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 Aged 60 years, W/O Late Sadiq R/O Ward No. 11, Shiv Nagar, Udhampur. …..Appellant(s)/Petitioner(s) Through: Mr. Virender Bhat, Advocate. Vs 1. Union Territory of Jammu and 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. .…. Respondent(s) 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 1st 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 1st 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 1st 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. 5/2020 matter 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