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2010 DIGILAW 406 (JK)

Janak Raj Gupta v. J. D. A

2010-07-23

Hasnain Massodi

body2010
1. Challenge, in this Revision Petition is to the order of learned 1st Additional District Judge, Jammu dated 20th April, 2010 in appeal under Section 12 of Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 titled Janak Raj Gupta v. Jammu Development Authority and another. The background facts are as under:- 2. The petitioner claims to be in possession of Shop No. 43-D at Nehru Market, Jammu as a tenant thereof. The Respondent No.1 through respondent No. 2 vide communication No. JDA/DLM/384 dated 25th of March, 2009 asked the petitioner to vacate the shop in question. The Petitioner questioned the aforesaid communication through medium of an appeal under Section 12 of Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 before the District Judge, Jammu. The petitioner’s case was that the petitioner was in lawful possession of Shop and not an unauthorized occupant, within the meaning of Section 2(g) of Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 and the communication impugned was unauthorized, illegal and liable to be set aside. The appeal was assigned by the learned District Judge, Jammu to 1st Additional District Judge, Jammu. Resultantly, the appeal was dealt with and decided by the learned 1st Additional District Judge, Jammu vide order dated 20th April, 2010 impugned herein. 3. The appellate court on consideration of the matter and after hearing learned counsel for the parties held that communication No. JDA/DLM/384 dated 25th of March, 2010 as valid and not to suffer from any infirmity as would persuade the court to set aside the communication. The appellate court on perusal of the record found the petitioner to have been allotted a commercial Shop No. 101, Yard No. 6 at New Transport Nagar, Jammu in lieu of Shop No. 43-D, Nehru Market, Jammu and to have taken possession of the allotted shop at Transport Nagar, Jammu. The appellate court held the petitioner to be in unauthorized possession of Shop No. 43-D at Nehru Market Jammu and liable to be evicted therefrom. The Appeal in the said background was dismissed. 4. The Petitioner throws challenge to the order dated 20th April, 2010 of the appellate court rejecting the Appeal, inter alia on the ground that the learned 1st Additional District Judge was not competent to entertain muchless decide the appeal in question. The Appeal in the said background was dismissed. 4. The Petitioner throws challenge to the order dated 20th April, 2010 of the appellate court rejecting the Appeal, inter alia on the ground that the learned 1st Additional District Judge was not competent to entertain muchless decide the appeal in question. It is pleaded that in terms of Section 12 of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988, the Appellate Officer, competent to hear an Appeal under Section 12 of the Act is to be a Judicial Officer of not less than 10 years standing and that Presiding Officer of the 1st Additional District Court in the present case did not have 10 years standing as a District Judge and thus could not deal with the disposal of this appeal. 5. Heard and considered. 6. Section 15 of the Civil Courts Act empowers the Government to appoint a District Judge for a Civil District. Section 16 of the Act makes room for appointment of one or more Additional District Judges whenever the business pending before any District Judge requires the aid of an Additional District Judge. In terms of Section 16(2) an Additional Judge so appointed is to discharge any of the functions of a District Judge, as may be assigned. It would be advantageous to reproduce here under Section 16 of the Civil Courts Act:- "16. Additional Judges (i) When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, (the Government) may (on the recommendations of the High Court) appoint such Additional Judge or Judges as may be necessary. (ii) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge". 7. A bare reading of Section 16(2) of the Act reveals that the Additional District Judge has the same power as the District Judge and that District Judge may assign/transfer any case to the Additional District Judge. 8. So viewed an appeal against the order of Estate Officer under Sections 5, 7, 8 and 10 may be heard by the District Judge of the District in which the Public Premises is situated or assigned to Additional District Judge. 8. So viewed an appeal against the order of Estate Officer under Sections 5, 7, 8 and 10 may be heard by the District Judge of the District in which the Public Premises is situated or assigned to Additional District Judge. In the event, the appeal is so assigned/transferred, the Additional District Judge is clothed with same powers as are exercisable by the District Judge. In order to make the position clear, Section 12(1) of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 may be noticed. It reads: "12. Appeals (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 or section 7 or section 8 or section 10 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years’ standing as the district judge may designate in this behalf." 9. The argument that the Additional District Judge to whom appeal is assigned/transferred by the District Judge must be, a Judicial Officer in the District where the public premises situate and must have not less than 10 years’ standing and in the event the Additional District Judge is not having requisite standing, he is incompetent to hear the appeal is specious and bereft of any merit. A plain reading of the above provisions makes it abundantly clear that requirement of 10 years’ standing refers to the Judicial Officer other than the Additional District Judge. It needs no emphasis that in terms of Section 16(2) of the Civil Courts Act the Additional District Judge is competent to hear the appeal under Section 12 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1988 because the expression "District Judge" includes (Additional District Judge) and the Additional District Judge exercises all the powers that are exercised by the District Judge in respect of the matter assigned to the Additional District Judge by the District Judge. Once the Additional District Judge exercises the powers in respect of the matter assigned to him by the District Judge, at par with the District Judge, it can be no body’s case that the Additional District Judge must have 10 years’ standing as Judicial Officer. Once the Additional District Judge exercises the powers in respect of the matter assigned to him by the District Judge, at par with the District Judge, it can be no body’s case that the Additional District Judge must have 10 years’ standing as Judicial Officer. From the above discussion, what emerges is that the District Judge before whom appeal under Section 12 of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 is presented has following three options available to him i/ himself/herself hear and decide the appeal ii/ transfer/assign the appeal to the Additional District Judge iii/ transfer/assign the appeal to a Judicial Officer in that District, of not less than 10 years’ standing as the District Judge may designate in this behalf. 10. In the present case, the Principal District Judge, Jammu has gone for the second option and assigned/transferred the appeal to 1st Additional District Judge, Jammu and the 1st Additional District Judge, as appellate court, clothed with the powers of District Judge has decided the appeal. Question of the 1st Additional District Judge having 10 years’ standing as Judicial Officer to be competent to hear the appeal, does not arise at all. 11. In the circumstance, there is no merit in the ground taken up in the petition and the arguments advanced by the learned counsel for the petitioner in this behalf. All other grounds are also devoid of any merit. There is nothing on record to suggest, let alone substantiate, that the appellate court has exercised jurisdiction not vested in it by law, exercised the jurisdiction illegally or with material irregularity resulting in failure of justice. No case for interference is made out. 12. This revision petition is dismissed. Record be sent down.