MANZOOR AHMAD MIR AND ORS. Vs. STATE OF J AND K AND ORS.
LAWS(J&K)-2020-12-37
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 31,2020

Manzoor Ahmad Mir And Ors. Appellant
VERSUS
State of J and K and Ors. Respondents


Referred Judgements :-

GH. MOHAMMAD MATOO VS. GH. RASOOL SOFI AND ORS. [REFERRED TO]
M.S. TAHIRA SHAFI VS. STATE AND ORS [REFERRED TO]
KANAYA LAL AND OTHERS V. MOHAMMAD ASHRAF MIR AND OTHERS [REFERRED TO]
RAJEEV VERMA VS. STATE [REFERRED TO]
JAGAR NATH BHAN VS. STATE OF J&K [REFERRED TO]


JUDGEMENT

- (1.)Petitioners claim that they are in possession of land measuring 05 kanals and 02 marlas, covered by Survey No. 92, situate at Hang Rajpora, Kawarhama, Tangmarg (for short "property in question") since long. They claim to be in possession of aforesaid land on the basis of an Agreement to Sell, executed by attorney holder of Shrimati Deviki, namely, Tej Krishan Bhat son of Raj Nath Bhat resident Kawarhama, Tangmarg, in their favour on 23rd October 2003, which was attested by the Public Notary at Jammu. It is the case of petitioners that the abovenamed Tej Krishan Bhat, was a duly appointed attorney holder of Shrimati Deviki in respect of the property in question and in this regard power of attorney was executed and got registered from Sub- Registrar Tangmarg on 11th September 1997. The case of petitioners is that a writ petition bearing, OWP No. 1308/2014, filed by one Pushpati Koul titled Pushpati Koul and others vs. State and others, was disposed of vide order dated 20.08.2014, directing District Magistrate, (Deputy Commissioner) Baramulla, to take action on the application of said writ petitioner. Deputy Commissioner is said to have exercised powers under Section 4 of J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short "The Act") and vide order No.DMB/ ARA/ LC/129/TANG/2014/ 659-61 dated 31.10.2014, directed eviction of petitioners. The order, it is stated, was challenged by petitioners in a writ petition before this Court, which was disposed of on 12th March 2015, giving liberty to petitioners to file an appeal under Section 7 of the Act within one week. The petitioners filed Appeal before Financial Commissioner (Revenue) J&K, Srinagar, on 23rd March 2015. The appeal was dismissed on 29th May 2017 by Financial Commissioner (Revenue), J&K, Srinagar, on the ground that as possession of the property in question was not surrendered, the appeal could not be entertained. The petitioners have challenged this order of the Financial Commissioner, Revenue J&K, Srinagar on the grounds that:
i) The order of District Magistrate (Dy. Commissioner), Baramulla dated 31.10.2014, passing eviction order against petitioners is on the fact of it illegal and is also unconstitutional. Firstly, petitioners have not been heard and right of hearing has been denied to them, as such, the order is violativie of rules and natural justice and thereby contrary to constitutional guarantee of Article 14.

ii) Impugned order is, on the face of it, illegal because order of eviction passed by District Magistrate is de hors law and rules. In this behalf authority to act under the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, the District Magistrate (Dy. Commissioner), Baramulla, has an authority only on the ground if a person is unauthorized occupant; the said person fails or refuses to surrender the possession, then steps necessary for taking possession of the property are authorized to be taken. Secondly, the question who is unauthorized occupant is to be decided and a decision without hearing cannot be taken in this effect. The petitioners have not been heard in this behalf and the question who is unauthorized occupant is to be determined and decided as per the fact situation and also as per the provisions of the law in this behalf.

iii) Petitioners have not encroached upon the property and have not taken possession of the property without any authority or consent and as submitted hereinabove, the petitioners are in possession of the property and the possession has been accepted to be handed over to the petitioners by a lawful attorney of the owner, as such, the order of the District Magistrate (Deputy Commissioner), Baramulla, suffers from inherent defect., the order of the District Magistrate ( Deputy Commissioner), Baramulla dated 31.10.2014 and the order of Ld. Financial Commissioner dated 24.05.2017, in this behalf, are illegal and have been passed in colorable exercise of the powers.

iv) Impugned orders are illegal because of the fact that permission for alienation is required only for purposes of ascertaining that the sale of the property is not distress sale and if the sale is distress then the application for grant of permission to alienate the property shall be rejected. In the alternative it is submitted that the respondents authorities and in particular respondent - Divisional Commissioner, Kashmir, be directed to consider the case of the petitioners for grant of permission to alienate the property because the petitioners have paid Rs. 1,36,250/ in cash i.e prior to two years of execution of agreement to sell, and it is reiterated that the agreement to sell has been executed on 23.10.2003 and the price of the property mentioned in the agreement to sell at that time was higher than that of prevalent market rate in the locality and was in no way less than the prevalent market rate. In view of this, the impugned order of District Magistrate (Deputy Commissioner), Baramulla, also is not legally warranted and thereafter order, dismissing appeal on the ground that the possession has not been surrendered before filing of the appeal is totally illegal because of the fact that the petitioners are not in unauthorized possession and, as such, the condition of surrendering the possession to the competent authority before or at the time of filing of the appeal is not legally warranted.

v) Impugned order passed, is not an order covered by the provisions of the Jammu and Kashmir Migrant Act . Impugned order of Financial Commissioner, Revenue, is without authority and is against the mandate of law and justice.

vi) Impugned order dated 24.08.2017, passed Financial Commissioner, Revenue, dismissing the appeal is not legally correct because the same is in conflict with the order of the Hon'ble High Court dated 12.03.2015 , that the clear direction was that the appeal should be entertained by the FC and decided.

vii) There was a waiver of surrendering possession before entertainment of appeal as was implicit in the order of the Hon'ble High Court.

