Mir, J.:— This Letters Patent Appeal has been directed against an order passed by learned Single Bench of this Court on 2-12-1996 in Writ petition No. 678 of 1983, vide the impugned order the writ petition filed by the appellant before the writ Court was dismissed.
2. The Writ-petitioner, is in possession of land measuring 18,012 Sft at Shakti Nagar, Jammu, where he has installed a Saw Mill and is carrying on business of timber. This piece of land was originally with the Irrigation Department of the State and was subsequently taken over by Jammu Municipality from the Irrigation Department. Jammu Municipality allotted this land in favour of the petitioner vide order No. 507.RP dated 25-7-1974. The Jammu Municipality subsequently initiated proceedings under the Municipal Act. Notice under Sec. 66(B) was issued to which appellant duly filed objections and finally after considering his stand the Jammu Municipality passed an order of eviction under-Sec. 66(C) of the Municipal Act Smt. 2008 by which the petitioner was asked to vacate the premises within a period of thirty days vide order dated 19-11-1982. It is this order which is being challenged in the Writ petition.
2A. During the subsistence of the licence, Nazool Department of the State in the year 1979 joined issue with the Jammu Municipality that land belonged to them. The Assistant Commissioner, Nazool Department, Jammu vide communication dated 13-8-1979 informed both the writ petitioner as well as the Municipality that the land in question belonged to Nazool Department. Accordingly the Assistant Commissioner Nazool acting as Estate Officer Jammu issued a show-cause notice to the writ-petitioner under Sec. 4 of the J&K Public Premises (Eviction of Unauthorised Occupants) Act 1959, hereinafter called the Act. An order of eviction came to be passed subsequently against writ petitioner in terms of Sec. 5 of the Act in 1981 also. This order which was appealable was not challanged. Thus that order also seems to have assumed finality. As the order passed under Sec. 5 of the Act has not been challenged in the writ petition, we are not concerned with that order. However, the writ petitioner has remained in possession of land by virtue of a Status-quo order passed by this Court on 3-x-1983.
3. The sole ground on which the order of the Jammu Municipality dated 19-11-1982 is challenged in the writ-petition, and the only ground taken before us by Mr. Sunil Hali is that land belongs to Nazool Department who have already passed eviction orders in terms of Sec. 5 of the Act. The Jammu Municipality could not therefore, pass the impugned order of eviction. The learned Single Bench has dealt with the point exhaustively. He on examination of the record has found that the land was transferred to Jammu Municipality by Divisional Commissioner, Jammu in the year 1990 and thereafter it was Jammu Municipality which licensed out the land to the writ petitioner. He continues to pay the rent to the Municipality itself etc.
4. We have heard the learned counsel for the parties. Neither the writ Court nor the appellate Court is concerned with the ownership of the land in question. The fact admitted by the petitioner is that the land is state land. The allotment order of the land has been passed by Executive Officer Municipal Council Jammu vide his No. 507.RP dated 25-7-1974. This land seems to Have been alloted in terms of Sec. 207 of the Municipal Act against monthly fee of Rs. 200/-. This order finds place in the record of writ petition. The order of allotment is reproduced as under:—
Kohali and Sons
Akhnoor Road, Jammu
No: 507.RB Dt. 25-7-1974
Sub: Temporary allotment of Municipal land under Sec. 207 of Municipal Act at Akhnoor Road, Jammu.
…………..
In pursuance of Municipal Council Jammu's resolution No. 93 dated 17-10-1973 the land under your possession details whereof is given below is alloted to you at the fee of Rs. 200/- P.M under Sec. 207 of the Municipal Act alongside the Akhnoor Road Jammu.
Area of land under your possession
22880 Sft
Annual fee for
1970-1971
1971-1972
Rs. 841-28 P
Rs. 841-28 P
1972-1973
1973-1974
1974-1975
Rs. 841-28 P
Rs. 841-28 P
Rs. 841-28 P
Total fee payable
Rs. 4206-40 P.
