Disposed

Smt Prakashwati v. the Addi District Judge andORS

Rajasthan HC3 Nov 2016CW/12067/2009

Case brief

AI extract

What is this about?

Writ petitions challenging eviction orders from Railways for unauthorized land. Court found discrepancy in measurement between notice and eviction order but noted execution of possession and lack of demarcation order by appellate court. Liberty granted for recall if allotment area reduced.

What did the court decide?

Writ petitions disposed of with liberty to petitioners to apply for recall or review if the area allotted to them is reduced on effecting the order.

Smt Prakashwati Vs the Addi District Judge andORS — Landlord and Tenant | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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(1) S.B. CIVIL WRIT PETITION NO.4836/2009

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(1) Govind Sharan son of Gaga Sahay,

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(2) Gyan Prakash son of Ganga Sahay,

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(3) Rajendra Kumar son of Ganga Sahay,

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all by-caste Trivedi Brahmin, resident of Gangapur city, District

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Sawai Madhopur.

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..Non-applicant/Petitioners

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Versus

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(1) Additional District Judge (Fast Track) Sawai Madhopur.

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(2) Estate Officer, Western Railway, Kota -cum-Zonal Engineer

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(Central), Western Railway, Kota (Rajasthan).

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(3) Assistant Engineer, Western Railway, Gangapur city, District

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Sawai Madhopur (Rajasthan).

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(4) The District Collector (Land Records), Sawai Madhopur

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(Rajasthan).

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(5) Municipal Board, Gangapur city, District Sawai Madhopur.

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..Non-petitioners.

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(2) S.B. CIVIL WRIT PETITION NO.12053/2009

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Smt. Kailash Kumari wife of Purshottam, resident of Near Mal

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Godam, Narsingh Colony, Gangapur city, District Sawai Madhopur (Rajasthan).

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..Non applicant Petitioner.

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Versus

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(1) The Additional District Judge (Fast Track) Sawai Madhopur (Rajasthan).

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(2) The Estate Officer, Western Railway, Kota -cum-Zonal Engineer (Central), Western Railway, Kota (Rajasthan).

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(3) The Assistant Engineer, Western Railway, Gangapur city,

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District Sawai Madhopur (Rajasthan).

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(4) The District Collector (Land Records), Sawai Madhopur (Rajasthan).

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(5) Municipal Board, Gangapur city, District Sawai Madhopur).

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..Non-petitioners.

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(3) S.B. CIVIL WRIT PETITION NO.12066/2009

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Madan Lal son of Shri Bholu Ram, by-caste Mahajan, resident of Narsingh Colony, Near Mal Godam, Gangapur city, District Sawai Madhopur since deceased through his legal representative:-

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1/1 Vidha Devi wife of Late Madan Lal,

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1/2 Gyan Chand son of Late Madan Lal,

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1/3 Sushil Chand Son of Late Madan Lal,

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1/4 Rajesh son of Late Madan Lal,

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1/5 Mahendra son of Late Madan Lal,

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1/6 Jitendra son of Late Madan Lal,

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all by-caste Mahajan, resident of Narsingh Colony, Behind

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Railway Godam, Gangapur City, District Sawai Madhdopur

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(Rajasthan).

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1/7 Hemlata daughter of Late Madan Lal Mahajan, resident of

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Hasanapur (Haryana).

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1/8 Mohani daughter of Late Madan wife of Dinesh Mahajan, resident of Delhi.

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..Non applicant Petitioners.

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Versus

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(1) The Additional District Judge (Fast Track) Sawai Madhopur

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(Rajasthan).

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(2) The Estate Officer, Western Railway, Kota-cum-Zonal Engineer (Central), Western Railway, Kota (Rajasthan).

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(3) The Assistant Engineer, Western Railway, Gangapur city,

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District Sawai Madhopur (Rajasthan).

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(4) The District Collector (Land Records), Sawai Madhopur (Rajasthan).

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(5) Municipal Board, Gangapur city, District Sawai Madhopur).

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..Non-petitioners.

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(4) S.B. CIVIL WRIT PETITION NO.12067/2009

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Smt. Prakashwati wife of Shri Yogendra Singh, resident of Narsingh

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Colony, near Mal Godam, Gangapur city, District Sawai Madhopur (Rajasthan).

