RAM KRISHEN Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THIS is an application for an appropriate writ in order to quash the order of the Estate Officer dated 27 -9 -1972 as upheld by the District Judge, Jammu. The case had a rather chequered career and arises in the following circumstances : - A piece of land measuring 780 sq. ft. is situate at Shalimar Road, Jammu. According to the petitioner, this land was given to his ancestor, General Makhan for his meritorious services under a grant issued by His Highness Maharaja of Jammu and Kashmir. After the land was given, certain structures were made on it and the petitioner has been in possession of the property for more than 70 years. The petitioner thus claims that he was the full owner of the property in dispute as grantee and even if the land did not belong to him and belonged to the State, he had acquired title by adverse possession. It however, appears that when the attention of the State was drawn to the aforesaid encroachment, one of the respondents, Reshi Kumari, applied to the Government for regularising the encroachment and mutating the land in her name. The Estate Officer recommended to the Government that the land in possession of ˜Reshi Kumari may be regularized. The said recommendation was accepted by the Government who by its order dated 7 -4 -1965 issued on 17 -4 -1965 regularized possession, of Reshi Kumari with effect from 1 -1 -2007 (Bikrami). Thereafter a regular lease deed was executed by Reshi Kumari. The petitioner alleges that he continued to be in possession of the land and constructed shops thereon which he leased out to various tenants. Reshi Kumari then approached the Estate Officer for giving her vacant possession by evicting the petitioner, in view of the decision of the Government to grant land to her and to regularise her possession. The Estate Officer accordingly initiated proceedings for eviction of the petitioner, under the Jammu and Kashmir Public Premises™ (Eviction of Unauthorized Occupants) Act. 1959. While these proceedings were pending before the Estate Officer, the aforesaid Act was amended by Act VI of 1968 and it is, therefore, manifest that the proceedings taken by the Estate Officer before this date became abortive. After the Amended Act came into force, fresh proceedings for eviction against the petitioner were started on 3 -12 -1968 and the petitioner filed his objections on 14 -2 -1968 wherein he put forward the claim which has been detailed above. After hearing argument of the parties, the Estate Officer passed an order evicting the respondents on 19 -2 -1969 and rejected the objections filed by the petitioner. The respondents went up in appeal to the District Judge who confirmed a part of the order passed™ by the Estate Officer but remanded the case for considering some objections raised by the petitioners. It is not necessary for us at this state to mention the details regarding the order passed by the District Judge, because the matter had come up to this court on an earlier occasion The petitioner then filed a writ petition in this court which was initially heard by a single Judge of this court. Bhat J. who accepted the writ petition and directed that in view of the provisions of S. 6 -A of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1959 (hereinafter to be referred to as the Act) the matter may be referred to a civil court for decision. The orders of the District Judge were accordingly quashed. Against this order Reshi Kumari and the District Judge both filed appeals before a Division Bench of this court against the order of the single Judge. The Division Bench decided the case on 29 -3 -1972 and modified the order of the single Judge to the extent that there could be no reference made by the High Court itself and the matter was left to be determined by the Estate Officer again. The relevant portion of the judgment of the Division Bench runs as follows : - "For the reasons given above, the appeal is accepted to the extent that the order of the learned single Judge dated 3 -9 -1970 is quashed in so far as it goes to make a reference to the civil court. The case is" sent back to the Estate Officer for giving a proper finding in terms of S. 6 -A and if the Estate Officer finds that the objection filed by the respondents is not prima facie baseless or frivolous then he has no option but to make a reference to the civil ž court. The Estate Officer will take only summary evidence regarding the validity of the objections filed by the respondents by affidavits or such other evidence as is produced by the parties." The parties were directed to appear before the Estate Officer on 6 -4 -1972 and the Estate Officer was directed by this court to conclude his inquiry within a month. In pursuance of the order of this court, the Estate Officer after giving an opportunity to the petitioner of being re -heard in the matter, came to the conclusion that the objection filed by the petitioner was frivolous and baseless and that there was no good reason made out to make a reference to the civil court. Under S. 5 (4) of the Act as amended by Act VI of 1968. the Estate Officer was empowered to evict the person in unauthorized occupation as soon as copy of the order mentioned in sub -section (1) of S. 6 -A was received by him. It, however, appears that before the Estate Officer could pass any order under S 5 (4) of the Act, the petitioner filed an appeal before the District Judge against the order of the Assistant Commissioner Nazool rejecting the objections filed by the petitioner. The District Judge dismissed the appea1 on the ground, that no appeal was maintainable and hence this writ petition before us.

