Evicting the Unauthorised - greaterkashmir

The Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act, 1988, (hereinafter referred to as “the Act”) aims to provide a legal framework for the eviction of unauthorized occupants from public premises in Jammu and Kashmir. The Act empowers designated authorities to take swift action against individuals or entities occupying public land or building without authorization, ensuring that such properties are reclaimed for their intended public use. It seeks to address issues related to the misuse and encroachment of government-owned properties, thereby promoting the efficient and lawful utilization of public resources. By establishing clear procedures and penalties for violations, the Act strives to maintain the integrity of public premises and support orderly urban and rural development. As per the J&K Reorganization Act, 2019, this Act still remains in existence, after the reorganization of the State of Jammu and Kashmir into a Union Territory, as specified in the Fifth Schedule (Table No. 4, S. No. 122) of the J&K Reorganization Act.

What does the term premises include under the Act?

The term premises includes: -

Any land or building or part of a building.
The garden, grounds, and out-houses appertaining to such building or part of a building.
Any fittings affixed to such building or part of a building for beneficial enjoyment.

What constitutes public premises?

Public premises include the following:

Premises belonging to, or taken on lease or requisitioned by the Government.
Premises belonging to companies where the Government holds at least 51% of the paid-up share capital.
Premises belonging to corporations, universities, town area committees, and development authorities constituted under relevant Acts.

What does rent encompass in relation to any public premises?

Rent includes the consideration payable periodically for the authorized occupation of the premises. It also covers charges for electricity, water, or other services connected with the occupation, and any taxes (payable by the Government or corporate authority) related to the premises.

What does unauthorized occupation mean in relation to public premises?

Unauthorized occupation refers to the occupation of public premises without authority, including continued occupation after the expiration or determination of the authority under which the occupation was allowed.

Who can be appointed as an estate officer and what are their powers?

The Government may appoint gazetted officers or officers of equivalent rank as estate officers, defining their local limits and categories of public premises over which they exercise powers.

What procedure must the estate officer follow to evict an unauthorized occupant?

When the estates officer suspects unauthorized occupation of public premises, he/she must issue a written notice. This notice requires the occupant to provide evidence within 7 days proving they were authorized by the Competent Authority to occupy the premises. Failure to provide such evidence will result in eviction after the specified period. Upon receiving the notice, the occupant bears the responsibility to prove they were duly authorized by the competent authority to occupy the public premises. The notice must be affixed to a prominent place, such as the outer door of the premises, and also published in at least two major newspapers or by another prescribed method. This ensures proper notification to all concerned parties. If the estates officer knows or suspects multiple occupants, separate copies of the notice must be served to each person in a similar manner.

What actions can the estates officer take if a person fails to produce proof or evidence after being served a notice?

If a person fails to produce the required proof or evidence within the stipulated period after being served a notice or if the estates officer, after considering any proof or evidence presented, determines that the public premises are occupied without authorization, the estates officer will issue an eviction order. This order, which will include the reasons for eviction, will specify a date by which the premises must be vacated. The order will be affixed to the outer door or another conspicuous part of the public premises.

What happens if a person does not comply with the eviction order issued by the estates officer by the specified date?

If a person refuses or fails to comply with the eviction order by the specified date, or within 7 days of the order’s publication, whichever is later, the estates officer or an authorized officer may evict the person and take possession of the public premises. The officer is authorized to use necessary force to carry out the eviction.

What can the estate officer do if unauthorized construction is found on public premises?

The estate officer can:

Serve a notice to the occupant to remove unauthorized construction.
Remove or demolish unauthorized constructions if the occupant fails to comply.
Recover the cost of removal or demolition as an arrear of land revenue.

How are disputes regarding unauthorized construction or occupation addressed under the Act?

Disputes can be addressed by:

Issuing demolition or eviction orders.
Sealing unauthorized constructions.
Requiring the removal of unauthorized goods, structures, or animals from the premises.
Imposing penalties for unauthorized occupation and re-occupation after eviction.

What penalties are prescribed for unlawful occupation of public premises?

Penalties include:

Simple imprisonment up to 6 months, a fine up to five thousand rupees, or both for unlawful occupation.
Imprisonment up to 1 year, a fine up to five thousand rupees, or both for re-occupation after eviction.

How can the estate officer enforce payment of rent or damages?

The estate officer can order the payment of arrears of rent or assess damages for unauthorized occupation, including interest on such amounts.

What provisions are made for appeals against the estate officer’s orders?

The appellate officer is the District Magistrate of the District in which the public premises are located. Appeals can be made to the District Magistrate within 12 days of the order. The appellate officer may stay the enforcement of the order pending the appeal.

What is the finality of orders made under the Act?

Orders made by an estate officer or appellate officer are final and cannot be questioned in any original suit, application, or execution proceeding.

What is the procedure for the disposal of property left on public premises by unauthorized occupants?

The estate officer can remove or dispose of such property by public auction after giving 14 days’ notice to the person and publishing it in a newspaper.

What are the estate officer’s powers in conducting inquiries under the Act?

The estate officer has powers similar to a civil court, including summoning persons, requiring the production of documents, and other prescribed matters.

What are the responsibilities of heirs and legal representatives of persons liable under the Act?

Proceedings for arrears of rent, damages, or costs of removal/demolition can continue against the heirs or legal representatives of the deceased person liable under the Act.

What action can be taken if a person fails to pay the expenses of demolition, arrears of rent, damages, interest, or costs awarded to the Government or corporate authority?

If any person refuses or fails to pay the expenses of demolition, arrears of rent, damages, interest or costs, 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.

Can a civil court entertain a suit or proceeding in respect of the eviction of an unauthorized occupant of public premises?

No, a civil court shall have no jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises.

Are the Government, corporate authority, appellate officer, or estate officer liable for actions taken in good faith under the Act?

No suit, prosecution, or other legal proceeding shall lie against the Government, corporate authority, appellate officer, or estate officer for any action done or intended to be done in good faith in pursuance of the Act.

Can the Government make rules for carrying out the purposes of the Act?

Yes, the Government may, by notification in the Government Gazette, make rules for carrying out the purposes of the Act.

What are some specific matters for which the Government can make rules under the Act?

The Government can make rules regarding:

The form and manner of serving notices.
The holding of inquiries.
Distribution and allocation of work to estate officers.
Procedure for taking possession of public premises.
Assessment of damages for unauthorized occupation.
The manner of sealing any erection or work on public premises.
The rate of interest on arrears of rent or damages.
The manner and procedure of appeals.
Any other matter that needs to be prescribed.

How are rules made under the Act, to be laid before the Legislature?

Every rule made, must be laid before each House of the Legislature while in session for a total period of 30 days. If both Houses agree to any modification or annulment of the rule within this period, the rule shall have effect only in such modified form or be of no effect, without prejudice to the validity of anything previously done under that rule.

What Act is repealed by the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988?

The Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1959, has been repealed by the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988.

Therefore, the Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act, 1988, stands as a pivotal legislative instrument aimed at preserving the integrity and rightful utilization of public properties throughout the region. This act plays a crucial role by establishing streamlined procedures for the identification and removal of unauthorized occupants, thereby safeguarding public assets and ensuring their availability for genuine public purposes and developmental initiatives. Its rigorous enforcement underscores a steadfast commitment to upholding the rule of law and fostering orderly land management practices. By addressing the pressing issue of unauthorized occupation, the Act not only serves immediate legal objectives but also supports broader goals of sustainable development and efficient governance in Jammu and Kashmir.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and he is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.