Jammu & Kashmir High Court
Ishri vs Union Territory Of Jammu And on 2 May, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 13.02.2025
Pronounced on: 02.05.2025
RSA No. 5/2020
CM No. 2117/2020
1. Ishri .....Appellant(s)/Petitioner(s)
Aged 60 years, W/O Late Sadiq
R/O Ward No. 11, Shiv Nagar,
Udhampur.
Through: Mr. Virender Bhat, Advocate.
Vs
1. Union Territory of Jammu and ..... Respondent(s)
Kashmir
Th. Commissioner Secretary Revenue,
Civil Secretariat, Jammu.
2. Deputy Commissioner (Collector)
Udhampur.
3. Tehsildar (Assistant Collector First
Class), Udhampur.
4. Dr. Santosh Thomas
S/O Santosh Thomas, R/O Union
Church, Shiv Nagar, Udhampur.
Through: Ms. Priyanka Bhat, Advocate vice
Ms. Monika Kohli, Sr. AAG
Mr. Vikas Mangotra, Advocate.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. This civil second appeal is directed against the judgment and decree dated
29.02.2020 by virtue of which the court of learned Principal District
Judge, Udhampur (for short the „Appellate Court‟) has dismissed the
appeal preferred by the appellant against the order dated 11.01.2020
passed by the court of learned Sub-Judge (CJM), Udhampur (for short the
„Trial Court‟) in case titled as “Ishri Vs. UT of J&K and others“, in terms
of which the plaint filed by the plaintiff/appellant herein has been rejected
2 RSA No. 5/2020
under Order 7 Rule 11 CPC and continuance of counter claim of
respondent No.4, as a suit has been ordered.
2. Vide order dated 12.08.2024, the following substantial questions of law
were framed in this civil second appeal:
i. Whether the bar of civil court jurisdiction, under
Section 139 of the Land Revenue Act, is attracted
to an order passed under sub-section 5 of Section
133 of Land Revenue Act?
ii. Whether the provisions of the J&K, Public
Premises (Eviction of Unauthorised Occupants)
Act, 1988 have an overriding effect over the
provisions of Section 133 of the Land Revenue Act?
iii. Whether occupation of a licensee is governed
under the provisions of the Easement Act?
3. Before this court proceeds ahead to adjudicate the above substantial
questions of law, this Court deems it necessary to have a brief resume of
the facts of the case so as to properly appreciate the controversy involved
in this civil second appeal.
4. Vide Govt. Order No. NDJ-320 of 1965 dated 09.01.1965, land measuring
3 Kanal 3 Marlas comprising survey No. 75 situated at Village Rount
Udhampur, was leased out in favour of the respondent No. 4 and period of
the lease was extended by another forty years by virtue of Govt. Order
dated 18.02.2008. The husband of the appellant was engaged as
Chowkidar by the respondent No. 4. After demise of husband of the
appellant, the appellant continued to remain in the land of the respondent
No. 4. When the appellant started raising construction of permanent
nature, the respondent No. 4 being the lawful lessee of the land mentioned
above, immediately reported the matter to the District Commissioner,
3 RSA No. 5/2020
Udhampur through the medium of application dated 28.12.2017.
Tehsildar/Executive Magistrate 1st Class, Udhampur passed order dated
01.01.2018 under Section 133 of the Land Revenue Act for eviction of the
appellant from the subject matter of the suit. The appellant assailed the
said order in OWP No. 54/2018, wherein the appellant claimed herself to
be widow of Late Sadiq, who was engaged as Chowkidar by the Church.
Vide order dated 19.01.2018, the writ petition was disposed of by
providing that the petitioner therein/appellant would not be dispossessed
without adopting due course of law. Thereafter, second eviction order
dated 10.02.2018 was passed by Tehsildar/Executive Magistrate 1st Class,
Udhampur against the appellant under Section 133 of Land Revenue Act.
The appellant preferred OWP No. 319/2018 against the order dated
10.02.2018 and the writ petition was dismissed for non-prosecution vide
order dated 27.02.2019. Simultaneously, the appellant also filed a suit for
permanent prohibitory injunction against the respondent No. 4 and others
before the learned Munsiff, District Mobile Magistrate, Udhampur but the
said suit was dismissed. The appellant was initially granted interim relief
in the suit but vide order dated 16.03.2018, the interim order dated
23.02.2018 was vacated. The appellant assailed order dated 16.03.2018
before the court of learned Additional District Judge, Udhampur through
the medium of appeal but that appeal was also dismissed by the learned
Additional District Judge vide order dated 20.07.2019. The appellant had
also challenged the order dated 10.02.2018 before the Deputy
commissioner (Collector) Udhampur by invoking appellate jurisdiction of
the said revenue officer and vide order dated 19.12.2019, the appeal
4 RSA No. 5/2020
preferred by the appellant was dismissed by the Deputy Commissioner
(Collector) Udhampur.
