Hajarat Syed Nabiullah Aolia Mazahar Tomb and Anr. Vs the Union of India and Ors.

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Page No. 1/11

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GAHC010090212025

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2025:GAU-AS:5813

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

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Case No. : WP(C)/2385/2025

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HAJARAT SYED NABIULLAH AOLIA MAZAHAR TOMB AND ANR SIMALUGURI LOCO COLONY PO SIMALUGURI DIST SIVASAGAR ASASAM PIN 785640

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2: ARFIN ROHMAN

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W/O MD ABDUR RAHMAN SECRETARY AND MUTAWALI OF HAJARAT SYED NABIULLAH AOLIA MAZAHAR TOMB R/O VILL DESANG MAZGAON PO SUKAN PUKHURI DIST SIVASAGAR ASSAM PIN 785697 REP BY THE PETITIONER NO

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VERSUS

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THE UNION OF INDIA AND ORS

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REP BY THE GENERAL MANAGER OF N F RAILWAY MALIGAON GUWAHATI 11

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2:THE GENERAL MANAGER

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N F RAILWAY MALIGAON GUWAHATI 11

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3:THE DEPUTY GENERAL MANAGER

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N F RAILWAY TINSUKIA 786125

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4:THE ESTATE OFFICER

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N F RAILWAY TINSUKIA 78612

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Advocate for the Petitioner : MR K BHUYAN, MR. M U E BHUYAN,MS. A AKHTAR

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Advocate for the Respondent : SC, RAILWAY,

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Page No. 2/11

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT

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Date : 06.05.2025

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The petitioners have instituted the instant writ petition under Article 226 of the Constitution of India to assail an Order of Eviction dated 04.04.2025 passed by the respondent no. 4, whereby, the respondent no. 4 has ordered for eviction of the petitioner no. 2 and all persons who may be in occupation of the concerned public premises or any part thereof within a period of fifteen days from the date of publication of the said Order. In the Schedule to the said Order of Eviction, the description of the concerned public premises with boundaries have been mentioned.

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I have heard Mr. K. Bhuyan, learned counsel for the petitioners and Mr. K. Gogoi, learned Central Government Counsel for all the respondents.

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Mr. Bhuyan, learned counsel for the petitioners has submitted that the petitioners had earlier instituted a title suit, Title Suit no. 84/1998 before the Court of the learned Civil Judge, Junior Division, No. 2, Sivasagar for declaration and permanent injunction in respect of a plot of land measuring 2 Kathas situate at Old Loco Colony, N.F. Railway, Simaluguri, District – Sivasagar along with a portion of Quarter no. L/12[B] of the said premises [‘the suit land’ for short] on behalf of Mazahar of Hazarat Nabiullah Aolia and to restrain the defendants therein from entering the said suit land. Mr. Bhuyan has submitted that the respondent authorities herein were the defendants in Title Suit no. 84/1998. Though the defendants therein were duly served with summons, no written statement was submitted by them even after their appearance and as a result, the suit proceeded ex-parte against the defendants. The Title Suit was finally decreed ex-parte against the defendants by a Judgment and Order dated 06.12.2003 holding that the plaintiff was entitled to get a decree for settlement of the disputed land measuring 2 Kathas as mentioned above. The defendants thereafter, preferred an application under Order 9 Rule 13 read with Section 151, Code of Civil Procedure [CPC] after much delay in the year 2015 for vacating the ex-parte Judgment and Order dated 06.12.2003, along with an application for condonation of delay under Section 5 of the Limitation Act, 1963. The application for under Order 9 Rule 13 r/w Section 151, CPC that is, Petition no. 261/2015 was registered as Misc. [J] Case no. 07/2015. The learned Court found that the applicant failed to explain the period of delay of twelve years and by its Order dated 01.08.2016, dismissed the application filed under Section 5 of the Limitation Act, 1963. In view

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Page No. 3/11

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of the dismissal of the application for condonation of delay, Misc.[J] Case no. 07/2015 registered on the basis of Petition no. 261/2015 under Order 9 Rule 13 r/w Section 151, CPC was also dismissed. It is the contention of Mr. Bhuyan that the Judgment and Order dated 06.12.2003 had, thus, reached finality and the petitioners herein as the plaintiffs have acquired the rights over the plot of land mentioned therein.

