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Judgment
Heard learned Counsel for the Appellant.
The exparte order dated 02.09.1993 reads as under:
Now, I take up the case for exparte decision and Eviction Order dated 18.05.1979 passed by the then Estate Officer, South Eastern Railway, Bilaspur at Chakradharpur in this case u/s 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, hereby confirmed under the facts and circumstances of the case".
By the impugned order, the said exparte order has been set aside by the learned Single Judge and the matter has been remanded to the Estate Officer to decide the matter afresh and the present L.P.A. has been preferred by the Union of India to challenge the order passed by the learned Single Judge dated 02.09.2009 remanding the matter in said facts and circumstances.
Learned Counsel for the Appellant submitted that the writ jurisdiction should not be exercised so as to pass an order restoring illegal order resulting in perpetuality of the illegality and relied upon a Division Bench judgment of the Patna High Court delivered in the case of Vijay Kumar v. State of Bihar and Ors. reported in 1993 (1) PLJR 99. According to the learned Counsel for the Appellant, relying upon the judgment of the Supreme Court, the Division Bench has taken the view that if setting aside of the impugned order results into restoration of the illegal order, then such order should not be passed even if the challenged order is illegal. The order which we have quoted above, on the face of it reveals that such type of order could not have been passed even in any exparte proceeding as the order passed by the Estate Officer is without application of mind and without considering the facts and has been passed following a decision given by his predecessor in one line order, not even declaring the person in possession an unauthorized occupant, but passing the order of eviction.
We accept the argument of the learned Counsel for the Appellant in totality and therefore if we allow this L.P.A. then we will be restoring that order which has been set aside by the learned Single Judge resulting in bringing into force absolutely illegal and unjustified order. Therefore, the L.P.A. has no merit.
Learned Counsel for the Appellant then relied upon another judgment of the Hon''ble Supreme Court in the case of Mandal Revenue Officer Vs. Goundla Venkaiah and Another, wherein tendency of encroaching public lands by the unscrupulous elements has been condemned as well as it has been made clear that for that even the instrumentality of the State and Estate Officer they may also be hand in gloves. The issue has been dealt with in more detail by the Hon''ble Supreme Court in paragraph 47. We would like to quote paragraph 47 which is as under:
In this context, it is necessary to remember that it is wellnigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularised. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is dutybound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.
It is clear from the observation made by the Hon''ble Supreme Court that it is the duty of the State to protect the public property and to take action and it is also the duty of the Court to come in aid to the protection of the properties of the public vesting in the State/the Union of India. This is being followed by the Jharkhand High Court is now well know. However, this does not mean that the procedure of law which is required to be followed by the officers can be given go by and orders can be passed in such a manner as has been passed in this case.
It is submitted by learned Counsel for the Appellant that the writ PetitionerRespondent had no right to remain in possession and he is enjoying the property for more than last 30 years. He has been given opportunity by the High Court as well as by the Estate Officer but he did not appear. It may be true that the conduct of the writ Petitioner may be bad in some sense but so far as the authority concerned who has passed the order, he should have passed the order following the law and not by ignoring the law and in a matter where the person was in possession since last 30 years and if by impugned order some more time has been granted then the learned Single Judge has not committed any error. It is for the Estate Officer to decide the matter expeditiously and pass the order in accordance with law and thereafter whether the writ Petitioner again appears before the authority or not.
In view of the above reasons, the L.P.A. having no merit, is dismissed.