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2002 DIGILAW 261 (JK)

Nissar Hussain v. State

2002-08-13

B.L.BHAT

body2002
By virtue of order dated 26.7.2002 petitioner was granted two weeks time as last opportunity for filing rejoinder, it is reported by the Registry that he has not filled the same. It appears that petitioner Nissar Hussian invoked the Jurisdiction of this court under Article 226 of the constitution of India read with section 103 of the J&K constitution for issuance of writ,order or direction in the name of respondents for setting aside notice No. DDE/J/166 dated 17.4.2002 issued by respondent-2 with further direction to respondent to regularize the possession of Govt. Quarter No. 34-G Company Bagh, Jammu in his favour . It is inter - alia maintained in the petition that it is pursuant to the assurance by the Director Estates for allotment the petitioner got possession of Govt. Quarter No. 34-G, Company Bagh, Jammu in the month of November 2001, thereafter he has been requesting the respondents to regularise his allotment despite several representations made by him to the said respondent,instead he came to be served with a Notice No. DDE/ J/166 dated 17.4.2002 by the said respondent Director Estates calling upon the petitioner to appear before him. That in similar circumstances this court has passed the order for regularization of the allotment made in favour of persons who were promised allotments. Respondents have resisted the petition through respondent-3 who has filed his counter -affidavit wherein he has inter-alia stated that the petitioner after trespassing into the Govt . Quarter No. 34-G Company Bagh, Jammu came to file civil suit before the Sub Judge (CJM) Jammu for permanent prohibitory injunction against the defendants-Respondents herein which came to be dismissed on 24.6.2001 by the learned Chief Judicial Magistrate, Jammu after holding that the civil court has no jurisdiction to try the cases pertaining to eviction of unauthorized occupants. This order of chief Judicial Magistrate, Jammu came to be challenged in appeal before the first appellate court which came to be dismissed on 9.4.2002. That the present petition is hit by the principle of resjudicata. That an alternate efficacious remedy is available to the petitioner. Considered the pleadings of the parties. The main question which in the facts and circumstances of the case arises is as to when this court can be approached for invoking its extra-ordinary writ jurisdiction in terms of Article 226 of the constitution of India read with section 103 of the J&K Constitution. Considered the pleadings of the parties. The main question which in the facts and circumstances of the case arises is as to when this court can be approached for invoking its extra-ordinary writ jurisdiction in terms of Article 226 of the constitution of India read with section 103 of the J&K Constitution. Sine-quo-non for the maintainability of a writ petition is that there must be a right, the fundamentlal or legal vested in the petitioner which by any act of commission by the respondents has been violated. Right means not only claim, but a genuine claim recognized by law. This is admitted case of the parties that Quarter No. 34-G located at company Bagh, Jammu is a Government Quarter. It is a matter of common knowledge that it is the Estates Department in the Government which maintains and regulates allotments of flats and quarters to the persons falling within the zone of consideration of their allotment. A person who occupies such a flat or quarter unauthorisedly which is public property without any written authority and allotment by a competent authority can safely be said to be in unauthorised occupation of public premises. Section 2 of the J&k public Premises (Eviction of Unauthorised Occupants) Act, 1988 (herein after referred to the Act) deals with the definitions. Clause (g) of this section defines unauthorised occupation in relation to any public premises. It provides that `unauthorised occupation in relation to any public premises means "the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." From the plain reading of this clause, it is manifestly clear that unauthorised occupation in relation to any public premises recognises two classes of person, one who is in occupation of such premises without any authority whatsoever and another is who continues in occupation of such public premises after the authority by virtue of which he was occupying has expired or has been determined for any other reason. Section -4 of the Act provides for issuance of notice by the Estate officer of the Government to any person if he in his opinion is unauthorised occupation of any public premises calling upon him to show cause why he should not be evicted. Having regard to this law, let us examine the case of the petitioner. Petitioner on his own showing is in unauthorised occupation of Govt. Quarter No. 34-G Company Bagh, Jammu since November 2001 unauthorisedly without any allotment which amounts to an offence punishable under section 14 of the Act and is liable to be proceeded against under this section. The petitioner has made himself liable to pay rent for the period he has remained in possession of this quarter unauthorisedly . All this disentitles him to seek any relief claimed by him in this writ petition. Viewed thus, there is no merit in the petition, the same is liable to be dismissed. Therefore, the writ petition is dismissed.