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2021 DIGILAW 165 (JK)

Babu Ram v. Jammu Development Authority

2021-04-09

SANJEEV KUMAR

body2021
Judgment : Sanjeev Kumar, J. 1. The petitioner(s) in these petitions are occupants/shop keepers of premises known as ‘Modern Hotel’ situated at old General Bus Stand, Jammu. They are aggrieved of the eviction notice(s) issued by the Jammu Development Authority (“JDA” for short) purportedly under Section 6(2) of the Public Premises (Eviction of Un-authorized Occupants) Act, 1988 [“the Act”] and the decision of the District Magistrate, Jammu [“the Appellate Authority”] passed in appeal/appeals filed by the petitioner(s) to challenge the impugned eviction notice(s) issued by the Estate Officer of JDA. The appeal(s) under Section 12 of the Act has/have been held not maintainable against the eviction notice issued under Section 6(2) of the Act. 2. Since all the writ petitions are directed against the order of the Appellate Authority under the Act and the grounds of challenge taken are identical and common, as such, all these petitions have been clubbed and taken up together for decision. 3. The facts in each case are essentially and materially same. There exists 4 kanals of land at General Bus Stand, Jammu, which was initially held on lease by M/s Ram Chand and others. On the request of the initial lessee, on 26.08.1980, this four kanal of land was exchanged with another piece of land measuring 5 kanals belonging to JDA. M/s Ram Chand and others, who was given 5 kanals of land in exchange, constructed Shakuntla theatre thereon. The lessee in aforesaid exchange has paid a sum of Rs.1.00 lakh on account of difference of the exchanged land. At the time of exchange i.e. 26.08.1980, there was a structure by the name of M/S Modern Hotel constructed by M/s Ram Chand and others. The JDA acquired the said structure by payment of compensation of Rs.5.88 lakh in terms of the award of the Collector, Land Acquisition dated 03.07.1982. It seems that the JDA after acquiring four kanals of land and the structure thereon, transferred the same to the Transport Department on payment of cost on 19.12.1981. Later on vide Government Order No.29 of 1990 dated 16.03.1990, this four kanals of land along with structure raised thereon i.e. ‘Modern Hotel’ was transferred back to the JDA from the Transport Department and since then the subject land is vested exclusively in the JDA. Later on vide Government Order No.29 of 1990 dated 16.03.1990, this four kanals of land along with structure raised thereon i.e. ‘Modern Hotel’ was transferred back to the JDA from the Transport Department and since then the subject land is vested exclusively in the JDA. It is pertinent to note that the structure i.e. ‘Modern Hotel’ standing on the subject land was not vacant and free from encumbrances. The petitioners and others were occupying the shops and rooms either as tenants of M/s Ram Chand and others or were rank encroachers. 4. Be that as it may, the petitioners, at the time of transfer of land and structure to the JDA, were in occupation of the premises. They did not vacate the premises under their occupation despite the fact that the structure had been acquired by the JDA under Land Acquisition Act after payment of compensation to the erstwhile owners/ lessee-M/S Ram Chand and others. The JDA, it seems, also could not initiate any action for eviction of the petitioner(s) and other unauthorized occupants because of the litigation pending between the JDA and the erstwhile owner/lessee of the Modern Hotel. 5. The litigation between JDA and the erstwhile lessee had ensued because of the decision of the JDA to put the land and the superstructure raised thereon to public auction. When an auction notice was issued by the JDA vide notification dated 17.12.1992, the erstwhile lessee filed a writ petition (OWP No.24/1992), which was allowed by a Single Bench of this Court on 22.02.2000. The JDA challenged the order of the Writ Court in LPAOW No.8/2003, which was disposed of by a Division Bench of this Court vide its judgment dated 09.06.2017. The appeal of the JDA was allowed and the judgment of the Writ Court dated 22.02.2000 was set aside. The dispute raised by the erstwhile lessee of the Modern Hotel was, thus, set at rest. Since during the pendency of the writ petition and the appeal there were interim directions of status quo and, therefore, the JDA claims, no action could be initiated for eviction of the petitioner(s). With the disposal of the LPA, the so called dispute between the JDA and the erstwhile owner of Modern Hotel was settled and the JDA initiated process for eviction of unauthorized occupants in the building known as ‘Modern Hotel’. With the disposal of the LPA, the so called dispute between the JDA and the erstwhile owner of Modern Hotel was settled and the JDA initiated process for eviction of unauthorized occupants in the building known as ‘Modern Hotel’. Accordingly, the provisions of J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988 were put in operation and notice(s) under Section 6(2) of the Act were issued to the petitioner(s) by the Estate Officer of the JDA. The petitioners were called upon to remove the building/structure/fixture erected, goods displayed/spread on the public premises under their occupation or to show why this should not be removed on or before the stipulated date. This was followed by another notice issued by the Tehsildar, JDA Zone-A to the petitioners directing them to vacate the premises under their occupation without any delay within 15 days positively. These notices issued by the Estate Officer, in terms of Section 6(2) of the Act, were assailed by the petitioners by way of different appeals before the Appellate Authority i.e. District Magistrate, Jammu. The notices were assailed on several grounds, which have been taken note of elaborately by the Appellate Authority. 