STATE OF RAJASTHAN Vs. SURESH CHANDRA AND OTHERS

JUDGEMENT

(1.) This special appeal is directed against the judgment of the learned Single Judge relegating the writ petitioner State of Rajasthan to the alternate remedy under section 9 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as the Act of 1964).

(2.) The necessary facts giving rise to the special appeal are that in the city of Udaipur there is a Government Ayurvedic Hospital. The State Government sold 9 plots for commercial purpose by public auction, from the open space of the hospital. Bhanwarlal father of the first respondent Suresh Chandra purchased the Plot No. 9 measuring 96 square feet. The Executive Engineer, PWD noticed that Suresh Chandra while raising construction on plot No. 9 had encroached some piece of land towards mortuary, therefore, the proceedings were initiated against the respondent under the provisions of the Act of 1964 before the Estate Officer. On appreciation of material on record the Estate Officer found that the respondent Suresh Chandra had encroached upon the public land. However, instead of passing an order of eviction, he directed the respondent to regularise the encroachment on deposit of price of the land at the rate of Rs.6.20 square feet by the respondent. This part of the order of Estate Officer dated 27.11.1987 was challenged by the State of Rajasthan by way of writ petition u/Art. 226 of the Constitution of India before this Court. The writ petition has been dismissed by the impugned order of the learned Single Judge on the ground of alternate remedy.

(3.) It is contended by Mr. R.P Vyas, Additional Advocate General that the order of the Estate Officer directing to regularise the unauthorised possession on payment of cost prevailing on the date of the order is illegal and void being without authority of law. It is submitted that the learned Single Judge has committed error in not considering the impugned order was wholly without jurisdiction and as such the appellant could not be relegated to the alternate remedy. On the other hand, it is submitted by Mr. Lalit Kawadia learned counsel for the first respondent that any order passed by the Estate Officer under section 5 of the Act of 1964 can be challenged by way of appeal before the district Judge under section 9 of the Act. Thus, according to Mr. Kawadia there is no illegality in the order of the learned Single Judge. It is further submitted that the Estate Officer has taken a practical view of the matter, inasmuch as, that the construction has already been raised on small piece of land adjacent to the land already allotted to the respondent which cannot now be pulled down. Thus, the only equitable view (that) can be taken is to regularise the alleged unauthorised possession. It is further submitted that the equitable view taken by the Estate Officer does not call for interference by this Court in exercise of powers u/Art. 226 of the Constitution of India.