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Mr. Bhuyan has further submitted that the respondent no. 4 while passing the impugned Order, did not adhere to the principles of natural justice as the petitioners were not provided with a proper and reasonable opportunity of being heard. The petitioners were not given any notice to lead evidence during the proceedings. Had proper and reasonable opportunity been given the petitioners were in position to lead evidence to dislodge the claim of the Estate Officer, that is, the respondent no. 4 made in the Notice dated 20.01.2025. He has further referred to a decision of the Hon’ble Supreme Court in Suhas H. Pophale vs. Oriental Insurance Company Limited and its Estate Officer, [2014] 4 SCC 657 , to submit that in view of the Judgment and Order dated 06.12.2003, the provisions of the Public Premises [Eviction of Unauthorised Occupants] Act, 1971 cannot be made applicable.

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Per contra, Mr. Gogoi, learned CGC has submitted that the petitioners were duly served the Notice under Section 4 of the Public Premises [Eviction of Unauthorised Occupants] Act, 1971 prior to the impugned Order of Eviction. He has further submitted that the petitioners themselves opted not to appear before the Estate Officer and as such, the contentions advanced regarding violation of the principles of natural justice and not providing an opportunity of being heard are not tenable. It is his contention that there is no similarity between the suit land involved in Title Suit no. 84/1998 and the concerned public premises in respect of which the proceeding under the Public Premises [Eviction of Unauthorised Occupants] Act, 1971 was initiated. In order to claim that the suit land is same as the concerned public premises opportunity should have been availed by the petitioners to lead evidence. The petitioners had merely forwarded a short reply in response to the Notice issued under Section 4 of the Public Premises Act. To buttress his submissions, Mr. Gogoi has referred to a decision of the Hon’ble Supreme Court in New India Assurance Company Ltd. vs. Nusli Neville Wadia and another , reported in [2008] 3 SCC 279 .

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I have duly considered the submissions made by the learned counsel for the parties and have also gone through the material on records including the impugned Order of Eviction dated 04.04.2025

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Page No. 4/11

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and the decisions cited.

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From the materials on record, it is noticed that the respondent no. 4 in exercise of powers conferred under Section 4[2] of the Public Premises [Eviction of Unauthorized Occupants] Act, 1971 [‘the Public Premises Act’, for short] had issued a Notice to the petitioner no. 2 on 20.01.2025 stating inter alia that the petitioner no. 2 was found in unauthorized occupation of Railway Plot no. 19 of Plan no. TSK-L/01/2025 at SLGR Railway Colony under cadastral Mouza – Dhupabar measuring an area of more or less Pucca, Mazar, 7.5 X 18.0 SqM defined by boundaries mentioned therein [‘the concerned public premises’ for short]. The petitioner no. 2 after receipt of the Notice under Section 4[2] of the Public Premises Act responded vide a Reply through her advocate on 10.02.2025 stating inter alia that the petitioner no. 2 had been managing a Dargah Sharif over the plot of land mentioned in the Notice on the strength of the Judgment and Order dated 06.12.2003 delivered in Title Suit no. 84/1998. It was conveyed that as the petitioner no. 2 had become an absolute title-holder of the plot of land having continuous and peaceful possession over the Dargah Sharif, the Notice issued under Section 4 of the Public Premises Act had no legal force. It is further noticed that after sending the said Reply, the petitioner no. 2 did not participate in the proceeding before the respondent no. 4. From the impugned Eviction Order dated 04.04.2025, it is noticed that the respondent no. 4 had proceeded ex-parte thereafter on and from 12.03.2025. The Estate Officer appeared to have considered the documents exhibited and evidence produced by the respondent Railway authorities and was satisfied that the petitioner no. 2 had been unauthorisedly occupying the concerned public premises and hence, was liable to be evicted under the provisions of the Public Premises Act.

