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Judgment
M. A. Chowdhary, J
Since, all the aforementioned Writ Petitions are directed against the Notice/Order of Eviction under the J&K Public Premises (Eviction of Unauthorized Occupants) Act 1988 and the grounds of challenge taken are identical and common, as such, all these Petitions have been clubbed together vide order dated 16.03.2023 and are taken up for final disposal.
The facts in each case are essentially and materially same. The petitioner is aggrieved of the order passed by respondent No.7-bearing No. Est/MS/DH-Spn: 720-23 dated 10.03.2023 (for short ‘impugned order’), whereby the petitioner was asked to produce any document pertaining to an extension of the contract, if any, issued to him following its termination on 13.09.2017 within seven days from the date of the notice and in case of failure, the petitioner would be declared as an unauthorized occupant of the public premises. It is contended that the respondent No.6-Deputy Chief Medical Officer Shopian, was assigned the charge of Medical Superintendant District Hospital Shopian by the District Magistrate Shopian, as temporary arrangement, and the said respondent is not vested with the power to exercise as has been exercised by her by issuing the order impugned. Further, it is contended that respondent No.6 is acting on the aid and advice of respondent No.3- Deputy Commissioner Shopian, therefore, the order impugned is without jurisdiction and exercise of power is arbitrary, illegal and with malafide exercise, as such, deserves to be set aside.
It is the contention of learned counsel for the petitioner that initially an order for recovery was passed by the respondent -Medical Superintendent District Hospital Shopian, which came to be challenged before this Court through the medium of one of the connected petition i.e., OWP No. 1514/2017. According to the petitioner, prior to it, the petitioner was aggrieved of the inaction of the respondents for not closing the illegal and unauthorized occupants in the premises of District Hospital Shopian and for not implementing the order of respondent No.2-Director Health Services Kashmir Srinagar, to close illegal and unauthorized shop in the name and style of ‘Cooperative Fair Price Medical Shop’.
It is pleaded that the District Magistrate Shopian, earlier ordered sealing of the Fair Price Medical Shop duly allotted to the petitioner in the premises of District Hospital Shopian, which order was questioned before this Court through the medium of connected petition WP(C) No. 1458/2022, and this Court vide order dated 16.07.2022 passed in the said petition, directed de-sealing of the said Fair Price Medical Shop of the petitioner. Thereafter, according to the petitioner, the District Magistrate Shopian passed an order of eviction bearing No. DMS/ADM-PS/22/2787-90 dated 15.12.2022, which also was challenged through the medium of connected petition WP(C) No. 2911/2022, and this Court vide order dated 21.12.2022 stayed the said eviction order. All the aforementioned writ petitions are pending adjudication before this Court.
It is further contended that the respondent No.7 has no authority and competence under law to pass the impugned order and was under obligation to follow and obey the orders of this Court, passed from time to time in these connected petitions. According to the petitioner, respondent No.7 has extra courage to ignore / sit over the orders of this Court, which is not permissible under law. It is pleaded that the petitioner has already negotiated with the Director Health Services Kashmir about the payment of bid amount and it was settled between the petitioner and the Director, who is head of Health Department, ‘that the petitioner is to pay Rs.3.00 lacs in first installment and rest of the amount amounting to Rs.25,000/- per month till its final liquidation’. According to the petitioner, he had paid Rs.5.00 lacs instead of Rs.3.00 lacs and had also paid an amount of Rs.25,000/-, without any fail.
It is further pleaded that the petitioner has already filed representation before the respondents seeking extension of his lease and conditions on number of counts mentioned in the said representation. The petitioner has pleaded that he had a constitutional as well as a fundamental right to continue his business, however, the respondents have been causing harassment and embarrassment to him, in continuing his business and, as such, their activities are not only unconstitutional but also illegal and violative of law. Finally, it is pleaded that the impugned order is illegal and has been passed in clear violation of law, as such, deserves to be set aside by this Court exercising its power vested under Article 226 of the Constitution of India.