(2.)Petitioners seek grant of following relief in writ petition:
"i) A writ, order or direction one in the nature of certiorari/ mandamus quashing the order dated 31.10.2014 passed by the District Magistrate (Deputy Commissioner) Baramulla (as contained in Annexure -PC) and also the order dated 24.05.2017 passed by the Ld. Financial Commissioner (Revenue), J&K (as contained in Annexure-PE) and the respondents be restrained from dispossessing the petitioners from the possession of the land measuring 05 kanals 02 marlas under Survey No. 92/Min situated at Village Haing Rajpora Kawarhama, Tangmarg as mentioned in the impugned orders and the respondent Divisional Commissioner be directed to consider grant of permission for alienating the property in favour of the petitioners."

(3.)Respondents, while objecting writ petition, have replied the claims made in writ petition and have also taken preliminary objections, which are as under:
i) Respondent No.7 is the owner of the land in question in the instant writ petition belonging to his mother namely Smt. Devki (Alias) Kamalwati who had inherited the said property from her mother Smt. Chanda Wf/o Jankinath Bhat R/o Karhama.

ii) Respondent No.7's mother died in the year 2006 and the respondents being the successors in the interest of the said property. The demise of the mother of respondent No.7 vouch safe by issuance of a Death Certificate issued by the competent authority. That because of the unprecedented circumstances prevailing in the valley, the respondent No.7 along with his family members had to migrate from valley to Jammu who stand registered with the Commissioner Migrant Relief and Rehabilitation Jammu and are still residing at Jammu.

iii) Taking undue advantage of migration of respondent No.7 along with his family, the writ petitioners have fraudulently manufactured / executed the document of Power of Attorney by showing his mother Devki (Alias) Kamlawati R/o Sonawar without any specific address by an Act of impersonation before the Registering Authority which came out to surface by a Photostat copy of Power of Attorney bereft of producing the original Power of Attorney, thus the fact actuated by the so called attorney holder warrants to be probated to the extent that the deceased Devki (Alias) Kamlawati has never presented herself before any Registering Authority after her migration. The aforesaid fraud has been committed with a malicious design to grab the property of respondent No.7 illegally.

iv) Even the effect of power of Attorney which is per se a fraud document without its operation had come to an end after the demise of the Devki (alias) Kamlawati, thus the writ petitioners are barred in law otherwise also to stake a claim over the piece of land after the demise of Devki (Alias) Kamlawati without its operation and execution.

v) Writ petitioners also manufactured an agreement to sell fraudulently and got notarized to stake their claim on the land in question in the instant writ petition which in law cannot be countenanced as per the judgement of this Hon'ble Court "2004 SLJ Srinagar Law Journal Page 736 Captioned J.M. Mattoo Vs. G.R. Sofi" which proposition of law is again conferred by the Hon'ble Supreme Court of India reflected in AIR 1995 SC 1891.

vi) Respondent No.7 being a migrant after gaining the knowledge of the land belonging to him grabbed by the writ petitioners, approached the Deputy Commissioner Baramulla who as per the J&K Migrant Immoveable Property Preservation Protection and Distress Sales Act 1997 being custodia-legius of the Migrant Property, who after thorough enquiry passed an order bearing No. DMB/ARA/LC/129/Tang/2014/659-61 dated 231.10.2014 directing the Tehsildar concerned to take over the possession of the land measuring 5 kanal and 2 marlas under Khasra No. 92 min situated at village Haing Rajpora in respect of the share of Smt. Devki (alias) Kamlawati. A copy of the order supra passed by the Deputy Commissioner in exercise of his powers conferred under Section 4 of the J&K Migrant Immoveable Property Preservation Protection and Distress Sales Act 1997 and the Tehsildar Karhama was authorized to take over the possession of the land aforementioned.

vii) Writ petitioners being aggrieved by the order passed by the Deputy Commissioner Baramulla against them, in view of the fraud surfaced, assailed the same before this Hon'ble Court through the medium of writ petition bearing OWP No. 1590/2014 which came to be decided after filing the objections from the answering respondent and this Hon'ble Court at Para No. 5 of the judgment found merit in the objections of the answering respondent and gave a liberty to the writ petitioners/Land Grabbers to file an appeal within a period of one week in terms of Section 4 of the J&K Migrant Immoveable Property Preservation Protection and Distress Sales Act 1997.

viii) Writ petitioners in light of the judgment preferred an appeal before the Financial Commissioner though delayed one which also came to be decided by the Financial Commissioner on 24.05.2017 wherein the appeal of the writ petitioners got dismissed pursuant to the impugned order dated 24.05.2017 in favour of the answering respondent No.7. That in order to hoodwink the process of law the writ petitioners have now preferred the instant writ petition against the impugned judgment passed by the Financial Commissioner in favour of the respondent No.7 by dismissing the appeal of the writ petitioners, which is neither maintainable in law nor is countenanced by the facts as alleged in the writ petition and in view of the judgement passed by the Hon'ble Court in case M.S. Tahira Shafi Vs. State and Ors reported in 2007 II SLJ 549 wherein it has been decided that the property dispute that too of a migrant involves disputed questions of fact and law as such the writ petition is not maintainable. More so their favour no infirmity in law vis-a-vis the impugned order as such the writ petition captioned above entails dismissal.

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