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The Public Premises Act is enacted for providing for effective machinery for eviction of persons in unauthorised occupation of public premises and certain incidental matters. Section 2[e] has provided for the definition of public premises. Public Premises inter alia indicates any premises belonging to or taken on lease, hire or requisitioned by or on behalf of the Central Government. Section 3 has provided for appointment of Estate Officer. As per sub-section [1] of Section 4, if the Estate Officer has any information that any person is in unauthorised occupation of any public premises and that he should be evicted, the Estate Officer has to issue a notice in writing in the manner therein provided within seven working days from the date of receipt of information regarding unauthorised occupation calling upon the person concerned to show cause as to why an order of eviction should not be made. As per subsection [1A], if the Estate Officer knows or has reasons to believe that any person is in unauthorised

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Page No. 5/11

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occupation of the public premises, then, without prejudice to the provisions of sub-section [1], he shall forthwith issue a notice in writing calling upon the person concerned to show cause why an order of eviction should not be made. As per sub-section [2] of Section 4, the notice shall – [a] specify the grounds on which the order of eviction is proposed to be made; [b] require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises – [i] to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not later than seven days from the date of issue thereof; and [ii] to appear before the Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. Sub-section [3] of Section 4 requires the Estate Officer to cause the notice to be served in the manner mentioned therein.

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Sub-section [1] of Section 5 has provided for the procedure to be followed by the Estate Officer after considering the causes shown by the person who has been served with the notice under Section 4 and the evidence produced before him. As per sub-section [1] of Section 5, if, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under sub-clause [ii] of clause [b] of sub-section [2] of Section 4, the Estate Officer is satisfied that the public premises are in unauthorised occupation, the Estate Officer shall make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order but not later than fifteen days from the date of the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises, provided that every order under the said sub-section shall be made by the Estate Officer as expeditiously as possible and all endeavour shall be made by him to issue the order within fifteen days of the date specified in the notice under sub-section [1] or subsection [1A], as the case may be, of Section 4. The other situation, that is, if the Estate Officer is satisfied that the noticee is not in unauthorised occupation of any public premises as indicated in the show cause notice, he cannot pass an order of eviction is also to be read into the provision of Section 5.

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Rule 4 of the Public Premises [Eviction of Unauthorised Occupants] Rules, 1971, framed under Section 18 of the Public Premises Act, 1971, has provided for the manner of service of notices and orders. Rule 5 thereof has provided for holding of inquiries. As per sub-rule [1] of Rule 5, where any person on whom a notice or order under the Public Premises Act has been served desires to be heard

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Page No. 6/11

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through his representative he should authorise such representative in writing. Sub-rule [2] of Rule 5 has cast an obligation on the Estate Officer to record the summary of the evidence tendered before him. The summary of such evidence and any relevant documents filed before him shall form part of the records of the proceedings. It is pertinent to note that any order passed by an Estate Officer in Section 5 of the Public Premises Act is an appealable order under Section 9 of the Public Premises Act.

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It has been held by the Hon’ble Supreme Court of India in Nusli Neville Wadia [supra] that the action of State or any instrumentality of the State within the meaning of Article 12 of the Constitution of India must be fair and reasonable. The action of the State or an instrumentality of the State in terms of the Public Premises Act should not be arbitrary, unreasonable or mala fide. The Estate Officer being a creature of the statute must adhere to the prescriptions of the Public Premises Act. It has been observed that the statute, although, does not require a lengthy hearing or a lengthy crossexamination but the noticee should be given an opportunity to file an effective show cause. The effective show cause can be filed when eviction is sought for a specified ground and the occupants must know the particulars in relation thereto. It has been further observed that the provisions of the Code of Civil Procedure and the Evidence Act are not applicable but the principles of natural justice must be followed. When in support of its case, the landlord intends to rely upon a document which is to be taken on record, it would be obligatory on the part of the Estate Officer to allow inspection thereof to the noticee. Denial of such inspection of documents shall be violative of the principles of natural justice. It would run counter to the doctrine of fairness in the matter of determination of a lis between the parties.