Respondents have filed their objections, stating therein that the petitioner has misled this Court by sheer misrepresentation of material facts, therefore, these writ petitions deserve to be dismissed. It is contended that the petitioner has himself admitted that he has filed number of petitions before this Court and is taking advantage of the interim orders passed therein from time to time. With regard to jurisdiction of the Medical Superintendent District Hospital Shopian, respondents have stated that the Medical Superintendent being the custodian of the Hospital premises, has used her powers as an Estates Officer under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act 1988, thereby issuing the notice impugned to the petitioner, who is illegally occupying the premises continuously from 13.09.2017. The impugned notice could have been challenged by the petitioner before the appellate authority i.e., District Magistrate Shopian under Section 12 of the said Act but the petitioner has failed to do so, meaning thereby that the notice issued by the Estates Officer has achieved its finality under Section 13 of the said Act. According to the respondents, the petitioner has deposited Rs. 12.50 lacs only from the Order dated 16.03.2023 passed by this Court, while as the petitioner was directed, vide communication No. MS/DH/SPN/1110-14 dated 04.04.2023, to liquidate Rs. 3,26,80,047/-, the calculation of which has been made in accordance with the Government Order No. 492-HME of 2008 dated 07.06.2008 read with Para 13 of the Bid notice, the balance premium amount as also the occupational charges in compliance to Order dated 16.03.2023 passed by this Court. It is the contention of the respondents that in view of the Section 13 of the aforesaid Act, the petitioner has no right to invoke the writ jurisdiction of this Court time and again by filing number of writ petitions, thereby wasting precious time of this Court, and, on this ground alone the instant writ petition alongwith all clubbed petitions filed by the petitioner, deserves to be dismissed.
Heard, perused and considered.
Essentially, the petitioner, through the medium of the instant petition, has questioned eviction notice dated 10.3.2023 issued by respondent No.7 as Estates Officer, under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act 1988, where-under the petitioner has been declared as an unauthorized occupant of a fair price medical shop, claimed to have been allotted to him in terms of Government Order no.492-HME of 2008 dated 17.6.2008 for a period of five years.
Learned counsel for the petitioner argued that the impugned notice has been issued by the respondent - Medical Superintendent, District Hospital, Shopian, without jurisdiction as he is substantially holding the post of Deputy Superintendent and has been authorized by respondent 3- Deputy Commissioner, Shopian, without any power, to function as Medical Superintendent, District Hospital Shopian, in terms of Order no. DMS/PA/767-76 dated 06.03.2023, instead of the Government.
Learned counsel for the petitioner, while substantiating his submissions in tune with the contentions raised in the petition, invited the attention of this Court to the Petitions earlier filed by the petitioner and interim orders passed therein from time to time.
In terms of the interim order dated 28.01.2014 passed in one of the connected petition i.e., OWP 82/2014, respondent No.4 therein, was under command to strictly implement the directions issued by Director Health Services Kashmir vide his No. DHSK/Medical/Shop/Shopian/5018-24 dated 22.11.2011, whereby the construction work on consumer shop was directed to be stopped and the illegal proprietor of the said shop was to stop sale of the medicines. Thereafter, another connected petition came to be filed by the petitioner bearing OWP 1514/2017 and this Court vide order dated 28.09.2017, stayed the operation / implementation of the notice dated 07.08.2017, impugned in the said petition, in terms whereof the petitioner was directed to deposit the balance amount of Rs. 21,96,000.00 within ten days, failing which his license was directed to be cancelled / blacklisted and action, under criminal procedure was to be initiated against the petitioner for cheating the department. In another connected petition filed by the petitioner bearing WP(C) 1458/2022, the order dated 16.07.2022 was passed, whereby respondents were under command to de-seal the shop of the petitioner. Thereafter, petitioner filed another petition WP(C) 2911/2022, wherein in terms of the order dated 21.12.2022, the operation of the order dated 15.12.2022, impugned therein, was stayed. The said impugned order dated 15.12.2022 was with regard to eviction process of the petitioner who was stated to be running Fair Price Shop in the District Hospital Shopian, illegal.
Learned counsel for the petitioner would contend that owing to the pendency of said petitions and the aforesaid interim orders passed therein favouring the petitioner, the respondents could not have proceeded to issue the impugned eviction notice against the petitioner in respect of premises, being subject matter of the aforesaid petitions as well.
Mr. Sajad Ashraf, learned GA, while controverting the submissions made by the counsel for the petitioner, would admit that the petitioner came to be allotted the fair price medical shop in question subject to the payment of a premium of Rs.51.00 lakhs, out of which the petitioner had paid only Rs.25.00 lakhs and that the petitioner failed to liquidate the balance premium amount. Instead of that, the petitioner had approached this Court on multiple occasions by filing multiple petitions, whenever the respondents intended either to recover the balance premium amount or seek to evict him on account of expiry of period of allotment, which had lapsed on 12.09.2017. According to learned counsel for respondents, the petitioner on the one hand failed to liquidate the balance premium amount till the stipulated date i.e., 12.09.2017, and on the other hand continued to occupy the shop in question and conduct business activities therein, without even paying any occupational charges.
