name of South Eastern Railway.

The fact about title which is being claimed by the

petitioners has well been considered by the Estate Officer by

recording a specific finding to that effect holding the petitioners

to be unauthorized occupants of total area measuring 3740 Sq. ft.

in Plot No.1, Khata No.14, Thana 1162, Mouza-Sunsnigaria which

is of South Eastern Railway.

It has been contended that the Estate Officer and the

appellate authority after going through the testimony of the

witnesses have arrived at conclusive finding that the land in

question was recorded in the name of BNR in the revisional

survey finally published in the year 1937 and at present, it has

been recorded in the name of South Eastern Railway. The BNR

has acquired this land for the railway purpose and after BNR, the

South Eastern Railway was in the possession of the said land.

It has further been arrived at that late Akhilesh Singh for

the first time, i.e., on 25.05.1977 encroached upon a piece of land

measuring an area of 675 Sq. ft., and on 25.12.1977, encroached

1215 sq. ft. of land in Plot no.1, Khata No.14 in Mouza-Susnigaria,

Tatanagar Station road, P.S. Jugsalai.

The Estate Officer, based upon such testimony has passed

order for eviction of unauthorized occupants.

In this pretext, submission has been made that since the fact

finding has been arrived at by the Estate Officer which has duly

been confirmed by the appellate authority, therefore, the same

cannot be reversed in exercise of power conferred under Article

227 of the Constitution of India.

6. This Court has heard the learned counsel for the parties and

has gone through the relevant documents.

7. This Court, after considering the arguments advanced on

behalf of the parties, deems it fit and proper to first delve upon

the issue of jurisdiction to act as Estate Officer. But before going

through the said issue, it requires to refer herein that the instant

eviction proceeding as has been initiated after issuance of notice

under Section 4(1) of the Act, 1971, which was issued on

06.05.1978.

The order, in pursuant to the notice dated 06.05.1978, was

passed by the Estate Officer on 18.05.1979. Thereafter, an appeal

was preferred against the said order by filing Misc. Appeal being

Misc. Appeal No.14/1979 which was dismissed on 25.05.1985.

The aforesaid order was challenged before this Court by filing

writ petition being CWJC No.1173 of 1985(R).

8. This Court, after taking into consideration the fact that the

order was passed ex-parte, has remitted the matter before the

authority to decide the issue afresh by providing opportunity of

hearing to the petitioners to adduce evidence by passing an order

in the aforesaid writ petition on 07.11.1990.

Akhilesh Singh, who was party to the Eviction Case

No.66/1978, had died during the pendency of the aforesaid

proceeding, hence, Most. Shaila Kumari @ Shaila Devi and others

have been substituted as legal heirs in Misc. Appeal No.14 of

1979. The said Most. Shaila Kumari @ Shaila Devi and others

were also party to the writ petition being CWJC No.1173 of 1985.

The writ petitioners had appeared before the Estate Officer but

not filed show cause notice even after giving ample opportunity

and as such, eviction case was again heard ex-parte and eviction

order was passed against the appellants on 02.09.1993 by the

Estate Officer, South Eastern Railway, Chakradharpur.

The writ petitioners again filed an appeal against the order

dated 02.09.1993 which was registered as Misc. Appeal

No.27/1998 but the same was dismissed vide order dated

13.04.2004. The order dated 13.04.2004 passed in Misc. Appeal

No.27/1998 was challenged by filing writ petition before this

Court being W.P.(C) No.3475/04. The coordinate learned Single

Judge of this Court has quashed the order of Estate Officer as also

the order of the appellate authority by remanding the matter to

the Court of Estate Officer, South Eastern Railway,

Chakradharpur with a direction to the appellants to appear

before the Estate Officer on 10.09.2009 to submit show cause,

whereafter, the Estate Officer shall fixed a date within one week

from the date of appearance of the parties to enable them to

adduce evidence, if any within two months from the date of

order and Estate Officer, Chakradharpur shall take a final

decision by passing a reasoned speaking order in accordance

with law, subject to payment of cost of Rs.10,000/-.

The writ petitioners appeared before the Estate Officer and

adduced evidence. The Estate Officer passed an order on

29.09.2011 in Eviction Case No.66/1978. Thereafter, an appeal

was preferred being Misc. Appeal No.17 of 2011 which was

dismissed vide order dated 2nd April, 2013.

