Mohammad Amin Kawa vs UT Of J&K & Ors

Rajnesh Oswal, J

1) Aggrieved of the order dated 10.11.2023 (hereinafter referred to as ‘the order impugned’) passed by the learned Writ Court in WP (C) No.2748/2023 titled “Mohammad Amin Kawa vs. UT of J&K and Ors.”, whereby the writ petition preferred by the appellant against the order dated 26.09.2023 passed by the respondent No.2 has been dismissed, this intra-court appeal under Clause 12 of the Letters Patent has been filed assailing the order impugned on the ground that the learned Writ Court has failed to appreciate the facts as well as the law governing the matter because the appeal preferred by the appellant before the respondent No.2 was within the period of limitation in terms of Section 7 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Migrant Act”). It is submitted that the appellant, in fact, had assailed two orders, one dated 25.10.2022 and the other dated 23.08.2023, as such, the appeal was within the period of limitation but only on the technical ground, the appeal preferred by the appellant was dismissed by the respondent No.2. It is also urged that the appellant had earlier filed a writ petition bearing WP(C) No.3884/2019 which was disposed of by the learned Writ Court vide order dated 01.06.2022 and the District Magistrate, Srinagar was directed to pass orders in the matter in tune with the mandate of sections 3,4 and 5 of the Migrant Act. Thereafter the respondent No.3 passed the order dated 25.10.2022, which was assailed by the appellant through the medium of another writ petition bearing WP(C) 1998/2023 but the same was dismissed by the learned Writ Court vide order dated 07.08.2023 with a liberty to the appellant to move the appellate forum. It was in compliance to the directions passed by the learned Writ Court that the appellant preferred an appeal but the same was wrongly dismissed by the respondent No.2. It is also averred that the legal issue ‘as to whether the shop in question shall come within the ambit of the Migrant Act or not’ has neither been considered nor adjudicated upon by the appellate authority, as also by the Writ Court.

2) The learned counsel for the appellant argued that the appeal in terms of Section-7 of the Migrant Act is maintainable only when the possession of the migrant property is surrendered to the competent authority and as the possession of the migrant property was taken over by the Naib-Tehsildar, Srinagar, only on 23.08.2023, the appeal filed by the appellant was well within the period of limitation prescribed under Section-7 of the Migrant Act. He also urged that the appellant was not an unauthorized occupant of the shop but was a tenant as the appellant had entered in to partnership in the year 2014 with Ghulam Rasool Gilkar, who was the original tenant in respect of shop situated at Habba Kadal Srinagar.

3) Per contra, Mr. M. K. Raina, learned counsel for respondent No.6, submitted that the appellant did not impugn the order dated 30.09.2022 within the period of limitation prescribed under Section 7 of the Migrant Act by surrendering the possession of the property in question and he continued to remain in unauthorized occupation of the shop despite the order passed by the Statutory Authority under Section 5 of the Migrant Act. It was only when the possession was taken over by the Naib-Tehsildar, Srinagar, on 23.08.2023, pursuant to the order dated 30.09.2022, that the appellant availed the statutory remedy of appeal which was hopelessly time barred.

4) Heard and perused the record.

5) It needs to be noted that the order of eviction passed by the respondent No. 3 bears the date of decision on the first page as 30.09.2022 and the third page mentions the date of decision as 25.10.2022, but it may not be material for determining the present controversy as when the petitioner filed WP(C) No. 1998/2023, he mentioned the date of order impugned as 30.09.2022. However in the appeal preferred by the appellant, the date of order of eviction passed by the respondent No.3 was mentioned as 25.10.2022. Both the appellate authority and the learned writ court in their respective orders have mentioned the date of order of eviction as 30.09.2022. It also requires to be noted that the appellant has arrayed Divisional Commissioner, Srinagar as respondent No.2 and in the memo of appeal, the respondent No.2 has been referred to as the appellate authority whereas the fact remains that the appellate authority is Financial Commissioner (Revenue), J&K, which has passed the order dated 26.09.2023.

6) Be that as it may, the perusal of the record reveals that the appellant initially filed a writ petition bearing WP(C) No.3884/2019 in respect of the same property i.e. the shop situated at Habbakadal Srinagar, on the ground that despite being in authorized occupation, of the shop, he was being evicted under the Migrant Act. The said writ petition was disposed of vide order dated 01.06.2022 and the District Magistrate, Srinagar, was directed to pass orders in the matter in accordance with the mandate of Sections 3, 4 and 5 of the Migrant Act after affording due opportunity of hearing to the parties. Thereafter the District Magistrate, Srinagar, in compliance to the order dated 01.06.2022 (supra), after affording due opportunity of hearing to the contesting parties, passed order dated 30.09.2022 directing the eviction of the appellant from the shop in question.

