Jammu & Kashmir High Court
High Court Of Jammu And Kashmir And ... vs Rajinder Gupta on 22 August, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
1
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Case: WP(C) No. 1668/2025
Reserved on 31.07.2025
Pronounced on 22.08.2025.
....Petitioner/Appellant(s)
Rajinder Gupta
Through :- Mr. Abhinav Sharma Sr.Advocate with
Mr. Abhimanyu Sharma Advocate.
v.
UT of J&K and ors.
Through :- Ms Monika Kohli Sr. AAG
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1 By this petition, the petitioner seeks the following reliefs:
(i) Certiorari for quashing the notice dated 12.06.2025, whereby a writ of demand has been issued to the petitioner under Section 62 of the Land Revenue Act;
(ii) Mandamus commanding the respondents to follow the procedure prescribed under the Land Revenue Act and grant an opportunity of hearing to the petitioner before proceeding under the provisions of Section 62 of the Land Revenue Act;
(iii) Prohibition restraining the respondents from acting upon the impugned writ of demand notice issued under Section 62 of the Land Revenue Act."
2Factual matrix:
2 The petitioner is the proprietor of a business firm, namely M/S Rajinder Medical Hall. The said proprietorship firm was granted licence by the Licensing Authority under Rule 61 of the Drugs and Cosmetics Rules for sales, stocks, and distribution of drugs by retail mode vide Licence No. JR/21006, which was valid for a period of five years w.e.f. 23.08.2012 to 22.08.2017. The licence was renewed for a period of five years w.e.f. 23.08.2017 to 22.08.2022 by the Deputy Controller, Drugs and Food Control Organisation, Jammu. An NIT was issued inviting tenders for allotment of Chemist Shops (24x7) in the premises of Government Hospital, Sarwal, Jammu. The petitioner, amongst others responded to the said NIT and was found the highest bidder, having offered an amount of Rs. 38.00 Lakhs per annum and consequently the shop was allotted to him.
3 The petitioner was directed to deposit 50% of the premium amount within a week's time by 30.04.2012, and the remaining balance of 50% was to be paid within the next 90 days w.e.f. 30.04.2012.Since the invited bids were for allotment of permanent shop which was yet to be constructed, and the authorities were not in a position either to accept the first installment on time or the second installment, the execution of the agreement for the permanent shop was, as such, delayed. The petitioner deposited Rs. 6.50 lakhs, Rs. 4.00 lakhs, and thereafter Rs. 8.00 lakhs, total of Rs. 18.50 lakhs, before the Director, Health Services, with respect to the allotment of a temporary structure by the Health and Medical Education Department for running the fair price shop. The Health and Medical Education Department failed to construct the permanent shop and as such could not hand over the same to the petitioner. WP (C) no. 1668/2025 Page 2 of 15 3 Despite having received Rs. 18.50 lakhs from the petitioner, the Medical Superintendent, Government Hospital Sarwal, Jammu, requested the Drug and Food Control Organisation to issue necessary instructions to the concerned authorities for taking action against the petitioner for the recovery of the aforesaid amount w.e.f. 2012 till date.
4 Being aggrieved of the aforesaid action, the petitioner filed a writ petition before this Court bearing OWP No. 1275/2017, which came to be dismissed vide judgment dated 03.04.2025. After the dismissal of the said writ petition, a show cause notice dated 07.04.2025 was issued against the petitioner by the Medical Superintendent, Government Hospital Sarwal, Jammu, whereby the petitioner was directed to vacate the premises and deposit Rs.4,78,09,010/- as a liability towards the pending premium of the bid and rent of the fair price shop occupied by the petitioner. Another notice dated 08.04.2025 was also issued to the petitioner by the J&K Health and Medical Education Department, and a liability of Rs. 4,78,09,010/- was directed to be paid along with interest of 18%, which was to be calculated separately. The petitioner replied to the said notice, however, respondent No.3, vide demand order dated 12.06.2025, which is impugned in this petition, directed the petitioner to deposit the said amount on or before 01.07.2025, failing which arrest warrants would be issued against him under the provisions of Section 63 of the Land Revenue Act.