5. A civil suit was filed by the appellant on 30.12.2019 against the
respondents whereby the appellant sought a declaration that the order
passed by the Deputy Commissioner dated 19.12.2019 in appeal titled
“Ishri Vs. State and others” and the order dated 10.02.2018 passed by the
Tehsildar/Assistant Collector 1st Class, Udhampur under Section 133 of
J&K Land Revenue Act are illegal and without jurisdiction and as such,
are null and void with the consequential relief of permanent prohibitory
injunction restraining the respondents from causing any kind of
interference or obstruction in possession of the appellant or demolish the
house of the appellant constructed over a portion of the land comprising
survey No. 59 and 60 measuring 4 Kanal 16 Marlas situated at Round,
Udhampur.
6. The orders dated 19.12.2019 and 10.02.2018 passed by the Deputy
Commissioner Udhampur and Tehsildar/Assistant Collector 1 st Class
Udhampur respectively, were assailed in the suit by asserting that the
proceedings under Section 133 of the Land Revenue Act were without
jurisdiction and both authorities lacked jurisdiction to decide same. It was
also contended that the provisions of the J&K Public Premises (Eviction
of Unauthorised Occupants) Act override all other laws in force, which
includes Land Revenue Act and further that the respondent Nos. 2 and 3
were not competent to invoke the provisions of Land Revenue Act or that
of Public Premises (Eviction of Unauthorised Occupants) Act and only
remedy available to the respondent No. 4 was to revoke the license and
thereafter file a suit for mandatory injunction against the appellant.
5 RSA No. 5/2020
7. The respondent No. 4 filed his written statement, thereby narrating the
factual aspects of the case and denied the contentions of the appellant. In
the written statement, a counter claim in the form of mandatory injunction
directing the appellant i.e. the plaintiff therein to vacate the land
comprising survey No. 75 old (59 and 60 new), was also sought on the
ground that the appellant had admitted her status to be that of licensee and
license stood already revoked.
8. The learned trial court vide its order dated 11.01.2020 rejected the plaint
of the appellant and directed the continuance of the suit qua the counter
claim preferred by the respondent No. 4. The trial court opined that the
jurisdiction of the civil court is barred in any matter which is cognizable
by the Revenue Officer in terms of the J&K Land Revenue Act. The said
order was assailed by the appellant through the medium of appeal and the
learned appellate court dismissed the said appeal vide judgment and
decree dated 29.02.2020 which has been impugned in this appeal.
9. Heard learned counsel for the parties and perused the record.
Discussion:
10. After perusal of the pleadings of the parties, this Court is of the considered
view that the substantial question of law No. 3 framed vide order dated
12.08.2024 does not arise at all, particularly in view of the fact that the
respondent No. 4 has sought the eviction of the appellant through the
medium of a counter claim preferred in the written statement to the suit
filed by the appellant.
11. It is settled law that the High Court while adjudicating the substantial
questions of law framed earlier, even at the time of final arguments can
6 RSA No. 5/2020
modify/alter/delete the substantial questions of law and can even frame
new substantial questions of law provided they arise in the appeal. The
only requirement is that due opportunity of hearing is required to be
afforded to the parties. Reliance is placed upon the decision of Apex Court
in case titled “Gajaraba BhikhubhaVadher v. Sumara Umar Amad,
(2020) 11 SCC 114, wherein it has been observed as under: –
“11. We have extracted the substantial questions of law and the
manner in which it has been dealt by the Court only to indicate
that apart from the consideration in para 32 extracted (supra),
the substantial questions of law have not been considered in the
light of the contention and answered with reference to the
questions raised therein. Through the order dated 20-2-2014
when the substantial questions of law were formulated on
admission, those were required to be answered one way or the
other by providing the High Court’s reasonings and to arrive at a
conclusion on that basis. On the other hand, if the Court was
of the opinion that any of the substantial questions of law
framed was to be modified, altered or deleted, a hearing was
required to be provided on the same and thereafter,
appropriate substantial questions of law could have been
framed and answered. Without resorting to any such
procedure, on taking note of the substantial questions of law
as it existed, a brief reference is made thereto and the same
is disposed of without answering the same, which would not
be justified.”