The above mentioned arrear fee may please be deposited in this office within one week failing which action under law will be initiated against you.
Sd/— Executive Officer
Municipal Council, Jammu
5. It is also admitted in para 4 of the writ petition that the Jammu Municipality had been collecting allotment fee from writ petitioner all along. Immediately the writ petitioner takes a U-Turn and wants to avoid the consequences of eviction order passed by the Jammu Municipality. He filed a writ petition, obtained status-quo order from the Court and even now continues to enjoy the possession.
6. The writ Court in its enthusiasm seems to have been influenced by the circumstances of the case. No action of eviction was taken even after order under Sec. 5 of the Act has been assumed finality and no eviction is being allowed to fructify by filing the writ petition and obtaining a status quo order. Convinced that the authorities had shown no will to evict the writ petitioner, the learned Single Bench casts doubts on the legitimacy of the proceeding taken under the Act. Thus after dismissing the writ petition, he directed the Divisional Commissioner Jammu to take over the possession of the land from the writ petitioner within ten days from the date of impugned order.
7. We value the sentiments of the learned Single Judge but in our opinion the Courts should always confine themselves to issue before them and should not traverse beyond the precincts of their Judicial domain. We would like to place on record Shakespeare oft-quoted sentence “Leave unto Ceaser what belongs to Ceaser and leave unto God what belongs to Him.” Eviction may follow the judicial verdict of the Court but taking over the possession by a particular officer that also within ten days of the impugned order with respects was perhaps not called for. After dismissal of the writ petition, law will have to take its own course and we always hope that agencies implementing the law, will not lose any time in adopting that course.
8. As far the order impugned in the writ petition is concerned it suffers from no vice on the basis of jurisdiction or otherwise. After the land having been alloted by Jammu Municipality to the writ petitioner and after having all along paid the monthly fee of the land to the Municipality. The writ petitioner was estopped from denying the locus of the Municipality. The order impugned passed under Sec. 66-C of the Municipal Act 2008 is exhaustive and well reasoned. A bare perusal of this order shows the following features:—
(i) that the allotment of writ petitioner had been cancelled and the land had been resumed because the same required for public purposes.
(ii) that the writ petitioner had filed an appeal against the order of Cancellation and resumption before the Minister of Local Self Govt. and that appeal was dismissed. (iii) that writ petitioner had filed objections to a show cause notice issued to him under Sec. 66-B of the Municipal Act.
(iv) That the writ petitioner is an unauthorised occupant of the land from the date of dismissal of the appeal by the Minister. It will be useful for us to reproduce the order itself:—
“Sub; Eviction under Sec. 66-C Municipal Act 2008.
Municipal land measuring 18012 Sft situated at Shakti Nagar was allotted in favour of Kohli and Sons @ 200/- P.M under Sec. 207 of Municipal Act.
Whereas the said land was required for public purposes, it was therefore, resumed by cancelling the allotment. Kohli and Sons Akhoor Road Jammu were accordingly informed vide letter No. 294-96.RB dated 23-7-1979. The allottee was also asked to surrender possession of the said land, and
Whereas allottee preferred an appeal before the Minister of Local Self Govt. against the said order and the appeal was dismissed; and
Whereas the firm was directed vide notice under Sec. 66-B vide No. 76.RB dated 28-5-1982 to show cause by or before 14-6-1982 why an order of eviction be not made against the firm; and
Whereas in response to the above notice the firm filed objections that said land was no more property of the Municipality and that their case for allotment of the said piece of land was being, processed by Nazool Authorities; and
Whereas the said firm is in unauthorised occupation of Municipal land notwithstanding that their case was being considered by the Nazool Dept. moreso when appeal filed by the firm has already been dismissed; and
Whereas for the reasons recorded above occupation of the said land by Kohli and Sons is unauthorised and accordingly further notice under Sec. 66-B of Municipal Act was issued under this office No. 157-RB dated 2-8-1982 returnable within 15 days and said notice was served upon the firm by pasting a copy on the conspicuous part of the property; and
Whereas the firm has neither surrendered the possession nor filed any objection in response to the notice aforesaid and.
