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Judgment
Heard Mr. S. Dutta, the learned senior counsel assisted by Mr. B.K. Jain, the learned counsel for the petitioners. Also heard Mr. K. Gogoi, the learned Central Government Counsel, appearing for the respondents.
This application under Article 227 of the Constitution of India has been filed by the petitioners, namely, (i) Sushil Baid and (ii) Smt Shobha Devi Patwari, impugning the judgment and order dated 07.04.2026, passed by the Court of learned District Judge, Kamrup (M), in Misc. Appeal No. 14/2025.
The facts relevant for consideration of the instant CRP(I/O), in brief, are that both the petitioners are brother and sister in relationship and claim to be owners of a plot of land covered by Dag No. 233 under K.P. Patta No. 33, measuring about 1Katha,10 Lechas, out of which 1Katha 5Lechasland belongs to the petitioners. The petitioners have also claimed to have constructed an RCC building over the said land. The building, after being assessed by Guwahati Municipal Corporation, has also been allotted a holding number i.e., Holding No. 1610, in Ward No.11A of Guwahati Municipal Corporation.
It is contended by the petitioners that on 28.08.2025, the petitioners received a copy of an order dated 31.07.2025, passed ex-parte, by the Estate Officer, in Eviction Case No. EO/MLG/298/2025 against Petitioner No. 1 for his eviction as unauthorized occupant of railway land at Bharalumukh between Kamakhya-Guwahati section (in short “KYQ-GHY section”), covered by Dag No. 21 under Mouza Jalukbari of Village Bharalumukh, Guwahati, Kamrup (M), Assam. It is further contended that the said order was received by one of the staff of the tenant of the petitioner, namely, Gautam Dey. It was directed in the said order that the petitioner should vacate the land measuring about 84 square meters indicated in the order within a period of fifteen days from the date of receipt of the said order.
It is further pertinent to mention herein that the aforesaid order dated 31.07.2025 was passed ex-parte against the Petitioner No. 1. It transpires from the said order that the notice under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was issued to the Petitioner No. 1 and same was received by the Petitioner No. 1on 23.06.2025 and 16.07.2025 respectively, the said fact has been denied by the petitioners.
Being aggrieved by the Order dated 31.07.2025, passed by the Estate Officer, the petitioners preferred an appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 before the Court of learned District Judge, Kamrup (M), Guwahati. The said appeal was registered as Misc. Appeal (Civil) No. 14/2025. It is pertinent to mention herein that the petitioner No. 2 did not prefer the aforesaid appeal as she never received any notice from the Estate Officer, neither she was a party to the eviction proceeding pending before the Estate Officer.
The present respondents appeared before the Court of learned District Judge, Kamrup (M), Guwahati in the aforesaid appeal and filed their written objection wherein they took the plea that the notices issued by the Estate Officer were duly served on the petitioner No. 1 and he was found to be an unauthorized occupant of land covered by dag No. 21 which was acquired by the railways for the purpose of construction of a third line between Kamakhya and Guwahati section of NF Railway, which has been sanctioned by Railway Board. Ultimately, by its judgment and order dated 07.04.2026, passed in Misc. Appeal No. 14/2025, the Court of learned District Judge, Kamrup (M), Guwahati dismissed the aforesaid appeal. Being aggrieved by the dismissal of the appeal, the instant application under Article 227 of the Constitution of India has been filed by the petitioners.
Mr. S Dutta, the learned Senior counsel for the petitioners has submitted that the petitioners never received any notice issued by the Estate Officer, either under Section 3B or under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, before proceeding ex-parte against them. He submits that the petitioner No. 1 resides at “Aashi Holiram Heritage, Flat No. E405, KRC Road, Bharalumukh, Guwahati-781009” in the district of Kamrup (M), Assam. He submits that the business of the petitioner No. 1 is at Hindustan Stationary Store, House No. 46, SRCB Road, Fancy Bazar, Guwahati-781001 in the district of Kamrup, Assam. He further submits that the petitioner No. 2 resides at Bijaynagar in the district of Kamrup, Assam, which is about 30 km away from Guwahati. He submits that the address of the petitioner No. 1, shown in the notice issued by the Estate Officer was “Railway Plot No. 139 (cat-1) at KM-7/2-1 (S/L) at Bharalumukh between KYQ-GHY Section”. He submits that apparently notices were not sent at the correct address of the petitioner No. 1, therefore, there is no question of receiving the said notice by the petitioner No. 1.
The learned Senior counsel for the petitioners further submits that there is no material on record to indicate that the notice issued to the petitioners by the Estate Officer was served in the manner as provided under Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971. He submits that as per the said rules the notice under Section 3B or Section 4(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 shall have to be served in addition to any mode of service specified in the Act, by delivering or tendering a copy of notice or order, as the case may be, to the person for whom it is intended or to any adult member of his family, or by sending it by registered post acknowledgement due in a letter addressed to that person at his usual or last known place of residence or business.
