Ashok Kumar Koul vs Financial Commissioner

Dhiraj Singh Thakur, J.—The present LPA is preferred against the judgment and order dated 9th December 2011 passed in OWP No.

539/2007 Mohd. Ashraf Jan v. State Of J&K & Ors. 2012 (1) JKJ 150 [HC], whereby the writ Court has set-aside the order of the Financial

Commissioner Revenue (Appellate Authority) under the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and

Restraint on Distress Sales) Act 1997. However, in order to understand the controversy, in its correct perspective, it is necessary to give in brief

the following facts:-

The Jammu and Kashmir State Legislature enacted the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and

Restraint on Distress Sales) Act 1997 with a view to protect the immovable properties of migrants, who had migrated from the Valley after 1st

November 1989 on account of the peculiar disturbed conditions prevailing in the valley, and to avoid their distress sales.

Section 4 of the Act envisages that the District Magistrate would take over the possession of Immovable properties belonging to migrants falling

within his territorial jurisdiction within 30 days from the commencement of the Act and on expiry of the said period of 30 days, the said District

Magistrate is deemed to have the custody of immovable property.

Section 4(2) enjoins the District Magistrate to take all such steps as would be necessary for preservation and protection of such property.

Proviso to said section of 4(2) envisages that the possession of such property would not be handed over to any one save with the express

consent of the migrant in writing.

On 23rd November 2005, an application came to be filed by the appellant herein namely Ashok Kumar Koul before the learned District

Magistrate Srinagar where in it was alleged that their employee Mohammad Ashraf Jan (respondent no. 2 herein) had broken open the locks of the

shops situated in Palladium Gali at Lal Chowk and made forcible entry into the shop and illegally taken over its possession. It was accordingly

prayed that the District Magistrate take over the possession of shop in exercise of the power under the Jammu and Kashmir Migrants Act 1997

and hand over the possession to him.

Admittedly, the shop in question was rented out by Shri Sanathan Dharam Pratab Sabha Srinagar to late Raghunath Koul father of the appellant

some times before 1971. Shri Raghunath Koul passed away in 1987 and was succeeded by his widow Smt. Tarawati Koul and sons Shri Ashok

Kumar and Shri Ramesh Kumar who migrated to Jammu in the year 1990 on account of turmoil in the Valley.

7A. Respondent no. 2 Mohammad Ashraf Malik opposed the application before District Magistrate Srinagar on the ground that he was inducted

as a partner by Late Shri Raghunath Koul in the year 1971 and thereafter continued to be in possession of the disputed shop. The case setup by

him was that initially Raghunath Koul conducted the business of Bakery, subsequently he inducted non-applicant-respondent no. 2 herein as a

partner for sale and service of Pressure Cookers, Stoves etc. in the year 1971. Further that Raghunath Koul and the non-applicant agreed that

they would share the profit and loss which continued uninterruptedly till, 1987 when Raghunath Koul died. It was also admitted that there was no

written partnership, evidencing the factum of partnership between Shri Raghunath Koul and respondent no. 2.

The District Magistrate by virtue of his order dated 6th September 2006 returned a finding that non-applicant Mohammed Ashraf Jan was

neither a trespasser nor in illegal possession of the shop in question and that he had been conducting the business in the shop along-with Raghunath

Koul and after his death conducted the business with his son Ashok Kumar. The District Magistrate, however, directed the non-applicant-

respondent no. 2 herein to pay rent of the shop u/s 13 of the Jammu and Kashmir Migrants Act 1997 to the successors-in-interest of Raghunath

Koul.

An appeal came to be preferred by the appellants herein against this order before the Financial Commissioner Revenue in terms of Section 7 of

Migrants Act who allowed the same by virtue of his order dated 27th June 2007 and reached the following conclusion:-

""The respondent i.e. Mohammad Ashraf Jan had accepted as per the impugned order at para no. 2 that the shop was allotted to Sh. Raghu

Nath Koul and the rent was being paid to him only. The District Magistrate Srinagar after hearing the parties had also said in para no. 3 of the

impugned order that the shop/property in the name of 'Jai Hind Workshop' is basically the property of Shri Sanathan Dharam Partap Sabha

located at Lal Chowk Srinagar and Raghu Nath Koul was the original allottee of the shop.

District Magistrate Srinagar has recorded at Para 3 in the present impugned order that the property/shop had become a migrant property under

Migrant Act.

As per the registration certificate issued on 24.12.1970 by the Labour Department under J&K Shops and Establishment Act, 1966, it is clear

that late Shri Raghu Nath Koul is the employer at S. No. 5 and there is no other person as an employer or any other beneficiary at S.No. 6 and at

S. no. 7 one adult employee is recorded.

As per the arguments of the counsel of the respondent Mohammad Ashraf Jan is presently running some business in the shop in question. This

clearly shows that he had encroached upon the property because he could not have taken over the property without proper permission of the

actual allottee i.e. legal heirs of late Sh. Rugh Nath Koul. Nor could he renovate the gutted shop without proper permission of the legal heirs of the

actual allottee and the actual owner of the building i.e. Shri Sanathan Dharam Partap Sabha.

