Bangalore District Court
Sri.Isaac vs The Estate Officer on 21 April, 2023
KABC010110092011
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. JERALD RUDOLPH MENDONCA.,
B.A.L. LL.B.,
Dated this the 21st day of April, 2023
Misc. Appeal No.34/2011
Appellant: Sri.Isaac,
S/o. N.P.Kuriakose,
Aged about 67 years,
Centre for Social Action Trust,
No.1, Ebenezab College Road,
1st Cross, Kalyan Nagar Post,
Varomavu, Bangalore-560 043.
(Pleader by Sri.Mohammed
Jaffar Shah)
V/s.
Respondents: 1. The Estate Officer,
South Western Railways,
Bengaluru.
2. The Divisional Manager (Works),
South Western Railways,
Bengaluru.
(Rept. by Sri.Yovini Rajesh Rohra)
2 M.A.No.34/2011
JUDGMENT
This is an Appeal preferred under Section 9(1) of Public Premises (Eviction of Unauthorized Occupants) Act, 1974, passed by the respondent against the appellant directing the appellant to vacate the property described in the schedule to the said order.
SCHEDULE Encroachment on Railway land measuring 50.225 Sq. mts. constructed a RCC building at No.1, Ebnezeb College Road, 1st Cross, Kalyan Nagar Post, Varomavu, Bangalore-560043.
2. The appellant has contended as follows:
(i) The appellant has stated that the appellant is the absolute owner in possession and enjoyment of the property bearing Site No.16, Khatha No.149/1, situated at Horamavu Village, K.R.Puram Hobli, Bangalore East Taluk now within the jurisdiction of BBMP which was purchased from Mr.Chickrajappa by way of a absolute sale deed dated 12.01.1994 which is registered as document No.5170/93-94 of Book I, Volume 754 at Pages 95 to 98 in the office of the Sub-Registrar, Krishnarajapuram, Bangalore.
(ii) The Appellant has stated that, the said site was formed in land measuring 30 guntas in Sy.No.99/3 of Hormavu Village, K.R.Puram, Bangalore which was 3 M.A.No.34/2011 mutated int hename of Sri.Chikkarajappa vide order of Tahsildar bearing No.RRT(P)311/85-86 dated 23.02.1987.
(iii) The appellant has stated that, the respondent has never been in possessions or enjoyment of the said property. The respondent herein has no right or title over the lands involved in the above appeal. The respondent falsely claiming that it has acquired the said schedule property. The respondents has miserably failed to produced any documents showing the acquisition of the schedule property. Thus the respondent is making a false claim over the said land with a malafide intention to dispossess the appellant.
(iv) The appellant has stated that, now taking advantage of the impugned order, the respondent No.2 is illegally attempting to take over possession of schedule property and the shed existing thereon forcibly from the appellant.
3. Being aggrieved by the order of calling upon the appellant to vacate the schedule property and premises within 14 days from the date of publication Estate Cases No.B/W-274/Encro on Rly Land/At between CSDR-YNK and YNK-DHL by 09 outsides Smt.Shantha Shekar and 08 others/27, the appellants are preferring this appeal for the following among other grounds.
(i) The respondent No.2 herein is claiming the schedule property based on the plan prepared by 4 M.A.No.34/2011 Executive Engineer, Southern Railways for the purpose of conversion of the existing railway track to broad guage and the said plan also does not signify the extent of land required for conversion or the extent of land in detail belonging to the railways. Further the respondent No.2 has not produced the copy of the final notification showing that the schedule property has been acquired and that the said property belongs to the Sourthern Railways. The respondent No.1 has passed the impugned order based on the Preliminary Gazattee notification dated 18.12.1974 and General valuation memorandum which was issued by SLAO during 1977. The documents that was relied upon by the respondent No.1 herein for passing the impugned order does not show that the Railways had actually acquired the property. Thus the respondent No.1 has passed the impugned order without considering the evidence on record and considering the facts on record.