It is thus, evident from the aforesaid factual aspect that at

the first instance, when the order was passed by the Estate

Officer, i.e., on 18.05.1979, due to the death of Opposite Party, i.e.,

Akhilesh Singh, the matter proceeded ex-parte and as such, the

legal heirs, i.e., Most. Shaila Kumari @ Shaila Devi and others

have been substituted in appeal against the order dated

18.05.1979 in Misc. Appeal No.14/1979 which, however, was

dismissed. The legal heirs of the predecessor-in-interest, i.e.,

Akhilesh Singh filed writ petition being CWJC No.1173/1985(R),

wherein, the issue of ex-parte order and no opportunity of hearing

having been provided was the ground to question the order

dated 18.05.1979.

The coordinate learned Single Judge has considered the

aforesaid matter and quashed it by remitting the matter before

the Estate Officer to provide an opportunity to the petitioners.

But the petitioners have again chosen not to appear before the

Estate Officer and hence, the order ex-parte again was passed.

Again, the same was quashed vide order dated 02.09.2009 passed

in W.P.(C) No.3475/2004. But no issue of jurisdictional error of

the Estate Officer has ever been taken by the writ petitioners.

However, when the matter was remanded by the coordinate

learned Single Judge of this Court by passing an order on

02.09.2009 passed in W.P.(C) No.3475/2004, has taken the issue of

jurisdiction in the show cause.

9. The provision of Section 3(a) of the Act, 1971 provides for

appointment of Estate Officers, whereby and whereunder, the

Central Government may, by notification in the Official Gazette,

appoint such persons being Gazetted Officers of Government (or

of the Government of any Union territory) or officers of

equivalent rank of the (statutory authority), as it thinks fit, to be

estate officers for the purpose of this Act, for ready reference,

Section 3(a) of the Act reads as under:-

"3. Appointment of estate officers.-The Central

Government may, by notification in the Official Gazette,-

(a) Appoint such person, being Gazetted Officers of

Government [ or of the Government of any Union

territory] or officers of equivalent rank of the [statutory

authority], as it thinks fit, to be estate officers for the

purpose of this Act."

It is thus, evident from the provision as contained under

Section 3 of the Act, 1971 that it is the Central Government by

way of notification in the Official Gazette, who is to appoint such

person being Gazetted Officers of Government or officers of

equivalent rank of the statutory authority.

It is further evident from Section 4 of the Act, 1971 that it is

the Estate Officers who is required to issue notice, if the Estate

Officer has information that any person is in unauthorized

occupation of any public premises and that he should be evicted.

10. The question which is required to be considered herein that

at such belated stage, whether the issue of jurisdiction in

pursuant to notice dated 06.05.1978 can be allowed to be agitated

by the petitioners in the 4th round of litigation, even though, the

said issue was available with the petitioners at the time of filing

of first writ petition being CWJC No.1173/1985(R).

11. The answer of this Court will be negated on the ground that

even though, the issue of jurisdiction being the law point is

required to be raised at any stage of the proceeding but whether

that stage can be construed to be in the 4th round of litigations.

The implied meaning of 'stage', according to the considered view

of this Court will be the stage of initial proceeding and not the

subsequent proceeding, herein, such point is being raised at the

4th round of litigation.

This Court is also of the view after going through the

material available on record that on first occasion the order was

challenged before this Court being ex-parte which can be

considered to be a genuine ground, since, the original

unauthorized occupant, namely, Akhilesh Singh had died in

course of pendency of Eviction Case No.66/1978 and as such, the

ground of ex-parte decision has been considered to be a good

ground for interference shown by this Court by remitting the

matter before the authority to pass a fresh order. But, even in the

2nd round of litigation, the writ petitioners have not put their

appearance before the Estate Officer and again, the ex-parte order

was passed on 02.09.1993 which having been confirmed in an

order passed in Misc. Appeal No.27/1998 vide order dated

13.04.2004, again the same was challenged before this Court by

filing writ petition being W.P.(C) No.3475 of 2004. However, this

Court again interfered with the order in order to provide

opportunity to put-forth the evidence.

It is only in the 4th round of litigation which had arisen after

passing of order in W.P.(C) No.3475 of 2004, the show cause was

filed by the petitioners/applicants and the issue of jurisdiction of

the Estate Officer has been questioned.

12. This Court, in view of the aforesaid conduct of the writ

petitioners is not hesitant in coming to conclusion that the writ

petitioners only for the purpose of delaying and to have the

possession of the land, have not appeared in the 2nd round of

litigation, even though, there was specific direction to file show

cause in order to provide opportunity to the petitioners.

