B.R. and Co. Rice & Oil Mills vs Union of India and anr.

Ashok Bhan, J.

Union of India representing Northern Railways filed an application under Sections 4 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act) against the petitioner for eviction and recovery of damages on account of unauthorised use and occupation of land measuring 8023 square yards belonging to he Railways and situated in village Muradpur, Tehsil Tarn Taran.

Notices were issued by the respondents to the petitioner on 26th March, 1974. Petitioner did not vacate the premises on the issuance of notices and put in appearance in pursuance to the notice under Sections 4 and 7 of the Act for the first time in March, 1978. Case was adjourned to 30th June, 1978 on which date, the petitioner attended the proceedings at Delhi. Case was adjourned by the Estate Officer to 11th July, 1978 with the direction that he would hold the Court on 11th July, 1978 at Ludhiana. Petitioner went to Ludhiana to attend the proceedings but the Estate Officer did not hold the Court at Ludhiana on that day and the petitioner was told that intimation regarding the next date of hearing shall be sent to him. No such intimation was sent. The case was adjourned to 19th August, 1978. On 19th August, 1978, petitioner being not present was proceeded exparte and ultimately by order dated 23rd January, 1979, the Estate Officer ordered the eviction of the petitioner from the land in dispute within 30 days of the receipt or publication of the order. No damages were awarded and it was left open to respondent No. 1 to recover the same by filing a separate application. Petitioner received copy of the Order through mail on 20th February, 1979 and he filed the appeal before the District Judge, Amritsar, on 2nd March, 1979. The appeal was retuned by the office of the District Judge on 26th March, 1979, saying that the same be presented directly in the Court of Additional District Judge, Amritsar, which was the designated Court exercising the powers under Section 9 of the Act. Appeal was then presented in the Court of Additional District Judge on 29th March, 1979. Office took an objection that the appeal had not been preferred within limitation. Petitioner filed an application under Section 5 of the Limitation Act for condonation of delay stating therein that he had been served with the copy of the order on 20th February, 1979 and he filed the appeal in the Court of District Judge, Amritsar on 2nd March, 1979 i.e. within 15 days. The appeal in original was returned by the office of District Judge on 26th March, 1979 with the direction that the same be presented directly in the Court of Additional District Judge, Amritsar, which was a designate Court exercising the powers under the Act. Petitioner prayed that the delay, if any, in filing the appeal late before the Appellate Authority be condoned as the appellant was pursuing his remedy of appeal in a bona fide manner. The Appellate Authority rejected the plea of the petitioner and dismissed the appeal on 4th August. Estate Officer and the Appellate Authority have filed the present writ petition.

Learned Counsel appearing for the petitioner has argued that the orders of the Estate Officer and that of the Appellate Authority are not sustainable in law. Learned counsel appearing for the petitioner argued that since the petitioner had not been informed of the adjourned date, he could not be proceeded exparte. I find force in this submission. Estate Officer did not hold the Court on 11th July, 1978 at Ludhiana and did not inform the petitioner regarding the adjourned date of hearing. Case was adjourned to 19th August, 1978. Petitioner could not present himself before the Estate Officer on the adjourned date of hearing as he had not been informed regarding the adjourned date of hearing. Order of proceeding exparte against the petitioner has to be set aside. As a consequence thereof the order of eviction passed against the petitioner on 23rd January, 1979 by the Estate Officer has to be set aside.

Next argument of the learned counsel for the petitioner is that order of Appellate Authority dated 4th August, 1979 dismissing the appeal being time barred is also not sustainable in law on the ground that the exparte order was passed by the Estate Officer on 23rd January, 1979. That order was conveyed to the petitioner by post on 20th February, 1979. Petitioner filed the appeal on 2nd March, 1979 i.e. within limitation. The appeal was returned by the office of the District Judge on 26th March, 1979 i.e. within limitation. The appeal was returned by the office of the District Judge on 26th March, 1979 with the direction that the same be presented directly in the Court of Additional District Judge, Amritsar which was the Designated Court exercising the powers under Section 9 of the Act. Petitioner presented the appeal on 29th March, 1979 i.e. within three days of its return. Contention of the petitioner is that he has been pursuing his remedies in bona fide manner and the delay, if any, in filling the appeal before the Appellate Authority, should have been condoned. I find force in this submission of the learned counsel for the petitioner as well. For the reasons given by the petitioner in his application for condonation of delay which have been reproduced in the foregoing paragraphs, it was a fit case in which the Appellate Authority should have condoned the delay in filing the appeal in the interest of justice.

As a consequence of the findings recorded above, order of the Estate Officer Annexure P/1 and that of the Appellate Authority Annexure P/2 deserve to be quashed and the same are hereby quashed. It would be open for the Estate Officer to proceed with the matter and decide the case on merits in accordance with law after giving proper opportunity to the petitioner. Parties through their counsel are directed to appear before the Estate Officer on 19th March, 1991. no costs.

Orders accordingly.