Whereas I am satisfied for the reason recorded above that Kohli and Sons are unauthorised occupants of the land in question.
Now, therefore, I.R.N Sharma, Executive Officer Municipal Council Jammu do hereby make an order of eviction against Kohli and Sons under Sec. 66-C of the Municipal Act or all those who may be in occupation of the premises and direct them to surrender the possession of the said land to the Municipal Authorities's within 30 days from the date of this order failing which eviction shall be effected with the assistance of the police as may be necessary.
The Copy of the order shall be served upon the allottee in person and one copy pasted on a conspicuous part of the premises.
Issued this day 29th Nov. 1982 under my hand and seal.
Sd/- R.N Sharma.
Executive Officer,
Municipal Council, Jammu
No. 352.RB dated 30-11-1982.
9. The writ petitioner has not also taken the writ Court into confidence with respect to the assertion contained in the impugned order. We also find that the order of eviction after cancellation of the allotment conveyed vide letter No. 294-96.RB dated 23-3-1979 has also assumed finality after the appeal having been dismissed by the Minister concerned. That order also has not been challenged. In presence of a cancellation order passed in due course of law the writ Court could have hardly been of any help to the writ petitioner.
10. We accordingly uphold the order impugned insofar as the writ petition has been dismissed and the order of eviction passed on 30-11-92 has been upheld by writ Court. However, we delete the following words:—
“…….and direct the Divisional Commissioner Jammu to take over the possession of the land in question from the petitioner within ten days from today. In case the possession is not surrendered by the petitioner to the Divisional Commissioner he shall be within his rights to use minimum force to evict the petitioner.”
11. We replace this by the following direction:—
“……..and the competent authority shall be at liberty to execute the impugned order of eviction in accordance with law.”
12. With this slight modification we uphold the judgment impugned and dismiss the appeal. No order as to costs.
O.P Sharma, J.:— 13. I entirely agree with my learned brother Mir on the judgment proposed to be pronounced but I wish to add the following:—
The order of eviction impugned in the writ petition has been passed under Section 66-C of the Municipal Act. Such an order is appealable under Section 66-E, which reads as under:—
“66-E. Appeals (1) Any person aggrieved by an order of the Executive Officer made in respect of any property under Section 66-C or Section 66-D may prefer an appeal to the District Judge of the District in which the property is situate and the period of limitation in respect of such appeal shall be three months from the date of order………”
14. The appellant, it is admitted did not appeal against the order of his eviction. He, however, questioned the jurisdiction of the Executive Officer to pass the order through representation dated 11-1-1983 on the plea that the disputed property was owned by the Nazool Department.
15. In my opinion, the writ petition ought to have been dismissed in limine on the ground that an alternative efficacious remedy was available to the appellant.
16. The writ petition was also liable to be dismissed on the ground that it raised disputed questions of fact regarding ownership of the property, which in general is not investigated in a proceeding under Article 226 of the Constitution, particularly when an alternate remedy is available as laid down in State of Rajasthan v. Bhawani, 1993 Supp (1) SCC 306 : (AIR 1992 SC 1018). The principle has been reiterated, in State Of Madhya Pradesh v. M.V Narasimhan, (1997) 1 SCC 156 : (AIR 1997 SC 993) holding that—
“It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the Court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact. Yet another principle which has been repeatedly affirmed by this Court is that a person who solemnly enters into a contract cannot be allowed to wriggle out of it by resorting to Article 226 of the Constitution………”
17. Since the appellant had obtained lease from the Municipality, he could not avoid the consequences of its determination by the Municipality in accordance with the Municipal Act by resort to Article 226 of the Constitution that too without challenging the vires of the order except on the ground of title.
Appeal dismissed.