Learned counsel for the respondents has produced a copy of the Eviction Order bearing No. Est/MS/DH/SPN/1908-10 dated 02.06.2023, whereby the respondent-Medical Superintendent District Hospital Shopian, being the Estates Officer by exercising powers conferred under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act 1988, directs the petitioner to close the business of his Medical shop immediately and vacate the Public Premises of the Hospital, unauthorizedly occupied by him, within a period of seven days from the date of receipt of the eviction order, failing which, for eviction and possession thereof, required force, as may be necessary, shall be used therefor. The said eviction order further provides that the petitioner has a right to prefer an appeal before the District Magistrate Shopian under Section 12 of the Public Premises (Eviction of Unauthorized Occupants) Act 1988, in case he is aggrieved of the said eviction order.
It would be appropriate to reproduce Section 12 of the Public Premises (Eviction of Unauthorized Occupants) Act 1988:-
“12. Appeals- (1). An appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or section 7 or Section 8 or Section 10 to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years’ standing as the District Judge may designate in this behalf.
(2) An appeal under sub-section (1) shall be preferred,—
(a) in the case of an appeal from an order under section 5, within twelve days from the date of publication of the order under sub-section (1) of that section;
(b) in the case of an appeal from an order under Section 7 or 10 within twelve days from the date on which the order is communicated to the appellant; and
(c) in the case of an appeal from an order under Section 8, within twelve days from the date of such order:
Provided that the appellate officer may entertain the appeal after the expiry of the said period of twelve days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit:
Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under Section 7 for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of the appeal;
(4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible.
(5) The costs of any appeal under this section shall be in the discretion of the appellate officer.”
In terms of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) (Amendment) Act 2016, the following amendment in Section 12(1) of Public Premises (Eviction of Unauthorized Occupants) Act 1988, has been made, which reads as under :-
“(1) An appeal shall lie from every order of the Estates Officer made in respect of any public premises under Section 5 or Section 7 or Section 8 or Section 10 to the District Magistrate of the District in which public premises are situate.”
On perusal of the amendment made in Section 12(1) in terms of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) (Amendment) Act 2016, an appeal shall lie to the District Magistrate of a district from every order of the Estates Officer made in respect of any public premises under Section 5 or Section 7 or Section 8 of Section 10, in which public premises are situate.
Having regard to the facts of the case, the High Court under Article 226 of the Constitution of India, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. Even after reorganization of the State of Jammu & Kashmir and Ladakh, in terms of Jammu & Kashmir Reorganization Act 2019, the Jammu & Kashmir Public Premises (Eviction of Unauthorized Occupants) Act 1988, has been kept in force in view of Table-4 of Schedule- V of the said Act at Serial No. 122.
Since, the impugned order issued by respondent No.7 is issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act 1988, which is merged into final eviction order dated 02.06.2023 issued against the petitioner, is appealable, as the petitioner has statutory remedy of filing appeal before District Magistrate of the area, where the public premises is situated, from which the petitioner has been ordered to be evicted.
Therefore, it can be safely said that in the instant case a right is created under Section 12(1) of Public Premises (Eviction of Unauthorized Occupants) Act 1988 read with Section 12(1) of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) (Amendment) Act 2016, to file an appeal against the order of Estates Officer. It is well settled principle that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution of India. In this regard, reliance can be placed on the case titled ‘Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors’., reported as (1998) 8 SCC 1, wherein the Apex Court in Para 15 has held that:
“15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged…….”
Apex Court in another judgment rendered in Radha Krishan Industries Vs. State of Himachal Pradesh & Ors. reported as (2021) 6 SCC 771, has held in Para 27.5 that:-
“27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
Viewed thus, particularly, in view of the reasons stated hereinabove, this Court is of the considered opinion that all the connected Writ Petitions are not maintainable in view of alternate efficacious statutory remedy available to the petitioner of filing appeals against the orders impugned, and this Court is of further opinion that no indulgence is required in the impugned orders, in the facts and circumstances of the case and all the connected petitions are liable to be rejected, and, are, accordingly, dismissed along-with all connected applications, as being not maintainable before this Court. All the interim directions issued from time to time in the connected petitions, shall stand vacated.