- (1.) This appeal by special leave is directed against the judgment of the Patna High Court dated 29-11-71 by which the High Court has quashed an order of the magistrate, directing the respondent to be evicted from the railway premises. The appeal arises in the following circumstances: The respondent was a contractor employed by the railway or supplying food in the refreshment room at Kishangunj station. The last agreement signed with the contractor is dated 10-7-67, which expired on 10-7-70. Thereafter, a notice was given by the railway administration to the respondent for vacating the premises, and as he failed to do so, a complaint under S. 138 of the Indian Railways Act was filed by the Deputy Chief Commercial Superintendent N. F. Railway to the Sub-divisional Magistrate for passing an order in terms of S. 138 of the Railways Act. The Magistrate accepted the application and directed the eviction of the respondent.
(2.) The respondent thereupon filed a writ petition in the high Court, mainly on the ground that S. 138 could not be invoked as the complaint was not made by an authorized person. It was alleged in the petition before the High Court that the complaint made by the Deputy Chief Commercial Superintendent, was not maintainable, as it should have been filed by the Chief Commercial Superintendent, according to the provisions of the Railways Act. This plea appears to have found favour with the High Court which allowed the writ petition and quashed the order of eviction.
(3.) Appearing in support of the appeal, Mr. U. R. Lalit submitted a short point before us. He argued that S. 138 does not require that the complainant should be specifically authorized by the Railways in order to make a complaint maintainable. All that S. 138 requires is that the application should be filed on behalf of the railway administration. There can be no doubt that the appellant was a high officer of the railway administration, therefore, in a position to file an application for eviction on behalf of the railway administration. Section 138 runs thus:- "If a railway servant is discharged or suspended from his office, or dies, absconds or absents himself, and he or his wife or widow, or any of his family representatives, refuses or neglects, after notice in writing for that purpose to deliver up to the railway administration, or to a person appointed by the railway administration in this behalf, any station, dwelling house, office or other building with its appurtenances, or any books, papers or other matters, belonging to the railway administration and in the possession or custody of such railway servant at the occurrence of any such event as aforesaid, any Presidency Magistrate or Magistrate of the first class may, on application made by or on behalf of the railway administration, order any police officer, with proper assistance, to enter upon the building and remove any person found therein and take possession thereof, or to take possession of the books, papers, or other matters, and to deliver the same to the railway, administration or a person appointed by the railway administration in that behalf.";