1. This appeal has been preferred against an interim order. The Trial Court on 7th May 2002 has passed an order to the effect that the appellant Board shall not interfere with the possession of the respondents on the land described in the suit. What is said by the Trial Court in the concluding paragraph of the Order is being reproduced below:-

"An irreparable loss is a certainly in case the non applicants/ defendants are not restrained from interfering in the use and possession of plaintiffs-applicants over the suit land. Accordingly, present application is allowed and the defendants/ non applicants are temporarily restrained from interfering into the peaceful possession of the plaintiff applicants over the suit land till the disposal of the case...."

2. It is the above part of order which is subject matter of challenge in this appeal,

3. Plaintiff respondents submit that the total land which is in their possession is 10 kanals and 13 marlas. This becomes apparent from the perusal of heading of the plaint. For facility of reference, this is being reproduced below; -

"Civil Original Suit for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiffs over the land measuring 10 kanals and 13 marlas falling in khasra no.226 min. 267 min, 256 min, situated at Village Thanger.

In para 4 of the plaint, it is submitted that a small portion of State land measuring 4 kanals 10 marlas is also in possession of plaintiff respondents and that the appellant Housing Board has no concern with this land. It is further submitted that the claim of the respondents for regularisation is pending consideration with the State Government. The State Government, it is submitted has not taken any final decision. It is accordingly submitted;-

i. That so far as 4 kanals 10 marlas of land is concerned, it is in their possession and appellant Board can not interfere with this possession.

ii. That so far as rest of the land is concerned, it is owned by the plaintiff respondents and they have a right to continue till this property is acquired by taking steps under the Land Acquisition Act.

4. The Housing Board has filed written Statement. It is stated that the suit was not maintainable on account of the bar created by Section 57 of the Jammu and Kashmir Housing Board Act, 1976. It is submitted that unless and until, notice in accordance with the aforementioned statutory provision is not served, the suit shall not be maintainable. In addition to this, it is submitted that so far as land measuring 5 kanals and 3 marlas is concerned, the Collector (Land Management Officer) Housing Board, Jammu has already issued a notice for acquisition of the said land. This fact is adverted to in para (III) of the written Statement filed by the appellant Housing Board. In addition to this, it is submitted that the suit is also barred under Section 44 of the aforesaid Act. This is on the plea that plaintiff respondents are trying to encroach upon the land which is adjacent to the property of Housing Board. In Para V it is submitted that the land in question is a green belt and is meant for a housing colony, and therefore, no injunction could be granted.

5. So far as 5 kanals and 3 marlas of land is concerned, this is prima facie owned by the plaintiff respondents. There was a litigation regarding this land. Writ petition no.214/99 came to be filed in this Court. A perusal of the aforementioned writ petition makes it apparent that in this petition, respondents had taken a stand that the land has not been finally acquired. Taking note of this aspect of the matter, respondents were left free to pursue the matter and acquire the land in accordance with the law. Till then, the plaintiff respondents herein who figured as writ petitioners in the above petition were ordered not be dispossessed. If this be the position, then so far as this land is concerned, the plaintiff respondents can not be dispossessed unless and until acquisition is done in accordance with the law. So far as remaining land is concerned, the Housing Board submits that this is situated in Khasra no.256. It is submitted that this land was subject matter of acquisition. Regarding this, an award has been given. This is placed on the record as Annexure-A.2 The letter handing over possession is Annexure A.3 Letter handing over possession does not mention of the fact that in village Thangar possession land has been given regarding khasra no.256.

6. With a view to elaborate that how much is the area which was acquired by the State, reliance is being placed on another annexure appended with the award. This makes mention of the fact that 45 kanals of land belongs to Kakam S/o Sain and 25 kanals of land belongs to the State. Thus, it is clear that only a part of Khasra no.256 was acquired. If this be the position, then the question would arise as to whether plaintiff respondents are in possession of that part of land which vests in the State or that land which stands acquired. This is a matter on which a finding has to be recorded by the Trial Court. Apparently, plaintiff respondents seem to be in possession, For this reliance is being placed on a certificate issued by the Collector Housing Board, This certificate-is being reproduced below:-

"It is certified that land measuring 5 Kanal 03 marlas under survey no.258,266 min is under physical possession of Shri Ravinder Kumar Sawhney and others as ownership and he is also in illegal possession of State land measuring 4 kanal 10 marlas out of survey no.256 min since the year 1987."

7. Therefore, to say that the plaintiff respondents are not in possession of land is an argument which would not be sustainable. Thus, so far as factual position is concerned, that part of land which is owned by plaintiffs and regarding which OWP 214/99 came to be filed, plaintiff respondents are in possession as owners. Unless and until the land is acquired, they can not be dispossessed. So far as other land is concerned, only part of it has been acquired and it is not clear as to whether this is State land or that part of land which was acquired.

8. So far as legal position put across by the appellant Board that a suit would not be maintainable unless and until notice is given be now examined.