6. The appeals were contested by the JDA on all available grounds but the preliminary objection raised by the JDA that the order passed by the Estate Officer under Section 6 of the Act was not appealable under Section 12 of the Act succeeded before the Appellate Authority and, accordingly, all the appeals were dismissed as not maintainable. Identical orders have been passed by the Appellate Authority in all the appeals and the same are subject matter of challenge in these petitions. 7. On behalf of the petitioners, Mr. Vikas Magotra, Advocate led the arguments. He was supported in his submissions by Mr. Vivek Sharma, who is also counsel for the petitioners in some of the writ petitions. 8. It is argued that the notice of eviction issued by the Estate Officer of the JDA, which is purportedly issued under Section 6(2) of the Act, was actually a notice under Section 5 of the Act and, therefore, appealable before the Appellate Authority under Section 12 of the Act. 8. It is argued that the notice of eviction issued by the Estate Officer of the JDA, which is purportedly issued under Section 6(2) of the Act, was actually a notice under Section 5 of the Act and, therefore, appealable before the Appellate Authority under Section 12 of the Act. It is submitted that Section 6(2) of the Act is invoked only where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of Sub-Section (1) of Section 6 of the Act. Sub Section (1) of Section 6 provides that no person shall erect or place or raise any building or any moveable or immovable structure or fixture or display or spread any goods etc on the public premises. 9. It is submitted that it was not a case covered by Section 6(1) or Section 6(2) of the Act. The petitioners have been in occupation of the premises as tenants of the erstwhile owners/lessee and are continuing as such even after the property was transferred from M/s Ram Chand and others to JDA and from JDA to Transport Department and back to JDA. The petitioners at the most can be held to be tenants holding over or even encroachers or even unauthorized occupants. If that be the position, it is Section 5 of the Act that could have been invoked by the Estate Officer. The pith and substance of the submissions made by learned counsel for the petitioners is that the Appellate Authority failed to appreciate that the impugned eviction notice(s), though, purported to have been issued under Section 6(2) of the Act, was essentially a notice under Section 5 of the Act and, therefore, appealable. 10. Heard learned counsel for the parties and perused the record. 11. The facts are not in dispute. The subject land admeasuring 4 kanal and superstructure raised thereon i.e. ‘Modern Hotel’ was acquired by the JDA in exchange of land measuring 5 kanals where the lessee has now constructed Shakuntla Theatre complex. The exchange between the JDA and the erstwhile owner of the subject land M/s Ram Chand and others took place by the order of the Government. The subject land admeasuring 4 kanal and superstructure raised thereon i.e. ‘Modern Hotel’ was acquired by the JDA in exchange of land measuring 5 kanals where the lessee has now constructed Shakuntla Theatre complex. The exchange between the JDA and the erstwhile owner of the subject land M/s Ram Chand and others took place by the order of the Government. Since the land given to M/s Ram Chand and others in exchange was 5 kanals and, therefore, M/s Ram Chand and others had to pay a sum of Rs.1.00 lakh in addition to the land measuring 4 kanal given in exchange. The superstructure raised on the land was perhaps not part of the exchange and, therefore, was subsequently acquired by the JDA under Land Acquisition Act. The compensation was worked out by the Collector and an award of sum of Rs.5.88 lakh was passed in favour of M/s Ram Chand and others, the erstwhile owner. This is how the subject land along with Superstructure came to be vested in the JDA. 12. The land was vested in JDA on 26.08.1980 and the super structure i.e. Modern Hotel raised thereon was acquired on 03.07.1982. It is also not in dispute that at the time of acquisition of the superstructure the petitioners were in occupation of different shops and premises of the superstructure acquired. They were neither evicted nor were given any compensation in the process of acquisition. In the award the Collector has taken note of the fact that the superstructure sought to be acquired by the JDA is under occupation of different persons either as tenants or unauthorized occupants. It is, thus, evident that the possession of the petitioners over the subject premises is settled, continuous and uninterrupted for the last several decades i.e. more than 40 years. They have been running their business in the premises under their occupation and earning their livelihood. It is true that the JDA after acquiring the superstructure was involved in litigation by the erstwhile owner of M/s Modern Hotel, when the JDA decided to put the superstructure to public auction. The litigation, which ensued with the filing of the writ petition in the year 1992 ultimately ended with the judgment of the Division Bench passed in LPAOW No.8/2003 on 09.06.2017. 13. The litigation, which ensued with the filing of the writ petition in the year 1992 ultimately ended with the judgment of the Division Bench passed in LPAOW No.8/2003 on 09.06.2017. 