Gh. Mohammad Changa and Others vs State and Others

Muzaffar Hussain Attar, J.—In this writ petition, the petitioners have prayed for issuance of writ of Certiorari for quashing order dated 21-

08-2013, passed by District Magistrate, Anantnag, whereunder it is directed that unauthorized occupants of Plot No. 148 be evicted forthwith

with further direction to Tehsildar, Pahalgam, to execute the order with police assistance, if needed; the attorney holder be put in possession of the

property and the rent for the period the property was in unauthorized possession be recovered in terms of section 13 of the Jammu & Kashmir

Migrants Immoveable Property (Preservation, Protection & Restrain On Distress Sales) Act, 1997 (for short Act of 1997). The Court, on 31-10-

2013, while issuing notice, directed that the impugned order shall remain in abeyance till next date before the bench.

The private respondents, through their attorney holder, have filed objections/additional Affidavit.

Mr. Qayoom, learned counsel for the petitioners, submitted that one Shri Shamboo Nath Sazwal, now dead, inducted the petitioners as tenants

of his shop in the ground floor and a room in the first floor, constructed on Plot No. 148, situated at Pahalgam. He further submitted that the

petitioners are running the shop under the name and style of M/s. Pahalgam Arts. In order to buttress his argument, learned counsel referred to the

documents enclosed as annexure (A) to the writ petition. Learned counsel further submitted that one Shri Inder Mohan Harkar, attorney of Shri

Somnath, filed OWP 74/2008 qua the property, which is subject matter of this writ petition but the said petition was dismissed by the Court on

14-09-2009. Learned counsel further submitted that two sons of late Shri Shamboo Nath Sazwal, respondents 4&5 in this petition, filed OWP

354/2005 before the Jammu Wing of this court, praying therein that respondents 1&2 - State of J&K through Financial Commissioner and District

Magistrate, Anantnag, be asked to direct respondents 3 to 5 to surrender the possession of the share of three storeyed building situated at main

market, Pahalgam, being illegally and unauthorizedly occupied by them without consent of the petitioners therein. Further reliefs were also sought in

the writ petition. Learned counsel produced certified copy of the writ petition (OWP 354/2005) at the time of hearing of the case, which was

ordered to be taken on record. Learned counsel submitted that the Court, in the above writ petition, directed the District Magistrate, Anantnag, to

conduct enquiry and submit report. Learned counsel submitted that after conducting the enquiry, the District Magistrate reached to conclusion that

the petitioners are not unauthorized occupants of the property but are tenants of the same. Mr. Qayoom submitted that after receipt of report from

the District Magistrate, the writ petitioners in OWP 354/2005, viz., sons of late Shri Shamboo Nath Sazwal, withdrew the first relief so for as it

related to the petitioners and by virtue of Court order dated 02-02-2010, the petitioners were deleted from the array of respondents. Learned

counsel further submitted that OWP 354/2005 was disposed of by the Court vide order dated 10-07-2013, directing the Deputy Commissioner,

Anantnag, to look into the grievances projected in the writ petition and take action in the facts and circumstances of the case. The order was

hedged with the condition that action shall be taken after affording opportunity of hearing to the parties to project their respective stands.

Mr. Qayoom further submitted that without putting the petitioners on notice and without affording them opportunity of hearing, the District

Magistrate passed order dated 21-08-2013, which is called in question in this writ petition. Learned counsel further submitted that initially the

statutory Appeal was filed against the eviction order dated 21-08-2013 passed by the District Magistrate, Anantnag. Learned counsel submitted

that an Application seeking withdrawal of the Appeal was filed before the Appellate Authority on 25-10-2013 but no orders could be passed on it

as the Financial Commissioner was not available on that date. Learned counsel further submitted that on 27-11-2013, the Financial Commissioner,

allowed the prayer of the writ petitioners made in the Application and dismissed the Appeal as withdrawn. Learned counsel further submitted that

after filing of the Application on 25-10-2013, writ petition was filed on 28-10-2013 before the Court challenging the order of the District

Magistrate, Anantnag. Mr. Qayoom also subletted that in the facts and circumstances of this case, it was deemed appropriate to challenge the

order of the District Magistrate in the writ petition before this Court instead of pursuing the alternate remedy of Appeal. Learned counsel submitted

that it was decided by the petitioners to file this writ petition, inter alia, on the ground that respondents 4&5 had given up the relief in their writ

petition filed by them at Jammu and, consequently, the writ petition against the petitioners was dismissed by the Court as withdrawn in respect of

first relief with liberty to seek appropriate remedy; the respondents 3 to 5, which included the petitioners herein, were ordered to be deleted from

the array of respondents and the impugned order passed by the District Magistrate is without jurisdiction, in as much as, the petitioners had been

held to be tenants of the property in question; the said Authority could not take cognizance of the matter in terms of the Act of 1997 and further

that without following the principles of natural justice and without affording opportunity of hearing, the impugned order was passed. Learned

counsel, accordingly, submitted that the writ petition be allowed and impugned order be set aside. Learned counsel, in support of his arguments,

referred to and relied upon judgments, reported in Daryao and Others Vs. The State of U.P. and Others, .

