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Judgment
A supplementary affidavit is filed today by the opposite parties primarily for the purpose of producing a gazette notification indicating the authority of the person who passed the impugned order of the first forum as an Estate Officer.
An affidavit-in-opposition is also filed thereto by the petitioners.
Let the supplementary affidavit and the affidavit-in-opposition be kept on record.
Learned senior counsel appearing for the opposite parties submits that a notification was issued by the Secretary, Railway Board which authorizes the Estate Officer-in-question to act in such capacity, as contemplated in Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
However, learned senior counsel appearing on behalf of the petitioners argues that the notification annexed to the supplementary affidavit is merely a notification issued by the Secretary of the Railway Board and cannot constitute a gazette notification. Learned senior counsel cites in this regard, a judgment reported at (2003) 1 Supreme Court Cases 506 (Subhash Ramkumar Bind alias Vakil and another Vs. State of Maharashtra) wherein it was held inter alia that the statute-in-question therein contemplated a notification in the official gazette and that an administrative note could not come within the ambit of the statutory requirement of a notification in the official gazette.
Learned senior counsel appearing for the petitioners further submits that the Railway Board could at best be assigned the powers of the Central Government in respect of the Indian Railways Act, 1890. However, the notification in the present case does not come within the ambit of the said Act, but within the scope of 1971 Act and as such had no sanctity as a gazette notification.
Replying on this limited point, learned senior counsel for the opposite parties submits that, despite diligent efforts by the concerned officers, no copy of the gazette notification-in-question could be traced out. However, it is submitted that the competent officer of the opposite parties, if necessary, shall affirm an affidavit stating so as well as the fact that there was a gazette notification published pursuant to the notification which has been annexed to the supplementary affidavit.
However, it appears from the supplementary affidavit filed by the opposite parties that the notification issued by the Railway Board itself was claimed therein to be a gazette notification. In that regard, the petitioners are absolutely justified in contending that the same could not, by any stretch of imagination, be deemed to be a notification in the official gazette as contemplated in Section 3 of the 1971 Act.
However, in view of the specific submission of learned senior counsel for the opposite parties that there was an actual gazette notification published which has been subsequently lost and that a competent officer of the opposite parties would affirm an affidavit to that effect, a last chance is being given to the opposite parties to use a further affidavit in the above regard. However, the opposite parties ought to be penalized for wasting the valuable time of Court as well as of the petitioners in having failed to come up with proper averments in their supplementary affidavit even after getting ample opportunity to do so.
Accordingly, the opposite parties are directed to file a further affidavit in support of the supplementary affidavit within a fortnight from date subject to payment of costs of Rs.10,000/- to the petitioners within the aforesaid time. In default of such payment, the opposite parties would lose their opportunity of filing the further affidavit and the matter will proceed on the basis of the documents and pleadings already on record.
Affidavit-in-opposition, if any, to such further affidavit shall be filed within a week thereafter.
The interim order granted earlier stands extended till August 15, 2019 or until further orders, whichever is earlier.
The matter will next appear under the same heading on July 11, 2019.