7) Section 7 of the Migrant Act provides for a remedy of appeal against the order of eviction passed under Section 5 of the said Act. Section 7 (supra) 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 from the date of order appealed against.

8) It needs to be noted that as per the mandate of Section 7 of the Migrant Act, surrender of possession of the migrant property is pre-requisite for preferring an appeal. The appellant instead of preferring the appeal preferred the writ petition, thereby bypassing the remedy of appeal, as he could not have filed the appeal without surrendering the possession in terms of Section 7 of the Migrant Act. The learned Writ Court after taking note of Section 7 of the Migrant Act, vide order dated 07.08.2023 dismissed the writ petition bearing WP(C) No.1998/2023 filed by the appellant with liberty to the appellant to move the appellate forum. The appellant still did not surrender the possession of the shop and it was only on 23.08.2023 when the possession of the shop was taken over by the Naib-Tehsildar, Srinagar, pursuant to order dated 30.09.2022, the appellant resorted to the remedy of appeal as provided under Section 7 of the Migrant Act before the appellate authority and the appellate authority vide order dated 26.09.2023 dismissed the appeal as having been filed beyond the period of limitation after taking note that the appeal was required to be filed within the period of fifteen days as prescribed by the Statute.

9) Being aggrieved of the order dated 26.09.2023, the appellant preferred the writ petition and the learned Writ Court vide order impugned dated 10.11.2023 dismissed the writ petition preferred by the appellant. The learned Writ Court while dismissing the writ petition observed that the only ground on which the condonation of delay is being sought is that the appellant had earlier filed a writ petition challenging the order dated 30.09.2022 passed by the District Magistrate, Srinagar. But the writ petition was dismissed in limini and no reason, much less a plausible was offered by the appellant for seeking condonation of delay in filing the appeal.

10) This is also one of the cases wherein the persons aggrieved of the order of eviction passed by the District Magistrate under Section 5 of the Migrant Act instead of availing the remedy of appeal, file the writ petition(s) because of the reason that the surrender of possession is sine qua non for preferring an appeal. In many cases, even without surrendering the possession, the appeals are being filed but subsequently the same are being dismissed for non-compliance of the statutory provision. In the present case, the District Magistrate had passed the order on 30.09.2022 after considering the merits of the claims of the contesting parties but the appellant did not avail the remedy of appeal within the statutory period and rather filed the writ petition WP(C) 1998/2023 in the month of August, 2023, which was dismissed by the court with a liberty to the appellant to move the appellate forum vide order dated 07.08.2023. In the said writ petition, the plea was raised by the petitioner that he was condemned unheard but that plea was not accepted by the court. After the passing of order, he continued to remain in occupation of the shop without availing the statutory remedy of appeal, as he could not have availed the remedy without surrendering the possession thereof and in fact he never wanted to surrender the possession of the shop. It was only when he was evicted on 23.08.2023 by the Naib-Tehsildar Srinagar pursuant to the order dated 30.09.2022 passed by the District Magistrate, Srinagar, he filed the appeal immediately after two days. In the appeal there is no whisper by the appellant as to what prevented him from availing the statutory remedy of appeal, when the order of eviction was passed on 30.09.2022. The period of limitation prescribed for the purpose of filing of appeal is to be reckoned from the date of order sought to be impugned in appeal and not from the date of surrender of possession. In the instant case, the period of limitation shall start from 30.09.2022 when the order of eviction was passed and not from 23.08.2023 when the possession of the shop was taken over by the Naib-Tehsildar, Srinagar pursuant to order dated 30.09.2022. If such interpretation is accepted, then the whole purpose of providing the limitation of 15 days for filing appeal from the date of order of eviction would become futile and an unscrupulous litigant may not surrender the possession of the migrant property & file appeal against the order of eviction within 15 days of the order and continue to remain in unauthorized occupation of the migrant property till he is evicted by the competent authority. The appellant lacks the bonafide in prosecuting the statutory remedy of appeal and instead of surrendering the possession of the migrant property and preferring the statutory appeal within time, the appellant resorted to delaying tactics and availed the statutory remedy only when the possession was taken over by the Naib-Tehsildar, Srinagar. The Appellate Authority and the learned Writ Court have rightly come to the conclusion that the appeal so preferred by the appellant was time barred. Otherwise also, there was no privity of contract between the petitioner and the predecessor-in-interest of the private respondent and the petitioner cannot extract any benefit out of the partnership deed executed in the year 2014 between him and original tenant.

11) In view of above, there is no merit in the appeal and the same is, accordingly, dismissed.