9. The Supreme Court of India in the Case reported as AIR 1969 SC 227 , Amalgamated Electricity Co. (Belgaum) Ltd. v. Municipal Committee, Ajmer was interpreting the provisions of Section 80 of the Civil Procedure Code and Sec.233 of Ajmet Merwar Municipalities Regulation, 1925. The argument put across was the same as has been put across in the present case. It was observed that before these provisions can be relied upon in any suit against a public officer, it must show that it is a suit in respect of an act purporting to be done by him in his official capacity, it was further observed that in view of illegal omission, therefore, If the suit does not relate to any act or illegal omission, purporting to be done by a public officer in his official capacity, Section 80 of the Civil Procedure Code will not have any application. It was further observed every omission is not an illegal omission, it must be shown that the official concerned had omitted to discharge some official duty imposed on him in public interest. The Omission in question must have a positive content in it...." In the above, case, suit was filed by an Electric Company claiming some amount as surcharge due under certain notifications issued by the Chief Commissioner of Ajmer. The precise object was taken that suit would not be maintainable. This argument was rejected on the plea that suit against Municipal Committee claiming amount as surcharge due under notifications was maintainable. The reasoning being that non discharge of official duty by an official concerned must amount to an illegal omission. The present is a case Where injunction is being sought. The appellant is trying to recover possession of a piece of land which for the time being does not clearly belongs to it. Therefore, the ratio of decision given in Amalgamated Electricitys case (Supra) would apply to the facts of this case.

10. The question as to whether provisions of section 44 would be attracted and whether civil court would have jurisdiction or not be also examined.

11. The Privy Council in the case reported as AIR 1940 PC 105 , Secretary of State v. Mask & Co. has observed as under-

"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicity expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

12. The said rule was reiterated by the Supreme Court in Karikara Chintamani Dora v. Guatreddi Annamanaidu, AIR 1974 SC 1069 . It was observed as under:-

"There is an express bar to the jurisdiction of the civil court to adjudicate upon the question whether any inam village is an inam estate or not and to the extent of the question stated in S.9 (1), Madras Act 26 of 1948, the jurisdiction of the Settlement Officer and of the Tribunal are exclusive. But this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First the Civil Courts have jurisdiction to examine into cases where the provisions of the have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive,."

13. The most authoritative pronouncement by the Supreme court in this regard was made in Kamala Mills Ltd v. State of Bombay, AIR 1965 SC 1942 . A seven Judge Bench observed as under:-

"Whenever it is urged before a Civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a Special Statute is sufficient or adequate. In cases where the exclusion of the Civil Courts jurisdiction is expressly provided for, the consideration as to the scheme of the Statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but can not be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If ft appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specifically constituted in that behalf and it further lays down that all questions about the said right and liability to be dealt with by tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in Civil Courts are prescribed by the said Statute or not".

14. The matter was again considered by a five Judge Bench of the Supreme Court in Ram Swarup v. Shikar Chand, AIR 1966 SC 893 . In this case the provisions of Sc. 3(4) and 16 of the UP. (Temporary) Control of Rent and Eviction Act, 1947 were under consideration. Although the provisions of the said section expressly barred the jurisdiction of the Civil Courts still it was held that if the order was passed in violation of the statutory provisions of the principles of natural justice, the order would be open to challenge in Civil Courts.

15. At this stage, one more aspect requires to be commented upon. This Court in the case of Bakshi Ghulam. Mohd. v. G.M. Sadiq and others, AIR 1968 J&K 98 , has observed that the Court has inherent power to reject the plaint at any stage after its admission and filing of written statement is not essential. In the above case, the plaint did not contain a recital that notice under section 80 of the Civil Procedure Code was served and therefore, it was concluded that the presumption is that there was non-compliance of Section 80. It was also observed that an official act even if it is done mala fide would remain an official act in the discharge of duty.

16. Reliance at this stage is being placed on a decision of this Court reported as 1997 KLJ 73, Srinagar Development Authority v. Mohd Amin, Jogoo and Ors. In the above decision it has been observed that notice under Section 48 is required to be given and if it is not given, then the suit is liable to be dismissed.

17. There can be no dispute with the above proposition. However, before a suit is dismissed. It has to be demonstrated that the act was such which falls within the four corners of Section 48 of the. This can only be demonstrated if evidence is led. The Supreme Court in the case reported as ITC limited v. Debts Recovery Appellate Tribunal and others, AIR 1998 SC 634 has observed that merely because issue have been framed would not be a ground to contend that the plaint cannot be rejected. The provisions of Order 7, Rule 11 can be resorted to at any stage. The question, however, is whether the issue can be decided at the very outset of some evidence is required. If evidence is required then obviously, the issue can not be decided at the very threshold. However, if the authority wants to take benefit of requirement of giving a notice, this can not be made a ground to deprive the plaintiffs to lead evidence. Therefore, to say that at the very threshold, the suit deserves to be dismissed, can not be accepted. This is a matter which requires consideration and evidence would have to be lead.

18. This appeal is accordingly disposed of with the following directions:-

i. That the respondents shall not be dispossessed from the land which was subject matter of OWP no.214/99 referred to above, unless and until proceedings are completed under the Land Acquisition Act.

ii. That the respondents shall again not be dispossessed from the land till it is demonstrated that acquisition was made and this pertain to the land in question.

iii. That final findings regarding the above aspect are supposed to be recorded by the trial court and it would do so.

iv. The State Government which is not a party would take steps with a view to dispose of the matter regarding which prayer has been made by the respondents before it. This would be done at the earliest so that the controversy which is going on for quite sometime is brought to an orderly end.

Disposed of accordingly.