5 On 04.07.2025, this Court while issuing notice to the respondents had stayed the operation of impugned notice.
6 Per contra, in the objections filed by respondents, it is stated that petitioner has not come up with clean hands and has tried to misled this Court. The petitioner has never challenged the notices issued by Medical WP (C) no. 1668/2025 Page 3 of 15 4 Superintendent, Government Hospital, Sarwal, at the relevant time and is now estopped to file present petition. The Superintendent, Medical Government Hospital, Sarwal, vide communication dated 02.06.2025 forwarded a letter along with a certificate certifying the liability of the petitioner. A request was made to the respondents for initiation of the recovery proceedings in respect of the arrears of land revenue in terms of Section 18 of the Public Premises (Eviction of unauthorized occupants) Act 1988 (for brevity the 'Act of 1988'). Accordingly, impugned notice was issued by the respondents under Section 62 of the Land Revenue Act against the petitioner.
Submissions made by learned counsel for the petitioner: 7 Learned counsel for the petitioner has submitted that the impugned writ of demand is ex facie illegal, as the liability sought to be recovered, ought to have been ascertained by a competent authority through a proper order of assessment, after duly informing the person against whom the recovery was to be made. It is contended that the respondents have prematurely issued the impugned writ of demand without adhering to the procedure established under law.
8 He further contends that the impugned writ of demand has been issued without jurisdiction and in violation of the provisions of the Land Revenue Act. It is submitted that for invoking the recovery mechanism under the Land Revenue Act, the subject land must fall within the definition of "land" under Section 3(2), and the recovery must pertain to arrears of land revenue as defined under Section 3(6) of the Act. In the present case, the impugned demand does not fall within the ambit of the said provisions, and thus, the issuance of writ of demand is wholly without jurisdiction. WP (C) no. 1668/2025 Page 4 of 15 5 9 Learned counsel for the petitioner has argued that assuming for the sake of arguments that the provisions of the Land Revenue Act, including Sections 3(2), 3(3), and 3(6), are applicable, even then the recovery proceedings are vitiated for want of compliance with the mandatory procedure prescribed under the Act. It is urged that the alleged arrears of land revenue could have been recovered only after proper quantification by the competent authority, notification and announcement of the proposed assessment and issuance of a writ of demand by the Revenue Officer on the date on which the arrears became due.
10 It is emphasized that the petitioner was directly served with the impugned writ of demand on 27.06.2025 to deposit the amount forthwith, without being afforded an opportunity of hearing, thereby rendering the action of the respondents arbitrary and illegal.
11 Learned senior counsel Abhinav Sharma has stated that the impugned order is not in conformity with Section 3(6), 61 & 62 of the Land Revenue Act. The respondents could have recovered the arrears from the premium amount in terms of Section 91(r), but for that Government has to officially declare in the Gazette, which has not been done in the present case. Submissions made by learned counsel for the respondents: 12 On the other hand, learned counsel for the respondents has submitted that the impugned writ of demand has been validly issued under Section 62 of the Land Revenue Act for recovery of arrears of land revenue, and in the event of non-compliance, further proceedings under Section 63 of the Act shall follow. It is contended that the writ of demand is legally sustainable and does not suffer from any procedural or jurisdictional infirmity. Accordingly, it is prayed that the writ petition is devoid of merit and liable to be dismissed. WP (C) no. 1668/2025 Page 5 of 15 6 13 Heard learned counsel for the parties, considered submissions and perused the material on record.
