Vijayalakshmi v. The Appellate Authority, District Judge of the Nilgiris, Udhagamandalam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30..08..2012CORAMTHE HON’BLE Mr.JUSTICE M.Y.EQBALandTHE HON’BLE Mr.JUSTICE A.ARUMUGHASWAMYW.A.No.1782 of 2012andM.P.No.1 of 2012--------------Vijayalakshmi ..Appellant. Vs. 1. The Appellate Authority, District Judge of the Nilgiris, Udhagamandalam.2. The Estate Officer, Southern Railway Works Branch, Divisional Office, Palakkad – 678 002, Kerala.3. The Divisional Railway Manager, Southern Railway Divisional Office, Palakkad – 678 002.4.The Senior Section Engineer, Southern Railway, Coonoor – 643 101, The Nilgiris. ..Respondents. PRAYER: Appeal filed under Clause 15 of the LettersPatent against the order of this Court dated22.03.2012 passed in W.P.No.26894 of 2007. Petitionfiled under Article 226 of the constitution of Indiapraying for issue of a writ of Certiorari calling forthe records of the 1st respondent dated 19.07.2007 inC.M.A.No.16 of 2006 and quash the same.-------------- For Appellant :: Ms.P.T.Asha M/s.Sarvabhauman Associates For Respondents 2 to 4:: Mr.P.T.Ramkumar https://hcservices.ecourts.gov.in/hcservices/ J U D G E M E N TThe Hon’ble Chief Justice This writ appeal has been preferred by the appellant-writpetitioner against the order dated 22.03.2012 passed inW.P.No.26894 of 2007, whereby the learned single Judge dismissedthe writ petition filed by the writ petitioner. 2. The aforesaid writ petition was filed for a writ ofcertiorari to call for the records of the 1st respondent –District Judge, the Nilgiris (Appellate Authority) relating tothe order passed in C.M.A.No.16 of 2006 dated 19.07.2007. 3. The brief facts, which are necessary for the disposal ofthis writ appeal, are stated herein below:- The appellant’s case is that she is in possession of anextent of 330 sq. ft. land bearing Door No.88/868, Ooty Road,Coonoor for over 25 years. The said property belongs to thegovernment and it has been described as “Saalai” (road) in therevenue records. In the said land the appellant – writ petitionerput up a tin sheeted structure for her residential purpose andalso running a small tea shop, to eke out her livelihood. Since,the revenue authorities started interfering with her peacefulpossession and enjoyment of the tea shop, she filed a writpetition in W.P.No.4561 of 1992. This Court on 27.07.1999 passedan order stating that since the respondents had not taken stepsto evict other persons who are also occupying the lands near thebus stand, the petitioner could not be evicted until such time asthe revenue authorities decided to take steps to evict all thepersons occupying the revenue land. The appellant – writpetitioner, has filed another writ petition in W.P.No.6462 of1992 to restrain the revenue authorities from evicting her fromthe land in question without following the due process of law.The said writ petition was disposed of adopting the directiongiven in the earlier writ petition viz., W.P.No.4561 of 1992.Thereafter, the appellant - petitioner decided to demolish thepresent structure and re-construct a pucca building in the saidland. She also gathered building materials for that purpose. But,all of a sudden she was caused with a notice dated 02.11.2001 bythe Senior Section Engineer, Southern Railway, Coonoor directingher to stop construction on the land in question, as the saidland belongs to the railways. According to the appellant – writpetitioner, the land in question belongs to the State Governmentand she was also paying B-Memo Charges for the said land. It isstated that the Assistant Railway Officer, RPF, Southern Railway,Udhagamandalam had instituted a criminal proceeding before theJudicial Magistrate, Udhagamandalam in S.T.C.No.5781 of 2001under Section 147 of the Railway Act alleging trespass of theland by the appellant-writ petitioner. In the said case, theJudicial Magistrate, Udhagamandalam by his order dated 10.07.2007clearly observed that the respondent-railways has failed to provethat they are the owners of the land in question. It is stated https://hcservices.ecourts.gov.in/hcservices/ that the officials of the respondent-railways on severaloccasions tried to evict the appellant - writ petitionerforcibly. The grievance of the appellant – writ petitioner isthat they did not do so against the similarly placed persons, whoare running a petrol bunk and a mechanic shop, nearby thepetitioner’s tea-shop. In view of the continuous eviction threat,the appellant – writ petitioner filed another writ petition inW.P.No.2486 of 2002 for restraining the respondent-railways fromevicting her from the land in question. In the said writ petitionan interim order permitting her to use and enjoy the propertybelonging to her and restraining her from putting up anyconstruction on the railway land was passed. 