Nighat Majid (Dr.) & Ors. vs Financial Commissioner & Ors.

Petitioners 1 & 2 and respondents 2 & 3 have purchased immovable properties of migrants. The dispute is about a part of the immovable

properties which the petitioners allege to be in illegal and unauthorized possession of respondents 2 & 3.

Land measuring 2 kanals one marla and 92 Sfts as also double storied annexe, single storied, garage and double storied annexe comprising of

survey No. 152/22 at Sathu Barbar Shah, Habakadal, Srinagar was purchased by petitioners 1 & 2 from migrant owners after permission was

given by the competent authority under Section 3 of the J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress

Sales Act) of 1997 (for short Act of 1997).

Para (c) of the permission provide that after completion of the formalities District Magistrate Srinagar (Custodian of Migrant Immovable

property) to handover the possession thereof through the prescribed procedure. Sale deed was executed by migrants of the said property in favour

of the petitioners 1 and 2. Petitioner No.3 who is attorney holder of the migrant's made an application in Sept. 1999 to District Magistrate Srinagar

requesting him for ordering for handing over the possession of the immovable property in terms of Rule 5 of the Rules of 1997. It appears that

Divisional Commissioner Kashmir vide order dated 17.9.99 requested to Dy Commissioner Srinagar to depute a revenue officer on spot for

Nishandihi and for handing over of possession. The Deputy Commissioner marked the said application to ACR. The subordinate revenue

authorities visited the spot. The report reveals that land measuring 31 = sq.ft is in unauthorized occupation of respondent No.2 and the possession

whereof has to be given to petitioners. The District Magistrate Srinagar vide order no. 74448 of 2000 dated 26.05.2000 ordered for removal of

encroachment in respect of area land measuring 311/2 sq.ft.

The respondents 2 and 3 being aggrieved of the said order, challenged the same in appeal before Financial Commissioner. The Financial

Commissioner disposed of the appeal with direction to District Magistrate to put the parties in possession for the land according to their entitlement

as per revenue record and sale deeds after ascertaining as to whether land is part of land purchased or it is common boundary wall between the

two plots of land. It was further directed that if the land as per the revenue record and sale deed is found to be of the petitioners, it is to be

restored to them and the damaged wall be restored to its original position. This order was passed on 12th May 2004. The Tehsildar Srinagar vide

his communication dated 12.07.05 addressed to District Magistrate Srinagar again reported that there is encroachment of area of 311/2 Sq. ft.

The District Magistrate vide his order dated 21st July 2005 directed the Tehsildar Executive Magistrate First Class to implement the orders within

week's time. The Tehsildar accordingly directed Naib Tehsildar Srinagar vide order dated 1.1.08 to implement the orders of the Financial

Commissioner and District Magistrate. It appears that a civil original suit has been filed by respondent No.3 in the court of ld. Sub Judge/Chief

Judicial Magistrate Srinagar and a consent decree has been passed on 17.10.05 wherein it was directed that parties would retain the possession of

the land according to their entitlement as per revenue records and sale deeds. It was further provided that encroachment on either side be removed

by Competent Authority by resorting to the procedure established by law. The Tehsildar Srinagar vide his communication dated 8.2.06 addressed

to the Additional District Magistrate Srinagar requested for consideration of implementation of the orders of the District Magistrate dated

21.07.05. The District Magistrate vide his order 1st of May 2006 directed the Tehsildar Srinagar to restore the vacant physical possession of the

migrant property as per orders issued by Div. Commissioner vide his No. MR(84)/199 dated 26.05.2005 and also as per directions issued by

District Magistrate dated 21.07.2005. The said order however came to be challenged in appeal before the ld. Financial Commissioner revenue

who set aside the said order. The ld. Financial Commissioner held that the provisions of Act of 1997 are not applicable to this case.

