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Judgment
Sanjay Dhar, J
The petitioner has challenged order dated 30.09.2022 passed by respondent No.3/District Magistrate Srinagar, whereby the said respondent has, in exercise of his powers under Section 4 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Act”), directed for eviction of the petitioner from a shop situated at Kharyar Habba Kadal Srinagar.
According to the petitioner, the predecessor in interest of respondent No.6 had executed a rent deed in favour of Ghulam Rasool Gilkar in the year 1964 in respect of the shop in question. It has been submitted that the petitioner was working in the shop of the tenant/ Ghulam Rasool Gilkar and in the year 2014 he entered into partnership with said Ghulam Rasool Gilkar, who died in the year 2016. It has been further submitted that the petitioner stepped into the shoes of the predecessor in interest of respondent No.6 and he kept on depositing the rent in respect of the shop with the office of Rent Controller Srinagar.
On the basis of aforesaid facts, the petitioner has contended that his occupation of the shop in question cannot be termed as unauthorized. Therefore, the impugned order passed by respondent No.3/District Magistrate Srinagar, while exercising his powers under Section 4 of the Act, is not legally tenable.
Heard and Considered.
It appears that respondent No.6, who is a migrant and is admittedly the owner of the shop in question, had filed an application before respondent No.3 for preservation and protection of aforesaid shop in terms of the Act. It also appears that respondent No.3, on the basis of complaint made by respondent No.6, initiated the process of eviction of the petitioner from the shop in question. The said action of respondent No.3 was challenged by the petitioner by filing a writ petition bearing WP(C) No.3884/2019 before this Court. The writ petition came to be disposed of by this Court in terms of order dated 01.06.2022 and a direction was issued to respondent No.3 to pass orders in the matter in tune with the mandate of Sections 3, 4 and 5 of the Act. It was also directed that the order shall be passed after hearing the parties with reference to providing opportunity of being heard.
It seems that pursuant to the aforesaid order passed by this Court, respondent No.4 has passed the impugned order whereby the petitioner has been held to be unauthorized occupant of the property in question and, accordingly, order of eviction has been issued against him.
It has been contended by learned counsel for the petitioner that no opportunity of hearing was given to the petitioner before passing the impugned order. However, a perusal of the impugned order would show that respondent No.3/ District Magistrate, Srinagar has heard the parties and has even considered the documents produced by the petitioner herein. The order impugned indicates that respondent No.3 has noted the contentions of the petitioner and has even considered his documents before passing the impugned order. Therefore, it cannot be stated that the petitioner has not been heard in the matter before passing the impugned order.
An order passed under Section 4 of the Act is appealable before the Financial Commissioner Revenue in terms of Section 7 of the Act. The petitioner has rushed to this Court without exhausting the aforesaid remedy.
It has been urged by learned counsel for the petitioner that respondent No.3 has, while passing the impugned order violated the principles of natural justice in as much as he has not been heard in the matter. On this ground it is contended that the petitioner is well within his rights to invoke the writ jurisdiction of this Court.
The aforesaid contention of the learned counsel is without merit, as the petitioner has been heard by respondent No.3 before passing the impugned order. As already indicated hereinbefore, respondent No.3 has considered the contentions and the documents of the petitioner while passing the impugned order. Thus it cannot be stated that there has been breach of principles of natural justice.
For the foregoing reasons, without expressing any opinion on merits of the impugned order, it would be appropriate to relegate the petitioner to the remedy of appeal available to him in terms of Section 7 of the Act. The said remedy is not only efficacious but also effective in nature. The writ petition is, therefore, held to be not maintainable.
The petition is accordingly dismissed with liberty to the petitioner to move the Appellate Forum.