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Judgment
R.K. Shukla, J.—This revision is directed against the judgment and order dated 17-1-1981 passed by the Additional Sessions Judge, Bareilly whereby he has partly allowed the revision filed by Union of India through D.R.M. Northern Railway, Moradabad.
Brief facts of the case are that on being satisfied with the report of Incharge Police Outpost Chouraha and Circle Officer City Moradabad dated 15-12-1973 that there was a dispute likely to cause breach of peace over the, question of possession on a Hanuman Mandir and four shops of the Mandir situate near the Bareilly Railway Junction, the City Magistrate Bareilly passed a preliminary order u/s 145(1) Code of Criminal Procedure on 15-12-1973 requiring the parties to file their written statements and to adduce evidence regarding their respective claims of possession over the property in dispute. The Magistrate also passed an emergency attachment order of the property in question by the same order dated 15-12-1973. All the property so attached was entrusted to the custody of one Sri R. Sharma. The contestants who appeared for or on behalf of Union of India are S/Sri R.D. Sharma, Secretary, Northern Railwaymen''s Union, Bareilly (O.P. No. 3), Divisional Superintendent, Northern Railway, Moradabad (O. P. 2). On the other hand, opposite side was represented by Smt. Rani Sharma, w/o late Satishanand. Sri R.D. Sharma claimed possession over the general property of the temple ; the Union of India through its Divisional Superintendent (now called D. R. M.) Northern Railway claimed that the land on which the temple and its shops were standing belonged to them and they claimed constructive possession over them. Smt. Sushila Devi alias Rani Sharma, O.P. No. 4 alleged that she was legally weded wife of late Satishanand and was the only actual owner in possession of the property in dispute till his death in the month of June 1973. After the death of her husband, she along with her son and daughter claimed possession over the property in dispute. On the other hand Mahant Kamal Giri predecessor of the revisionist Nos. 1 and 2 alleged that he was a member of Anand Akhara which was an old institution of Sanyasis and had been registered under the Registration Act, 1946. According to him, Mandir in question along with its 4 shops and other building near it were in his possession on behalf of Anand Akhara. He also alleged that the Mandir was more than 100 years old but about 35 years ago, double storey of the building was constructed and new idols had been installed in it. He further alleged that the four shops in dispute bad been constructed by him which were in possession of the tenants and he was realizing rent from them. He denied the claims of other parties over the property in dispute but this much admitted in his written statement dated 5-8-1975 that Hindu public was free to visit the Mandir for Pooja and Kirtan. He also alleged that Shankara Girt revisionist No. 2 was hut disciple and was helping him in the management of the Mandir in dispute. Later on, during the pendency of the case before the Magistrate, Baba Kamal Giri died at the Kumbh mela Prayag on 20-1-1977. Thereafter, Baba Brij Giri and Baba Shambhoo Giri, who had rival claims to become legal representative of late Baba, were also impleaded as parties.
On behalf of the Union of India, following documents were submitted.
Written statement dated 16-3-74 and written statement dated 12-11-74.
The affidavit of K.P. Srivastava dated 19-10-74.
The affidavit of Jagdamba Prasad dated 26-5-76.
Copy of judgment of the District Judge Bareilly in appeal No. 13/77 14/77, 15/77 and 16/77 dated 30-11-77.
Estate Officer''s order dated 28-12-76.
On behalf of the revisionist, in addition to various affidavits, some witnesses namely Baba Dutt Giri PW 1, Madan Lal PW 2, Dal Chand PW 3, Tika Ram, PW 4 and Duryodhan PW 6 were produced and some documents were also filed. Smt. Rani Sharma O.P. 4 appeared as PW 5 in support of her claim.
After considering the entire evidence on the record, the City Magistrate vide his order dated 12-9-79 came to the conclusion that Baba Kamal Girl was in possession of the property in dispute and ordered that the property in dispute be released in favour of Baba Brij Giri and Shambhoo Giri chelas of Mahant Kamalgiri deceased and the other parties were restrained to interfere with the peaceful possession of Baba Brij Giri and Shambhoo Giri until and unless evicted by the competent Court in due course of law.
Against the aforesaid order, the Union of India through D.R.M. Northern Railway Moradabad filed a revision No. 253 of 1979 in the Court of Additional Sessions Judge, Bareilly which has been partly allowed by the Additional Sessions Judge ordering four shops to remain in the possession of the Union of India through Northern Railway administration as ordered by the Estate Officer under the provisions of Public Premises (Eviction of Unauthorised Occupants Act) 1971 Thereinafter referred to as Act). But the revision was dismissed with regard to the building comprising of the Mandir with the observation that the same should be delivered to the possession of Baba Brij Giri and Shambhoo Giri (revisionists) if the same had not been done so far. It was further ordered that they would remain in peaceful possession Aggrieved by the above order of the Additional Sessions Judge, the revisionists have come up before this Court by way of the present revision.
Sri A.D. Giri, learned Counsel for the revisionists vehemently contended that order of the Magistrate was perfectly correct and the Additional Sessions Judge has wrongly delivered the four shops in dispute to the possession of Union of India through D.R.M. Northern Railway, Moradabad.
On the other hand, Sri Lalji Sinha, learned Counsel for the Northern Railway vigorously urged that the order of the Estate Officer dated 28-12-76 u/s 5 of the Act has been upheld by the appellate Court vide judgment dated 30-11-1977. The Estate Officer has held that the plot No. 654, whereupon the disputed shops are standing, belonged to the Railway Administration and the said shop keepers are in unauthorised occupation thereof and they will be liable to be evicted therefrom. That order has been executed and the Union of India came into possession over the shop which cannot be questioned in any Court because of Section 10 of the Act.
