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2002 DIGILAW 78 (JK)

Gowhar Hussain Mir v. State Of J. &K.

2002-03-26

SYED BASHIR-UD-DIN

body2002
1. Considered. Admit. 2. Notice is accepted at this post admission stage by Mr. M.H. Attar, AAG, for respondents, who tenders statement that the objections which he has filed on behalf of Govt. officials, may be treated as reply at this post admission stage. The counsel for the parties pray that the matter may be taken up for final disposal at this stage itself. The statements of the counsel are taken on record. 3. Petitioner working as Receiving Supervisor in Hotel Centeur Srinagar Kashmir was allotted Flat No. 8-D at Silk Factory Road Srinagar in August. 1989 for a period of one year or till he is posted at Srinagar (which ever earlier) on payment of rent. Though the allotment was not formally extended but the petitioner was allowed to continue in occupation of the flat hereto. Petitioner pleads that he has paid the rent ending March, 2000 vide Annexure C. D and E. Petitioner anticipating arbitrarily eviction and allotment of Flat to some other person, has come in writ to plead that he may not be evicted from the premises arbitrarily and illegally, as he continues in occupation of the premises on due allotment and has a right to be associated with the eviction proceedings which may be taken against him in due course of law. 4. Respondents are not denying allotment of the flat to petitioner. Respondents plead that petitioner has been informed that his allotment has been cancelled and that the flat has been allotted to Shri M.A. Malik, Mobile Magistrate Srinagar vide Annexure-Rl and that he has been asked to surrender the possession vide Annexure R-2. The orders have not been challenged. Petitioner being unauthorised occupant cannot claim protection under law. 5. The admitted facts are that petitioner has been allotted the flat initially for one year or till his posting at Srinagar, whichever earlier, way back in August, 1989. His occupation/possession has not been disturbed althrough. His allotment has not been cancelled till Jan, 2002. when the order Annexure R-1 has been passed. He has been an occupant of the premises althrough. Obviously, his case falls within the ambit of Public Premises (Eviction of Unauthorised occupant) Act 1988 (hereafter the Act). His occupation/possession has not been disturbed althrough. His allotment has not been cancelled till Jan, 2002. when the order Annexure R-1 has been passed. He has been an occupant of the premises althrough. Obviously, his case falls within the ambit of Public Premises (Eviction of Unauthorised occupant) Act 1988 (hereafter the Act). Section 4 (1) of the Act says that if the Estates Officer is of the opinion that any person is in un-authorised occupation of the premises and that he should be evicted, then the Estates Officer has to issue a notice in writing calling upon the person concerned to show cause why an order of eviction should not be passed. The Sub-Section 2 to Section 4 of the Act prescribes the requisite steps which the Estates Officer is to take thereto. Sub-Section 3 and 4 of the Act prescribe the mode and manner of service. It is only after the notice is served as above, that the Estates Officer on entering his satisfaction about the public premises being in un-authorised occupation can pass an order of eviction and that too after recording reasons together with other required particulars. It is then alone that in terms of Section 5(2) of the Act, in case the person fails to comply with the order of eviction on or before the prescribed date or within seven days of the date of its publication, as prescribed by Sub-Section (1) of the Act whichever applicable that the Estates Officer or his authorised officer may evict the person and take possession of the premises. Obviously, this mandatory procedure has not been followed in this case. the petitioner has not been given the opportunity to show cause against the eviction nor an order of eviction has been passed in terms of the mandatory provisions, leaving the question of allotment of the flat to a person other than the petitioner, apart. In view of above, the respondents/competent authority is directed to follow the procedure prescribed by law. including the provisions of J&K Public Premises (Eviction of Unauthorised occupant) Act, 1988, in case it initiates action against the petitioner for eviction from the public premises (Flat No. 8, Silk Factory Road, Srinagar). In view of above, the respondents/competent authority is directed to follow the procedure prescribed by law. including the provisions of J&K Public Premises (Eviction of Unauthorised occupant) Act, 1988, in case it initiates action against the petitioner for eviction from the public premises (Flat No. 8, Silk Factory Road, Srinagar). It is made clear that the respondents/ competent authority is free to take action for eviction and to secure possession of the premises in case grounds exist there for after following the due procedure prescribed by law, as referred above. Disposed of.