The contesting respondents have filed objections to the maintainability of the writ petition in which they have stated that respondents 2 and 3 are

owners in possession of land measuring 2 kanals 35 Sqft and 31/2 inch together with tin roofed structure which is partly two storied and three

storied situated at Barbar Shah. It is also pleaded by the contesting respondents that the said property is purchased by the respondents vide sale

deed executed on 29th of August, 1998 and registered on 31st of August, 1998. In the objections it has been specifically pleaded that the District

Magistrate was lacking authority to deal with the matter and could not pass the orders under the Act of 1997.

Heard ld. counsel for petitioner. Considered the matter.

The ld. counsel for the petitioner submitted that in view of provisions of the Act of 1997 and rule 5 of Rules 1997 the act of transfer of

properties would be incomplete unless and until the vacant position of the migrant property is handed over to purchaser. The ld. counsel submitted

that in terms of section 4 of Act of 1997 the District Magistrate was required to takeover the possession of the immovable property of the migrant

within thirty days thereof and on the expiry of the said period of thirty days the property would be deemed to be in the custody of District

Magistrate. The ld. counsel referred to Rule 5 (d) of Rules 1997 to canvass the point that possession of the properties has to be handed over to

alienees after it is released by the District Magistrate. The ld. counsel submitted that in terms of order of the District Magistrate Srinagar dated 26th

May 2000, which order merged in the order of Financial Commissioner (Revenue) dated 12th may 2004, it is statutory duty of the District

Magistrate to hand over the vacant possession of the migrant property to the petitioners who are alienees. The ld. counsel further submitted that

unless and until the possession of the property in its entirety is handed over to the petitioners 1 and 2 the provisions of Act of 1997 will continue to

have its application to the properties in question. The ld. counsel thus submitted that the order of Financial Commissioner impugned in this petition

holding otherwise is illegal.

As nobody appeared for the respondents in this case to assist the court, the question raised being of paramount importance is left open in this

case. This case however turns on another point. The order passed by District Magistrate on 26th May 2000 was called in question before the

Financial Commissioner (revenue) in statutory appeal provided by Section 7 of the Act of 1997. The perusal of the impugned order reveals that

the issue of non applicability of provisions of Act of 1997 were not raised. The appeal was disposed of by directing the District Magistrate to put

the parties in possession of the land according to their entitlement as per revenue records and Sale deeds. The District Magistrate for

implementation of the said order obtained report from the subordinate authorities and order dated 1st of May 2006 was thus an order carrying out

and implementing the order's of Financial Commissioner dated 12th May 2004. The said order could not be challenged by way of filing the appeal

u/s 7 of the Act of 1997 before the Financial Commissioner (Revenue). The earlier order of Financial Commissioner dated 12th May 2004 was

not challenged by any party and accordingly attained finality and would be binding on the parties. The Financial commissioner under the Act of

1997 has not even the power of reviewing its orders. The order impugned dated 31st June 2006 passed by Financial Commissioner (revenue) is

thus rendered illegal and without jurisdiction. The Hon'ble Supreme Court in case ""Vallapally Plantations Pvt. Ltd. v. State of Kerala"" reported in

AIR (1999) SC 1796 has held that reopening of the proceedings which attained finality will not only result in creating uncertain position but will

also go against the judicial discipline para 23 and 24 are reproduced as under:

Considering the question regarding applicability of Section 85 (9) to the case in hand in the conspectus of statutory provisions we are of the

view that answer to the question is in the negative. The provision in Section 85 (9), as we see it, is intended to enable the Board to set aside its

order under subsection (5) or subsection (7), as the case may be. The power vested in the Board under the provision is in wide terms, and

therefore, the necessity for circumspection in exercise of the power. The provision is intended to empower the Board to correct errors in its orders

and not to upset judgment/order/decree of competent courts which are binding on the parties. To hold otherwise will amount to vesting powers to

reopen any proceeding disposed of by a competent Court at any point of time (there is no period of limitation provided in the section) which may

result in unsettling positions settled between the parties. On a fair reading of the provision it is to be held that the power to set aside its order and

reopen a proceeding should be exercised by the Board in a fair and reasonable manner. In a case where the dispute on being determined by the

Taluk Land Board was carried in revision to the High Court by the person affected or by the Government and the revisional order passed by the

High Court was not challenged before superior Court and thus attained finality, to vest the power in the Taluk Land Board to ignore such an order

and reopening the proceeding will not only result in unsettling settled positions between the parties but also go against judicial discipline.

