Zahoor Ahmad vs State of J & K

Through the medium of this petition indulgence of this court is sought for issuing a Writ of Certiorari in quashing the notice of eviction issued by

the Estates Department to the petitioner. In the alternative a direction to Respondents 2 & 3 is sought to be issued to consider the objections which

he has filed and record the statements of witnesses whose list has already been submitted on 441997.

I have heard Mr. Naqash appearing for the petitioner. So far quashing of the notice issued is concerned, that prayer is barred by doctrine of

resjudicata, because, ealier a Bench of this Court has already dismissed Writ Petition OWP No. 504 of 1997 on the same point. As such that

relief cannot be granted.

The relief in alternative is two fold:

i. That the objection filed should be considered,

ii. That the witnesses whose list has already been submitted should be summoned by the Estates Officer and their statements recorded. After they

are officially asked to present themselves before the Estates Officer, the petitioner also begs leave for production of other witnesses after the

statements of those Government employees are recorded.

I have considered this prayer also. Legal position governing the case is regulated under Section 4 of the Public Premises (Eviction of

unauthorized Occupants) Act, 1988, hereinafter called the Act. This section empowers the Estate Officer to issue a notice in writing, calling upon a

person in unauthorised occupantion of any public premises to show cause why an order of eviction should not be made. The procedure and

manner in which this notice shall be issued is contemplated under the provision itself.

The notice shall require such person to show cause as to why he should not be evicted. The minimum of seven days period, as stipulated in

SubSection 2(b)(i) is to be given to the person for showing such cause. Section 4(2)(ii) is relevant for our purpose, it indicates that such cause can

be shown by producing evidence, and by appearing in person and pleading his case. It calls upon the Estates Officer to ask the person in

unauthorised occupation to appear before him on the date specified in the notice along with the evidence which he intends to produce in support of

his case. He also is entitled to a personal hearing, but desirability of such personal appearance is left to the discretion of the Estates Officer.

Section 4(2)(ii) reads as under:

(ii) to appear before the Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the

cause shown, and also for personal hearing, if such hearing is desired.

The words ""appear"" and ""produce"" are significant. It is worthwhile to mention here that this is not a civil proceeding, which can be said to be

governed by Code of Civil Procedure. A self contained procedure on the other hand is laid down under the Act, which is a Special Act. So the

procedure laid down under the Act will govern, not the general provisions of Code of Civil Procedure, with special reference to the terms ""appear

and ""produce"". It becomes abundantly clear that on the date fixed by the Estate Officer, the person upon whom the notice is issued, has per

necessity to appear and produce all the evidence in his support. Filing a list of witnesses before the Estate Officer and asking him to summon those

witnesses, is absolutely beyond the scope of the procedure laid down under Section 4 and squarely misconceived. The Estate Officer, who is not a

court has to hold an inquiry.

This Court cannot direct an authority to act beyond the scope of his statutoty jurisdiction and powers.

Therefore, I find no substance in this petition and dismiss the same in limine. However, it is pleaded that so far the Estate Officer has not

concluded the inquiry and has not considered the objections. If that is so, the Estates Officer shall take into account the cause to be shown by the

Petitioner on 20091997 at 11 A.M. He shall also take into account the evidence that the petitioner may choose to produce before him on a that

day. However, it is for the Estate Officer to satisfy himself whether the petitioner in person is required to be heard. The Estates Officer shall

conclude the proceedings and shall pass appropirate orders under the Act. In case the petitioner fai.ls to appear on the fixed date before the

Estates Officer or fails to produce any evidence, then he will have no other opportunity of doing so. A copy of this order be provided to Mr. M.I.

Qadri, Senior Addl. Advocate General.