Jammu & Kashmir High Court - Srinagar Bench
Sunil Tickoo & Anr vs Union Territory Of Jk & Ors on 30 June, 2021
Sr. No. 103
Suppl. List.
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
LPA No. 79/2021
Sunil Tickoo & Anr. ...Petitioner(s)
Through: Mr. Salih Pirzada, Adv.
Vs.
Union Territory of JK & Ors. ...Respondent(s)
Through: Mr Usman Gani, GA
Coram: HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE SANJAY DHAR
ORDER
30.06.2021
1. We have heard Mr. Salih Pirzada, learned counsel for the appellants and
Mr Usman Gani, learned GA for the respondents.
2. The petitioners-appellants were given show cause notice as to why they
should not be evicted from the respective quarters in their possession
and subsequently separate orders of eviction were passed against each
one of them.
3. The aforesaid notices of eviction and the orders of eviction were
challenged by them by means of a writ petition which has been
dismissed by the impugned judgment and order dated 24th June 2021 on
the ground that they have a right to appeal under the Jammu and
Kashmir Public Premises (Eviction of Unauthorized Occupants) Act
1988, (hereinafter referred to as the Act).
4. The petitioners-appellants have assailed the above order of the learned
Single Judge on the ground that the notices do not conform to the
provisions of law and that their eviction is contrary to the object of
settling the migrant employees.
MOHAMMAD ALTAF NIMA
2021.07.01 15:48
I attest to the accuracy and
LPA
integrity of this No. 79/2021
5. It appears that the petitioners-appellants are migrant employees who
have been appointed as Teachers under a Special Package for
rehabilitation and return of migrants to valley. They started living in the
transit camps in pre-fabricated huts with the expectation that they would
be allotted accommodation in the newly constructed quarters in the
migrant colony Vessu. However, to overcome the onslaught of winter,
they left the transit camp and occupied the newly constructed quarters
without any order of allotment. The petitioner No. 1 occupied Quarter
No. G-5 of the transit camp, whereas the petitioner No. 2 occupied
Quarter No. H-16 at the transit camp. Accordingly, they were served
with separate show cause notices dated 8th June 2021 whereupon
eviction orders were passed against them on 15th June 2021.
6. The submission of Mr. Salih Pirzada, is that Section 4 of the Act as
amended provides for a notice period of seven days whereas the
petitioners-appellants were given notice of only five days to reply and
submit documents in support thereof. Since the time period allowed was
very short, the petitioners-appellants were prevented from filing their
reply. Consequently, the orders of eviction have been passed against
them in violation of the principles of natural justice. Since the show
cause notices were illegal and the eviction orders have been passed in
violation of the principal of natural justice, the writ court ought not to
have dismissed the writ petition on the ground of alternate remedy.
7. No doubt the impugned notices allowed only a period of five days from
the issuance of the notice to show cause why the order of eviction
should not be passed against them, but it is an admitted fact as per
paragraph 2 of the writ petition that the petitioners have occupied the
respective quarters without orders of allotment in an illegal manner. In
such circumstances, notice of five days or higher period such as seven
days contemplated under Section 4 of the Act would not have served
any purpose and would have been an empty formality. It would not have
changed the status of the petitioners from unauthorized occupants to
that of legal occupants. Moreover, the defect of notice period is merely
an irregularity which was of a curable nature as the eviction orders were
passed after expiry of seven days. Even if the petitioners-appellants
have replied to the notices after five days, their reply could have been
MOHAMMAD ALTAF NIMA
2021.07.01 15:48
I attest to the accuracy and
LPA
integrity of this No. 79/2021
considered, but the petitioners despite receipt of notices declined to
submit their explanation as admittedly they were unauthorized
occupants.
8. The show cause notices so served upon the petitioners-appellants may
not be amenable to appeal under the Act, but the final order of eviction
passed thereof is certainly an appealable under Section 12 of the Act
before the District Magistrate of the District. Since the orders of
evictions have already been passed, the show cause notices lost all
efficacy. The petitioners-appellants could have challenged the eviction
orders by filing appeals taking all grounds even concerning the
objections to the notices before the appellate authority.
9. Learned counsel for the petitioners-appellants does not dispute that
against the order of eviction, an appeal can be preferred under Section
12 of the Act before the District Magistrate and that the appellate
authority has the right to condone the delay if it is satisfied that the
petitioners-appellants were prevented by sufficient cause from filing
the appeal in time. It is also not disputed that the appellate authority has
the power to stay the enforcement of the order of eviction or demolition
as the case may be subject to terms and conditions as may be deemed
fit.
10.In the instant case, petitioners-appellants are occupying the quarters
without orders of allotment. The said quarters have been allotted to
different persons namely Ms Sunita Raina & Mr Sanjay Kachroo. Since
they were not allowed to obtain possession of the same as the
petitioners-appellants were in unauthorized possession of the same,
they filed writ petition WP (C) No. 95/2021 wherein the High Court
on 1st June 2021 directed the Relief and Rehabilitation Commissioner
to handover possession of the said quarters to the actual allotees.
11.In the facts and circumstances of the case, the authorities were left with
no option but to proceed with the eviction of the petitioners-appellants
from the quarters in their possession as the quarters stood validly
allotted to some other migrant employees. The technical plea pointing
out defects in the notice would not come in aid of the petitioners-
appellants as prima facie there is no error or illegality in the orders of
eviction. The writ court as such committed no error of law in dismissing
MOHAMMAD ALTAF NIMA
2021.07.01 15:48
I attest to the accuracy and
LPA
integrity of this No. 79/2021
the writ petition of the petitioners-appellants may be on the ground of
alternate remedy.
12.Accordingly, we find no merit in this appeal and the same is dismissed
with liberty to the petitioners-appellants to file appeal if so advised
under Section 12 of the Act against the orders of eviction taking
objection to the validity of the notice also. In case, any such appeal is
filed, the appellate authority would consider it in accordance with law
after allowing the petitioners-appellants opportunity to lead evidence in
support of their contentions as they could not file any reply or evidence
in response to the show cause notice.
13.The appeal is dismissed with the above observation with no order as to
costs.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
30.06.2021
Altaf
MOHAMMAD ALTAF NIMA
2021.07.01 15:48
I attest to the accuracy and
LPA
integrity of this No. 79/2021
