Ghulam Nabi Najar vs State and Others

Muzaffar Hussain Attar, J.—A hazy scenario about the conflicting factual claims has been put forth by the parties in the writ petition and the

objections filed thereto. The writ court is called upon to adjudicate upon the facts which are not admitted but are disputed. This Court is not

powerless to enter into factual dispute, but as the writ petition can be decided on a pure question of law, so refrains to enter into factual thicket.

For appreciating the controversy claims are briefly stated:

The petitioner claims to have purchased residential house including an outhouse known as ""Geetanjili"" located at Shivpora Srinagar. Petitioner

claims that respondent No. 9 acting through respondent No. 8 & 10 negotiated deal for sale of the said house, which initially was rented out to the

petitioner. The petitioner, thus, claims to be authorized occupant of the property, being in occupation and possession of the property with the

consent of migrant owner. Respondent No. 9, hereinafter, referred to, as owner, allegedly agreed to sell the property to the petitioner who was

already in possession thereof in the capacity of a tenant, for an amount of Rs. 6/- lacs. It is further alleged that out of the consideration amount of

Rs. 6/- lacs, Rs. 4/- lacs were paid on 7.12.1996 and from out of balance of Rs. 2/- lacs, it is alleged by the petitioner, that an amount of Rs. 1.30

lacs was paid to the owner on 3rd March 1998. The petitioner has placed on writ record a communication dated 28th August 1995 from

respondent No. 8 authorizing the petitioner to occupy and posses the property as tenant for a period of 20 months on a fixed rent of Rs. 500/- per

month. Other documents have been placed on record by the petitioner, by which an effort is made to demonstrate that the property has been sold

to him by the owner. One such document is an application made to Divisional Commissioner Kashmir seeking permission to alienate the migrant

property to the petitioner. Another document placed on writ record is a communication made by the owner addressed to Inspector General of

Police, dated 05.09.2000, which reflects the mind of the owner about disputed property, as she has in unequivocal terms withdrawn the complaint

against the alleged illegal occupant and requested the authority that action, if any, initiated against the present occupant be stopped. This

withdrawal of the complaint appears to be fallout of the agreement which respondent No. 8 had entered into with respondent No. 10. Record also

reveals that communication was issued by Additional Deputy Commissioner Srinagar and addressed to Tehsildar Srinagar dated 17th May 2002 in

which the Tehsildar was directed to evict the illegal occupant, if any, strictly under law.

The said communication is reproduced as under:

The Tehsildar

Srinagar

No. 27-76/RI/OM/Mig/02 dated 17.5.2002

Sub:- Illegal occupation of House known as

Geentanjali"" House at Shivpora Srinagar.

Sir,

In connection with the subject and reference cited above, your are directed to evict the illegal occupant, if any strictly under law, after inventory-

sation in presence of S.H.O concerned and take over the immovable property in question under your custody on behalf of the District Magistrate

Srinagar. The compliance report should reach this office by or before 18.05.2002.

The Tehsildar had marked the said order/communication to Naib Tehsildar who in turn submitted its report to Tehsildar Srinagar vide

communication dated 1.11.2002. The Naib Tehsildar after visiting the spot and hearing the petitioner concluded by observing that the petitioner

has occupied the property in question legally and is in peaceful possession of the same, so cannot be disturbed. Along with the said communication

eighteen leaves were enclosed thereof. The writ record further reveals that the matter went in to hibernation till 7th April 2007 when District

Magistrate Srinagar passed an order based on the communication dated 17th May 2002 directing Tehsildar to submit compliance report in view of

the order dated 17th May 2002. The writ record further reveals that immediately thereafter the petitioner submitted an application seeking recalling

of order dated 7th April 2007. The District Magistrate sent communication to Sr. Superintendent of Police Crime Branch Srinagar bearing No.

RO/DM/Mig/81/184 dated 28th of May 2007 enclosing therein the application filed by the petitioner against private respondents along with seven

leaves as annexures, requesting him to conduct enquiry into the matter on the basis of the application filed by the petitioner and also sought report

at the earliest. Without waiting for the report of the SSP Crime Branch Srinagar the District Magistrate passed another order dated 27th June

2007 in which he has referred to two reports of Naib Tehsildar Khonmuh and Tehsildar Srinagar, and also referred to the order dated 17th May

2002 and directed the Tehsildar Srinagar to proceed on spot and restore the possession of the property to the attorney holder under rules.

