Sr. No v. J&K Special Tribunal Jammu

Through Ms. Sagira Jaffar, Assisting Counsel to Ms. Monika Kohli, Sr. AAG Mr. Mayank Gupta, Advocate Coram: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGMENT

1. Petitioners are seeking quashment of order dated 20.08.2024 passed by J&K Special Tribunal, Jammu, whereby it was held that Revision against the order dated 04.10.2023 passed by Commissioner, Municipal Corporation, Jammu, under Subsection (5) of Section 383-A of the J&K Municipal Corporation Act, 2000 (for short the “Act of 2000”), is not maintainable in view of the remedy of appeal available to the petitioners. 1

2. The brief facts of the case are that petitioners filed a revision petition in terms of Section 403 of the Act of 2000 against the order dated 04.10.2O23 issued by respondent No.2, whereby petitioners were directed to remove unauthorized occupation from water body falling under Khasra No.582 situated at Paloura, Jammu, recorded as ‘Shamilat-Deh’. It is stated that some area of the subject land has been in occupation of petitioners since their forefathers and petitioners constructed and raised shops over the subject land occupied by them. It is contended that in Khasra No.582, some portion of the land has been recorded as 'Chappri, i.e. pond, however, as on date, there is no such water body actually existing over the said land. It is further contended that the Khasra No.582 stands already demarcated by concerned authorities and by virtue of which, respondent No.2, i.e. JMC, has already enclosed the called water body by way of plinth and the same is properly fenced and in some portion of land falling under Khasra No.582, a Government School is in existence and some portion has come under road.

3. Learned counsel for the petitioner has contended that the impugned order of eviction has been served on the basis of the observation made by the State Accountability Commission without associating or giving opportunity of being heard to petitioners. It is stated that no alteration or change has been made by petitioners after final orders dated 20.11.2019 and 07.06.2023 &

07.06.2023 passed by the Tribunal. It is being stated that in the year 2017, demolition orders were issued by respondent No.2 under Section 7(3) of the J&K Control of Building operations Act, 1988, whereby petitioners were directed to remove the structures constructed by them over the subject land which is in their possession and aggrieved of the same, they preferred an appeal under Section 13 of the J&K Control of Building Operations Act, 1988 2 before the learned Tribunal, which vide common judgment dated 20.11.2019 allowed the appeals of petitioners and set-aside demolition orders dated

19.12.2O17. Subsequently, after a lapse of seven months, respondent No.2 launched fresh proceedings against petitioners by issuing orders dated

06.06.2020 under Section 154 of the Act of 2000 and the same were nothing but ditto copies of earlier orders dated 19.12.2017 which were set-aside by the Tribunal. It is contended that petitioners were again constrained to approach the Tribunal by way of filing the revision petitions against the orders dated

06.06.2020 and the Tribunal vide common judgment dated 07.06.2023 allowed the revision petitions and set aside the order dated 06.06.2020 on the ground that the orders issued under Section 154 of the Act of 2000, was not the appropriate proceeding for eviction of the petitioners.

4. Learned counsel for the petitioners submits that now, the respondent No.2 has initiated the latest statutory proceedings under Section 383-A(2) of the Act of 2000 against the petitioners by issuing the eviction orders dated

04.10.2023, whereby the petitioners have again been directed to vacate the subject land which is in their possession and occupations since decades, over which they have raised construction of shops which are running prior to coming into force of Municipal Corporation Act of 2000. It is stated that the said eviction order was challenged before the Tribunal and the Tribunal without appreciating the correct and material facts of the case has rejected the revision petitions of the petitioners by way of passing the impugned judgment dated 20.08.2024.

5. Learned counsel for the petitioners submits that the learned Tribunal has failed to correctly interpret the Section 383-A of the Municipal Act, as the remedy of appeal as stated under subsection (5) of 383-A of the Act of 2000 3 comes into play when an order is passed by the Commissioner under Subsection (3) or (a)of the Act of 2000, but in the present case, the order dated

04.10.2023 has been passed by the respondent No.2 under subsection (2) of the Municipality Act and, therefore, there was no such occasion for the petitioners to file an appeal before the learned District Judge, as such, the Tribunal was not right to harmoniously interpret the subsection (5) of the Act. It is stated that prima-facie, subsection (5) of the Section 383-4 of the Act of 2000 would indicate that the remedy of appeal is available only in case where an order is passed by the Commissioner under subsection (3) or (4) and subsection (5) does not make a mention of order passed in terms of subsection (2) which is the case in hand, therefore, the petitioners were well within their rights to invoke the revisional jurisdiction of the Tribunal under Section 403 of the Act of 2000 against the orders passed under Section 383-A(2) of the Act of 2000.

