Masooda Akthar and Others vs State and others

By the medium of this writ petition, petitioners have prayed for issuance of writ of certiorari, quashing the order dated 11th June, 2005, passed

by respondent No.2, hereinafter for short impugned order on the grounds taken in the writ petition.

Respondents have filled reply.

Learned counsel for petitioner argued that the property in question is not migrant property, thus Jammu and Kashmir Migrant Immovable Property

(Preservation, Protection and Restraint on Distress Sales) Act, 1997, hereinafter for short the ""Act"" was not applicable. While developing the

arguments, argued that the impugned order has been passed without jurisdiction and power. The respondent No.2 arbitrarily and erroneously held

that property in question is migrant property.

Learned counsel for respondent argued that property in question is a Migrant property and provisions of the Act are applicable.

Heard. Admit.

It appears that petitioner had already filed OWP 211/03 which came to be disposed of vide order dated 03.03.2005. It is profitable to reproduce

the said order herein, which read us as under :

Heard. Admit.

By consent of the parties, this matter is taken up for final disposal. Writ petition questions the order passed by the Deputy Commissioner Srinagar

empowering the Tehsildar Settlement Srinagar to resort to eviction and put the rightful owner into position. Contention of Mr. N.A.Beigh is that

protection provided to the Migrants in respect of their property by dint of statute has to be implemented. Responding to the contention, learned

counsel for the petitioner submits that the power of attorney has ceased to be in force. In so far as power of the Deputy Commissioner in terms of

relevant provisions of Act goes, no restriction can be placed on him for exercising such power. As regards objection of the learned counsel about

the power of attorney, nothing prevents him to urge it. Since direction for eviction and delivery of possession has been passed in a very mechanical

manner, the communication is not sustainable, it has to go. Nonetheless, the petitioners cannot have a license to maintain the encroachment upon

migrants property and if at all it is a fact, such aspect has to be taken care of by the authority competent. In the aforementioned backdrop, this writ

petition is disposed of along with CMPs in the following terms:

The Deputy Commissioner Srinagar shall deal with the matter on the touch stone of the law governing the field and shall decide the matter as

expeditiously as possible.

It appears that matter came up before District Magistrate (Deputy Commissioner) Srinagar, in terms of order dated 3rd of March, 2005 passed

by this Court, referred hereinabove, who passed the impugned order..

It is profitable to reproduce relevant portion of the impugned order herein, which reads as under:

Whereas the parties were again summoned nonapplicants failed to appear in this court on the various dates fixed for the case.

Case came up for hearing on 28.05.2005. After taking into consideration the arguments on behalf of counsel for Sonaullah Makroo and after

examining the whole case and perused the records. The orders passed by this court dated: 05.07.2001 is up held.

Let the Tehsildar Srinagar along with the concerned SHO proceed on spot and evict the illegal occupation under law and handover the possession

of the land to the rightful owner (Sonaullah Makroo) after examining revenue records and spot, compliance report should reach to this office within

15 days.

Respondent no.3 was under legal obligation to pass detailed order in terms of direction passed by this Court. But Deputy Commissioner,

Srinagar, commanded Tehsildar, Srinagar, to evict the illegal occupation under law and handover the possession of land to the rightful owner

(Sonaullah Makroo). This direction runs contrary to the order passed on 5th July, 2001. It is useful to reproduce relevant portion of the order

dated 5th July, 2001, herein, which reads as under:

You are as such directed to visit the spot personally along with concerned field staff and ensure eviction of illegal encroachment, if any, in light of

the enclosed shajra Khasara revenue extracts and handover the possession of the land to the rightful owner, (Shri Sonna Ullah Makroo) after

examining revenue records and spot and report compliance within a couple of days.

It appears that District Magistrate, Srinagar, asked Tehsildar concerned to hold that whether there was any illegal encroachment.

It is profitable to reproduce Sections 4 and 5 of the ""Act"" Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and

Restraint on Distress Sales) Act, 1997, herein, which reads as under:

Custody of immovable property. (I)

Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to

Migrants, falling within his territorial jurisdiction and shall, on the expiry of said period of 30 days be deemed to have the custody of such

immovable property.

(2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property:

Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing.

Eviction of unauthorized occupants.If any unauthorised occupant of any migrant property refuses or fails on demand to surrender possession

thereof to the competent authority such authority may use such force as is necessary for taking possession of such property and may for this

purpose after giving may for this purpose after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or

break open any lock, bolt or door or do any other act necessary for the said purpose.

In terms of the mandate of law, referred hereinabove, District Magistrate, cannot delegate his powers but had to decide the issue whether the

property falls within the ambit of the ""Act"" and whether there is any illegal encroachment.

Applying the test to the instant case, District Magistrate had asked the Tehsildar to pass order which is illegal. Thus, on this count the impugned

order requires to be quashed.

It appears that District Magistrate (Deputy Commissioner), Srinagar had passed the impugned order mechanically and without application of

mind. It is not mentioned in the impugned order that how District Magistrate, Srinagar, had to come to the conclusion that property is 'migrant

property' and the petitioner is in the illegal occupation of the same and is to be evicted. The impugned order is bereft of details and reasons.

I am conscious that remedy of appeal was available to the petitioner but in view of the direction passed by this Court dated 3rd of March,

2005 and the fact that the petitioner had to surrender the possession and then had to file appeal in terms of provisions of the ""Act"" which cannot be

said to be an efficacious remedy.

Viewed thus, the writ petition is maintainable and this Court can exercise the power and jurisdiction to entertain and decide the writ petition.

Division Bench of this Court in LPA no. 72/2005 titled as Showkat Ahmad Puchloo Vs. State of J and K and Ors, decided on 08.06.2005,

held as under:

OUT no. 227/2005 preferred by the appellant against the order of District Magistrate dated 21.05.2005 (supra) was dismissed by the learned

Single Judge observing that the petitioner has got remedy of appeal under section 7 of the Act. It was submitted that in view of the provisions of

section 7(a)(b) of the Migrant Act, appeal before the Financial Commissioner, can be entertained only on the appellant parting with possession of

the property to the competent authority which would cause serious prejudice to the appellant.

In course of hearing it transpired that the petitioner has preferred appeal against the order of the Divisional Commissioner dated

11.12.2004granting permission to Khurshid Ahmad Bhat to execute transfer deed in respect of the property in question before the Financial

Commissioner (Rev), J and K which is pending. After hearing counsel for the parties at length, we are of the view that till decision of the said

appeal preferred by the appellant herein before the Financial Commissioner, status quo with respect to the property in question should be

maintained.

In the given circumstances, impugned order is quashed and District Magistrate (Deputy Commissioner) Srinagar. is commanded to decide the

matter afresh while keeping in view the observations made hereinabove, within one month from the date the copy of his order is served upon him.

Parties are directed to cause appearance before District Magistrate, Srinagar, on 1st of April, 2006.