(ii) The appellant has been the absolute owner in possession and enjoyment of the schedule property from the date of its acquisition. The revenue entries have been mutated and transferred in her name, the appellant were put in possession in the schedule property vide a registered sale deed produced. He has been regularly paying taxes to the concerned authorities. This being the case the respondent No.2 ought to have raised objections before the revenue officials, sub-registrar and other authorities. The respondent No.2 has failed to raise any objections to the peaceful enjoyment and possession of 5 M.A.No.34/2011 the schedule property, further the respondent No.2 miserably fails to prove his title over the schedule property. The respondent No.1 ought to have considered this ground before the passing the impugned order.
(iii) The respondent No.2 herein is claiming that the land belongs to railways based on the plan prepared by Executive Engineer, Southern Railway for the purpose of conversion of existing railway track to broad gauge. The respondent No.2 further states that the said property was surveyed before the said plan was prepared. This being the case if the said property was surveyed then the railway official ought to have given notice to the appellant herein for surveying the schedule property. In the absence of issuing the notice by the said officials the claim of the respondent No.2 is not justified. Thus the impugned order passed by respondent No.1 does not consider this ground.
(iv) The respondent No.2 has made false allegations that the appellant has made encroachment into the railway property. The respondent No.2 herein has not produced any documents to show that the schedule property has been acquired by the railways. The documents produced by respondent No.2 are the preliminary gazette notification dated 18.12.1974 and general valuation memorandum which was issued by SLAO during 1977. The preliminary Gazette notification is not the correct document to show that the schedule property has been acquired. Further the general valuation memorandum produced by respondent No.2 does not 6 M.A.No.34/2011 mention that the schedule property has been acquired by the railways.
(v) The appellant herein had filed an interim application calling upon the respondent No.2 to produce the copy of the final gazette notification No.RD 405, AQB
74. The said application was not considered by the respondent No.1 before passing the impugned order. The appellant herein had sought for time to procure the said gazette notification No.RD-405, AQB-75. But the respondent No.1 herein rejected the prayer for adjournment by the appellant. Thus it was incumbent on the respondent No.1 to afford an opportunity for producing the copy of gazette notification and for hearing to the appellants before passing the impugned order.
Thus the impugned order is in clear violation of the principles of natural justice.
(vi) There is no material on record to show that there had been acquisition of the schedule property. The respondent No.2 has not placed any material substantiating their claim.
(vii) The respondent No.1 has not given proper opportunity for the appellant to produce his case. The time sought for producing documents were also rejected. The respondent No.1 has abused his authority and has illegally passed the order ordering for vacating the premises within 14 days from the date of publication of the said order.
7 M.A.No.34/20114. The respondents have appeared through their counsel and the respondent No.2 has filed the objections contended as follows.
(i) The Railways have produced abundant material before the estate officer to prove that the lands in the unauthorized occupation of the Appellant are lands which belong to the Railways and thus were Public premises as defined under the Public Premises (Eviction of Unauthorized Occupants) Act.
(ii) The Estate Officer in view of the unimpeachable evidence adduced by the Railways has given a clear finding that the Land in question in fact belong to the Railways and the Appellant is in unauthorized occupation and it has no right to be in occupation of the same. It is stated that since the order passed by the Estate Officer contains cogent reasons and is supported by documentary evidence, there is absolutely no grounds made out to warrant interference by this Hon'ble Court.
(iii) It is submitted that pursuant to the notifications, a declaration was also issued and a final plan was prepared showing the total extent land acquired on behalf of the railways in various survey numbers of Horamavu Village and other villages as indicated in the gazette. The land plan was not prepared by the railways and it was prepared by SLAO after carrying out all the procedural aspects at the time of acquisition. The final land plan 8 M.A.No.34/2011 indicates the details of the land acquired survey number, extent and also the shape and position of survey number, etc. The copy of the complete land plan and a separate plan of Horamavu Village has been produced before the Estate Officer.
(iv) It is submitted that during inspection railways found that a portion of the above mentioned lands was in unauthorized occupation and immediately action was initiated against the appellant for such unauthorized occupation after issuing notices under Public Premises (Eviction of Unauthorized Occupants) Act, by the respondent railways. It is submitted that sale deed and other documents will not show whether the petitioner has encroached the railways land or not.