13. With the decision of the appeal, which went in favour of the JDA, a decision was taken by the Board of Directors of the JDA on 17.11.2017 for initiating process for eviction of the petitioners. The unauthorized occupants/shopkeepers in the building “Modern Hotel” situate at General Bus Stand, Jammu. Accordingly, the Estate Officer swung into action and issued notice(s) under Section 6(2) of the Act. 14. Feeling aggrieved, the petitioners, in terms of Section 12 of the Act, filed appeals before the District Magistrate, Jammu. The appeals have been dismissed on the solitary ground that the notice issued by the Estate Officer under Section 6(2) of the Act is not appealable under Section 12 of the Act. 15. In the aforesaid backdrop, the only question that begs determination in this matter is whether the impugned notice(s) issued by the Estate Officer of JDA, which is purportedly under Section 6(2) of the Act is in substance and in essence notice under Section 5 of the Act and, therefore, appealable before the District Magistrate, the Appellate Authority under Section 12 of the Act. 16. If answer to this question is in affirmative, the impugned order passed by the District Magistrate would be bad in the eye of law and deserves to be set aside. The matter would be liable to be remanded to the District Magistrate to hear the appeal(s) on merits and pass appropriate orders. However, if the impugned notice(s) of eviction is/are held to be in form and substance under Section 6(2) of the Act, no fault could be found with the decision of the Appellate Authority. 17. In the aforesaid situation, this Court may have to determine the legality of the process initiated by the JDA, for, the writ petitioners in all the writ petitions have also called in question the impugned eviction notice(s) independently of the decision of the Appellate Authority. 18. With a view to find out correct answer to the question posed and to appreciate distinction between Section 5 and Section 6 of the Act, it is necessary to set out Sections 4, 5 and 6, which read thus:- “4. Issue of notice to produce documents in proof of authorization of occupation. 18. With a view to find out correct answer to the question posed and to appreciate distinction between Section 5 and Section 6 of the Act, it is necessary to set out Sections 4, 5 and 6, which read thus:- “4. Issue of notice to produce documents in proof of authorization of occupation. –– (1) If the Estates Officer has reasons to believe that any person is in unauthorized occupation of any public premises and that he should be evicted, the Estates Officer shall call upon such person by a notice in writing to produce any documentary or other evidence within a period of seven days from the date of issuance of such notice to prove that he had been duly authorized by the Competent Authority to occupy such public premises failing which the person/persons shall be evicted after expiry date. (2) When a person is served with a notice under sub-section (1), the burden of proving that he has been duly authorized to occupy public premises by the authority competent to do so shall be upon such person. (3) The notice shall be served upon such occupant by having it affixed on the outer door or some other conspicuous part of the public premises and also be published in at least two leading newspapers or in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly served to all persons concerned. (4) Where the Estates Officer knows or has reasons to believe that more than one person is in occupation of the public premises, then, without prejudice to the provisions of sub-section (3) he shall cause a copy of the notice to be served on every such person in the manner as aforesaid.] 5. Eviction of unauthorized occupants. (4) Where the Estates Officer knows or has reasons to believe that more than one person is in occupation of the public premises, then, without prejudice to the provisions of sub-section (3) he shall cause a copy of the notice to be served on every such person in the manner as aforesaid.] 5. Eviction of unauthorized occupants. –– 1 [(1) If after a person who has been served with a notice to produce proof or evidence under section 4 fails to produce any such proof or evidence within the stipulated period, or if after considering the proof or evidence, if any, produced by him, the Estates Officer is satisfied that the public premises is in unauthorized occupation, the Estates Officer shall make an order of eviction for reasons to be recorded therein directing that the public premises shall be vacated, on such date as may be specified in the order, by such person or all such persons who may be in occupation thereof or any part thereof and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.] (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within seven days of the date of its publication under sub-section (1), whichever is later, the estate officer or any other officer duly authorized by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from and take possession of, the public premises and may, for that purpose, use such force as may be necessary. 6. Power to remove unauthorized construction, etc. –– (1) No person shall–– (a) erect or place or raise any building or any movable or immovable structure or fixture, (b) display or spread any goods, (c) bring or keep any cattle or other animal, on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. (2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub-section (1), the estate officer may serve upon the person erecting such building or structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than five days as he may specify in the notice; and on the omission or refusal of such person either to show cause or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue. (3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept, on any public premises, in contravention of the provisions of sub-section (1) by any person, the estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such persons as an arrear of land revenue.” 