As per the records available on the file and as per the statement of the respondent made before the District Magistrate as recorded in para 2nd

the impugned order, the rent was being paid by Sh. Rugh Nath Koul and after his death by his legal heirs, the rent has already been paid to Shree

Sanathan Dharam Partap Sabha up to ending March 2008.

As a consequence of arriving at this conclusion, the Appellate Authority set-aside the order of District Magistrate Srinagar and directed him to

take possession of the shop as required under the Migrants Act after dispossessing the respondent who was declared as an unauthorised

occupant/trespasser. Respondent was also directed to pay the rent to the appellant u/s 13 of the Migrants Act for the period he had remained

munauthorized occupation of the said shop.

The aforementioned order came to be challenged in OWP No. 539/2007 by respondent no. 2 herein which was allowed by virtue of judgment

and order dated 9th December 2011 which order is impugned in the present LPA.

The Writ Court while allowing the writ was primarily persuaded by the fact that the Appellate Authority had referred to and relied upon a

document that was not either placed before District Magistrate or had come into existence after the order of District Magistrate dated 6th

September 2006 was rendered.

Reference in this regard was made by the Writ Court inter alia on the communication dated 22nd May 2007 addressed by the Assistant Labour

Commissioner to the appellant herein which communication also has been relied upon by the Appellate Authority in its order dated 27th June

2007.

It is in that perspective that the Writ Court was of the opinion that the right course for the Appellate Authority was to give an opportunity to the

respondents to respond to the said communication/documents instead of deciding the appeal on the basis thereof when the said documents were

not on record of the District Magistrate nor made available to the petitioner-respondents herein.

The Writ Court also held the order to be bad on the ground that it was not open to the Appellate Authority to assume the role of the District

Magistrate u/s 4 of the Migrants Act when it directed the District Magistrate to take over the possession of the disputed shop and handover its

possession to the respondent.

Heard learned counsel for the parties.

On a principle of law, we agree with the findings of the Writ Court to the extent it holds that the Appellate Authority ought not to have

considered the documents and material which were not on record of the District Magistrate while considering the Appeal before it. It was open to

the parties to produce additional evidence which was in their possession by resorting to the principles of Order 41 Rule 27 of the Civil Procedure

Code. In that event, the Appellate Authority after considering objections of the other-side could have taken them on record and considered the

same. This would have certainly satisfied the test of fairness, transparency and justice.

16A. On a question of law, we however, respectfully disagree with the observation of the Writ Court that the appellate authority by giving a

direction to the District Magistrate to take over possession of the property amounted to usurping the powers of the District Magistrate in terms of

Section 4 of the Act.

It is settled law that an appeal is a continuation of suit or proceedings & carries with it a right of rehearing on law as well as facts.

Reference can be made to Hari Shankar Vs. Rao Girdhari Lal Chowdhury, while dealing with the distinction between an appeal and Revision,

the Apex Court held as under:-

The Distinction between an appeal and revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the

statute conferring the right of appeal limits the rehearing in some way, as has been done, in second appeals arising under the Code of Civil

Procedure. The power to hear a revision is generally given to a superior Court so that, it may satisfy itself that a particular case has been decided

according to law.

This was followed & reiterated in Lachhman Dass Vs. Santokh Singh, .

Be that as it may, in exercise of its appellate powers, the appellate authority may either accept, set aside, modify or vary the order, to make it

complaint with the requirement of that law for the enforcement of which that authority has been created. This is what is also implied by the common

law 'doctrine of merger' which postulate that once the superior court or forum has disposed of the lis, whether the order or decree has been set

aside, varied or simply confirmed, it is the decree or order of the superior Court or forum which is final and binding, Kunhayammed and Others

Vs. State of Kerala and Another, .

Testing the facts on the principles of law discussed hereinabove there is nothing wrong with the appellate authority if it accepts the appeal, sets

aside the order of the forum below and passes an order which the authority below ought to have passed itself in accordance with the requirement

of the Act.

While allowing the writ petition, the Writ Court has directed the District Magistrate Srinagar to hear the application filed on 5th August 2006

filed by the appellant herein afresh after affording the parties adequate opportunity to project their stand with permission to them to produce all

documents which they may to choose before him to substantiate their respective stands and claims. However, we feel that such a direction would

not be necessary as it would lead to further delay.

The interest of justice would be served if the matter is remanded to the Appellate Authority which would allow the parties an opportunity to

respond to those documents which were otherwise not on the record of the District Magistrate Srinagar and have been produced for the first time

at the appellate stage. The Appellate Authority shall reconsider the entire issue afresh and dispose of the matter preferably within a period of two

months from today. Disposed of accordingly along-with connected CMA.