Murari Lal Agarwal @ Murari Lal vs Union Of India Represented ...
2023 Latest Caselaw 4086 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  C.M.P. No. 1048 of 2023
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1. Murari Lal Agarwal @ Murari Lal

2. Sanjay Kumar Agarwal @ Sanjay Kumar Agarwalla @ Sanjay Agarwal .... .... Petitioners Versus

1. Union of India represented through General Manager, South Eastern Railway, Kolkata, West Bengal

2. The Deputy Director (Land Management), Railway Board, Government of India, Rail Bhawan, Raisina Road, New Delhi

3. The Chairman, Railway Board, Government of India, Rail Bhawan, Raisina Road, New Delhi

4. The Divisional Railway Manager, South Eastern Railway, Chakradharpur, West Singhbhum, Jharkhand

5. The Senior Divisional Engineer (East), South Eastern Railway, Chakradharpur, West Singhbhum, Jharkhand

6. The Estate Officer, South Eastern Railway, Chakradharpur, West Singhbhum, Jharkhand

7. The Assistant Divisional Engineer - I, South Eastern Railway, Tatanagar, Bagbera, East Singhbhum, Jharkhand

8. The Senior Section Engineer (Land), South Eastern Railway, Tatanagar, Bagbera, East Sinhbhum, Jharkhand

9. Ravi Shankar Mishra @ Rabi Shankar Mishra .... .... .... Opp. Parties

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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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       For the Appellants     : Mrs. Rakhi Rani, Advocate
       For the Union of India : Mr. Anil Kumar, ASGI
                              : Mr. Abhijeet Kumar Singh, AC to ASGI
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           C.A.V. on 19.09.2023                   Pronounced on 31.10.2023

1. Through this petition, filed under Article 227 of the Constitution of India, petitioner has challenged the following order/judgment:-

(i) Judgment/order dated 20.02.2020 passed by the learned Principal District Judge, East Singhbhum, Jamshedpur in Civil Miscellaneous Appeal No. 17 of 2019 (Annexure -

15) whereby and whereunder, an appeal preferred by the petitioner under Section 9(i) of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 against the order passed by the Estate Officer, South Eastern Railway, Chakardharpur in Case No. EC/Eo/475/2013 under Section 5(i) of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 has been dismissed.

(ii) Order dated 04.11.2019 passed by the Estate Officer, South Eastern Railway, Chakardharpur under Sub-section (i) of

Section 5 of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 in Case No. EC/Eo/475/2013 (Annexure - 13) whereby and whereunder, eviction order has been passed against the petitioner no. 1 and opposite party no. 9.

2. Brief facts which leads to filing of the instant civil miscellaneous petition are as a piece of land situated at Plot No. 1312 under Khata No. 225 of Mauza - Bagwera at Railway Market/Tata was initially allotted in favour of the opposite party no. 9, namely Ravi Shankar Mishra by the Railway authorities, who has constructed a shop over the said land bearing Shop No. 11 now RM - 24. It is alleged that opposite party no. 9 due to some personnel reasons, was not able to run the shop, transferred the said property along with shop constructed by him after taking full and final consideration amount vide agreement dated 27.09.1999 in favour of the petitioner no. 2 namely Sanjay Kumar Agarwal (Annexure - 2). Thereafter, opposite party no. 9 executed a declaration/undertaking and power of attorney dated 22.10.2002 in favour of petitioner no. 2.

3. The Railway authority initiated a Case No. EC/Eo/475/2013 under Section 5(1) of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 against original allottee Sri Ravi Shankar Mishra on account of illegal transfer of the temporary licensed plot measuring an area 13"X23" equal to 299 square feet in favour of Sanjya Kumar Agarwal son of Sri Banwari Lal Agarwal (brother-in-law of first O.P. Murari Lal Agarwal). It is alleged that first O.P. Murari Lal Agarwal has constructed a double storied building without permission from railway administration and in violation of the terms and conditions of license granted to the original allottee Sri Ravi Shankar Mishra, which was for temporary occupation of railway land with extra occupation of land 390 square feet minus 299 square feet equal to 91 square feet unautorisedly and has trespassed upon a piece of railway land within railway market Tatanagar in Plot No. 1312 Khata No. 225 Mouza Bagbera (herein referred to as public premises) on and from 24.01.2013 and since then he is in unauthorized occupation of the said railway land by erecting double storied building, pucca structure without prior permission from Railway Administration thereon.