19. From a plain reading of Sections 4 and 5 of the Act, it is evident that Sections 4 and 5 can be invoked by the Estate Officer for eviction of ‘unauthorized occupant’. The term ‘unauthorized occupation’ is defined in Section 2(g) of the Act to mean 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 under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Section 4 of the Act provides that if the Estate Officer is of the opinion that any person is in unauthorized occupation of the public premises and that he should be evicted, he shall issue notice in writing in the prescribed manner calling upon such person to show cause as to why an order of eviction should not be made. The notice shall specifically indicate the grounds on which the order of eviction is proposed to be made. It should be a notice of minimum seven days. The noticee shall also be called upon to appear along with evidence which he intends to produce in support of the cause shown and also for personal hearing, if such personal hearing is desired, on a date specified in the show cause notice. The Estate Officer in terms of Section 5, if after considering the cause, if any, shown by the alleged unauthorized occupants in pursuance of notice under Section 4 and any evidence produced by him, is satisfied that public premises is in unauthorized occupation, he shall make an order of eviction for the reasons to be recorded therein directing vacation of the public premises on such date, as may be specified by him in the order. It is only, if person refuses or fails to comply with the order on or before the date specified or within seven days of the date of its publication, whichever is later, the Estate Officer or any officer duly authorized by the Estate Officer in this behalf shall evict such person and take possession of the public premises and in doing so may use such force as may be necessary. 20. Clear language of Sections 4 and 5, thus, without any ambiguity, provides procedure for effecting eviction of unauthorized occupants after affording them an adequate opportunity to represent their case. 21. Section 6, reproduced herein above, however, is intended to meet a different eventuality. Section 6 comes into operation or can be invoked by the Estate Officer where a person is found to have erected any building or raised immovable structure or placed fixture except in accordance with the authority by way of grant or any other mode of transfer under which he was allowed to occupy such premises. Section 6 comes into operation or can be invoked by the Estate Officer where a person is found to have erected any building or raised immovable structure or placed fixture except in accordance with the authority by way of grant or any other mode of transfer under which he was allowed to occupy such premises. In such a situation the Estate officer is empowered to issue show cause notice to the person concerned giving him minimum five days to respond or to remove such building, structure or fixture from the public premises. 22. Admittedly, the order passed by the Estate Officer under Section 5 is appealable under Section 12 of the Act, whereas the order passed under Section 6 is not so appealable. A bare reading of these Sections and understanding them in their true perspective would indicate that the two Sections i.e. Sections 5 and 6 are intended to operate in two different mutually exclusive eventualities. The provisions of Sections 4 and 5 presuppose the unauthorized occupation of the public premises, whereas Section 6 is intended to meet the eventuality, where a person either without any authority or in violation of the authority erects, places or raises any building or any moveable or immovable structure or fixture on the public premises. It is in the light of this understanding of the provisions of Sections 4, 5 and 6, the impugned notice(s) issued by the Estate Officer to the petitioner(s) are required to be seen. 23. For better appreciation of the issue, it would be appropriate to set out a notice under Section 6(2) of the Act, issued to one of the writ petitioners, hereunder:- “Office of The Director Land Management Jammu Development Authority with Powers of Estate Officer under J&K Public Premises (Eviction of Unauthorized Occupants) Act 1988 [JDA Vikas Bhawan Rail Head Complex, Jammu] Notice under section 6 sub-section (2) of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 To Sh. Joginder Paul, Naresh Suri Shop No.1, Karyana Store Modern Hotel, Gen- Bus Stand Jammu Whereas, I the undersigned am of the opinion on the ground specified below that the building/structure/fixture erected, goods displayed/spread on the Public premises mentioned in the schedule is/are in contravention of the provisions of sub-section(1) of section 6 of the J&K Public Premises Act and that the said building/structure/fixture erected goods displayed/spread on the said Public Premises should be removed. Grounds As per the Hon’ble High Court Division bench order dated 14-06-2017 of PA No.OW No.