14 The record and the terms of the tender notice indicate that the Fair Price Medical Shop was initially to be operated from a makeshift structure, with the understanding that it would subsequently be shifted to a permanent shop within the hospital premises. At one stage, when the temporary space provided to the petitioner was found to be inadequate for his requirements, he addressed representations to the concerned authorities seeking additional space within the hospital. However, when the petitioner failed to deposit the balance 50% of the premium amount, as well as the premium for the subsequent years which had by then accumulated, the Medical Superintendent, vide communication dated 02.01.2017, called upon the petitioner to deposit an amount of ₹1,71,50,000/-. Thereafter, vide letter No. SHJ/921-23 dated 22.07.2017, the Medical Superintendent, Government Hospital, Sarwal, informed the Drug Controller, Drug & Food Control Organization, J&K, that the agreement executed with the petitioner for running the Fair Price Medical Shop in the hospital premises had expired in May 2017, and that the firm had failed to clear the outstanding dues. Consequently, necessary instructions were sought for initiating further action in the matter. The petitioner filed a writ petition, being OWP No.1275/2017, before this court wherein a status quo order was passed on 11.08.2017. In terms of the judgment dated 03.04.2025, the petitioner's writ petition came to be dismissed. 15 Immediately thereafter, Medical Superintendent, Government Hospital, Sarwal, Jammu, issued a Show Cause Notice No. SHJ/2025-26/40-43 dated 07.04.2025 under Section 4(1) of J&K Public Premises (Eviction of unauthorized Occupants) Act 1988, upon the petitioner asking him to pay WP (C) no. 1668/2025 Page 6 of 15 7 Rs.4,78,09,010/- within 05 days and also show cause as to why the eviction order should not be made. The relevant portion of the show cause notice reads as under:
"................................................................................................ ............................................................................................ And whereas since you have continued to run your business productively beyond bid period of five years as such you owe to the department the following liability in terms of premium of the bid amount:
S.No. Year Premium Amount Liability
deposited
1 Previous liability 3800000x5 1850000 17150000
2012-2017
2 2017-2018 3800000 Nil 3800000
3 2018-2019 3800000 Nil 3800000
4 2019-2020 3800000 Nil 3800000
5 2020-21 3800000 Nil 3800000
6 2021-22 3800000 Nil 3800000
7 2022-23 3800000 Nil 3800000
8 2023-24 3800000 Nil 3800000
9 2024-2025 3800000 Nil 3800000
Total Rs.4,75,50,000
liability /-
And whereas besides the above liability of premium amount of bid you also owe to the department the following liabilities in terms of rent for the make shift shop occupied.
S.No. Period Rent Due Paid amount Balance
1 Upto 11/2024 416346 0 416346
2 12/2024 416346 300000 116346
3 12/2024 to 142664 0 142664
31.03.2025
4 31.03.2025 259010 0 259010
16 It is pertinent to note here that in the earlier writ petition (OWP No.
1275/2017), the petitioner herein had challenged communication dated 22.07.2017 addressed by respondent No. 3 to respondent No. 4, requesting him to take steps for initiating action against the petitioner firm. The show cause notice was issued on 07.04.2025 & 08.04.2025 under section 4 (1) of the J&K Public Premises (Eviction of unauthorized Occupants) Act 1988, the same was issued after the dismissal of the writ petition, however respondents have failed WP (C) no. 1668/2025 Page 7 of 15 8 to appreciate para 19 of the judgment dated 03.04.2025, which is reproduced as under:
"19. In the above context, it is to be noted that vide communication dated 23.05.2012 the respondents had offered the petitioners to take over the possession of make shift shop subject to payment of 50% of the annual premium with the condition to pay the balance amount of premium within 90 days of allotment of permanent shop. The petitioners accepted this offer and paid 50% of the premium. They also took over the possession of the make shift shop and started operating their business therefrom. Thus the contract between the parties stood novated by their conduct. Since the respondents failed to deliver the possession of permanent shop to the petitioners therefore, there was no occasion for them to deposit the balance amount of premium or the amount of annual premium thereafter. The respondents having failed to perform their part of the novated contract for the reasons not attributable to the petitioners, they cannot claim recovery of arrears of premium from the petitioners."
17. It has been held by this Court that due to the failure on the part of respondents to deliver the possession of permanent shop to the petitioner, he could not deposit the balance amount of premium, resultantly the contract between the parties stood novated by the conduct of the respondents. It was also held that respondents cannot claim recovery of arrears of premium from the petitioner. Since this judgment has attained finality and accepted by the respondents, without any demur as such, the action of respondents in passing impugned order dated 12.06.2025, is not only illegal but also unsustainable. 18 Thereafter, the Medical Superintendent on 08.04.2025 informed the petitioner that the Show Cause Notice dated 07.04.2025, had been issued by him in his capacity as the Estate Officer, appointed in terms of SRO 309 of 2013 dated 26.06.2013, and that the petitioner was liable to pay interest at the rate of 18% in addition to the outstanding amount. The petitioner claims to have submitted a reply to the said Show Cause Notice, however, vide the impugned Writ of Demand dated 12.06.2025, the Tehsildar Recovery Jammu, WP (C) no. 1668/2025 Page 8 of 15 9 has directed the petitioner to deposit an amount of Rs.4,78,09,010/-, along with recovery charges at the rate of 2%, failing which action under Section 63 of the Jammu and Kashmir Land Revenue Act, 1996 (Svt.) would be initiated, including issuance of an arrest warrant.