(v) It is further submitted that as per the Railways Act, any person's land falls withing 30 meters from railways boundary, then such person has to obtain NOC from railways, whereas in the present case the petitioner has neither obtained NOC nor approached the railways at any point of time for clarification. It is under these circumstances, the estate officer was pleased to pass an order of eviction against the appellant after having satisfied with material evidence and documents produced by the respondent railways.
(vi) Therefore the respondent No.2 has contended that it is clear that the lands in respect of which eviction order has been issued in fact belong to the Railways and 9 M.A.No.34/2011 are public premises as defined under the Act and the Estate Officer has correctly appreciated the evidence adduced before him and passed a just and proper order, which does not call for interference. Therefore the respondents have prayed to dismiss the appeal.
5. The records relating to the proceedings before the respondent No.1 were produced in M.A.No.24/2011 and the same were called for.
6. Heard the learned counsels for both the parties and perused the written arguments submitted by the learned counsel for the appellant.
7. The points that arise for consideration of this Tribunal are as follows:
1. Whether the impugned order is perverse, arbitrary or capricious?
2. What order?
8. The findings on the above points are as under:-
Point No.1 : In the Affirmative
Point No.2 : As per final order
REASONS
9. POINT No.1 : The Appellant has disputed that the property in question belongs to the Railways and that the appellant has encroached upon the same. The appellant has claimed ownership of the land. The appellant has claimed that there is a registered sale deed in his favour 10 M.A.No.34/2011 and the taxes are also paid to the local authorities. The Appellant contends that the sketches and the documents relied by the Estate Officer cannot be relied as the appellant is not a party to the said document and the survey regarding the sketch prepared was not conducted in the presence of the appellant. The estate officer has also not given an opportunity to the appellants to produce the relevant documents and their prayer to summon the documents was also not considered.
10. The Hon'ble Supreme Court in the case of Government of A.P. V/s Thummala Krishna Rao (AIR 1982 SC 1081), while elaborately considering the scope of similar such provision under sections 6 and 7 of the A.P. Land Encroachment Act, 1905, has held as under:
"The summary remedy for eviction which is provided for by S.6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". If there is a bonafide dispute regarding the title of the government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by S.6 for evicting the person who is in possession of the property under a bona fide claim or title. The summary remedy prescribed by S.6 is not the kind of legal process which is suited to an adjudication of complicated questions of title.11 M.A.No.34/2011
Held, that the questions as to the title to the three plots could not appropriately be decided in a summary inquiry contemplated by S.6 and 7 of the Act. The long possession of the respondents and their predecessors in title of those plots raised a genuine dispute between them and the Government on the question of title, remembering specially that the property, admittedly, belonged originally to the family of Nawab Habibudin from whom the respondents claimed to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession had to be decided in a properly constituted suit and until the Government succeeded in establishing its title to the property, the respondents could not be evicted summary".
11. In the case of M/s Shree Bajrang Hard Coke Manufacturing Corporation (AIR 2003 Jhar 17) (supra), wherein, a Division Bench of Jharkhand High Court, while considering the scope of provision under section 5 of the public premises (Eviction of Unauthorized Occupants) Act, 1971, has held in paras 14 and 19 as under:
"14 From what has been discussed and quoted above, it is abundantly clear that an authority under the aforementioned Act has a very limited jurisdiction and it has to determine only a dispute that may arise, vis-a-vis a public premises. Upon an application made before it, it 12 M.A.No.34/2011 has to proceed in a summary disposal thereto. The question, as to whether the area formed part of the Royal Tisra Colliery or not, consequently making it a public premise is a question that becomes the focal point of the instant case it, therefore, obviously involve determination/finding of fact. Undoubtedly, while attempting to come to such finding, the authority may be faced with complicated question of title as is involved in the instant case. The authority in the aforementioned case cannot be said to have the jurisdiction to embark upon the domain of the Civil Court for the purposes of adjudicating on a question of a complicated title, which can only be done by a Civil Court. It would be extremely unreasonable to allow a Court vested with summary procedure to give a finding, which can only be arrived at by a Civil Court having the necessary judicial competence.
