VED PARKASH SAWHNEY Vs. MEMBER SPECIAL TRIBUNAL

JUDGEMENT

(1.) The facts of the case leading to filing of this petition are summarised, as under:The father of the petitioner was allotted land being Quarter No. 5 measuring 190 Sfts, quarter No. 6 measuring 225 Sfts., quarter No. 4 measuring 538 Sfts., open land measuring 3 Kanals, open land measuring 36 Square yards, w. e. f. 20-3-1950 by the Cantonment Board on lease basis. In sixties it was claimed by the Municipality of Jammu that the property in question had been transferred by the Cantonment Board to the Jammu Municipality. Jammu Muncipality found that the petitioner had violated the terms of the agreement, and therefore, the Municipal Council by a Resolution (being Resolution No. 37) on 30th of May, 1993, cancelled the lease. To give effect to the Resolution of the Municipality, an order was passed by the Executive officer of the Municipality, directing eviction of the petitioners. This order was appealed against before the Minister for Local Self Government, who decided the matter on 18th of December, 1973. Certain pleas were raised before the Minister and he remanded the case back and directed that after giving a hearing to the petitioner, the matter should be decided afresh. This order was passed by the Minister on 18-12-1973, and it has taken the Executive Officer of the Jammu Municipality fourteen years to decide the matter and on 21st of October, 1987, the Executive Officer passed an order cancelling the allotment.

(2.) An appeal was filed before the Jammu and Kashmir Special Tribunal on 27th of October 1987. It has taken the Tribunal almost ten years to decide the appeal, and the appeal has been decided on 18-2-1997 upholding the order of the Executive Officer. In this writ petition, the appellant has challenged the order of the Tribunal as well as the order of the Executive Officer. He is not aggrieved of the order passed by the Minister. The first contention of Mr. Sethi was that he has been paying rent to the Municipality, but he has never executed any agreement with the Municipality, therefore, if the petitioner had sublet the property in question, it was not in breach of any of the stipulations of the agreement. The order has been passed by the Minister as early as on 18-12- 1973, in which he has categorically stated: "The appellant executed live agreements on enhanced rentals nearly double the previous rents on 9-5-1967. Then after a lapse of six years, a vigilance report about the subletting of khokhas and shops on Municipal land was made on 19-4-1973." He has further stated that Section 7 of the agreement created a bar for subletting. These findings of the Minister have never been challenged by the petitioner, and in fact, he has accepted that he had entered into an agreement with the Municipality on 5-9-1967, which also contained a stipulation that the property will not be sublet. Therefore, this argument at this stage is not available to the petitioner. The fact that the agreement contained a clause which barred subletting of the property in question cannot be re-opened in these proceedings, because in writ proceedings, this Court is not going to enter into the controversy with regard to facts; particularly when the facts have been accepted as far back as on 18-12-1973, when the Minister passed the order.

(3.) Another aspect of the matter is that eviction from the property belonging to the Municipality is governed by the provisions of the Municipal Act.Section 66-AA of the Municipal Act lays down, as under : "66-AA. In this Chapter "unauthorised occupation in relation to a property vested in the Council (hereinafter in this Chapter referred to as the 'property' "means the occupation by any person of such property without authority for such occupation and includes the continuance in occupation by any person of such property after the authority (whether by way of lease, mortgage or otherwise) under which he was allowed to occupy such property, has expired."