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As it prima facie appears that the petitioners’ claim regarding their status as landholders in respect of the suit land against the concerned public premises mentioned in the Schedule to the Notice would have fallen for consideration of the Estate Officer, the following observations in Nusli Neville Wadia [supra], appears apposite :-

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Section 5 of the Act, on a plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. Literal meaning in a situation of this nature would lead

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Page No. 7/11

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to a conclusion that the landlord is not required to adduce any evidence at all nor it is required even to make any oral submissions. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. It may not even be permitted to adduce any evidence in rebuttal to the one adduced by the noticee nor it would be permitted to advance any argument. Is this contemplated in law? The answer must be rendered in the negative. When a landlord files an application, it in a given situation must be able to lead evidence either at the first instance or after the evidence is led by the noticee to establish its case and/or in rebuttal to the evidence led by the noticee.

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It has been held in Suhas H. Pophale [supra] that the Public Premises Act is applicable prospectively to premises which were ‘public premises’ on the dates mentioned therein. Otherwise, the Public Premises Act has no retrospective effect and would not apply to persons who had entered into occupation prior to those dates and who had acquired vested rights of occupation. It is held that occupation of such category of persons with vested rights of occupation would not fall with ‘unauthorised occupation’. The decision in Nusli Neville Wadia [supra] was also considered.

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The petitioners’ claim regarding the suit land where rights are stated to have been acquired on the strength of the Judgment and Order dated 06.12.2003 passed in Title Suit no. 84/1998 is to be examined against the claim made by the respondent authorities in respect of the concerned public premises mentioned in the Notice dated 20.01.2025 issued under Section 4 of the Public premises Act and the Order of Eviction dated 04.04.2025 passed under Section 5 of the Public Premises Act. To examine such issue, determination of facts would fall for consideration. The description of the suit land involved in Title Suit no. 84/1998 and the purported public premises mentioned in the Notice dated 20.01.2025 and the Order dated 04.04.2025 are not readily and easily matchable. As the said aspect is a disputed question of fact, this court in writ jurisdiction is not required to embark on a fact finding exercise on the said aspect. It is settled that all questions of facts are to be decided by the adjudicating authority or the appellate authority in the hierarchy, constituted by the statute, as such authorities are competent to deal with and decide on disputed questions of fact. An Order passed under Section 5 of the Public Premises Act is appealable under Section 9 of the Public Premises Act before the jurisdictional District Judge.

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Page No. 8/11

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It is true that even in presence of an alternative, efficacious and statutory remedy of appeal, a writ petition under article 226 of the Constitution is maintainable on the grounds :- [i] where the writ petitioner seeks enforcement of any of the fundamental rights; or [ii] where there is failure of principles of natural justice; or [iii] where the orders or proceedings are wholly without jurisdiction; or [iv] where the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. The right to property ceased to be a fundamental right by the Constitution [Forty-Fourth Amendment] Act, 1978. However, the right to property continues to be human right in a welfare state and a constitutional right under Article 300A. As per Article 300A, no person shall be deprived of his property save by law. Thus, the State or its instrumentalities cannot dispossess a person of his property except in accordance with the procedure established by law. In the case in hand, evidently there was the Notice dated 20.01.2025 which was duly served the petitioners. The receipt of the Notice dated 20.01.2025 prompted the petitioners to send a Reply on 10.02.2025 through an Advocate by registered post. The Notice dated 20.01.2025 called upon the petitioner no. 2 to appear before the Estate Officer on 17.02.2025 for personal hearing. But, the petitioner no. 2 did not appear before the Estate Officer on 17.02.2025. As a result, the proceeding proceeded ex-parte. Prima facie, the case is not one which falls in the category of ‘no notice’ or ‘no opportunity’. It has been held by this court that there is a distinction between a case where there is violation of the rule of audi alteram partem with ‘no notice’ and ‘no opportunity’ and a case where there is violation of a facet of the rule of audi alteram partem where the plea is ‘no adequate notice’ or ‘no adequate opportunity’. In the first category of cases, the order passed could be termed as invalid on the ground of total violation of the principles of natural justice. But it cannot be readily held so in the later category of cases as the effect of violation of a facet of the rule of audi alteram partem would require examination from the standpoint of prejudice. Only in the established situation that the premises involved in the proceeding before the Estate Officer is not public premises, it would have been possible to decide on the issue whether the impugned order or proceeding was without jurisdiction. In the case in hand, none of the above exceptions has been established.