6. Section 383-A of the J&K Municipal Corporation Act, 2000 reads as under:- “[383-A. Eviction of unauthorised occupants. –– (1) Notwithstanding anything contrary contained in this Act or in any other law for the time being in force, if the Commissioner is of the opinion that any person is in unauthorised occupation of any property and that he should be evicted, the Commissioner shall issue, in the manner hereinafter provided, a notice in writing calling upon that person to show cause as to why an order of eviction should not be passed. (2) If, after considering the reply, if any, given by such person in pursuance of a notice under sub-section (1) and any evidence he may produce in support of the same, and after giving him a reasonable opportunity of being heard, the Commissioner is satisfied that the property is in unauthorised occupation, the Commissioner shall make an order of eviction, for reasons to be recorded therein, directing that the property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be made public. (3) If any person refuses to, or fails to comply with, the order of eviction within thirty days of the date of service of order under sub- section (2), the Commissioner shall evict that person and take possession of the said property and may, for the purpose, call upon the officer in charge Police Station of the area to render such assistance as may be necessary for evicting that person. 4 (4) Where any person has been evicted from any property under subsection (3), the Commissioner may, after giving a notice to the person from whom possession of the property has been taken and after publishing such notice in at least two daily newspapers having wide circulation in the locality, remove or cause to be removed any article remaining on such property and may make an order for the proper custody of such article: Provided that if the owner of the article refuses or fails to take delivery thereof after notice or if the article is subject to speedy and natural decay, the Commissioner may cause it to be disposed of by public auction and deliver the sale proceeds thereof, after deduction of cost incurred on such public auction, to such owner. (5) Any person aggrieved by an order of the Commissioner made in respect of any property under sub-section (3) or sub-section (4) may prefer an appeal to the District Judge having jurisdiction over the area in which the property is located within a period of thirty days from the date of order. (6) Notwithstanding anything contained in this Act or in any other law for the time being in force, nothing done or purported to have been done under this section shall be called in question in any Court except as provided under sub-section (5).”

7. It would be clear from the plain reading of the Section S383-A that it describes the procedure for evicting the unauthorized occupants from the properties and the orders passed under subsections (3) and (4) of Section 383-A are appealable to the District Judge, however, the omission of subsection (2) from the list of appealable orders suggests that the orders passed under subsection (2) are not subject to appeal. The subsection (5) excludes an order passed under subsection (2) of the Act and if the order passed under subsection (2) is appealable, the legislation would have mentioned in subsection (5) about the same, but the same has been left, therefore, meaning thereby that order passed under subsection (2) of Section 383-A is not appealable, and against the said order it would be revision which would be maintainable.

8. Subsection (2) describes that after considering any response from the occupant and giving them chance to be heard, the Commissioner may order eviction if the person is found to be unlawfully occupying the property and that the order must be made public. The eviction order under subsection (2) would 5 be a final order and, according to the plain reading of the said subsection, it is not appealable, therefore, a revision would lie against the said order. The provisions of Section 383 of the Act are clear and there is no ambiguity. The provisions are specifically mentioned which would be challenged in appeal. Similarly, an eviction order under subsection (2) is a final order regarding the eviction, and it should not be subject to an appeal. The omission of subsection (2) indicates that the order made under that sub-section should not be subject to appeal, but to revision.

9. It appears that the Tribunal has wrongly interpreted subsection (2) of the Act, thereby holding that the order is appealable, therefore, revision is not maintainable. The learned Tribunal has ignored the specific provisions and appears to have not understood the provisions of appeal as provided under Section 383 (2) of the J&K Municipal Corporation Act. The order is, on the face of it, bad and passing of such order is miscarriage of justice. Petitioners cannot, when the order is appealable, challenge it in an appeal and in this way, it is only the revision which would be maintainable and which the petitioner has rightly filed before the Special Tribunal

10. Therefore, for the reasons stated hereinabove, the order passed by the Tribunal is set-aside and matter is remanded back to learned Tribunal for its disposal in accordance with the provisions of law.

11. Disposed of in terms of above. (VINOD CHATTERJI KOUL) JUDGE JAMMU 22.05.2025 Bir Whether order is reportable: Yes/No BIR BAHADUR SINGH 2025.05.26 13:07 I am the author of this document 6