RESHI KUMARI Vs. RAM KRISHEN

JUDGEMENT

(1.) THESE are appeals under the Letters Patent against a Judgment and order passed by Bhat J. dated 3 -9 -1970 by which he accepted the writ petition filed by the petitioners Ram Krishan & others before him. Two appeals have been preferred against the order of the learned Single Judge: one by the District Judge and the Estates Officer and the other by Reshi Kumari.

(2.) THE facts giving rise to these appeals may be summarized as follows. A dispute "arose regarding land measuring 780 sq. ft comprising khasra 253 and 254 min situate at Shalimar Road Jammu. According to the appellants Reshi Kumari and the Estate Officer, Ram Krishen and Chetan Prabha were in unauthorized possession of this land and had .therefore, to be evicted under the provisions of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1959, (here ­inafter to be referred to as the Principal Act). Reshi Kumari based her claim on the basis of a grant made by the Government in her favour by -which she was allotted the land. The Government order was passed on 7 -4 -65 leasing out the land to Reshi Kumari, but since the respondents Ram Krishen and others were in unauthorized possession of the land, the appellant Reshi Kumari could not get possession of the same...... Accordingly on 10 -4 -63 the Estate Officer Nazool issued notice to the respondents to establish their claim. The respondents appeared on 15 -6 -63 in obedience to this notice and filed their objections, putting for ­ward the claim that the land had been given to their grand -father by virtue of a grant by H. H. the Maharaja. An old, torn -out Patta was also filed in support of the claim of the respondents. Subsequently it appears that the respondents did not pursue their objections after which the land was allotted to the appellant and regular eviction proceedings again started against the respondents on 18 -1.66. On 14 -5 -66 notices were issued under the principal Act. On 19 -8 -66 the Estate Officer directed the tenants to deposit rent in court and an appeal against this order be ­fore the D. J. failed. On 19 -12 -67 notices under S. 5 of the Principal Act were issued against the respondents and an appeal before the D. J. against that order also failed. Thereafter the respondents came up in writ to this court and challenged the vires of the principal Act. The writ petition ultimately succeeded and the Act was struck down as be ­ing ultravires. Thereafter an ordinance was passed which made sub ­stantial amendments to the principal Act and the amendments were later replaced by regular Act, being Act 6 of 1968. After the new Act came into force, fresh proceedings for eviction against the respondents were started on 3 -12 -68 and the appellants filed their objections on 14 -12 -68. After hearing arguments of the parties, the Estate Officer passed an order evicting the respondents on 19 -2 -69. The respondents went up in appeal to the D. J. who confirmed a part of the order passed by the Estate Officer but remanded the case to him for considering some other objections raised by the respondents. It might be mentioned here that the Estate Officer held that the main plea taken by the respondents that their claim was based on a grant given by His Highness the Maharaja was not substantiated and therefore no case for referring the matter to the civil court was made out under S. 6 -A of the Act. This finding was confirmed by the D. J. on appeal but he remitted the matter to the Estates Officer for allowing the respondents to prove that they were other ­wise not in unauthorized occupation of the premises. Against these orders the respondents filed a writ in this court which was heard by Bhat J. who accepted the writ petition and held that as the orders of the D. J. and the Estate Officer were in express violation of the provisions of S. 6 -A of the Act (No. 6 of 1968 )they were invalid and could not be legally sustainable. He accordingly quashed the orders of the D. J. and that of the Estate Officer and went a step ahead by holding that as the objection of the respondents was prima facie good, a reference should be made to the civil court and he accordingly made a reference. Hence this appeal before us.

(3.) APPEARING for the appellant Mr. A.D. Singh who was followed by Mr. Sethi has argued that although the Estate Officer did not give a clear finding of fact in terms of S. 6 -A of the amended Act. a perusal of his order would show that he had given necessary findings of fact which are contemplated by S. 6 -A for the purpose of rejecting the claim of the respondents as being frivolous and baseless. The learned counsel fur ­ther submitted that even if the Estate Officer erred in law in not giving a clear finding this court by exercising extraordinary jurisdiction acting as a supervisory body could not have substituted its own opinion for that of the Estate Officer. Mr. Sethi however, submitted that in pith and substance the learned Estate Officer had fully complied with the condi ­tions laid down in S. 6 -A and the learned judge was not justified in interfering with his order. On the other hand Mr. S.P. Gupta appear ­ing for the respondents has, contended that the order passed by the lear ­ned judge was perfectly valid in law and should not be interfered with; In order to understand the contention of the parties, it is necessary to quote the relevent part of S. 6 A of the amended Act as follows: - "where an objection is taken on the ground that the disputed premises or part thereof is not public premises and the Estate Officer is of the opinion that the objection is not prima facie baseless or frivolous, he shall refer the question to the Civil Court having jurisdiction stating the facts of the case and the point at issue. 2) Upon receipt of the reference, the court shall after giving the parties reasonable opportunity of being heard, decide the reference as hereunder. 3) Where as a result of the investigation under Sub -S. (2), the court is satisfied that the premises or part thereof, as the case may be - (i) is public premises, it shall dismiss the objection. (ii) Is not public premises, it shall allow the objection. 4) Subject to the result of appeal under Sub -S. (5), if any, the order of the court shall be final and conclusive."