Mohammad Sadiq Wani & Ors vs State of J&K & Ors

Writ petition has been filed for the following relief:-

I) CERTIORARI THEREBY, Quashing the impugned order issued by the District Magistrate Anantnag, vide his No.DCA/MC(279)15/606-609,

dated:-03/03/2016, which is forming Annexure---""N"" to this writ petition as the same is against the rights of the petitioners.

II) MANDAMUS COMMANDING, thereby the official respondents to treat the petitioners as owners in possession in equal shares with respect

to the subject land in terms of the agreement dated:- 25/09/1986 forming Annexure ""C"" to this petition.

III) MANDAMUS COMMANDING, thereby the official respondents to protect the possession, cultivation and enjoyment of the petitioners with

respect to the subject land against any aggression or interference from the private respondents.

IV) MANDAMUS THEREBY COMMANDING, the official respondents/revenue authorities (Tehsildar) for making necessary correction in the

revenue record in Girdawari and Jammabandi and record the subject land in the ownership, possession and cultivation of the petitioners.

V) MANDAMUS COMMANDING, thereby the official respondents not to give any legal effect to any document i.e, General Power of Attorney

or Agreement to sell (forming Annexures---""H and J"" to this writ petition, purported to have been executed by the migrants in favour of the private

respondents 13 and 14 and not to subject the petitioners to any disqualification with respect to the subject land on the basis of the illegal

documents which are not binding upon the petitioners.

VI) PROHIBITION PROHIBITING, the respondents from making any kind of interference directly or indirectly in the peaceful possession,

cultivation and enjoyment of the petitioners with respect to the subject land.

VII) MANDAMUS COMMANDING, the respondents to produce the entire record with respect to the subject matter of the writ petition before

this Hon''ble Court.

According to the petitioners, who are brothers, certain extent of land approximately 03 kanals and 13 marlas situated at Baghwan Pora,

Verinag, which is recorded in the revenue record in the name of the migrant who is none other than father of respondents 9, 10, 11 and 12, is the

subject matter of the writ petition. Respondents 13 and 14 are attorney holders of respondents 9 to 12.

Petitioners plead that, by virtue of an agreement, which is in the nature of mortgage with conditional sale, they are in occupation of the said

property. The father of the petitioners died and the petitioners are in possession, cultivation and enjoyment of the property. According to the

petitioners the migrant had taken the loan of Rs.3,60,000/- from the father of the petitioners and mortgaged the subject land with the condition that

in case the land owner fails to return the amount within the fixed period of time from the date of execution of the agreement, the ownership right will

vest with mortgagee. According to the petitioners the father of respondents 9 to 12 failed to discharge the liability and, therefore, by virtue of the

agreement, the petitioners are in lawful ownership of the property and they are entitled to be protected by the law.

The cause of present writ petition appears to be action initiated by respondents 2 to 12 by filing a complaint before the District Magistrate,

Anantnag, contending therein that the immovable property falling under Khasra No.2275 and 2278 situated in village Bhagwanpora Verinag has

been illegally encroached by four brothers who are residents of same area for last several years.

According to respondents 9 to 12 their property is to be protected in terms of the provisions of J&K Migrant Immovable (Property,

Preservation, Protection and Restraint on Distress Sales Act) 1997 (hereafter for short ""the Act"").

On the basis of this complaint, the District Magistrate Anantnagrespondent No.4 called upon Tehsildar Shah Abad Bala to take necessary

action and report.

It appears from the impugned proceedings DCA/MC(279)15/606- 609 dated 03.03.2016, which is the order under challenge, that the

Tehsildar Shah Abad Bala has furnished report stating that the land under survey No.2275 and 2278 is recorded in the name of Rada Krishan in

revenue records under mutation No.3405-3406 and the land in question has been recorded in possession of Radha Krishen and Others in Kharief

2014. As a result of this, the District Magistrate recorded the finding that the land under khasra No.2275(2 kanals and 08 marlas) and 2278(01

kanal and 5 marlas) situated in estate of Verinag Tehsil Shah Abad Bala is a migrant property and is entitled to be protected under the provisions

of the Act and as a consequence and in exercise of powers under Section 4 and 5 of the said Act ordered the Tehsildar to proceed on spot and

evict the unauthorized occupation over the land in question by removing any sort of encroachments over it. He also directed the authorities to take

custody on behalf of the District Magistrate, Anantnag and directed for calculation of usufructs so as to initiate recovery proceedings in terms of the

above said Act. This order is under challenge by the petitioners claiming to be lawful owners- occupants of the property in terms of the Iqrarnama-

agreement between Sonaullah Wani and Late Radha Krishen.

The provisions of Section 5 of the Act reads as follows:-

Eviction of unauthorized occupants

If any unauthorized 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 reasonable warning and

facility to any women not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the

said purpose.

Learned counsel for the petitioners pleads that the order has been passed without giving them any opportunity of hearing and they are in lawful

possession of the property. On the other hand Mr. Rathore, learned AAG pointed out that the order is issued more than in the nature of securing

unauthorized occupation in terms of the Act and appropriate decision will be taken by the District Magistrate while giving opportunity of hearing to

the petitioners as to their claim of lawful possession or occupation. Mr. N.A.Beigh, learned counsel for private respondents states that in the

proceedings of the District Magistrate he will be able to establish the same that the private respondents are entitled to be protected under the said

Act.

Having heard the rival parties and on going through the provisions of Section 5 of the Act, it is evident that Section 5 provides for securing the

property of the migrants from any unauthorized occupation. The competent authority may use such force as is necessary for taking possession and

he may give necessary warning and facility to any women not appearing in public to withdraw, remove or break open any lick, bolt or any door or

do any other act necessary for the said purpose. This provisions has been illustrated in the case of S. Hakeekat Singh v. State OWP

No.1329/1997 reported in 1999 SLJ 562, where the Court has held that in the interest of natural justice and fair play, reasonable opportunity

should be given to the petitioners against whom order under Section 5 of the Act has to be passed. It has been held that the District

Magistratecompetent authority must give reasonable opportunity of hearing to the parties while exercising power under Section 5 of the Act.

In this case what has been done is an order has been passed by the District Magistrate to secure the property. In the light of the said provisions

the order under challenge cannot be at best said to be on notice to the petitioners who are alleged to be illegal encroachers of the migrant property.

Having served the above said order on the petitioners, they are entitled to be heard and, therefore, the District Magistrate, Anantnag shall in

pursuance of the impugned proceedings dated 03.03.2016, afford the petitioners opportunity of hearing and allow them to submit any record that

they may have in their possession and after hearing the migrantsrespondents 9 to 12 shall pass appropriate final orders, so that both the parties

have equal opportunity of challenging their claims. Needless to state that the petitioners in this case have accepted that the land in question is of a

migrant. Keeping this in mind, the decision has to be taken at the subsequent events happened. The decision be taken by the competent authority-

District Magistrate, Anantnag within a period of twelve months from the date copy of this order is served on him. All other reliefs stand declined in

view of the above and the writ petition stands disposed of accordingly alongwith all connected MPS.