He, however, submits that, in the instant case there is no material on record to indicate the compliance of Rule 4 of the aforementioned Rules. He, therefore, submits that the Estate Officer has violated the principle of natural justice by deciding to proceed ex-parte against the petitioners without even ascertaining due service of notice on the petitioners. He submits that the court of learned District Judge has also erred by holding in the impugned order that since the order dated 31.07.2025was admittedly received by the petitioners and as the said order was also sent in the same address in which notices issued by the Estate Officer were sent, hence, the plea of the petitioner No. 1 regarding non receipt of notice was not considered to be true. He submits that the learned District Judge arrived at the satisfaction regarding service of notice merely on the basis of assumption, without there being any material on record to arrive at such conclusion.
The learned Senior counsel for the petitioners further submits that the petitioners are the owner of the land over which they have constructed an RCC building and same was duly assessed by Guwahati Municipal Corporation as per the provisions of the Guwahati Municipal Corporation Act, 1969. He submits that they cannot be evicted from their own land without following due procedure of law as same would be violative of the Constitutional rights guaranteed them under Article 300A of the Constitution of India. He submits that unless the petitioners are afforded an opportunity of showing the basis of their rights over the land on which they have constructed the RCC building, before the Estate Officer any order of eviction passed by the Estate Officer would be violative of statutory provisions contained the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In support of his submission, the learned Senior counsel has cited following rulings:
Roop Singh Meghi vs Punjab National Bank and Ors. reported in (2009) 2 SCC 570.
ii) M Naga Venkata Laxmi vs Vishakhapattanam Municipal Corporation and Ors. reported in (2007) 8 SCC 748.
On the other hand, Mr. K Gogoi, the learned Central Government Counsel has submitted that the court of learned District Judge, Kamrup, Assam has rightly dismissed the appeal preferred by the present petitioner No. 1 under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. He submits that there is no infirmity in the impugned judgment and same does not warrant any interference by this court in exercise of its extra ordinary supervisory power under Article 227 of the Constitution of India.
He submits that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution of India is limited to seeing that an inferior court or tribunal functions within the limits of its authority. He submits that it is not to be exercised for correction of an error apparent on the face of the record, much less an error of law. He submits that while exercising supervisory powers, the High Court does not sit as an appellate court. He further submits that while exercising powers under Article 227 of the Constitution of India, the High Court cannot substitute its own judgment in place of that of the subordinate court to correct a purported error by such court.
He further submits that the appellate court of the learned District Judge has rightly held that when the copy of order dated 31.07.2025 was received by one of the tenants of the petitioner No. 1, namely, Sri Gautam Dey and admittedly the said order was sent in the same address in which the notice issued by the Estate Officer under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 to the Petitioner No. 1 was sent, hence, the plea that the petitioner No. 1 did not receive the notice cannot be considered as true. He submits that there is no perversity in the conclusion arrived at, regarding service of notice on the petitioner No. 1, by the learned District Judge justifying any interference by this court in exercise of supervisory power. He submits that the land covered by Dag No. 21 was acquired by Railways for the purpose of the 3rd railway track between Kamakhya junction and Guwahati junction. He submits that the satellite images as well as railway cadastral map prepared by Settlement Authorities clearly shows that the railway plot No. 139 (CAT-1) at KM 7/2-1 (S/L) is under encroachment and the said fact has been rightly taken into consideration by the Estate Officer as well as by the Court of learned District Judge, Kamrup (M) in the impugned judgment. He further submits that the appellate court also took into consideration the discrepancy in the boundaries of the land claimed to have been purchased by the petitioners by registered sale deed dated 30.04.2002 in coming to the finding that the petitioners have purchased a different plot of land which is away from the existing railway track. As such, he submits that the impugned judgment does not warrant any interference by this court in exercise of its power under Article 227 of the Constitution of India.
In support of his submission, the learned Central Government Counsel has cited the following rulings:
Madan Mohan (Dead) through LRs vs. Thakar Dass through LRs reported in (2026) SCC Online SC 1365.
ii) Nandi Infrastructure Corridor Enterprise Ltd. and Anr. Vs B Gurappa Naidu reported in (2026) SCC Online SC 745.
iii) Md. Yunus vs. Md. Mustaquim and Ors. reported in (1983) 4 SCC 566.
iv) Harendra Nath Bhuyan vs. Union of India and Ors judgment dated 30.07.2025 in WP(C) No. 6380/2019.
Nagendra Nath Bora &Anr. Vs. the Commissioner of Hills Division and appeal, Assam and Ors. reported in 1958 SCC Online SC 45.