(emphasis added)
12. This Court has heard learned counsel appearing for the parties and, as
such, deems it appropriate to delete the substantial question of law No. 3.
Now this Court is confronted with only two substantial questions of law.
12. Substantial question of law No. 1
Whether the bar of civil court jurisdiction, under Section 139 of the
Land Revenue Act, is attracted to an order passed under sub-section 5
of Section 133 of Land Revenue Act?
It needs to be noted that sub-section-5 of Section 133 of the Land Revenue
Act has been omitted by SO 3808 (E) 2020 dated 26.10.2020, as such, as
on date Section 133(5) of the Land Revenue Act is not in its existence.
7 RSA No. 5/2020
13. Be that as it may, when the suit was filed by the appellant, the said sub-
section i.e. Section 133(5) of the Land Revenue Act was in the statute.
Section 133(5) of the Land Revenue Act as it existed at the relevant point
of time provided that the proceedings of the Revenue Officer under the
foregoing sub-sections shall be subject to any decree or order which may
be subsequently passed by any court of competent jurisdiction, whereas
Section 139 of the Land Revenue Act provides for exclusion of
jurisdiction of civil courts in the matters within the jurisdiction of revenue
officers and it provides that no civil court shall have jurisdiction in any
matter which a revenue officer is empowered by this act to dispose of or
take cognizance of in terms of Section 133 of the Land Revenue Act.
Clause 2(c) of Section 133 of the Land Revenue Act as it existed at the
relevant point of time is extracted as under:
“Section 133-Prevention of Encroachment On Common
Land
(1) When land which has been reserved for the common
purposes of the co-sharers therein has been encroached on
by any co-sharer, a Revenue officer not below the rank of
an Assistant Collector of the first class or the officer in-
charge of the Settlement or an Assistant Collector of the
first class subordinate to him may, on the application of
any other co-sharer, eject the encroaching co-sharer from
the land, and, by order duly proclaimed, forbid repetition
of the encroachment.
(2) Prevention of encroachments on or cultivation of
common land, or land reserved for public purposes or of
which cultivation has been prohibited or is objectionable,
or by person not entitled to bring it under cultivation. –
(a) When land which has been reserved for
grazing ground or any other public purpose or of
8 RSA No. 5/2020
which the cultivation has been prohibited by a
Revenue officer duly empowered in that behalf has
been encroached upon or brought under cultivation,
or
(b) When land has been brought under cultivation
by any person not entitled under any law or rules
having the force of \law to bring it under cultivation,
or
(c) When any person, without due authority, has
taken possession of land belonging to the
Government, a Revenue officer 3[empowered in this
behalf by the Government] of his own motion or on
the application of any person interested, may eject
the person encroaching upon or cultivating such
land and take possession of such land without
paying any compensation for crops or
improvements, and may also, by order duly
proclaimed, forbid repetition of the
encroachment………”
14. In terms of Section 133(2)(c) of the Act where any person without due
authority has taken possession of the land belonging to the Government, a
Revenue Officer, on his own motion or on the application of any person
interested may eject the person so encroaching upon or cultivating such
land and take possession of such land without paying any compensation
for the crops or improvement, and may also, by order duly proclaimed,
forbid repetition of the encroachment. This section specifically vests the
power with the Revenue Officer to order the removal of the encroachment
from the land belonging to the Government, either suo motu or on the
application of any person interested. So far as respondent No. 4 is
concerned, he falls within the meaning of interested person, as the land
9 RSA No. 5/2020
which was the subject matter of the suit was allotted to the respondent No.
4 through the medium of lease by the Government.
15. Section 6 of the Land Revenue Act defines the classes of Revenue
Officers and the Collector and Assistant Collector of 1 st Class are the
Revenue Officers and Section 11 of the Act provides remedy of appeal
from an original or appellate order of the Revenue Officer i.e. if the order
is passed by the Assistant Collector of 1 st Class and 2nd Class, the Deputy
Commissioner of a District i.e. the Collector will be the appellate authority
and the Tehsildar is Assistant Collector of the 1st Class.