(2.) IN view of the stages through which this case has passed, the matter in controversy lies within a very narrow compass Mr. Dass appearing for the petitioner submitted two points, before us. In the first place he conceded that there is no provision in the Act which allows an appeal directly against an order passed by the officer concerned under S. 6 -A of the Act. in other words the statute does not allow an appeal against an order rejecting the objections filed by the petitioner under S. 6 -A. In this view of the matter it is obvious that the appeal before the District Judge was not maintainable but was rather premature. There can be no doubt that an appeal to the District Judge would lie against an order passed under S. 5 (4) regarding eviction of an unauthorized occupant. S. 5 (4) of the Act runs thus: - "As soon as the copy of the order mentioned in subsection (1) of section 6 -A is received, the Estate Officer, in case the premises is held to be public premises, shall proceed to evict the person in unauthorized occupation in accordance with the provisions of sub -sections (1) and (3)." A combined reading of Ss. 5 (1) and 5 (4) clearly shows that what the legislature has done is to give a composite right of appeal to the unauthorized occupant against an order of eviction in which he could challenge the order of eviction also on the ground that the order passed under S. 6 -A was not in accordance with law. This appears to be the only intention of the Act, having regard to the circumstances of the case, the nature of the language employed and the scope and ambit of the Act. S. 5 (4) as mentioned above makes it imperative on the Estate Officer to pass a routine order of eviction as soon as copy of the order under sub -section (1) of S. 6 -A is received by him. In these circumstances therefore if no forum was provided by the Act for challenging a finding given by the officer under S. 6 -A, the appeal under S. 5 (4) would become absolutely futile because there was nothing which the aggrieved person could have urged in support of his appeal. It seems to us that as the order rejecting the objections under S. 6 -A culminates in the order of eviction under S. 5 (4) which is really a natural consequence of the order under S. 6 -A, the legislature provided an appeal against an order of eviction instead of giving a right of piecemeal appeal against the order passed under S. 6 -A and S. 5 (4) of the Act. In these circumstances we are satisfied that the appeal against an Order under S. 5 (4) which lies to the District Judge is wide enough to include within its ambit not only the merits of the order passed under S. 5 (4) but also the merits of the order rejecting the objections of the unauthorized occupant under S. 6 -A and it will be open to the appellate court to review the finding given by the Estate Officer under S. 6 -A in an appeal which ultimately comes to him under S. 5 (4) of the Act. We have thought it necessary to make these observations because the present litigation has taken several years and we do not want confusion to become worse confounded.

(3.) MR . A. D. Singh appearing for the Estate Officer submitted that the order of eviction having already been passed at a prior stage, the moment the objection of the petitioner under S. 6 -A was rejected, the petitioner stood evicted automatically without any fresh order of eviction. This argument, however, appears to be extremely fallacious. The earlier order of eviction was not passed under S. 6 -A of 1968 but was passed before the amendment came into force. Secondly even assuming the second order of eviction was passed after the coming into force of Act VI of 1968, that order was the subject matter of writ before Bhat J. The Division Bench upheld the order of Bhat J. in so far as he had quashed the order of eviction passed by the Estate Officer but modified the order only to a limited extent that instead of making a reference direct, the matter was sent back to the Estate Officer to make a fresh inquiry under S. 6 -A and then pass orders In view of the judgment of the High Court ËœSupraâ„¢, the order of eviction passed by the Estate Officer in 1969 was completely wiped out and had no legal effect. Furthermore the words of sub -section (4) of S. 5 namely, Ëœas soon as the copy of the order mentioned in sub -section (1) of S. 6 -A is receivedâ„¢ clearly show that an order under S. 6 -A is sin qua non for the order of eviction to be passed by the Estate Officer under S. 5 (4). Unless an order under S. 6 -A had been passed by the Estate Officer, he had no jurisdiction to take proceedings" for eviction. In the instant case the District Judge and the High Court after having upheld the quashment of order of the Estate Officer under S. 6 -A had remanded the case to him and until a fresh order was passed by the Estate Officer, the question of taking proceedings for eviction of the petitioner would not arise. The Estate Officer passed the present order only on 27 -9 -1972 and therefore he has yet to pass an order of eviction under S. 5 (4) after this order was received by him. The appeal filed by the petitioner before the District Judge was therefore clearly not maintainable and was in fact premature. The appeal would lie before the District Judge only after a formal order of eviction is passed by the Estate Officer as a consequence of the finding given by him by his order dated 27 -9 -1972. It will be open to the Estate Officer to pass a formal order of eviction which would give a right of appeal to the petitioner wherein the finding given by Assistant Commissioner under S. 6 -A can also be challenged and examined.