Mohd. Shaban Bhat vs State and Others

Sunil Hali, Judge

Aggrieved by order of Deputy Commissioner Budgam whereby order for eviction of the petitioner from the land has been issued, petitioner has

filed the present writ petition.

It is contended by learned counsel for the petitioner that receipt stood issued by respondent no. 4 on account of sale of land measuring 16 and a

half marlas under Survey no. 1142 situate at Natipora Tehsil Chadoora District Budgam. The receipt reveals that final payment would be made by

the petitioner at the time of execution of the sale deed. The petitioner claims to be in possession of the land on account of acknowledgement of

having received the amount by respondent no. 4. In alternative he states that prior to the execution of this agreement, petitioner was working as a

Chowkidar of the property on behalf of respondent no. 4, which status has been acknowledged by the respondents in their application filed before

the District Magistrate. It is further contended that petitioner was not given proper hearing by the District Magistrate before passing the impugned

order, as such, it has resulted in violation of rules of natural justice.

The contention of the respondents on the other hand is that even though there is a receipt executed by respondent no. 4 in favour of the

petitioner, it only acknowledges receipt of payment but does not confer any right on the petitioner to have the possession of the property. It is

stated that definition clause defines an un-authorized occupant. It states that any person who has no written consent of the migrant is an un-

authorised occupant. Mere issuance of a receipt or an agreement to sell does not confer any right on the petitioner to be in possession of the

property. The petitioner continues to be an un-authorized occupant of the land and is liable to be evicted from the same. The other contention of

the petitioner that he was not heard, is not well founded, as, on his own showings, petitioner has appeared before the District Magistrate and the

order has been passed only after hearing him.

After having said so, even if there was an infraction in the process of giving opportunity of hearing, same does not hold good as it has not been

stated in clear terms as to what was the nature of the infraction.

Mr. Qazi states that petitioner has an alternate remedy of filing appeal against the impugned order.

I have heard the learned counsel for the parties.

The only controversy which is involved in the present writ petition relates to the right of the petitioner to be in possession of the property on the

basis of receipt issued by respondent no. 4 and the promise to sell the property to him and the fact of being Chowkidar of the property. It is in this

narrow compass that the right of the petitioner has to be looked into.

It is not in dispute that respondent no. 4 has issued a receipt of Rs. 90,000/-with a promise to sell the land in question to the petitioner. It is also

not in dispute that there is no stipulation in the receipt that the possession of the land has been handed over to the petitioner. Assuming that some

right has accrued to the petitioner in respect of the property, that right is only to seek a specific performance of the contract in case respondent no.

4 decides not to execute a sale deed with the petitioner or seek recovery of the amount paid by the petitioner to respondent no. 4. Both these

rights undoubtedly did not confer any right in the petitioner to be in occupation of the property. Agreement to Sell, admittedly, does not confer any

right or title on the petitioner. His right to remain in possession as a Chowkidar is a right which he possesses on account of some one else. In law if

one person holds a thing on behalf of a person who holds the possession he cannot claim any interest on his own. The person on whose behalf he

holds the possession has the sole possession over the property. It cannot be construed that petitioner is in occupation of the property in his own

right. The possession shall always be deemed of the person on whose behalf he holds the possession.

The aforementioned discussion leads to the conclusion that petitioner does not have any written consent on behalf of the owner of the property

to enter into possession. He may have the remedy under the civil law to seek enforcement of the agreement but he cannot continue to remain in

possession of the property on the strength of the receipt issued by respondent no. 4, or as a Chowkidar of the property.

Regarding the other contention that rules of natural justice have not been followed, it transpires from the record that petitioner has appeared

before the District Magistrate, so his plea cannot be accepted that he has been condemned unheard. There might have been some infraction in the

decision making process by the District Magistrate but that has not been specifically pleaded by the petitioner.

Petitioner's other contention that District Magistrate has not taken over the possession of the property in terms of Section 4 of the Jammu and

Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, as such, it cannot be said that he is in

deemed possession of the property, and that being so, no eviction proceedings could be initiated u/s 5 of the Act. A conjoint reading of the two

provisions would reveal that u/s 4 of the Act, by a fiction of law the Deputy Commissioner is deemed to be in possession of the property and is not

required to personally take the possession of the property. Non fulfillment of requirement of Section 5 is not dependent or co-related to

compliance of Section 4. Section 5 of the Act is an independent provision which authorizes the District Magistrate to seek eviction of a person

who is in unauthorized possession thereof.

For the aforesaid reasons, I find no force in this petition, which is, accordingly, dismissed. Record of the District Magistrate, Deputy

Commissioner, Budgam, be sent back.