The issue of jurisdiction was well available at the time of

filing of show cause, when the matter was remanded by the

coordinate learned Single Judge of this Court by passing an order

in CWJC No.1173/1985(R) which was disposed of on 07.11.1990.

The respondent, however, has brought on record the

notification issued on 08.10.1985 by the Ministry of Railways

(Railway Board) which was published in the Gazette of India Part

II Section 3(ii) appointing the Divisional Engineers, Adra,

Chakradharpur, Bilaspur, Kharagpur, Khurda, Nagpur and

Waltair, South Eastern Railway to act as Estate Officer.

13. This Court, therefore, is of the view that since the issue of

jurisdiction has never been raised, so far as it relates to notice

dated 06.05.1978 having not conferred to the Estate Officer, notice

issuing authority in view of the provision of Section 4 of the Act,

1971 and thereafter, when the order was passed by the Estate

Officer on 29.09.2011, the same cannot be considered to be having

no jurisdiction, since, the notification to that effect has already

been notified in the Gazette of India notification on 08.10.1985.

The matter could have been understood if the jurisdiction

of the notice issuing authority pertaining to notice dated

06.05.1978 would have been raised during the relevant time, but

the same having not been raised even though, the ample

opportunity had been provided to the petitioners in the previous

two round of litigations and it is only 4th round of litigation that

is at the time of filing show cause in pursuant to direction issued

by this Court passed in W.P.(C) No.3475 of 2004, the issue of

jurisdiction was raised.

Therefore, such issue of jurisdiction cannot be considered to

be a good ground to show interference holding the notice dated

06.05.1978 to be without any jurisdiction.

Moreover, the day when the order was passed by the

Estate Officer, i.e., on 29.09.2011, such jurisdiction had well been

conferred upon the Estate Officer in pursuant to Gazette

notification dated 08.10.1985.

14. Accordingly, the ground of jurisdiction, i.e., ground no.'A'

is being answered against the writ petitioners.

15. So far as the ground no.'B' and C', i.e., the notice having

vague and was not in conformity with the provisions of Rule-3 of

the Public Premises (Eviction of Unauthorized Occupants) Rules,

1971 and the authority who has passed the order dated 29.09.2011

adopted a procedure are concerned, the same at such a belated

stage cannot be allowed to be considered, since, the said ground,

even accepting the contentions of the writ petitioners, were well

available at the time of contesting the case by the writ petitioners

in pursuant to the direction passed by this Court in CWJC

No.1173 of 1985(R) dated 07.11.1990.

The issue of vagueness has been taken since the name of

Village, Thana number, Khata number, Plot number and even the

boundary wall has also not contained the details but only the

names of persons on the boundary have been given, by which, it

appears that they are encroachers.

16. Considering the aforesaid fact, this Court is of the view that

the same cannot be a good ground to be considered at such a

belated stage.

17. So far as the ground no.'D' is concerned, as per which the

ground has been agitated that a proceeding under the Act being a

summary proceeding, wherein, a dispute of title coupled/long

possession cannot be allowed to be considered.

18. It is not in dispute that the very object and reason for

enacting the Act, 1971 is to provide for speedy machinery for the

eviction of unauthorized occupants of the public premises.

19. Section 5 of the Act, 1971 provides for taking possession of

the public premises which are on unauthorized occupation of

persons.

Section 7 of the Act, 1971 provides for recovery of rent or

damages in respect of public premises from persons who are on

unauthorized occupation thereof.

The 'unauthorized occupation' has been defined under

Section 2(g), as per which, it means the occupation by any person

of the public premises without authority for such occupation, and

includes the continuance in occupation by any person of the

public premises after the authority under which he was allowed

to occupy the premises, has expired or has been determined for

any reason whatsoever.

The 'public premises' have been defined under Section 2(e)

which means any premises belonging to, or taken on lease or

requisitioned by, or on behalf of, the Central Government, and

includes any such premises which have been placed by that

government, whether before or after the commencement of the

Public Premises (Eviction of Unauthorized Occupants)

Amendment Act, 1980.

