- (1.) HEARD learned Counsel for the Appellant.
(2.) THE exparte order dated 02.09.1993 reads as under: Now, I take up the case for exparte decision and Eviction Order dated 18.05.1979 passed by the then Estate Officer, South Eastern Railway, Bilaspur at Chakradharpur in this case under Section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, hereby confirmed under the facts and circumstances of the case". By the impugned order, the said exparte order has been set aside by the learned Single Judge and the matter has been remanded to the Estate Officer to decide the matter afresh and the present L.P.A. has been preferred by the Union of India to challenge the order passed by the learned Single Judge dated 02.09.2009 remanding the matter in said facts and circumstances.
(3.) LEARNED Counsel for the Appellant submitted that the writ jurisdiction should not be exercised so as to pass an order restoring illegal order resulting in perpetuality of the illegality and relied upon a Division Bench judgment of the Patna High Court delivered in the case of Vijay Kumar v. State of Bihar and Ors. reported in : 1993 (1) PLJR 99. According to the learned Counsel for the Appellant, relying upon the judgment of the Supreme Court, the Division Bench has taken the view that if setting aside of the impugned order results into restoration of the illegal order, then such order should not be passed even if the challenged order is illegal. The order which we have quoted above, on the face of it reveals that such type of order could not have been passed even in any exparte proceeding as the order passed by the Estate Officer is without application of mind and without considering the facts and has been passed following a decision given by his predecessor in one line order, not even declaring the person in possession an unauthorized occupant, but passing the order of eviction.;