HC quashes notice for eviction of Modern Hotel

11/04/2021

Jammu, Apr 10: Justice Sanjeev Kumar of J&K High Court while deciding bunch of petitions, quashed the notices issued to the petitioners for eviction of Modern Hotel General Bus Stand Jammu 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.
Justice Sanjeev also quashed the the notices issued by the Tehsildar, JDA shall. Court further directed that 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.
While allowing the petitions, Justice Sanjeev Kumar observed that 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.
Court further observed that 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.
Court is 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.
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. 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.
With these observations, Court said that the impugned notices issued to the petitioners are rendered bad in the eye of law and, therefore, cannot be sustained and 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.

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