20. The writ petitioners have tried to impress upon the Court

by referring to the show cause filed on 16.02.2011 that the said

land was originally belonged to Late Pawan Bhumij whose name

was recorded in CS settlement prior to the period of 1906. The

period when the CS settlement was held much before bifurcation

of the State and much before bifurcation of Singhbhum from

Malbhum when Purulia District Court was under the Manbhum

District. The present singhbhum District 'East' and 'West' was

begotten of Manbhum District. The land in question was

recorded, mutated and registered in the name of great

grandfather of Digamber Bhumij. Late Pawan Bhumij was

bonafide, absolute and lawful owner of the said land and was in

the peaceful possession of the same. The said land was alienated

to many land then to late Nanak Singh, the father of late Akhilesh

Singh. The suit land and shops are in possession of her family

since after lawful alienation from the Adivasi (Schedule Tribe)

since 1930 and prior to that the suit land and shops were standing

thereon. It has also been claimed that the suit land was recorded,

mutated and registered in the name of great great grandfather of

Digamber Bhumij and after the death of Digamber Bhumij, the

said land was devolved to Pawan Bhumij.

The authorities have contested the aforesaid ground by

producing the documents, i.e., Exbt.A/1 being letter no.L/4

dated 21.09.1989, Exbt. A/2 being letter no.EP/X/94 dated

26.07.1989, Exbt. A/3, Sketch map showing encroachment of

railway land by Smt. Saila Kumari and Sri Mantu Singh,

Exbt.A/4 showing encroachment of railway land by Ops., Exbt.

A/5 being ROR of plot no.1, Khata No.14, Mouza-Susnigaria,

Exbt. A/6, i.e., Sabik Mouza Map of Mouza Susnigaria published

in the year 1937, Exbt. A/7, i.e., Hal Mouza map of Mouza

Susnigaria published in the year 1961.

The Ops., the writ petitioners herein have produced oral

witnesses, i.e., DW/1, namely, Om Narayan Singh @ Tun Tun

Singh, DW/2, namely, Surendra Prasad Singh and DW/3,

namely, Vansh Narayan Singh. The writ petitioners have also

produced several documentary evidences, i.e., Exbt. D/1, which

is the Xerox copy of Electricity Bill no.8166 dated 18.10.2001, Exbt.

D/2, Xerox copy of Electricity Bill No.675627 dated 08.10.2001,

Exbt. D/2, Xerox copy of Bill No.440967 dated 08.10.2001 and

Exbt. D/3, i.e., one original unregistered sale deed dated

31.03.1957.

The aforesaid issue of claiming title has been considered by

framing an issue, i.e., issue no.4, as would appear from the order

passed by the appellate authority dated 02.04.2013 passed in

Misc. Appeal No.17/2011 to the effect "whether the O.Ps. have

acquired prescription right, title and possession by adverse

possession of the suit land."

The authorities have considered recording the land in

question being recorded in the name of Bengal Nagpur Railway

(BNR) in the revisional survey finally published in the year 1937

which had been acquired by the BNR for the railway purpose in

the year 1900 and now it is in the possession of the South Eastern

Railway.

The authorities have also came to conclusion that late

Akhilesh Singh for the first time on 25.05.1977 has entered into

the piece of land measuring an area of 675 Sq. Ft. The authorities,

therefore, has came to the finding that when the land in question

has been recorded in the name of BNR in the revisional survey

finally published in 1937 then where is the question of claiming

title by late Akhilesh Singh who has entered into the premises for

the first time on 25.05.1977.

Such conclusion has been arrived at on the basis of the

exhibits more particularly the record of rights, i.e., Exbt. A/5.

The authorities have negated the claim of title which was

claimed only on the basis of the electricity bills and unregistered

sale deed dated 31.03.1957.

21. It requires to refer herein that unregistered sale deed does

not confer any right and title upon the party under the provision

of Transfer of Property Act. The Electricity Bill also does not

confer any right and title of a person over the land in question.

The writ petitioners, since, have claimed their title only on

the basis of the some of the electricity bills and unregistered sale

deed dated 31.03.1957 without disputing the record of right i.e.,

the revisional survey which was published in the year 1937

showing the land in question recorded in the name of Bengal

Nagpur Railway (BNR).

22. This Court, on the basis of the discussions so made by the

authority concerned regarding the title of the petitioners over the

land in question, is of the considered view that the petitioners

have failed to establish their title over the land in question so as

to disbelieve the plea of unauthorized occupants over the land in

question. The petitioners have also failed to prove the land in

question not to be public premises, since there is no rebuttal to

the revisional survey finally published in the year 1937.