I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for the both sides in support of their respective submissions.
The point to be determined in this revision petition is as to whether the appellate court was right in holding, in the impugned judgment, that the plea that the petitioner No. 1 did not receive the notice issued by the Estate Officer under the provision of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is not true, and whether there is any material on record to indicate due service of such notice on the petitioners.
There is no dispute regarding the legal proposition that while exercising its supervisory powers under Article 227 of the Constitution of India, this court is not expected to sit on appeal against every erroneous finding of the court, whose judgment / order has been impugned before it. It is supposed to exercise its power of superintendence only in the event of gross abuse of jurisdiction by the subordinate court. There is also no dispute regarding the legal proposition that the supervisory power under Article 227 has to be sparingly exercised and with circumspection. However, in a case where material on record indicates that there is violation of principles of natural justice as well as violation of any statutory law, which safeguard the principle of natural justice, this court may not refrain itself from exercising its supervisory jurisdiction under Article 227 of the Constitution of India for safeguarding the ends of justice.
In the instant case, the main contention of the petitioners is that they were not afforded the opportunity of being heard before passing the impugned order dated 31.07.2025, by the Estate Officer, NF Railway, Maligaon in Eviction Case No. EO/MLG/2025, whereby the petitioner No. 1 was directed to vacate the railway plot No. 139 (cat-1) at KM7/2-1 (S/L). On perusal of the aforesaid order dated 31.07.2025, it appears that show cause notice dated 12.06.2025 issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 with wrong dag number of the land in question. Later on, on 07.10.2025, a fresh notice was issued to the petitioner No. 1. It is stated in the order dated 31.07.2025 that the notice dated 12.06.2025 was received by the petitioner No. 1 on 23.06.2025 and the second notice dated 10.07.2025 was received by the petitioner No. 1 on 16.07.2025. However, on perusal of the records of the Eviction Case No. EO/MLG/2025, it appears that both the notices bear initials of some persons with dates 23.06.2025 and 16.07.2025 below the said initials. The petitioner No. 1 has denied the receipt of said notices.
The Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971 prescribes the manner of service of notices and orders issued under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. For the sake of convenience, the said provisions are quoted herein below.
4.Manner of service of notices and orders.
(1)In addition to any mode of service specified in the Act, [a notice issued under [section 3B or sub-section (1) of section 4] [ Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986).] or sub-section (2) of section 5-A or sub-section (1) of section 5-B or sub-section (1) or sub-section (1-A) of section 6 ][or an order issued under section 3-A or sub-section (1) of section 5] [Substituted by G.S.R. 3(E), dated 19-12-1997 (w.e.f. 2-1-1998). ][or sub-section (1) or sub-section (2) or sub-section (5) of section 5-B or sub-section (1) or sub-section (2) of section 5-C or sub-section (1) or sub-section (2) of section 7 of the said Act shall be served by delivering, or tendering a copy of the notice or order, as the case may be,] [ Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986).] to the person for whom it is intended or to any adult member of his family, or by sending it by registered post acknowledgment due in a letter addressed to that person at his usual or last-known place of residence or business.
(2)Where the copy of [the notice or the order, as the case may be] [Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986). ] under sub-rule (1) is delivered or tendered the signature of the person to whom the copy is so delivered or tendered should be obtained in token of acknowledgment of the service.
(3)In respect of [a notice issued under [section 3B or sub-section (1) of section 4] [Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986). ] or sub-section (2) of section 5-A or sub-section (1) or sub-section (1-A) of section 6 ][or an order issued under section 3-A or sub-section (1) or sub-section (3) of section 5-A] [ Substituted by G.S.R. 3(E), dated 19-12-1997 (w.e.f. 2-1-1998).][or sub-section (1) or sub-section (2) or sub-section (5) of section 5-B or sub-section (1) or sub-section (2) of section 5-C or sub-section (1) or sub-section (2) of section 7 of the said Act] [Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986). ] where the person or the adult member of the family of such person refuses to sign the acknowledgment, or where such person cannot be found after using all due and reasonable diligence, and there is no adult member of the family of such person a copy of [the notice or the order, as the case may be] [Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986). ] shall be affixed on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and the original shall be returned to the estate officer who issued [the notice or the order, as the case may be] [Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986). ] with a report endorsed thereon or annexed thereto stating that a copy has been so affixed, the circumstances under which it was done so and the name [and] [ Inserted by G.S.R. 741, dated 4-7-1981 (w.e.f. 8-8-1981).] address of the person, if any, by whom the ordinary residence or usual place of business was identified and in whose presence the copy was affixed.
