Mohammad Rafiq, J. - (1.) This appeal is directed against the judgement of the learned Single Judge dated 21.2.1997 vide which the eviction petition filed by the State of Rajasthan against the order of the Estate Officer dated 26.5.1981 in Case No.1597/1979 and order of the District Judge, Jaipur City, Jaipur dated 14.12.1984, dismissing the appeal of the State and affirming aforesaid order of the Estate Officer, are set aside and the learned District Judge, Jaipur City, Jaipur has been directed to adjudicate and decide the said appeal afresh by giving both the parties adequate opportunity of being heard and expeditiously deal with and decide the said appeal on merits in accordance with law.
(2.) The dispute pertains to the shops bearing Nos.P121 to 126 situated in Chowkri Ramji, Jaipur, which were leased out to the petitioner at the rate of Rs.1.30 p. per month, way back in the year 1911. Her tenancy was terminated vide notice dated 18.7.1975. Despite receipt of the said notice, she declined to vacate the aforesaid premises. Being the public premise, the Estate Officer has acquired jurisdiction on application filed by the respondent describing her as unauthorised occupant. The State initiated such proceedings for eviction of the petitioner on 26.10.1979. The Estate Officer issued notice to the petitioner as per provisions of Section 4 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (for short-'the Act'). Petitioner filed reply to the notice and the Estate Officer dismissed the petition filed by the State. Aggrieved thereby, the State Government preferred an appeal before the District Judge, Jaipur City, Jaipur under Section 9 of the Act. The appellant raised preliminary objection regarding maintainability of the said appeal filed by the State on the ground that right of presenting an appeal is restricted under the provisions of the Act only to a private party whose eviction is ordered and not to the State Government. Learned District Judge accepted that argument and dismissed the appeal filed by the State as not maintainable. Learned Single Judge in the writ petition, however, reversed that judgment and while setting aside the judgement of District Judge, Jaipur City, Jaipur remanded the appeal for being decided afresh. Aggrieved thereby, the appellant has approached this Court by filing the present appeal.
(3.) Shri M.M. Ranjan, learned Senior Counsel for the appellants submits that the learned Single Judge has seriously erred in not appreciating the fact that under Section 9 of the Act of 1964, the provisions of appeal have been given. It is submitted that bare reading of Section 9 of the Act makes it evident that appeal shall lie from every order of Estate Officer made in respect of any public premises under Section 5 or Section 7 of the Act. Section 5 of the Act lays down orders for eviction of unauthorised occupants. It is submitted that any order passed under Section 5 of the Act is bound to be an order of eviction. The opening words of Section 5 of the Act are "eviction of unauthorised occupant". If there is no order of eviction, then Section 5 of the Act is not attracted. When Section 5 is not attracted, then the appeal under Section 9 of the Act is not maintainable. The order passed by the learned Estate Officer simply amounts to discharge of notice under Section 4 of the Act. When the Estate Officer has held that the non-petitioner no.2 i.e. the appellant was not unauthorised occupant and further that the premises are not public premises within the Act, as such, the only remedy available to the State Government is to file suit for declaration and possession and the summary proceedings under the Act are not the remedy for a decree of possession.;