16. The appellant availed the remedy of appeal, thereby assailing the order
passed by the Assistant Collector of 1st Class before the Collector i.e.
Deputy Commissioner and failed before the appellate authority
i.e.Collector. The appellant assailed the order dated 10.02.2018 through
the medium of OWP No. 319/2018, but the writ petition was dismissed for
non-prosecution on 27.02.2019. The order dated 10.02.2018 was passed
by the Revenue Officer by invoking the provisions of Section 133 of the
Land Revenue Act at the instance of a person interested i.e. the respondent
No. 4 herein and the appellant also availed the statutory remedy of appeal
but failed before both the authorities under the Land Revenue Act. The
appellant not only filed the writ petition assailing order dated 10.02.2018,
which was dismissed for non-prosecution but also filed a suit, out of
which this appeal has sprouted.
17. The litigant cannot choose the remedies as per his own convenience, more
particularly when Section 139 of the Land Revenue Act clearly ousts the
10 RSA No. 5/2020
jurisdiction of the civil court in respect of the matter which is cognizable
by the Revenue Officer.
18. So far as the Section 133(5) of the Land Revenue Act is concerned, the
proceedings of the Revenue Officer under the foregoing sub-section have
been made subject to any decree or order, which may be subsequently
passed by any court of competent jurisdiction. By applying the Principle
of Harmonious Construction, this Court is of the considered view that the
orders passed by the Revenue Officer cannot be assailed before the Civil
Courts, but once a civil court decides any matter having effect upon the
proceedings of the Revenue Officer, then only the decree passed by the
court of competent jurisdiction shall have overriding effect upon the
orders passed by the Revenue Officer under Section 133 of the Land
Revenue Act. Section 133(5) of the J&K Land Revenue Act nowhere
provides that the orders passed by the Revenue Officers in terms of
Section 133 of the Land Revenue Act can be assailed before civil court.
J&K Land Revenue Act provides for the remedies against the order passed
by the Revenue Officers and there is proper institutional mechanism, in
place to assail the orders passed by the Revenue Authorities and as such
the civil suit to assail the order passed under section 133 of the J&K Land
Revenue Act is not maintainable in view of bar contained in Section 139
of J&K Land Revenue Act.
19. In Dhulabhai and others vs. State of Madhya Pradesh and another
reported in AIR 1969 SC 78, the Apex Court has held as under:
The result of this inquiry into the diverse views expressed in this
Court may be stated as follows :-
11 RSA No. 5/2020
(1) Where the statute gives a finality to the orders of the
special tribunals the Civil Courts’ jurisdiction must be held
to be excluded if there is adequate remedy to do what the
Civil Courts would normally do in a suit. Such provision,
however, does not exclude those cases where the provisions
of the particular Act have not been complied with or the
statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the
court, an examination of the scheme of the particular Act to
find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the
jurisdiction of the civil court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that
all ques- tions about the said right and liability shall be
determined by the tribunals so constituted, and whether
remedies normally associated with actions in Civil Courts are
prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra
vires cannot be brought before Tribunals constituted under that
Act. Even the High Court cannot go into that question on a
revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional. or the
constitutionality of any provision is to be challenged, a suit is
open. A writ of certiorari may include a direction for refund if
the claim is clearly within the time prescribed by the Limitation
Act is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund’
of tax collected in excess of constitutional limits or illegally
collected a suit lies.
(6) Questions of the correctness of the assessment apart from
its constitutionality are for. the decision of the authorities
and a civil suit does not lie if the orders of the authorities are
declared to be final or there is an express prohibition in the
particular Act. In either case the scheme of the particular
Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not
readily to be inferred unless the conditions above set down
apply.