After hearing the parties and going through the entire evidence, I find that the revisionists were not in actual possession of the 4 shops in dispute which were in the possession of the 4 shop keepers namely Jawabar Lal, Bhanna Mal, Duryodhan and Sita Ram. The Union of India through Divisional Engineer Northern Railway, Moradabad filed 4 ejectment suits against the aforesaid 4 shop keepers individually under the provisions of the Act. The Prescribed Authority i.e. the Estate Officer appointed under the Act, after issuing show cause notices u/s 4 of the Act to all persons in occupation or claiming interest in the public premises, consolidated all the four cases and the case of Jawahar Lal was made as leading case in which evidence was recorded. The revisionist did not contest. The Estate Officer vide his common order dated 28-12-1976 directed eviction of the four shop-keepers from the shops in dispute and also directed them to pay damages which are mentioned in the judgment of the District Judge. All the shop-keepers filed four miscellaneous appeal Nos. 13, 14, 13 and 16 of 1977 in the Court of District Judge u/s 9 of the Act which has been decided by the learned District Judge, Bareilly vide a common judgment dated 30-11-1977, certified copy of which is on the record as paper No. 79/3. It is Important to note that Smt. Rani Sharma also filed application in each case before the Estate Officer claiming to be owner of the premises but subsequently she withdrew and got all the applications dismissed.
After discussing the evidence of the shop-keepers, some of whom are witnesses in this case, the District Judge dismissed the four appeals and held as under:
The net result of the evidence, therefore, is that the shops in question cannot be said either to have been constructed by or to have belonged to Satisha Nand or any other specific person. Consequently, they must be held to be constructions without authority by trespass over Railway land.
It is Immaterial as to who made this trespass over the Railway land. Any such person as also any person in actual occupation of the trespassed area or the building over it would be liable to be proceeded against under the Act. The Union of India would have a right to move the Estate Officer for orders of eviction and compensation against the Appellants who are admittedly in possession over the buildings occupying the lands in question. Whether the Appellants have a right to remove the building material of the shop or not is not the point for consideration in these appeals. Since those materials are not claimed by the Respondents, the Appellants may remove them, if they can. They may leave them for the possession of the Respondents, if they like so. But the petitions of the Respondent had to be allowed and they were rightly allowed. The Appellants were liable to ejectment even if they drew their title from someone who was himself a trespasser. The Respondent was not bound to trace out that real trespasser, in case that was some person other than the Appellants themselves. A person deriving title from a trespasser is himself a trespasser as against the real owner and can be proceeded against by the real owner.
It appears from the affidavit dated 22-3-1979 of Sri Ram Singh, I.O.W., Northern Railway and Police Report dated 20-1-1971) that the order of the Estate Officer has been executed and the Union of India through the Railway Administration came into possession over the shops. In the proceeding u/s 145 Code of Criminal Procedure finding and order of the Estate Officer cannot be questioned and it has acquired a finality vide Section 10 of the Act. According to Section 15 of the Act, no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that section or the costs awarded to the State Government or the corporate authority under Sub-section (5) of Section 9 or any portion of such rent, damages or costs.
In the case of Union of India v. Km S. Begum 1972 ALJ 307 the Supreme Court has held as under:
The prohibition is in relation to any suit or proceeding in respect of the eviction of any person. The phrase in respect of is of wide amplitude. It includes all ancillary and supplementary matters connected with eviction of any person. In my opinion, the Estate Officer cannot file a suit for eviction of any unauthorised occupant in respect of whom he could take action u/s 4 or 5 of this Act. Under the circumstances it cannot be said that the Estate Officer has any discretion in the matter in relation to the premises covered by the Act and in relation to persons occupying the premises. For their eviction, the Estate Officer can take action only under the provisions of the Act. He cannot take recourse to the ordinary civil Courts. So the provisions of the Act cannot be held discriminatory.
Thus, Section 15 creates a complete bar to the jurisdiction of all other Courts. The term ''proceedings'' is more wider than ''case''. It includes administrative proceedings also. But use of the adjective ''legal'' makes it clear that the bar operates against proceedings in a Court of law alone. Here the term ''proceedings'' means proceedings in the nature of suit or complaint. See--R.I. Bhgman v. Harteb Chandra AIR 1988 NUC 186.
In any case, the matter decided by the Estate Officer confirmed in appeal has become final and the Magistrate was not justified in ignoring the order passed by the Estate Officer particularly when the Police report dated 21-11-1978 was already before him that order of the Estate Officer had already been executed. Not only this but it is also specifically stated in the affidavit of Ram Singh, I.O.W. Northern Railway Bareilly in paragraph 8 and 9 that the property in dispute was never in the possession of Mahant Shambhoo Giri or Brij Giri or Mahant Kamal Giri and the peaceful possession of the Union of India since 29-1-1977 over the shops in question is also proved by the Police Report dated 20-1-1978 called by the Magistrate. For the purpose of Section 145 Code of Criminal Procedure the Magistrate has to consider the actual possession of the party on the date of preliminary order and within months prior to that order or Police report, which, was of the shop-keepers. All the four shop-keepers namely Jawahar Lal, Bhanna Mal, Duryodhan and Sitaram had lost their cases against the Union of India through the Divisional Engineer, Northern Railway Moradabad from the Court of Estate Officer u/s 5 of the Act vide its order dated 28-12-76 which has been upheld by the appellate Court vide judgment dated 30-11-1977. Under these circumstances, the findings and orders of the Estate Officer under the provisions of the Act cannot be questioned. The Magistrate has committed mistake in ignoring the order of the Estate Officer which has been rightly rectified by the learned Sessions Judge. Therefore, the judgment and order of the learned Sessions Judge is perfectly correct and does not require any interference by this Court.
In the result, the revision fails and is accordingly dismissed. Stay order dated 13-3-1981 passed by this Court is hereby vacated.