Gh. Hassan Kadoo vs State and Others

Bashir A. Kirmani, J.—Aggrieved by order of demolition of his construction and eviction from land underneath it, passed by concerned

District Magistrate under Migrant Immovable Property (Preservation and Restraint on Distress Sales ) Act 1997 on 12.08.2003, and Financial

Commissioner's appellate order of 23.08.2005, whereunder his appeal has been dismissed, the petitioner seeks an appropriate writ for quashment

of both on the ground that the matter was not covered by the aforesaid Act at all and the concerned District Magistrate, therefore, while ordering

the demolition acted without any lawful authority. Grounds pleaded are that while the land in question allegedly having been sold is no more a

migrant property so the Act had no application, particularly, because petitioner had not committed any violation etc.

Despite opportunities respondents have not filed objections. However during verbal submissions Mr. Shah has contended that petitioner has

encroached upon respondents land and raised construction thereupon, so the concerned District Magistrate was perfectly within his power to pass

the impugned order which was confirmed in appeal by the appellate authority.

I have heard learned Counsel and considered the matter. With agreement the matter is admitted and taken up for disposal. Perusal of the

impugned orders and annexures on record reveals that petitioner herein is alleged to have raised certain constructions on some migrant land and

taking note thereof the concerned District Magistrate passed the aforesaid order against him, after receipt of a factual report from S.S.P

concerned. On consideration I find that while exercising power U/s 5 of the Act does not appear to have acted in accordance with the Act and

spirit thereof. At this stage, it would, be appropriate to quote from a judgment of this court passed in OWP No. 271/2001 ""Jagger Nath and Ors.

v. State and Ors.

Before coming to District Magistrate's order, it would be appropriate to find out as to what precisely the District Magistrate is required to do

while entering upon exercise of his power under Sections 4 and 5 of the Act. At this stage it would be appropriate to quote the verbatim as

hereinbelow:

...On plain reading of these provisions it appears that for exercise of powers thereunder the District Magistrate has to assume satisfaction that

concerned immovable property situate within his jurisdiction belongs to a migrant, and is in unauthorized occupation. The questions that property is

migrant property and the possession of the occupant is unauthorized are mixed questions of fact and law and have to be assessed by the District

Magistrate precisely in the sense in which these expressions have been used in the Act. In plain words, it would mean that on receipt of a complaint

invoking his jurisdiction under said Sections the concerned District Magistrate would have to satisfy himself subjectively on three things. First, that

the immovable property in question belongs to a person who is a ""migrant"" within meanings of Clause (e) of Section 2; secondly, that it is in

physical possession of a person other than the migrant without his consent or authority of law, and thirdly, that possession of the occupant thereof

amounts to unauthorized occupation in terms of Clause (i) of said Section. It would be pertinent to point out that while considering these aspects

for assuming subjective satisfaction regarding existence thereof, the District Magistrate as the designated person performs a quasi judicial function

for performance whereof the Act has specifically vested power in and trusted him alone and his capability to act judiciously in the matter so as to

arrive at correct conclusions. The proceedings required to be undertaken by him have in fact almost all the features of a judicial proceeding and the

conclusions arrived at by him on these questions have to be so well founded in fact and law as to justify the implications. The nature of power

vested in him is such that its very exercise implies a duty to act judiciously. Viewed thus, the said power does certainly not appear to be capable of

being delegated to any other authority or officer under him, which necessarily means that the enquiry culminating into his subjective satisfaction to

enable him to exercise the power vested in him is to be conducted by him as ""persona designate"" and not through any other agency whatsoever

even though such an agency may be employed by him for rendering necessary assistance for collection of materials to arrive at correct conclusions.

The District Magistrate's responsibility to act as such is multiplied by the fact that exercise of power vested in him results in eviction of a person

from possession of property which is an extremely harsh measure that should be taken with all available care and caution particularly in view of the

element of semi finality attributed to his findings by statute in so far as the aggrieved person's right of appeal against his order is concerned which

would come in some detail elsewhere hereinafter.

Thus, interms of aforesaid observations, District Magistrate concerned is required to fully apply his mind to the matter before passing any order as

aforesaid. He can neither delegate his authority nor record any finding without proper application of mind nor can he act on reference of the

subordinate agency without assuming the subjective satisfaction regarding vires thereof.

In the instant matter, however, the aforesaid requirements do not appear to have been taken care of by concerned D.M which renders the

exercise of power by him defective and thereby vitiates his order of demolition, particularly, because what appears to have been solely acted upon

is concerned SSP's order without proper application of mind, so much so that even the survey number of the land in question is not mentioned in

his order of demolition/eviction, which renders the identity of land too doubtful.

In totality of circumstances, therefore, the petition is allowed and both orders impugned i.e order dt. 12.8.2003, purporting to have been passed

by District Magistrate Anantnag, and order dt.23.08.2005, passed by Financial Commissioner, are quashed with a direction to concerned District

Magistrate to conduct proceedings in the matter afresh and pass orders in strict accordance with observations made hereinabove.

Disposed of accordingly.