IDIBAI (SMT.) Vs. ESTATE OFFICER, NASIRABAD AND ORS.

JUDGEMENT

(1.) The petitioner by way of present petition filed under Articles 226/227 of the Constitution of India has challenged the legality and validity of the notice dated 18.11.1999 issued by and the order dated 8.11.2004 passed by the Estate Officer, Nasirabad Chhawni and also the order dated 12.12.2006 passed by the District Judge, Ajmer in Civil Misc. Appeal No. 179/2004.

(2.) The short facts giving rise to the present petition are that the petitioner was served with the noticed dated 18.11.1999 by the Estate Officer, Nasirabad under Section 5-A of the Public Premises (Eviction) of Unauthorized Occupant Act, 1975 (hereinafter referred to as the 'the said Act') calling upon the petitioner to remove the encroachment made by her at the public premises i.e. the land comprising Survey No.280/4485, classified as B-4, under the management of the Cantonment Board, Nasirabad. Pursuant to the said notice, the petitioner had filed reply before the Estate Officer, however, had not produced any documentary evidence in support of her reply, despite several opportunities were granted to her. The Estate Officer, therefore, passed the order dated 8.11.2004 under section 5A(2) of the said Act. Being aggrieved of the said order, the petitioner had preferred the appeal being No. Civil Misc. Appeal No.179/2004 before the District Judge,Ajmer under Section 9 of the said Act. The learned District Judge vide order dated 12.12.2006 dismissed the said appeal on the ground that appeal was not maintainable. Being aggrieved by the said notice, and order passed by the Estate Officer and the order passed by the District Judge, the present petition has been filed invoking extraordinary jurisdiction of this court under 226 as well as 227 of the Constitution of India.

(3.) It has been vehemently submitted by learned counsel Mr. Vishwajeet Mantri for the petitioner that the Estate Officer had mentioned wrong provision i.e. 5A of the said Act instead of Section 4 of the said Act and hence the order passed by the Estate Officer should have been treated as the order passed under section 5 of the said Act, against which the appeal under section 9 was maintainable before the District Judge. According to Mr. Mantri, there was dispute regarding the title of the said land and therefore only civil court would have jurisdiction to resolve the dispute. Learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Govt. of Andra Pradesh v. Thummala Krishna Rao and another (AIR 1982 SC 1081) and in the case of M/s. Shree Bajrang Hard Coke Manufacturing Corporation v. Ramesh Prasad and others (AIR 2003 Jharkhand 17), to submit that the bona fide claim regarding title of the property was required to be decided by the civil court.