4. In the present case, a notice dated 29.11.2013 under Section 4 (1)(b)(ii) of Public Premises (Eviction of Unauthorized Occupant) Act,

1971 was served against Opposite party Murari Lal Agarwal who was asked to show cause by appearing before the Estate Officer on 16.12.2013 at 11:00 A.M. for personal hearing either in person or through authorized representative capable to answer all the material questions connected with the matter. After several adjournments Ravi Shankar Mishra filed application for making him party as opposite party no. 2 and fresh notices were issued. Opposite party no. 1 Murari Lal Agarwal appeared on 15.01.2019 and filed his show cause reply admitting that the said land was allotted to Ravi Shanker Mishra by the competent authority and the family members of Ravi Shanker Mishra namely his wife Shyma Devi and his three sons namely Sachin Kumar Mishra, Sandeep Kumar Mishra and Aashish Mishra have transferred the Railway licensed land in favour of Sanjay Kumar Agarwal (Brother- in-law of first O.P. Sri Murari Lal Agarwal) for valuable consideration of Rs. 1,50,000/- (one lakh fifty thousand) and also submitted some documents. Sri Ravi Shankar Mishra filed his show cause dated 24.01.2019 admitting the fact that license was granted in his favour in the year 1980 for 299 square feet railway land but in the year 1999 when he was suffering from some mental illness and was undergoing treatment at Ranchi, meanwhile his illiterate wife and immature/minor sons under influence of Murari Lal Agarwal put signature on sale deed and agreement papers etc.

5. The Estate Officer after going through the case records, documents submitted by the parties and hearing their arguments came to conclusion that both the opposite parties are in un-authorized occupation of the public premises, so both opposite parties are liable to be evicted from the land/premises in question and accordingly passed the order.

6. The aforesaid order of the Estate Officer was challenged by preferring a miscellaneous appeal before the Principal District Judge, East Singhbhum, Jamshedpur vide Civil Miscellaneous Appeal No. 17 of 2019, wherein after hearing both the parties, the learned appellant court observed that there is no doubt that the disputed land and premises belong to Railways, which is a public premises within the meaning of Public Premises (Eviction of Unauthorized Occupant) Act, 1971. It is also admitted that appellant Murari Lal Agarwal has not been legally authorized to occupy the said premises at any point of time, rather opposite party no. 2 Ravi Shankar Mishra was the original

allottee of the premises in question for a temporary period without any right to sublet or transfer in favour of any other person. It is also admitted fact that original allottee Ravi Shankar Mishra is alleged to have created sale deed in favour of Sanjya Kumar Agarwal which is ex- facie a non est document and does not bind Railway nor it transfer any title over the said public premises in favour of transferee. As such, petitioners are in the occupation of the suit premises without any authority and no right to continue possession which is unauthorized from the very beginning. Accordingly, the impugned order passed by the Estate Officer was upheld and the appeal was dismissed.

7. Learned counsel for the petitioner has submitted that the main thrust of the petitioners is that the petitioner no. 2 had purchased the suit premises from original allottee Ravi Shankar Mishra (Annexure - 2) on payment of consideration money of Rs. 1,50,000/-(One lakh fifty thousand) and put him in possession. Thereafter, mutation application was filed before the Railway Authority (Annexure -1) which was not considered. Thereafter, opposite party no. 9 executed a declaration after undertaking as well as power of attorney dated 22.10.2002 authorizing the petitioner no. 2 to look after and manage business in the said railway allotted plot and to pay the rent to the railway authority and to any other things which may be required (Annexure - 3). It is further argued that the opposite party no. 1 vide circular No. 97/LML/18/67 dated 26.07.2004 (Annexure - 4) took a policy decision to permit one time opportunity for change of name of allottee regardless of whether they are legal heirs or not, of the original allottee. The said circular specifically provides for transfer of license in cases, where plot holders have been running business on behalf of original licensee on power of attorney. In pursuance of the aforesaid policy decision, petitioner no. 2 made several representations (Annexure - 5/6) before opposite party no. 5 through opposite party no. 7 for change of name of original allottee of the premises in question, by his name. The opposite parties conducted site inspection in view of representation of the petitioner no. 2 and duly forwarded to the competent authority for administrative approval with favourable remarks that party paid license fee are up-to- date, land is in the occupation of the petitioner no. 2 and name can be changed as per circular of 2004. A recommendation for the change of allotment in favour of the petitioner no. 2 was also forwarded by opposite party no. 5 to opposite party no. 7 vide letter dated 27.10.2006