4. While being so, on 28.09.2006, the appellant-writpetitioner was issued with a show cause notice by the 2ndrespondent under the provisions of the Public Premises (Evictionof Unauthorised Occupants) Act, 1971. She was directed to attenda personal hearing on 12.10.2006. On 12.10.2006, she filed adetailed objection to the show cause notice questioning the veryauthority of the 2nd respondent to issue such show cause notice,as the land in question does not belong to the railways. She hasalso produced the B Memo Charges levied by the revenueauthorities in respect of the land in question. According to theappellant-writ petitioner the 2nd respondent received herobjections, but did not give her an opportunity to put forwardher case in detail during the personal hearing. By the orderdated 27.10.2006 the 2nd respondent declared the appellant-writpetitioner as a trespasser of the land belonging to the railways.5. Aggrieved by the said order, the appellant-writpetitioner preferred an appeal before the District Judge,Udhagamandalam by filing C.M.A.No.16 of 2006. The learnedDistrict Judge by his judgment dated 19.07.2007 dismissed theappeal filed by the appellant –writ petitioner.6. The appellant – writ petitioner then filed W.P.No.26894of 2007. The learned single Judge by the impugned order dated22.03.2012 dismissed the writ petition observing that if thepetitioner is the owner of the land, nothing prevented her fromestablishing her title by filing a regular title suit and thelimited avenue open to the petitioner under the Public Premises(Eviction of Unauthorised Occupants) Act has been exhausted andthe Appellate Authority also concurred with the findings of theEstate Officer. Aggrieved by the said order of dismissal theappellant has preferred the present writ appeal. 7. Learned counsel appearing for the appellant assailed theimpugned order contending inter alia that it is per se erroneousand without any basis. Learned counsel submitted that thejudgment of the District Judge passed in the Appeal is alsodevoid of merit and suffers from non-application of mind.According to the learned counsel, the respondents 2 to 4 havefailed to prove their ownership over the land in question,especially when the appellant had categorically disputed the veryright/authority of the railways over the said land. It is https://hcservices.ecourts.gov.in/hcservices/ contended that the land in question belongs to the StateGovernment and the revenue authorities were collecting B-MemoCharges from the appellant for her use and occupation of theland. 8. We do not find any merit in the submissions made by thelearned counsel for the appellant. The contention of the learnedcounsel for the appellant that respondents 2 to 4 have to provetheir ownership over the land in question is wholly unacceptable.Admittedly, the appellant claims possession of the land inquestion, and therefore, it is for the appellant to prove thatshe is continuing her possession by virtue of her own title. Itappears from the judgment passed by the District Judge in theAppeal that the land in question was surveyed by a qualifiedSurveyor and the plan filed by him reveals that the appellant isin unauthorised occupation of the railway land in T.S.C./9/1. Inthe Appeal before the District Judge, at the instance of theappellant, an Advocate Commissioner was appointed to survey theland and found out the measurement of the land in occupation ofthe appellant. The Advocate Commissioner with the help of aqualified Surveyor inspected the property and filed his reportalong with a plan before the District Judge, the Nilgiris. Thelearned District Judge, the Nilgiris considered the report filedby the Advocate Commissioner which clearly indicated that theappellant encroached the railway land. She also encroachedcertain extent of land owned by the Highways Department.Considering these facts and evidence, the learned District Judge,the Nilgiris dismissed the appeal filed by the appellant herein. 9. In the aforesaid premises, the learned single Judgerightly dismissed the writ petition preferred by the appellantherein holding that the appellant has no title over the land inquestion, which is a railway land. 10. For the reasons aforesaid, we do not find any merit inthis appeal, which is accordingly dismissed. Consequently,connected miscellaneous petition is also dismissed. However,there shall be no order as to costs. Sd/ Deputy Registrar(J) /true copy/ Sub Asst.Registrarsm Copy to:- 1. The Appellate Authority, District Judge of the Nilgiris, Udhagamandalam. https://hcservices.ecourts.gov.in/hcservices/

2. The Estate Officer, Southern Railway Works Branch, Divisional Office, Palakkad – 678 002, Kerala.3. The Divisional Railway Manager, Southern Railway Divisional Office, Palakkad – 678 002.4. The Senior Section Engineer, Southern Railway, Coonoor – 643 101, The Nilgiris.+1cc to M/s. P.T.Ramkumar, Advocate Sr 52305+1cc to M/s. Sarvabhauman Associates Sr 52731VD(CO)km/10.9. W.A.No.1782 of 2012