19 Section 4 (1), 5, 10, 12, 18 of J&K Public Premises (Eviction of unauthorized Occupants) Act 1988 and Section 61 and 62 of J&K Land Revenue Act are reproduced for facility of reference.
"Section 4 - Issue of notice to produce documents in proof of authorization of occupation.__ (1) If the Estates Officer has reasons to believe that that any person is in unauthorized occupation of any public premises and that he should be evicted, the Estates Officer shall call upon such person by a notice in writing to produce any documentary or other evidence within a period of seven days from the date of issuance of such notice to prove that he had been duly authorized by the Competent Authority to occupy such public premises failing which the person/persons shall be evicted after the expiry date...."
"Section 5 - Eviction of unauthorized occupants:
[(1) If, after a person who has been served with a notice to produce proof or evidence under section 4 fails to produce any such proof or evidence within the stipulated period, or if after considering the proof or evidence, if any, produced by him, the Estates Officer is satisfied that the public premises is in unauthorized occupation, the Estates Officer shall make an order of eviction, for reasons to be recorded therein directing that the public premises shall be vacated, on such date as may be specified in the order, by such person or all such persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.] (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within seven days of the date of its publication under sub-section (1), whichever is later, the estate officer or any other officer duly authorized by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from and take possession of, the public premises and may, for that purpose, use such force as may be necessary.WP (C) no. 1668/2025 Page 9 of 15 10
Section 10. Power to require payment of rent or damages in respect of public premises (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such installments as may be specified in the order.
(2) Where any person is, or has at any time been in unauthorized occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such installments as may be specified in the order.
(3) While making an order under sub-section (1) or sub-section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed.
(4) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
Section 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 condition as he deems fit:WP (C) no. 1668/2025 Page 10 of 15 11
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.
Section 18. Recovery of rent, etc, as an arrear of land revenue. If any person refuses or fails to pay the expenses of demolition payable under sub-section (5) of section 7 or the arrears of rent payable under section (1) of section 10 or the damages payable under sub-section (2) or the interest determined under sub-section (3) of that section or the costs awarded to the Government or the corporate authority under sub-section (5) of section 12 or any portion of such rent, damages, expenses, interest or costs within the time, if any, specified therefor in the order relating thereto, the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.
Section 61 of Land Revenue Act 1996: Process for recovery of arrears.
Subject to the other provisions of this Act [any sum recoverable as an arrear of land revenue under any law for the time being in force] may be recoverd by any one or more of the following processes, namely:-
a) by service of a writ of demand on the defaulter;
b) by arrest and detention of his person;
c) by distress and sale of his movable property and uncut or un-gathered crops;
d) by transfer of the holding in respect of which the arrear is due;
e) by attachment of the estate or holding in respect of which the arrear is due;
f) by annulment of assessment of that estate or holding;
g) by sale of that estate or holding;
h) by proceeding against other immovable property of the defaulter.
Section 62 of Land Revenue Revenue Act 1996: Writ of demand. A writ of demand may be issued by a Revenue Officer WP (C) no. 1668/2025 Page 11 of 15 12 on or after the day following that on which [any sum recoverable as an arrear of land revenue] accrues.