(Annexure - 7) but the matter was kept in abeyance till the year 2013. It is further submitted that on 29.11.2013 a notice under Section 4 (1) and Section 4 (2) (B) of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 in Case No. EC/EO/475/2013 was received by petitioner no. 1 to show cause as to why an order of the eviction should not be made. Petitioner no. 1 submitted show cause reply with all the relevant documents including power of attorney executed by original allottee, before the opposite party no. 6 (Annexure - 10). It is submitted that the opposite party no. 6, the then Estate Officer, after perusal of documents and averments made by the petitioner was satisfied that the petitioner no. 2 had a valid claim over the premises in question and his claim might be processed as per policy decision contains in circular dated 26.07.2004, accordingly, dropped the said proceedings of eviction. The petitioner continued to pay rent under legitimate expectation of change of allotment of the said land in the name of the petitioner no. 2.

8. It is further submitted that surprisingly another show cause notice dated 12.12.2018 (Annexure - 11) was served upon the petitioner no. 1 in the case No. EC/EO/475/2013 and exactly same pattern, directing him to file show cause reply. The petitioner no. 1 filed the show cause reply (Annexure - 12) but without properly considering the documents and materials submitted by the petitioner the impugned order was passed which is beyond the weight of evidence, arbitrary and non-consideration of power of attorney executed in favour of petitioner no. 2 and their lawful possession as per written authority of the original allottee. It is also submitted that the matter of one time change of license in the name of petitioners, even though found genuine but still kept in abeyance by the railway authority. As such, both the courts below have exceeded their jurisdiction vested under law and recorded palpably illegal findings while passing and confirming the eviction order against the petitioners which are fit to be set aside and this petition may be allowed.

9. Per contra, learned counsel for the opposite party nos. 1 to 8 has vehemently controverted the argument of the petitioners and submitted that admittedly the petitioners were never authorized by the railway authority to occupy the land and premises in question even for a temporary period. The petitioners under conspiracy with the original allottee, Ravi Shankar Mishra (opposite party no. 9) have got declaration/undertaking in the form of general power of attorney as

well as sale deed for valuable money consideration in flagrant violation of terms and conditions of license for temporary occupation of land in favour of Ravi Shankar Mishra. The land cannot be assigned, transferred or sublet by the occupier either part of the allotted land or full without previous consent in writing from the competent authority of railway administration.

10. Sri Ravi Shankar Mishra who has been allotted the aforesaid plot has sold the same to Sri Sanjay Kumar Agarwal without taking prior permission from Railway administration. Railway has not authorized any licensee to allow occupation of the licensed land to any outsider and as per the rules, the licensee cannot sublet the allotted land to anybody and in the event if, it is found that the licensee has allowed anybody to remain in the licensed land then his/her license shall be cancelled and he/she shall be evicted.

11. I have given anxious consideration to the rival contentions of learned counsel for the petitioners as well as learned counsel for the opposite parties and perused the entire case record.

12. The main point for consideration in this petition is that whether impugned order suffers from any illegality or infirmity calling for any interference?

13. Present case is in respect of eviction of petitioners as unauthorized occupant of land and premises belonging to railway Authority. Both the courts below after considering the entire materials have recorded concurrent findings that the suit premises have been illegally/unauthorizedly occupied by the petitioners rendering them liable for eviction. The term "unauthorized occupation" has been defined under Section 2 (g) of the Public Premises (Eviction of Unauthorized Occupant) Act as under:-

"unauthorised occupation", in relation to any public premises, 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 (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever".

14. There is no doubt that the petitioners are under unauthorized occupation of the land under proceeding. The claim of the petitioners based on execution of sale deed and power of attorney allegedly

executed by original allottee (opposite party no. 9) has been denied in the proceedings before court below itself. The eviction of unauthorized occupants from the public premises cannot be defended on the basis of creation of illegal and sham documents. Similarly, the benefit of policy decision through circular cannot be claimed as a matter of right and cannot form part of any authority to be continued in an unauthorized occupation of the public premises. Therefore, in view of above discussions and reasons, I do not find any legal substance in the points of arguments raised on behalf of the petitioners. Further I do not find any illegality or infirmity in the impugned order calling for any interference by invoking the jurisdiction of under Article 227 of the Constitution of India.

15. Accordingly, this petition is dismissed.

(Pradeep Kumar Srivastava, J.)

Umesh/-