No doubt in the present case the order that was sought to be set aside was of the Board. But the said order was passed in pursuance to the

directions of the High Court in the revision petition. In other words in substance and in effect, in passing the order the Board was only complying

with the direction of the High Court. To vest jurisdiction in the Board to set aside such an order will be permitting the Board to interfere with the

decision of the High Court which has attained finality interparties"".

The Hon'ble Supreme Court in case titled Authorized Officer (Land Reforms) appellant v. M.M. Krishnamurthy Chetty respondent reported in

(1998) 9 SCC 138, has held that even orders which may not be strictly legal become final and are binding between the parties if they are not

challenged before the superior courts. Para (2) of the said judgment is reproduced as under:

According to the appellant once the judgment on the basis of which the High Court had directed to dispose of the dispute relating to the excess

land had been reversed by this Court, the Authorised Officer was justified in following the judgment of this Court instead of the judgment of the

High Court. It need not be pointed out that the order passed by the High Court attained finality as it was not challenged before the Supreme Court.

The order passed by the high Court directing the Authorised Officer to examine the dispute in the light of the judgment of the High Court in the

case of Naganatha Ayyar v. Authorised officer became final although the judgment on which the grievance had to be examined itself was reversed

later by this Court. We find no fault with the reasoning of the High Court. It is well settled that even orders which may not be strictly legal became

final and are binding between the parties if they are not challenged before the superior courts. In the result the appeal fails and it is dismissed.

The Hon'ble Supreme Court has in case titled ""Vijayabai v. Shriram Tukaram"" reported in AIR 1999 SC page 431 reiterated the same view.

Para 8 is reproduced as under:

Normally this Court would not interfere with any such finding of fact recorded but where the conclusions are arrived at by misconstruing the

provisions of an Act and without appreciating the principle of estoppel, including adjudication of such right in early proceeding under the same Act

between the same party this Court would not hesitate to reconsider such adjudication of facts. The facts are very clear in the present case. The

question, whether respondent No. 1 was a tenant of appellants of the suit land came up for consideration under this very Act and the Tahsildar in a

proceeding initiated under Section 8 (3) passed an order deleting the name of respondent as tenant. The question, whether respondent No. 1 was

tenant of appellants or not was directly in issue in this proceeding which was finally adjudicated by the competent authority, holding against the

respondent. Section 49 B refers to transfer of possession and ownership of lands to certain dispossessed tenant. This section is applicable only

where a tenant referred to in Section 46 or 49A was in possession of the land on the appointed day but was dispossessed before the relevant date.

Thus before a power could be exercised under it there has to be a tenant of the suit land who is dispossessed on the relevant date. But this fact

was no more res integra between the appellants and respondent No. 1 on the date suo motu notice was issued by the Tahsildar. As aforesaid,

dispute if any regarding tenancy between respondent No. 1 and appellants of the suit land stood concluded in the proceedings under Section 8.

The said order passed under Section 8 is appealable but no appeal was preferred. Thus so far the appellants and respondent are concerned, inter

se between them as they were parties therein, this issue became final. In other words, on the date when Tahsildar exercised his suo motu power of

initiating proceeding under Section 49B there was no material on the record of the Tahsildar to proceed under it, the only record of an entry of

195859 stood erased when name of respondent No. 1 was deleted by the competent authority under this very Act.

For the above stated grounds this writ petition succeeds. The impugned order dated 13 June 2006 passed by Financial Commissioner on file

No. 15/FAAP in case titled Dr. Ghulam Mustafa Shah and anr v. State and ors is quashed.