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It is trite legal position that an appellate authority would have the jurisdiction to appraise and appreciate the evidence and an appellate authority is free to reach its own conclusion on evidence untrammeled by finding entered by the original adjudicating authority. The question about the adequacy of reasons or its sufficiency can be raised before the appellate authority constituted under

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Section 9 of the Public Premises Act, which is empowered to consider issues of both facts and law. Therefore, the appellate remedy is an adequate and efficacious statutory remedy.

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In the three-Judge Bench decision in M/s Magadh Sugar & Energy Limited vs. the State of Bihar and other, [2021] S.C.R. 284 , the following observations have been made regarding entertaining a writ petition in the presence of an effective and efficacious alternative remedy :-

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While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai, [1998] 8 SCC 1, and Harbanslal Sahni v. Indian Oil Corporation Ltd, [2003] 2 SCC 107 . Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors, 2021 SCC OnLine SC 334, a twojudge Bench of this Court of which one of us was a part of [Justice DY Chandrachud] has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed :

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‘28. The principles of law which emerge are that:

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[i] The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

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[ii] The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

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[iii] Exceptions to the rule of alternate remedy arise where

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[a] the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

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[b] there has been a violation of the principles of natural justice;

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[c] the order or proceedings are wholly without jurisdiction; or [d] the vires of a

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legislation is challenged;

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[iv] An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

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[v] When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

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[vi] In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.’

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For the reasons assigned above, the present writ petition is not entertained. However, liberty stands reserved to the petitioners to prefer an appeal under Section 9 of the Public Premises Act. It is further observed that in the event the petitioners prefer an appeal under Section 9 of the Public Premises Act with delay, the period spent in pursuing the present proceeding shall be considered by the appellate authority in terms of Section 14 of the Limitation Act.

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Learned counsel for the petitioners has submitted that the petitioners would avail the appellate remedy in an expeditious manner. Apart from assailing the Order of Eviction dated 04.04.2025, the petitioner has also prayed for a direction to the respondent authorities not to disturb the performance of religious affairs at Hajarat Syed Nabiullah Aolia Mazahar in terms of the Judgment and Order dated 06.12.2023 [supra]. Having regard to the Judgment and Order dated 06.12.2023, it is provided that the respondent authorities shall not take any consequential action on the basis of the Order of Eviction dated 04.04.2025 for a period of one month from today or till the date of filing an appeal by the petitioner, whichever is earlier. It is further observed that after filing of the appeal, the appellate authority shall consider about providing any interim relief during the pendency of the appeal on its own merits and in accordance with law.

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Page No. 11/11

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It is further made clear that the observations hereinabove are made only for the purpose of considering the point whether the writ petition is to entertained in view of availability of the appellate remedy under Section 9 of the Public Premises Act and the same are not be construed as observation on merits on any of the aspects of the proceeding under the Public Premises Act.

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JUDGE

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Comparing Assistant

Hajarat Syed Nabiullah Aolia Mazahar Tomb and Anr. v. the Union of India and Ors.

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Hajarat Syed Nabiullah Aolia Mazahar Tomb and Anr. v. the Union of India and Ors.

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