(4)[ If a notice under [section 3B or sub-section (1) of section 4] [ Substituted by G.S.R. 1114(E), dated 23-9-1986 (w.e.f. 29-9-1986).] or sub-section (2) of section 5-A or sub-section (1) or sub-section (1-A) of section 6 or an order issued under sub-section (1) of section 5 or sub-section (1) or sub-section (2) or sub-section (5) of section 5-B or sub-section (1) or sub-section (2) of section 5-E or sub-section (1) or sub-section (2) of section 7 of the said Act cannot be served in the manner provided in sub-rule (1), the estate officer may, if he thinks fit, direct that such notice or order, as the case may be, shall also be published in at least one newspaper having circulation in the locality and he may also proclaim the contents of any notice or order in the locality by beat of drum.]
On a bare perusal of the aforesaid provisions, it appears that the notice issued under Section 4 of the Act shall be served by delivering or tendering a copy of the notice or order, as the case may be to the person for whom it is intended or to any adult member of his family or by sending the notice by registered post with acknowledgement due in a letter addressed to that person at his usual or last known place of residence or business.
On perusal of the records of the Eviction Case No. EO/MLG/2025, which are available before this court, it appears that no report of the process server is endorsed on the copy of the notice where initials of purported noticee appears regarding service of notice upon him. As such, there appears to be no materials on record to come to a conclusion that the notice issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were duly served on the petitioner No. 1 in the manner as prescribed under Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971.
Moreover, it also appears on perusal of the observations made by the learned District Judge, Kamrup (M) in paragraph No. 9 of the impugned judgment that it assumed the receipt of notice issued to the petitioner No. 1 under Section 4 of the Act on the basis that the copy of order dated 31.07.2025 passed by the Estate Officer, which was impugned in the appeal under Section 9 of the Act was issued at the same address in which the notice under Section 4 was issued and the copy of the order dated 31.07.2025 was ultimately received by the petitioner No. 1.
This court is unable to agree with the observations made by the court of learned District Judge in paragraph No. 9 of the impugned judgment dated 31.07.2025, in as much as when the rules made under the statute prescribes a particular manner of service of notice issued under Section 4 of the Act, the manner prescribed therein shall have to be adhered to for arriving at a finding regarding due service of notice on such a noticee. When statute prescribes a particular manner of service, there also remain no room for assuming due service in absence of material to arrive at a conclusion that the manner prescribed in the Rules was followed in effecting due service of notice issued by Estate Officer.
It also appears from the record that in the notice issued by the Estate Officer under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 to the petitioner No. 1, the address of the petitioner is shown as railway plot No. 139 (cat-1) at KM7/2-1 (S/L) instead of mentioning his ordinary place of residence or usual place of business as required under Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971. There may not be any wrong in the Estate Officer issuing notice under Section 4 of the Act to an unauthorized occupant alleging that he is in unauthorized occupation of the public premises described in the schedule to the notice, however, such notice has to be issued to such person at his ordinary place of residence or usual place of business as required under Rule 4 of the 1971 Rules.
Moreover, since the petitioner No. 2 is also claiming to be the joint owner of the building which is constructed over the plot of land from where the petitioners are sought to be evicted, she is also entitled to get notice under Section 4 of the Act in Eviction Case No. EO/MLG/2025.
Under the aforesaid circumstances, this court is of considered opinion that since the petitioners are claiming to be owner of the land and building from where they are sought to be evicted, they have the right to be heard before passing of any order of eviction by the Estate Officer in respect of the said land. Since, denial of right to be heard would be violative of the cardinal principles of natural justice, same goes to the root of the case. The provisions contained in Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971 are framed only to ensure that this cardinal principle is not violated before issuing an eviction notice to a person under the provision of Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
In view of discussions made and reasons stated in the foregoing paragraphs of this judgment, this court is of considered opinion that there are material on record to come to a finding of due service of notice issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 in the manner as prescribed under Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971 and as such the learned District Judge has erred in assuming due service of notice issued under Section 4 of the Act on the petitioner No. 1. As such, the impugned judgment dated 07.04.2026 of the Court of learned District Judge, Kamrup (M) in Misc. Appeal 14/2025 as well as impugned order dated 31.07.2025 passed by the Estate Officer, NF Railway, Maligaon in the Eviction Case No. EO/MLG/2025 is liable to be set aside, which this court accordingly does.
Accordingly, the Eviction Case No. EO/MLG/2025 is remanded back to the Estate Officer, NF Railway, Maligaon to decide the matter afresh after ensuring due service of notice on both the petitioners in accordance with law.
Let the record of the appellate court be sent back to the said court along with a copy of this judgment.
Let also the record of Eviction Case No. EO/MLG/2025 be sent back to the office of the Estate Officer, NF Railway, Maligaon with a copy of this judgment for compliance.
This appeal is, accordingly, allowed.
The parties are left to bear their own costs.