Mr. S.T. Hussain, learned counsel appearing for the private respondents, besides dealing with the submissions made at the bar by learned

counsel for the petitioners, raised preliminary objection about maintainability of the writ petition. He submitted that in the facts of this case, writ of

Certiorari cannot be issued; the writ petition merits dismissal on the principle of constructive res judicata, and report of the Deputy Commissioner,

filed in earlier writ petition, cannot become basis for filing of instant writ petition and no reliance can be placed on the said report. Learned counsel

submitted that none of the legal rights of the petitioners have been infringed by passing of the impugned order. Mr. Hussain further submitted that

the facts, as projected in the pleadings of the parties, would show that the petitioners were unauthorized occupants of the property in question,

thus, prompting the District Magistrate to pass eviction order against them in terms of the Act of 1997. Learned counsel also submitted that the

petitioners, having availed of the statutory remedy of Appeal, which Appeal was based on the same facts, which are urged in the writ petition and

also having withdrawn the same on the principle of constructive res judicata, this writ petition would merit dismissal. Learned counsel also

submitted that the petitioners, having withdrawn the statutory Appeal, are precluded in law from filing the instant writ petition for vindicating their

grievances, which were projected in the Appeal. Learned counsel further submitted that writ of certiorari would not be available in the facts of this

case and this Court cannot interject the order of the statutory Authority by issuing the aforestated writ. Learned counsel, in support of his

contention, referred to and relied upon judgements of Hon'ble the Supreme Court reported in State of U.P. Vs. Nawab Hussain, .

Some of the issues raised in this writ petition are covered by judgement f this Court reported in 2009 (II) SLJ 493 : 2009 (2) JKJ 220 [HC].

Paragraphs 10 to 15 whereof may be taken note of:

The Act of 1997 has constituted an authority in the District Magistrate of District who is charged with the sacred duty of protecting the rights

and interests of migrant qua their properties as also to ensure that no distress sale takes place. The competent authority (District Magistrate) is

thus, creature of statute and has to act strictly within the delineated boundaries of the Act of 1997. The competent authority under the Act of 1997

acts as quasi judicial authority, and before passing any order under the Act of 1997, the said authority has to objectively satisfy itself about the

allegations made of unauthorized occupation of migrant property. The competent authority in the strict legal sense is not court but as it has to

decide an issue which affects the valuable rights of the parties, though may not order for leading of evidence as is requirement in a court of law for

proving and disproving an issue, but has to consider the material that is placed before it, before coming to the final conclusion and passing of final

orders. The material placed before the competent authority by either of the parties has to be objectively considered and orders are to be passed

after proper application of mind. Since the order passed by competent authority affects one or other parties valuable rights, as such requirement to

objectively determine the controversy by the competent authority is duty ingrained in the authority and is further duty bound to consider material

placed before it and thereafter to state reasons for arriving at a conclusion in respect of the dispute raised before it. In case the authority does not

consider the material placed before it, and does not record reasons for arriving at particular conclusion, the competent authority will be acting

unfairly. The doctrine of fairness is complementary to principles of natural justice which quasi judicial authorities are bound to observe. One of the

cardinal principle of our constitutional jurisprudence is doctrine of principles of natural justice, which has many facets and which has the power to

strike at unfairness and unreasonableness. The statutory authority has to faithfully and obediently discharge its duties in tune with statutory dictum.

The Hon'ble Supreme Court in case titled Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, , has held that when the statutory

authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. Para 40 of the judgment is reproduced

as under:--

The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that that when a statutory authority is

required to do a thing in a particular manner, the same must be done in the that manner or not at all. The State and other authorities while acting

under the said Act are only creature of statue. They must act within the four corners thereof.

The Id. counsel for the respondents has raised an objection about the maintainability of the writ petition as under section 7 of the Act 1997

right to file an appeal is provided against an order passed by competent authority. Section 7 of the Act 1997 is reproduced as under:--

Appeal.

(1) Any person aggrieved of an order passed under this Act, may file an appeal before the Financial Commissioner, Revenue:

Provided that no such appeal shall be entertained against.-

(a) an interlocutory order;

(b) an order of eviction unless possession of the property is surrendered to the competent authority;

(c) an order of payment of compensation determined under this Act unless the amount of compensation is deposited with the appellate authority.

(2) The period of limitation for filing of an appeal under sub section (1) shall be fifteen days from the date of order appealed against.