(emphasis added)
20. It would also be appropriate to take note of the judgment of the Coordinate
Bench of this Court passed in Abdul Rashid and others Stanzan Dorjay
Manager and another reported in 2010 (2) JKJ 840, wherein following
observations have been made:
“12. The other grounds that ought to have been pleaded in the
memorandum of appeal but for some reason have not been
pleaded relate to description of suit property and maintainability
of the suit under Section 139 Land Revenue Act. The subject
12 RSA No. 5/2020matter of the suit is an area comprising of thousands of acres
of land defined by reference to peaks, mountains, glaciers,
gorges and mountain passes. The respondents want to
exercise their ownership and possessory rights in respect of
an area comprising over few square kilometres. Order 7 Rule
3 requires such description of the immovable property forming
subject matter of the suit as is sufficient to identify it and in case
such property can be identified by boundaries or numbers in
record of settlement of survey the boundaries or numbers. A
civil suit is instituted to enforce right in respect of subject matter
of the suit and not for mere academic purpose. In the present
case it is highly improbable if the rights pleaded can be
adjudicated upon in absence of sufficient particulars of the
subject matter of the suit. Again, the subject matter of the
dispute projected in the suit, earlier admittedly attracted the
Orders under Section 133 Land Revenue Act. Section 139
Clause XXIV bars a civil suit in respect of the matters that
fall within the ambit of Section 133 Land Revenue Act. This
aspect of the matter has also not been gone into by the learned
trial court while passing the impugned ex-parte
judgment/decree. Both the questions are, however, left open for
consideration of the trial court.”
21. Thus, answer to substantial question of law No. 1 is that the orders passed
by the Revenue Authorities under Section 133 of the Land Revenue Act
cannot be assailed before civil court in view of express bar under Section
139 of the Land Revenue Act, but any subsequent order or decree having a
bearing on the matters adjudicated by the Revenue Officers shall have an
overriding effect upon the proceedings of the Revenue Officer.
22. Substantial question of law No. 2:
Whether the provisions of the J&K, Public Premises (Eviction of
Unauthorised Occupants) Act, 1988 have an overriding effect over the
provisions of Section 133 of the Land Revenue Act?
J&K Public Premises (Eviction of Unauthorised Occupants) Act, 1988
(for short the „Act of 1988‟) as was applicable at the relevant point of time
provides the eviction of unauthorised occupants from the public premises.
23. There is no dispute that expression „premises „means any land or building
or a part of building and expression „public premises‟ means any premises
belonging to or taken on lease or requisitioned by or on behalf of the
13 RSA No. 5/2020
Government besides other premises as defined under 2(d) of the Act of
1988.
24. So far as the present case is concerned, there is no dispute that the subject
matter of the suit is the premises within the meaning of Act of 1988, but
the issue that arises is whether this Act of 1988 would override the J&K
Land Revenue Act or not. Act of 1988 defines unauthorised occupation in
relation to any public premises as the occupation by any person of the
public premises without authority for such occupation and includes the
continuance in occupation by any person of the public premises after the
authority under which he was allowed to occupy the same has expired or
has been determined for any reason whatsoever. In the instant case, the
husband of the appellant was employed as Chowkidar by the respondent
No. 4 and after his demise, the appellant continued to remain in
occupation of the property in question. In terms of Section 20 of the Act,
the provisions of the Act of 1988 have been given overriding effect over
any other law in case of contradiction between the Act of 1988 vis a vis
any other law. In the present case, the respondent No. 4 who is an
interested person within the meaning of Section 133(2)(c) of the Land
Revenue Act as was applicable at the relevant point of time, has invoked
the jurisdiction of the Revenue Officer for eviction of the appellant and
the respondent No. 4 could not have invoked the jurisdiction under the Act
of 1988 particularly when the respondent No. 4 had engaged the husband
of the appellant as Chowkidar, but after his demise, the appellant remained
in unauthorised occupation of the property without permission of the
respondent No. 4. In fact, this is the dispute between the two private
individuals which is not cognizable by the Estate Officer. If the
14 RSA No. 5/2020
respondent No. 4 remains in occupation of the property beyond the period
of lease, then the Estate Officer can invoke the jurisdiction of the Act of
1988. The Act of 1988 is meant to provide the eviction of unauthorised
occupants from the public premises and the private individual cannot take
shelter under the Act of 1988 to perpetuate his unauthorised occupation of
the property. This Court is of the considered view that the provisions of
the Act of 1988 will not have an overriding effect over the provisions of
Section 133(2)(c) of the Land Revenue Act when dispute is between two
private individuals. This question is also answered accordingly.
25. In view of what has been considered, discussed and analysed hereinabove,
this Court is of the considered view that there is no merit in the present
appeal and the same is required to be dismissed. Ordered accordingly.
26. The Registry is directed to prepare the decree sheet accordingly.
27. Original record, if summoned, be sent back.
(RAJNESH OSWAL)
JUDGE
Jammu
02.05.2025
Sahil Padha
Whether the order is speaking: Yes
Whether the order is reportable: Yes
KARAM CHAND
2025.05.03 09:45
I attest to the accuracy and
integrity of this document
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