Petitioner is aggrieved of these orders. Respondents 8, 9 and 10 have filed their objections in which they have denied the claim put forth by the

petitioner in the writ petition and have controverted the allegations made by him. It has been pleaded that the property is a migrant property and

was unauthorizedly occupied by the petitioner. Reports of various subordinate revenue officers have been referred to in the objections to indicate

that the migrant property is in unauthorized occupation of the petitioner. The replying respondents at para 10 of the objections have stated that

orders were passed by District Magistrate after issuing notice to the petitioner. It is further claimed that order passed on 7th April 2007 was not

eviction order but Tehsildar was therein directed to report compliance of the order dated 7th May 2002. Heard learned Counsel for parties.

In order to regulate and maintain proper order in society governed by rule of law, legislatures enact laws. Some laws are of permanent nature,

whereas some are temporary phenomenon. Permanent laws are enacted in respect of the actions, infractions which have the affect of subverting

rule of law in civilized society. Such permanent laws are based on past experiences. Temporary laws are those laws which are enacted to tackle a

situation which cannot be foreseen and anticipated and which, otherwise, are short lived. Unfortunate events which unfolded themselves in the

State of J&K in the year 1989 had serious impact on one section of the population which forced them to leave their home and hearth.

The right and interest of this section of the population qua their properties, which they had left behind, was to be protected, as same was and is

the constitutional obligation of the State, governed by rule of law. The State of J&K in order to meet this unprecedented situation enacted law

called the Jammu and Kashmir Immovable Property (preservation, protection, and restraint on distress sales) Act 1997 (hereinafter referred to as

the Act of 1997). The solemn aim and purpose of enacting Act of 1997 was to provide preservation, protection, and restraint on distress sales of

the immovable property of the migrants.

Sections 2(b), (e) and (i) are reproduced as under:

Definitions.

(b) ""Competent Authority"" means the District Magistrate of the area and includes such other officer of the area as the Government may appoint for

an area:

(e) ""Migrant"" means any person who has migrated from Kashmir Valley after 1st November, 1989 and is registered as such with the Relief

Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office,

or having left the Valley in pursuit of occupation or vocation or otherwise, and is possessed of immovable property in the Valley but is unable to

ordinarily reside there due to the disturbed conditions;

(i) ""Unauthorized Occupant"" means any person who has encroached upon or taken possession of any immovable property of a migrant without his

written consent and authority of law.

The section of the population who left their home and hearth in the wake of the unprecedented situation into which the State of J&K was

ushered into, required State protection in respect of their rights and interests qua their properties left behind. The Act of 1997 has two fold

purposes; one to safe guard the rights and interests of the migrant qua their properties and second to prevent the distress sales of the migrant

property. The Act by its very nature is temporary phenomenon as it has been designed and engineered by legislature to cover a temporary

situation. The people who have migrated will one day return to their home and hearth, which is their basic human right. Every state which is

governed by rule of law is under constitutional obligation to create an atmosphere to ensure that migrant does not continue to remain migrant for all

times to come. This Court in C. Rev. No. 204/06 titled ""M/s Ellora Hotel v. Shamboo Nath Sopori"" decided on 12.11.08 has held that the Act of

1997 is temporary legislation and the moment the migrant return to their home it would out live its life.

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 ld. counsel for the respondents has raised an objection about the maintainability of the writ petition as u/s 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:

7.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 form 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:

14.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 orders dated 7th April 2007 as also 27th June 2007 refer to order dated 17th May 2002 and seek for its implementation. The District

Magistrate has thus, taken the order dated 17th May 2002 to be the order of eviction of the petitioner. The said order is admittedly issued by

Addl. Dy. Commissioner Srinagar which is not an authority under the Act of 1997. The said order being without jurisdiction, the subsequent orders

suffer from the same malaise. The competent authority cannot seek implementation of an order which is passed by an incompetent authority under

the Statute. The orders are also unfair as the competent authority after referring the matter to SSP Crime Branch for enquiry and for filing of report

did not wait for same and sought implementation/execution of the order dated 17th May 2002 passed by incompetent authority. The entire

proceedings are conducted unfairly and are violative of principles of natural justice. The orders and all the proceedings thus cannot be sustained in

law.

The ld. counsel for respondents has referred to judgment passed in OWP No. 271/05 dated 3.4.2006 in case titled ""Jager Nath Bhan and

Ors. v. State of J&K and Ors."" to submit that the reports filed by subordinate authorities cannot be considered by the competent authority and no

order can be passed on such reports. The ld counsel for the petitioner also relied upon the said judgment.

The said judgment inter-alia provides that District Magistrate has to conduct the enquiry himself and cannot rely upon reports of subordinate

revenue authorities. This Court has refrained from entering into factual aspect of the matter. The case turn on question of law, as discussed above.

Be that as it may. In the upshot of discussions made hereinbefore this writ petition is allowed. Impugned orders are quashed. The competent

authority, District Magistrate, is directed to proceed in the matter strictly in accordance with the law and pass appropriate orders thereof in

accordance with law.