Allowed

Mohd. Ghouse, v. The Union of India, rep. by its Secretary

Telangana HC12 Sept 2014WP/15407/2008

Case brief

AI extract

What is this about?

In a batch of writ petitions challenging eviction orders under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the Court held them not maintainable due to the statutory alternative remedy under Section 9 before the District Judge, given factual controversies. The petitions were disposed of by directing petitioners to file appeals within two months.

What did the court decide?

Writ petitions disposed of by permitting petitioners to file appeals under Section 9 of the Act within two months; interim orders continue pending disposal.

Mohd. Ghouse, Vs The Union of India, rep. by its… — Writ and Judicial Review | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE A.V. SESHA SAI

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W.P.Nos.13094, 14504, 15172, 15198, 15218, 15223, 15239, 15254, 15258, 15265, 15307, 15407, 15420, 15422 of 2008

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Dated:12-09-2014

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W.P.No.13094/2008 Between: M.K. Imamuddin AND The South Central Railway, Secunderabad Division, Rep. by the Estate Officer-cum-Additional Divisional Railway Manager, Secunderabad.

PETITIONER

RESPONDENT

COMMON ORDER:

Heard Sri B. Vijaysen Reddy and Sri P. Venugopal, learned counsel for the petitioners and Sri P. Bhaskar, learned Standing Counsel for the South Central Railway, apart from perusing the material available on record.

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2 In the present batch of writ petitions, the petitioners are assailing the orders of the Estate Officer-cum-Additional Divisional Railway Manager, South Central Railway, Secunderabad, passed under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for brevity ‘the Act’).

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3 While ordering Rule Nisi, this court granted interim orders in all these writ petitions and the said interim orders are subsisting as on today.

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4 When the matter is taken up today, it is submitted by the learned Standing Counsel for the respondent-Railways that these writ petitions are not maintainable under Article 226 of the Constitution of India in view of the availability of alternative remedy of appeal to the District Judge against the orders of eviction passed by the Estate Officer under Section 9 of the Act.

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5. Section 9 of the Act reads as under.

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“Section 9 – Appeals:- (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under (section 5 or section 5-B) (or section 5-C) or section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years’ standing as the district judge may designate in this behalf.

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(2) An appeal under sub-section (1) shall be preferred, –

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(a) in the case of an appeal from an order under Section 5, (within twelve days) from the date of

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publication of the order under sub-section (1) of that section;

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(b) in the case of an appeal from an order (under section 5-B or section 7, within twelve days), from the date on which the order is communicated to the appellant; (and)

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(c) in the case of an appeal from an order under section 5-C, within twelve days from the date of such orderJ

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Provided that the appellate officer may entertain the appeal after the expiry of the (said period), if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

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(3) Whether an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit:

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(Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under section 5-B for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of the appeal.)

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(4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible.

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(5) The costs of any appeal under this section shall be in the discretion of the appellate officer.

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(6) For the purposes of this section, a presidency-town shall be deemed to be a district and the chief judge or the principal judge of the city Civil Court therein shall be deemed to be the district judge of the district.”

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6. A reading of the above provision of law makes it clear that the orders passed by the Estate Officer under Section 5 of the Act are appealable and statutory appeal lies against the eviction orders, before the learned District Judge. A perusal of the affidavits filed in support of the writ petitions also show that there are serious factual controversies in the matter and in the opinion of this Court the said factual controversies cannot be gone into by this Court in exercise of

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the powers conferred under Article 226 of the Constitution of India. The said aspects need a full-fledged enquiry before the appropriate forum of law and in the instant case the learned District Judge has the jurisdiction to entertain the appeal as per the provisions of Section 9 of the Act.

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8. For the aforesaid reasons and having regard to the provisions of the Act, and in view of the factual controversies in these matters, these writ petitions are disposed of permitting the petitioners herein to avail alternative remedy of appeal under the provisions of Section 9 of the Act, against the orders of eviction passed by the Estate Officer, within a period of two months from the date of receipt of a copy of this order. It is made clear that the interim orders granted by this Court shall continue pending disposal of the said appeals before the appellate authority. It is also made clear that in the event of failure to file the appeals within the time stipulated above, it is open for the respondents to proceed in accordance with law. No order as to costs.

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_______________________ JUSTICE A.V. SESHA SAI.

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12^th September, 2014 Js.

Mohd. Ghouse, v. The Union of India, rep. by its Secretary

Case brief

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Mohd. Ghouse, v. The Union of India, rep. by its Secretary

Case brief

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