NISSAR AH GANAI Vs. STATE
HIGH COURT OF JAMMU AND KASHMIR
Nissar Ah Ganai
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(1.) THIS petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, has been filed for
issuance of a writ in the nature of certiorari quashing order dated 6th
JanRs.06, annexure A to the writ petition, whereby direction has been given
to Tehsildar Agrarian Reforms, Qazigund, to rush to the spot immediately
and remove the encroachment, if any, found on spot over land measuring 1
kanal 15 marlas under Survey No. 209, situated at Kurigam including two
residential houses. Further, a writ of mandamus is also sought directing
respondent No. 2 to conduct an enquiry under law before passing any order
under the Jammu and Kashmir Migrant Immovable Property (Preservation,
Protection and Restraint on Distress Sales) Act, 1997 (hereinafter
referred to as the Act).
(2.) THE case of the petitioner is that one Trilokinath, husband of respondent No. 6 -Sheela Devi and father of petitioners No. 4 and 5, was
owner in possession of land measuring 1 kanal 15 marlas and two storey
house tin roofed situated under Survey No. 209 at Kulibagh Kurigam,
Qazigund, Anantnag, Due to the turmoil in the valley, all his kith and
kins left the valley leaving Trilokinath at Kilibagn Kurigam, Qazigund,
at the mercy of God. The petitioner who is residing in the same village
took Trilokinath to his house. It is stated that Trilokinath executed a
gift deed of the entire immovable property and put the petitioner in
possession of the same. Trilokinath died on 31st DecRs.94. It is further
case of the petitioner that Trilokinath was not a migrant, and therefore,
the provisions of the Act are not applicable to the property in dispute.
It is thus stated that respondent No. 2 without giving any opportunity of
being heard issued order of eviction against the petitioner and
respondent No. 3, without giving any notice to the petitioner, seized the
property aforementioned and dispossessed the petitioner from the same.
(3.) ON notice, objections have been filed by private respondents 4 to 6 and a preliminary objection has been raised that the writ petition
is not maintainable. It is pleaded that the petitioner had filed a civil
suit before the Munsiff's court at Duroo, which was dismissed. It is
admitted that respondents 4 to 6 are the legal heirs of Trilokinath who
was one of the co -partner in the joint property which is in dispute. It
is further pleaded that Trilokinath had also migrated from valley along
with his other family members. The other averments made in the petition
have been denied.
I have heard learned counsel for the parties and perused the record. Writ petition is admitted and with the consensus of the learned
counsel for the parties, taken on board for final disposal.;
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