19...... Now, under Section 5 of the aforementioned public premises (Eviction of Unauthorized Occupants) Act, 1971, it is clear that a Estate Officer after following the procedure required to be followed therein and after reaching to a conclusion that a person is in unauthorized occupation of a public premises, he may make an order of eviction. The catch words that cannot be lost track of in this provision are that, all that the Estate Officer is required to do is that he must come to a conclusion that a persons is in occupation of an area which is already confirmed or which has already been declared to be a public premises. He cannot nor does he have the jurisdiction to identify a particular piece of property and 13 M.A.No.34/2011 then give a finding that, that piece of property is a public property. This power is vested only with a Court of competent civil jurisdiction and not in a statutory authority, such as Estate Officer, who has been conferred only with summary powers. If such Estate Officers are allowed to give such finding, it would amount to conferring them with the powers of adjudication and delivery of judgments within the meaning of Section 2(a) read with provisions of Order XIV of the Code of Civil Procedure and/or principles/provisions analogous thereto".
12. The appellant has contended that he is the owner of the property in dispute by virtue of the registered sale deed and the Khatha of the property stands in his name. The respondent No.1 has relied on the plan prepared by the Executive Engineer Southern Railway. No notice was given to the appellant before conducting the survey. The respondent No.2 has not produced the final notification regarding the acquisition of the land. The preliminary gazette notification and the general valuation memorandum relied by the respondent No.1 is not sufficient to show that the property belongs to the railways.
13. The case of the respondent No.1 is that the appellant has encroached the railway land and has constructed the building. It does not show that any enquiry is held. The notices were issued not only to this 14 M.A.No.34/2011 appellant but also the other persons alleging the encroachment.
14. The respondent No.1 while considering the question as to whether the land is a public premises or not has stated that there is no dispute that the encroached land belongs to the railways. The estate officer has relied on the final land plan prepared by the SLAO during the time of gauge conversion and the notifications of the SLAO and has come to the conclusion that the land belongs to the Central Government.
15. There is serious dispute of title relating to the property. The appellant is claiming the title over the disputed property based on registered documents and the Khatha issued by the local authority. The estate officer has not considered the documents produced by the appellant. The sketches relied by the Estate Officer are not prepared in the presence of the appellant. The Appellant is not a party to the documents relied by the Estate Officer. This court is of the opinion that the survey of the property has to be conducted in the presence of the appellant and it has to be found out as to whether the alleged encroachment comes within the railway property or not. This finding has to be given by the competent civil court. Therefore this Court is of the opinion that the estate officer cannot decide the dispute involved as it involves the complicated questions of title to the property. Hence as held by the Hon'ble Supreme Court in the aforesaid ruling, the railways cannot take the 15 M.A.No.34/2011 unilateral decision in its own favour that the property belongs to it and evict the person who is in possession of the property under a bonafide claim or title. The dispute can be decided only by a competent civil court.
16. In the similar appeal in M.A.No.24/2011 filed before the Hon'ble XII Addl. City Civil Judge at Bengaluru which relates to the order passed in the same proceedings against the other persons, as per order dated 10.12.2018 passed by the said Court, the said appeal was allowed and the impugned order was set aside and the respondent No.2 was directed to approach the civil court. On enquiry with the learned counsel for the respondents and the official of the respondent it was informed that the order in M.A.No.24/2011 is not challenged by the railways.
17. Hence this Court holds that impugned order is perverse and arbitrary and the same is liable to be set aside. Hence this point is answered in the Affirmative.
18. POINT No.2 :- In the result, this Court proceeds to pass the following order.
ORDER The Appeal filed by Appellant preferred under Section 9(1) of Public Premises (Eviction of unauthorized Occupants) Act, 1971 is allowed with an order as to costs.
16 M.A.No.34/2011The impugned order dated 06.05.2011 passed by the Estate Officer, South Western Railway, Bengaluru in Estate Cases No.B/W-274/Encro on Rly Land/At between CSDR-YNK is set aside.
Draw up decree accordingly.
[Dictated to the Stenographer, transcribed & computerized by her, then corrected, signed and then pronounced by me in the open Court on this the 21st day of April, 2023.] [ J.R.MENDONCA ], XIV Addl. City Civil Judge Bangalore.