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..Non applicant Petitioner.

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Versus

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(1) The Additional District Judge (Fast Track) Sawai Madhopur

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(Rajasthan).

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(2) The Estate Officer, Western Railway, Kota -cum-Zonal

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Engineer (Central), Western Railway, Kota (Rajasthan).

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(3) The Assistant Engineer, Western Railway, Gangapur city, District Sawai Madhopur (Rajasthan).

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(4) The District Collector (Land Records), Sawai Madhopur (Rajasthan).

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(5) Municipal Board, Gangapur city, District Sawai Madhopur). ..Non-petitioners.

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DATE OF ORDER : 03/11/2016 HON'BLE MR. JUSTICE M.N. BHANDARI

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Mr. Rajneesh Gupta, for petitioners Mr. Shailesh Prakash Sharma, for respondent/s

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By these writ petitions, a challenge is made to the orders passed by the Estate Officer so as the court of ADJ, on an appeal preferred by the petitioners.

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It is a case where a notice was given to the petitioners followed by proceedings before the Estate Officer. He passed an order for eviction for the land unauthorisedly occupied by the petitioners. The appeal against the order of Estate Officer was filed, however, it was also dismissed finding petitioners to be unauthorised occupant of the land belonging to the Railways.

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The only issue raised by learned counsel for petitioners is in reference to the notice given by the Estate Officer. It is

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submitted that notice was given disclosing measurement of the land, however, while passing the order, it was for an area greater than given in the notice. The order of the Estate Officer thus deserves to be set aside so as the order passed on appeal.

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Learned counsel for respondents has contested the writ petitions. He submits that concurrent findings of fact have been recorded by both the courts below thus, this court, while exercising jurisdiction under Article 226 of the Constitution of India, may not cause interference therein.

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It is further submitted that in pursuance of the order passed by the Estate Officer and upheld in appeal, the possession of the encroached land has already been taken by the Railways. Learned counsel further submits that issue raised herein was an issue before the appellate authority and to satisfy the parties, commissioner report was sought and furnished. The commissioner report was not signed by the petitioner but area of encroachment of land was greater than given in the notice and taking into consideration the factual aspect, appeal was dismissed.

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I have considered the rival submissions made by learned counsel for the parties and perused the record.

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The perusal of the notice given by the Estate Officer shows measurement of the area alleged to have been encroached by the petitioners. The order of the Estate Officer,

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however, discloses direction in three cases for eviction for the area greater than specified in the notice, though it is marginal. The issue aforesaid was raised before the appellate authority in three cases and to satisfy the parties, the commissioner report was sought. The commissioner report has been relied in three cases leaving it in one case, out of four writ petitions. It was found that area shown in the commissioner report is clear in terms and measurement of encroached land has been given. In the light of the aforesaid, order for eviction was passed for the area actually encroached by the petitioners.

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In my opinion, there is contradiction in the order passed by the appellate authority because out of four cases before this court, commissioner report was taken in respect of three cases. In one petition, there exists no dispute about measurement of land encroached by the petitioners and specified in the notice and thereupon order passed by the Estate Officer. In two cases, the inspection report has not been relied while relying in one case. To resolve the issue aforesaid, a direction could have been given by the appellate court to produce order of allotment of land in favour of the petitioners with demarcation but the appellate authority has failed to do so and at this stage also, direction aforesaid can be given but finding of fact has been recorded against the petitioners thus at this stage, I do not find any reason to cause interference when order of the

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Estate Officer has already been executed. However, while disposing of these writ petitions, a liberty is given to the petitioners that if area allotted to them has been reduced on effecting the order, then they can make an application for recall or review of this order.

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With the aforesaid, writ petitions stand disposed of. A copy of this order be placed in each connected file.

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[M.N.BHANDARI], J.

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FRBOHRA

Smt Prakashwati v. the Addi District Judge andORS

Case brief

What is this about?

What did the court decide?

Smt Prakashwati v. the Addi District Judge andORS

Case brief

What is this about?

What did the court decide?

What the court decided

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