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2006 DIGILAW 22 (JK)

State Of J. &K. v. Judge, Small Causes Court

2006-02-28

BASHIR AHMAD KIRMANI

body2006
1. Impugned in this writ petition with prayer for quashment thereof is a judgment purporting to have been passed by Sub-Judge (Court of Small Causes) in Civil Suit No. 7 of 1985 on 11. 8. 1994 whereunder while accepting second respondents plaint in exparte the court declared him to be the owner in possession of land measuring 1 kanal, 15 marlas and 165 Sq.ft situated in Brarinambal, Khonakhan, Srinagar, under survey Nos: 1599, 1600, 1601, 1704/1658/1607, 1659/1607, 1660/1607, 1661/1607 and held the proceedings purporting to have been initiated by Estates Department to evict the respondent therefrom under the J&K Public Premises (Eviction of Unauthorized Occupants) Act, (hereinafter to be referred to a "the Act"), to be illegal and thereby not binding. 2. Grounds pleaded are that the land in question was purely state land belonging to different government departments but wrongly encroached upon by respondent No.2 which necessitated initiation of eviction proceedings by Dy. Director Estates, under the Act which were sought to be set at naught by said respondent by instituting the civil suit before the respondent No.1 who as already said, decreed the same in exparte in violation of law as the suit even though not maintainable was decreed in absence of present petitioners of which they had no knowledge whatsoever and could as such not file an appeal in time and had to invoke extra ordinary writ jurisdiction. Materials appended with the memo of petition are the extracts of revenue record and photo copies of certain official communications as also the copies of the plaint and the statements etc. recorded by the trial court alongwith certified copy of the impugned decree and judgment. 3. In his counter affidavit respondent No.2 has among other things pleaded that the writ petition is not maintainable as being directed against the decree of the civil Court and also that his continued possession has matured in ownership rights which stand declared by the court below. Nobody has however appeared for the respondents to address the court and accordingly the matter is taken up for orders. 4. I have gone through the records and considered the matter. Record of the proceedings reveals that writ petition has been admitted to hearing as far back as on 14.8.2001 whereafter no substantial proceedings have taken place for one reason or the other till ultimately it got dismissed for want of prosecution on 16. 02. 4. I have gone through the records and considered the matter. Record of the proceedings reveals that writ petition has been admitted to hearing as far back as on 14.8.2001 whereafter no substantial proceedings have taken place for one reason or the other till ultimately it got dismissed for want of prosecution on 16. 02. 2005, but was later restored on 27. 9. 2005. Perusal of material appended with the ex facie suggests state ownership of the suit land. As per revenue extracts it is recorded in possession of different departments of the Government while respondent No.2 has been in unauthorized occupation thereof. Undoubtedly the matter has not been effectively conducted by the petitioner in trial court which resulted in the impugned exparte decree. That it has been so, speaks volumes about the conduct of concerned Government Advocates entrusted with the case at relevant point of time. To say the least, they have been extremely careless about the interests of Government and just for want of effective prosecution have contributed in substantial loss to the Government by share default, may be willful. 5. However on its own the respondent No. 1, that is, the trial court also appears to have over stepped its jurisdiction,; by entertaining the matter and passing the impugned decree; for the simple reason that once it was made known to the Court that the subject was being proceeded ahead with under provisions of the Act, it should have stopped its hands in terms of the mandate of Sec. 19 thereof which clearly bars jurisdiction of all Courts to entertain any suit or proceedings against eviction of any person in unauthorized occupation of any public premises against whom action under the Act was under way. Legally speaking the respondent No.2 at the time of instituting the suit was aggrieved of the eviction proceedings purporting to have been initiated by Estates Officer against him. Under law he could have participated therein and if aggrieved by the ultimate order, appeal against same before the Appellate Officer prescribed under the Act. Legally speaking the respondent No.2 at the time of instituting the suit was aggrieved of the eviction proceedings purporting to have been initiated by Estates Officer against him. Under law he could have participated therein and if aggrieved by the ultimate order, appeal against same before the Appellate Officer prescribed under the Act. In no case could he institute the civil suit to have the proceedings under the Act declared void as has wrongly been done by the trial court in share violation of mandatory provision above quoted, in view whereof the judgment/decree passed appears to be ab-initio illegal, and should not be allowed to stand, particularly when vital interests of the State are concerned which have been left unprotected by unscrupulous elements, otherwise charged with the responsibility of protecting it. 6. Before proceeding ahead one feels constrained to observe that generally the interests of State/Government in cases involving landed properties worth crores of rupees located in Srinagar city are in most of the cases found to have been left totally unattended to the naked benefit of vested interests. Whether this lethargy and latitude on behalf of concerned functionaries of the State/Government is attributable to mere carelessness or if one may say callousness or is designed to suit unknown designs can and perhaps should be looked into by the state authorities. 7. With these observations the petition is allowed and the impugned judgment and decree is quashed, with the result that proceedings purporting to have been initiated by Estates Department against second respondent at the relevant point of time would stand revived, with of course full opportunity to said respondent for participating therein. Matter stands accordingly disposed of alongwith connected CMPs.