23. The issue of adverse possession has also been taken into

consideration by the authority while dealing the same, as would

appear from paragraph-24 of the order passed by the appellate

authority and after discussing the rival contention, the appellate

authority has came to conclusion by discarding the claim of the

writ petitioners that the ancestors of the opposite parties came in

possession of the land in question in the year 1930 and purchased

it in the year 1957 which means that there was no animus of

possession of the opposite parties in the proceeding land.

It has also been held that mere long possession for a period

of more than 12 years without intention to possess the land in

question adversely to the title of true owner cannot be said to be

adverse possession. The reason has been recorded that for

adverse possession, the possession required must be adequate, in

continuity, in publicity and in extent to show that it is possession

adverse to the competitor.

The appellate authority has arrived to such conclusion by

taking into consideration the fact that neither the ancestors nor

the petitioners have ever in adverse possession of the proceeding

land and acquired title by prescription. The proceeding land

remained in unauthorized occupation on and from 25.05.1977

when Akhilesh Singh came in possession of the proceeding land

and since then, the matter is sub-judice.

24. In view of the aforesaid discussion, this Court is of the view

that even though, the proceeding of eviction as provided to be

followed under the provision of the Act, 1971 is a summary

proceeding but the issue as to whether the petitioners are

trespassers or not has well been considered by providing ample

opportunity to the parties to produce the documents.

25. Accordingly, this Court is of the view that the said

ground/point having no force accordingly, rejected.

26. So far as the ground/point no.'E' is concerned which

pertains to the fact that the proceeding was started on the basis of

notice dated 06.05.1978 in Form-'A' under Section 4(1) of the Act

with respect to 1890 Sq. ft. of land but final order dated 29.09.2011

has been passed in Form-'B' under Section 5(1) has been passed

with respect to 3740 Sq. ft. of land. This issue has also well been

considered.

27. It is evident from the material available on record more

particularly the order passed by the Estate Officer and the

appellate authority that due opportunity was provided to the

petitioners to defend about the land comprising an area of 3740

Sq. ft. while dealing with such issue which is evident from the

order passed by the appellate authority, the conclusion has been

arrived at that while the matter was pending, the petitioners

encroached upon the adjacent railway land measuring an area of

1700 Sq. ft. on and from 06.02.1989 towards East and West.

Further, they have encroached the adjacent land measuring an

area of 150 Sq. ft. towards East in the year 2005 and accordingly,

the petitioners are in unauthorized occupation of total railway

land measuring an area of 3740 Sq. ft. butted and bounded by

East -vacant railway land and unauthorized structure, West-

Railway land under unauthorized occupation of Shri Bhagwan

Yadav North-vacant land, brick wall, footpath and main road to

Jagsalai, South railway land under unauthorized occupation of

Shri Pradeep Tanti and Railway quarter no.336.

It would be evident from para-23 of the order passed by the

appellate authority that the fact regarding further extended

encroachment was not controverted by the petitioners at any

point of time, since, the plea raised by the petitioners in their

reply to show cause was accepted by the opposite parties. The

appellate authority has also given a finding that the only

ingredients necessary to be satisfied before initiating proceeding

under the Act is that a person is an unauthorized occupant of the

public premises.

It has also been observed that the opposite parties are the

legal heirs of late Akhilesh Singh and substituted themselves and

since the proceeding was in continuity, there was no need of

issuing fresh notice in the name of present opposite parties.

28. The conclusion has also been arrived at that the opposite

parties were otherwise having full knowledge of the ground

upon which the eviction was proposed and as such, the issue of

extended encroachment having not been mentioned in the notice

has been considered not to be a worth ground to interfere with

the order passed by the Estate Officer.

The said finding, according to the considered view of this

Court is not required any interference in view of the fact that

when a part of area which is encroached by the petitioners being

the legal heirs of the Akhilesh Singh is being accepted to be an

unauthorized occupation and as such, the further land which is

the part and parcel of the same plot since has been encroached

subsequently, the same will also come under the fold of

unauthorized occupation of the public premises.

29. The writ petitioners by raising this issue that there is no

reference of notice about the extended encroachment, according

to the considered view of this Court that the part of the area

which is contained in the notice to the extent of 1890 Sq. ft. of

land is being accepted and when the same is being accepted, the

other part of the land even if not referred in the notice dated

06.05.1978 rather, the encroachment is during the pendency of the

proceeding, there is no requirement to give further notice.