The Constitutional courts possess plenary powers and inherent jurisdiction to remedy the wrong and exercise of powers thereof, cannot be

shackled hand and foot. The constitution being supreme law of the land, the constitutional court created by this supreme law possess all the

requisite powers to administer justice. The justice, however, is to be administered according to laws, may be in some extreme cases tempered with

mercy. The constitutional courts have placed restraints upon itself wherein, in a particular fact situation of the case they feel that the justice can be

done by asking the parties to avail of the efficacious alternate remedy. This has never been held to be a rule of law but will depend upon the fact

situation of each case.

In the present case though the provisions of appeal is provided, it cannot be said to be efficacious remedy in the fact situation of this case as

the competent authority has not followed the basic principles of fairness and in this case the competent authority has in all the orders, referred to

the order of 17th May 2002 which on the face of it is issued by authority viz Additional District Magistrate, possessing no jurisdiction in terms of

the Act of 1997 to pass such an order. The High Court in such circumstances will not direct the complaining party to avail of the alternate remedy.

The Hon'ble Supreme Court in case titled Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, has provided at para

(14) and (15) that the writ court will entertain the writ petition despite their being alternate remedy available where the petition has been filed for

the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where order of

proceedings are wholly without jurisdiction or the vires of an Act is challenged. Para 14 and 15 are reproduced as under:--

The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the

Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus. Mandamus prohibition.

Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for ""any other

purpose"".

Under Article 226 of the Constitution the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a

Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available,

the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a

bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where

there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act

is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would reply on some old decisions

of the evolutionary era of the constitutional law as they still hold the field.

The objection about maintainability of writ petition, on the ground of availability of alternate remedy, is turned down on the reasoning provided in

the paragraphs of the judgement reproduced above.

The issue of maintainability of writ petition would further require to be dealt with on the additional grounds raised at bar by Mr. S.T. Hussain. In

this case, the petitioners had availed of the alternate remedy of filing statutory appeal. Section 7(1)(b) of the Act of 1997, provides that Appeal

shall not be entertained against an order of eviction unless possession of the property is surrendered to the Competent Authority. Considering the

availability of alternate remedy of Appeal, in the facts of this case, would bring one to the only logical conclusion that the Appeal was not the

efficacious alternate remedy, in as much as, the petitioners had to surrender possession of the property, of which, on the enquiry conducted by the

District Magistrate, they were found to be tenants, thus, were not unauthorized occupants. The relief claimed against the petitioners was withdrawn

and the writ petition against them was dismissed as withdrawn. In such a factual situation, asking the petitioners to surrender the possession before

filing of Appeal, would not only be unfair but unjust as well. The availability of alternate remedy of Appeal in the facts and circumstances of this

case would not, thus, prevent this Court to exercise its writ jurisdiction.

The petitioners, before filing of this writ petition, had filed an Application seeking withdrawal of Appeal, which could not be considered as the

Appellate Authority was not available. The petitioners, before filing of writ petition, had notified their intention of withdrawing the Appeal. This

intention of the petitioners to withdraw the Appeal would, in law, mean that Appeal was non existent and the order, permitting its withdrawal on a

subsequent date, was only a performance of duty by the Appellate Authority. Since the Appellate Authority permitted withdrawal of Appeal,

though on a subsequent date, but by legal fiction, it would be deemed that the Appeal was dismissed on 25-10-2010. Pendency of Appeal till 25-

10-2010, would not, thus, come in the way of petitioners for prosecuting this writ petition.

The writ petition would also not suffer collapse on the principle of constructive res judicata. The Appellate Authority had not decided the issue

on merits in the Appeal. No finding was recorded on the merits of the case. The principle of constructive res judicata, would not be, thus, attracted

in the facts of this case. Even otherwise the writ Court, in all circumstances and in all cases, cannot decline to interfere in a matter, where stark

injustices stare at it even though the principle of res judicata or constructive res judicata is attracted.

In this case, it emerges from the impugned order that same has been issued without affording opportunity of hearing to the petitioners and

without ascertaining as to whether petitioners are actually unauthorized occupants of the property. Dismissal of writ petition filed by Shri Inder

Mohan Harkar (OWP 74/2008) has become basis for passing of the impugned order. The impugned order, besides being violative of principles of

natural justice, also suffers from lack of application of mind.

The judgements cited at bar by learned counsel for the respondents proceed on their own facts.

For the above stated reasons, this writ petition is allowed in the following manner:

By issuance of writ of certiorari, the impugned order bearing No. DCA/LIT/13/239 dated 21-08-2013, passed by District Magistrate, Anantnag,

forming annexure (F) to the writ petition, is quashed. Respondent No. 2 is directed to reconsider the whole issue in accordance with law and

observations made in this order and pass appropriate order after affording opportunity of hearing to the parties and entertaining any

document/material, which they may produce.

Disposed of along with connected CMPs.