20 The Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act 1988, prescribes the procedure for the eviction of unauthorized occupants from the public premises and for certain incidental matters. The Medical Superintendent, Government Hospital Sarwal, issued show cause notice under Section 4(1) of the Act on 07.04.2025 to the petitioner, thereby directing him to vacate the premises and to deposit an amount of Rs. 4,7809010/- as liability towards the pending premium of bid and rent of fair price shop occupied by him. Under Section 4 (1) a notice is to be issued by an Estate Officer calling upon an unauthorized occupant of public premises to show-cause why an order of eviction should not be passed against him. However, in this case notice dated 07.04.2025, was issued in pursuance of Sub-section (1) of Section 4 of J&K Public Premises (Eviction of unauthorized Occupants) Act 1988, thereby directing petitioner to deposit the balance amount of premium of bid and rent of fair price shop occupied by the petitioner by or before 11.04.2025 and to show cause why eviction should not be made. The petitioner replied to the show cause notice issued under Section 4(1) of the Act. The Estate Officer was bound to consider the reply filed by the petitioner and then had to make an order of eviction, if not satisfied, for reasons to be recorded therein directing the public premises to be vacated on some specified date. This clearly reflects that as per Section 4 & 5 of the Act, Estate Officer can only direct eviction of the unauthorized occupant from the premises.
21 Section 10 empowers an Estate Officer to direct any person who is in arrears of rent payable in respect of any public premises to deposit rent or WP (C) no. 1668/2025 Page 12 of 15 13 damages on account of use & occupation of such premises within prescribed time. Section 12 provides remedy of an appeal against the order of Estate Officer made under Section 5, 7, 8 or 10 to an Appellate Officer (District Judge). Section 18 specifically states that if a person refuses or fails to pay the arrears of rent payable under Section 10 (1) or the damages/interest payable under Section 10 (2) & (3), the Estate Officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as arrears of land revenue.
22 In this petition, neither the petitioner has pleaded that the impugned order has not been passed strictly in terms of the J&K Public Premises (Eviction of unauthorized Occupants) Act 1988, nor the respondents have justified their action in terms of the Act.
23 It has been noticed by this Court that respondents have not only violated para 19 of the Judgment dated 03.04.2025, passed in OWP No. 1275/2017, but have also not followed the procedure laid down under Section 4, 5, 10 and 18 of the J&K Public Premises (Eviction of unauthorized Occupants) Act 1988.
24 Respondents have issued show cause notice under Sub-section (1) of Section 4 of J&K Public Premises (Eviction of unauthorized Occupants) Act 1988 and then have directly issued writ of demand on 12.06.2025 under Section 18 of J&K Public Premises (Eviction of unauthorized Occupants) Act 1988, read with Section 62 of the Land Revenue Act.
25 Sub-section (1) of Section 10 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1988, provides that where any person is in arrears of rent payable in respect of any public premises, the Estates Officer may, by order, require such person to pay the same within such time and in WP (C) no. 1668/2025 Page 13 of 15 14 such installments as may be specified in the order. It is evident that where a person is in authorised occupation of public premises and has defaulted in the payment of rent, the Estates Officer is empowered to direct recovery of the arrears within a stipulated timeframe and in specified installments as prescribed by Section 18 of the Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act, 1988.
26 The Estate Officer was under an obligation to follow the procedure for recovery of rent etc as an arrear of land revenue. In this case, the Estates Officer has issued show cause notice to the petitioner and without issuing any order under Section 5 or Section 10 has directed Tehsildar recoveries, which is only an execution authority, to issue a writ of demand under section 62 of Land Revenue Act.
27 It is as such apparent that the impugned order dated 12.06.2025 is in clear violation of the provisions of Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act, 1988. The Estate Officer has not followed the Act in its right perspective, thereby depriving the petitioner of his rightful claim to defend himself.
28 The Supreme Court has consistently held that where a special statute provides a complete mechanism for adjudication and enforcement, the authority must adhere strictly to the procedure prescribed therein. The coercive machinery under the general law cannot be invoked unless the underlying liability has been adjudicated and crystallized in accordance with law. 29 Accordingly, the writ petition is allowed. The impugned Writ of Demand Notice dated 12.06.2025 is quashed. It is, however, made clear that this judgment shall not preclude the Competent Authority from initiating appropriate proceedings afresh under the Jammu and Kashmir Public Premises WP (C) no. 1668/2025 Page 14 of 15 15 (Eviction of Unauthorised Occupants) Act, 1988, for the recovery of rent or damages for use and occupation, strictly in accordance with the procedure laid down therein, after affording due opportunity of hearing to the petitioner.
(MOKSHA KHAJURIA KAZMI) JUDGE Jammu 22.08.2025 Adil Ismail Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. WP (C) no. 1668/2025 Page 15 of 15