The notice is required to be given in a fresh proceeding and

once the proceeding has been initiated in pursuant to the notice

issued way back on 06.05.1978 and in the meanwhile, if the

further land is being encroached and when the land which is the

subject matter of the notice dated 06.05.1978 having been

adjudicated by holding the said land to be public premises and

under the unauthorized occupation of the petitioners, then the

extended part of the land if encroached, requires no further

notice, since, the encroachment is in course of continuity of

proceeding.

30. It needs to refer herein the scope of Article 227 of the

Constitution of India. Dealing with the scope of Article 227 of the

Constitution of India, the Hon'ble Apex Court in the case of

Shalini Shyam Shetty & Anr. Vrs. Rajendra Shankar Patii,

reported in (2010) 8 SCC 329 has been pleased to laid down

therein regarding the scope of Article 227 which relates to the

supervisory powers of the High Courts and by taking aid of the

judgment rendered by the Hon'ble Full Bench of Calcutta High

Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar

Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has

been laid down that Article 227 of the Constitution of India does

not vest the High Court with limit less power which may be

exercised at the court's discretion to remove the hardship of

particular decisions. The power of superintendence confers

power of a known and well recognized character and should be

exercised on those judicial principles which give it its character.

In general words, the High Court's power of superintendence is a

power to keep the subordinate courts within the bounds of the

authority, to see that they do what their duty requires and that

they do it in a legal manner.

The power of superintendence is not to be exercised unless

there has been;

(a) An unwarranted assumption of jurisdiction, not vested in a

court or tribunal; or

(b) gross abuse of jurisdiction; or

(c) an unjustifiable refusal to exercise jurisdiction vested in

courts or tribunals.

Further, in the aforesaid judgment the Hon'ble Apex Court

has taken aid of a judgment rendered in the case of Mani

Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3

SCC 141, wherein it has been laid down that in exercise of

jurisdiction under Article 227, the High Court can set aside or

reverse finding of an inferior court or tribunal only in a case

where there is no evidence or where no reasonable person could

possibly have come to the conclusion which the court or tribunal

has come to.

The Hon'ble Apex Court has made it clear that except to

this limited extent the High court has no jurisdiction to interfere

with the finding of facts.

Further, the judgment rendered by the Hon'ble Apex Court

in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing

Mohansingh Pardeshi, reported in (1995) 6 SCC 576, it has been

laid down that the High Court under Article 227 cannot assume

unlimited prerogative to correct all species of hardship or wrong

decisions. Its exercise must be restricted to grave dereliction of

duty and flagrant abuse of fundamental principles of law and

justice.

It has been laid down at paragraph 47 of the aforesaid

judgment that the jurisdiction under Article 227 is not original

nor is it appellable. This jurisdiction of superintendence under

Article 227 is for both administrative and judicial

superintendence. Therefore, the powers conferred under Article

226 and 227 are separate and distinct and operate in different

fields. Another distinction between these two jurisdictions is that

under Article 226 the High Court normally annuls or quashes an

order or proceedings but in exercise of its jurisdiction under

Article 227, the High Court, apart from annulling the proceeding,

can also substitute the impugned order by the order which the

inferior tribunal should have made.

It has further been laid down regarding the powers to be

exercised by the High Court under Article 227 of the Constitution

of India. The High Court, in exercise of its jurisdiction of

superintendence, can interfere in order only to keep the tribunals

and courts subordinate to it within the bounds of its authority, in

order to ensure that law is followed by such tribunals and courts

by exercising jurisdiction which is vested with them and by not

declining to exercise the jurisdiction which is vested in them.

Apart from that, High Court can interfere in exercise of its power

of superintendence when there has been a patent perversity in

the orders of the tribunals and courts subordinate to it or where

there has been a gross and manifest failure of justice or the basic

principles of natural justice have been flouted.

In exercise of its power of superintendence High Court

cannot interfere to correct mere errors of law or fact or just

because another view than the one taken by the tribunals or

courts subordinate to it, is a possible view. In other words the

jurisdiction has to be very sparingly exercised.

31. This Court, on the basis of the proposition laid down by the

Hon'ble Apex Court about the jurisdiction to be exercised by this

Court sitting under Article 227 of the Constitution of India and

after taking into consideration the finding recorded by the Estate

Officer and the appellate authority on merit, is of the considered

view that there is no error apparent on the face of record.

32. Accordingly, the instant petition stands dismissed.

33. In consequent to dismissal of this petition, interlocutory

application(s), if any, stands disposed of.

(Sujit Narayan Prasad, J.)

Rohit/-

A.F.R.