-8/2003 MP No.D2015 M.No.11/2002 and decision of BOD JDA Jammu your claim has been dismissed. Now, therefore, in pursuance of sub-section (2) of the Act, I hereby call upon you to remove the said building/structure/fixture erected, goods/displayed/spread on the Public Premises mentioned in the schedule below 04 the day of Aug., 18 or to show why this should not be removed on or before the above mentioned date. In the event of your refusal or failure to comply with this notice within the period specified above, the said goods/structure or work etc shall be removed/sealed by the undersigned or the duly authorized officer and the cost of such removal shall be recovered from you as arrears of land revenue. Schedule Un-authorized raised the structure/construction on JDA land situated at GBS bounded by North -------------- East ----------------- West ----------------- South --------------- Given by me on 28th day of July 2018 with signature and seal of estate officer.” 24. From a perusal of the notice and looking to its contents, it is abundantly clear that the notice issued falls within the purview of Section 6(2) of the Act. The notice nowhere declares the petitioners unauthorized occupants nor does it seek his eviction from the public premises, however, what the notice seeks is the removal of the building/ structure raised on the public premises that, too, on the ground that there is a Division Bench order of the High Court dated 14.06.2017 and some decision of the Board of Directors of the Jammu Development Authority. 25. Whether or not such notice could have been issued in the case of the petitioners shall be deliberated after some time, but suffice it to say that the impugned notice falls within the four corners of Section 6 of the Act and, therefore, not appealable under Section 12 of the Act. 25. Whether or not such notice could have been issued in the case of the petitioners shall be deliberated after some time, but suffice it to say that the impugned notice falls within the four corners of Section 6 of the Act and, therefore, not appealable under Section 12 of the Act. Decision of the Appellate Authority that the impugned notice is not appealable, therefore, cannot be found fault with. 26. Having held, thus, I am of the considered view that in the given facts and circumstances of the case issuance of impugned notice under Section 6(2) of the Act was not call called for. Admittedly, there is no allegation in the notice that the petitioners have raised or erected any building or structure on the public premises in contravention of the authority under which they had been allowed to occupy such premises nor there is any allegation that the petitioners have erected any structure or displayed their goods on the public premises in violation of the authority under which they were permitted to occupy the public premises. 27. That apart, the notice itself is too vague to be replied. Neither decision of the Division Bench dated 14.06.2017 nor decision of the Board of Directors of the JDA to which a reference has been made in the impugned notice appear to have been supplied to the petitioners. I have already narrated the background facts of the case in detail herein above, from a reading whereof, it would transpire beyond any doubt that the petitioners are in occupation of the superstructure which was raised by the erstwhile owner/lessee i.e. M/s Ram Chand and others and later on acquired by the JDA. Their occupation is long, continuous and uninterrupted. Their occupation, which was initially permissible, may be declared unauthorized but only, of course, after following the procedure laid down in Sections 4 and 5 of the Act. 28. Invoking of Section 6(2) of the Act by the Estate Officer is totally misconceived and an action in the wrong direction. Otherwise also, the impugned notice(s), even if held to be validly issued under Section 6(2) of the Act, would not stand the scrutiny of law because of its vagueness. Unless the material relied upon in the notice is served upon the violator/noticee, it would not be possible for such person to adequately respond to the notice and show cause against the action proposed. Unless the material relied upon in the notice is served upon the violator/noticee, it would not be possible for such person to adequately respond to the notice and show cause against the action proposed. 29. For the aforesaid reasons, the impugned notices issued to the petitioners are rendered bad in the eye of law and, therefore, cannot be sustained. 30. In the given facts and circumstances, narrated above, the respondents are well advised to proceed against the petitioner under Sections 4 and 5 of the Act, if they propose to evict the petitioners from the public premises. 31. In view of the foregoing analysis, all these petitions are allowed. Impugned notices issued to the petitioners under Section 6(2) of the Jammu & Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 are held to be bad in the eye of law and are, thus, quashed. Consequently, the notices issued by the Tehsildar, JDA shall also stand quashed. The respondents shall be free to proceed against the petitioners, if required, under Sections 4 and 5 of the Act. In that eventuality, not only the petitioners shall be put to show cause notice but they shall also be given an opportunity to produce evidence, which they intend to produce in support of their claim. They shall also be provided personal hearing, if requested. The show cause notice to be issued to the petitioners shall clearly indicate the grounds and the material relied upon, on which the order of eviction is proposed to be made, so that the petitioners are in a position to effectively reply the show cause notice and justify their claim to continue in possession of the public premises.