Sajad Muzaffer Bhat vs State and Others

Syed Bashir-Ud-Din, J.—Respondent Iqbal Krishen Karihaloo made presentation before Divisional Commissioner Kashmir on 17.4.1998

for restortation of Shop No. 3 in the Municipal Building opposite Apna Bazar Lal Chowk Srinagar, after alleged unauthorized occupant

respondent is removed on the ground that the shop under occupation of the petitioner, a migrant is unauthrisedly occupied by him without his

consent or authority of law. The Divisional Commissioner referred application of Shri Karihaloo to Deputy Commissioner on 17.4.1998 for action

under the Provisions of Jammu and Kashmir Migrants Immovable Property (Preservation, Protection And Restraint on Distress Sales) Act, 1997,

(hereinafter for short Migrant Distress Sales Act 1997). The then Deputy Commissioner Srinagar disposed of the case by order dated 25.7.1998.

However, an appeal was filed against the order before the Appellate authority of Financial Commissioner Revenue J&K. This appellate authority

disposed of this Appeal 99-FC of 98-99. While the impugned order of Dy. Commissioner was quashed, direction was given to the Dy.

Commissioner to conduct the enquiry under law and 'after determining the nature of possession of the respondents to record a finding after

providing opportunity to the parties'. Soon after the papers and record was received by the Deputy Commissioner Srinagar, the Dy. Commissioner

by the Impugned order allowed the application and directed for restoration of the shop to the owner Iqbal Krishen Karihaloo. Petitioner alleges

that the articles lying in the shop were lifted and transported in the Police Vehicle after his men were manhandled. However, subsequently under

directions of the High Court regarding maintenance of status quo , the revenue authori- ties restored possession of shop to non-applicant. This

order of 28.8.2000, evicting the non-applicant and restoring possession to Iqbal Krishen Karihaloo, is impugned in this amended writ petition. It is

necessary to take note of a few more facts relevant for our present purposes as under.

Petitioner before the High Court alleges that the shop belongs to Smt. Prana Karihaloo ( deceased) who was running ""King Star Restaurant"", in

the shop. She executed an Irrevocable General Power of Attorney on 16.5.1992 in favour of her son said Karihaloo, which was registered at

Jammu on the same day (Annexure-A) Iqbal Krishen Karihaloo is alleged to have executed a partnership deed with the petitioner in respect of

premises of ""King Star Restaurant"" on 16.5.1992 and on the same day this partnership was dissolved after said Iqbal Krishen Karihaloo received

lump sum amount of Rs. 1.50 lacs for the deal. (Annexures B, C and D). After the parties started filling apart the petitioner filed suit on

16.12.1994 for a decree of declaration and permanent injunction in the Court of Judge Small Causes Srinagar where the suit is pending. Iqbal

Krishen Karihaloo approached Divisional Commissioner for action against the writ petitioner as an encroacher and illegal occupant under Migrants

Distress Sales Act 1997 which presentation/ application was dealt with as stated above.

In June 1998, petitioner filed the writ petition against the earlier order of his eviction by the Deputy Commissioner before the matter was

remanded back for fresh enquiry by the Financial Commissioner to the Dy. Commissioner, as stated above. The relief prayed for was restoration

of the possession of the shop with the relief of initiating action on civil and criminal side against the respondent. However, subsequently order was

passed by the Dy. Commissioner on 28.10.2000, directing restoration of the shop to Iqbal Krishen Karihaloo after he received the matter on

remand from the Financial Commissioner. This order too is under challenge, in on record allowed amended petition.

I have heard Ld. Counsel for the parties. The record of the Dy. Commissioner Srinagar is made available by Mr. Magrey, AAG. With the

assistance of Mr. A. M. Magrey, AAG, and Mr. NH. Shah, Dy. AG, the record is examined.

The action or eviction under the Migrants Distress Sales Act 1997 is available against an unauthorized occupant, i.e. occupant of the Immovable

property of the migrant in the Valley without migrants written consent or authority of law. The writ petitioner is claiming occupation of the premises

under the partnership deed and dissolution of the deed read with the power of attorney referred above. Petitioner is alleging that he is on the

premises as an authorized occupant who has got written consent via partnership deed and dissolution deed from the migrant and his occupation of

the premises being with the consent of the owner/ licence holder is authorised. On the other hand, the respondent owner Iqbal Krishen Karihaloo

has contested this claim and has asserted that the partnership deed as also the dissolution deed are fictitious and have not been executed as

alleged. The occupation with the petitioner is unauthorised and not protected by law. He has not given any consent or occupation. His case is

squarely covered by Migrants Distress Sales Act of 1997 and the competent authority has to act under the provisions of the Migrants Distress

Sales Act of 1997 and restore him the possession of the premises.

This irreconcilable stand of the parties is and has been before the Dy. Commissioner and other Revenue authorities dealing with the matter. In

such circumstances the duty of the Dy. Commissioner is to examine the matter as empowered officer under the Migrants Distress Sales Act, 1997

with a view to determine if petitioner is unauthorised occupant. If his finding is positive, then to order the eviction of such unauthorized/ illegal

occupant, On the question who is unauthorised occupant, matter is to be considered within the contours of Section 2(1) read with Section 5 of the

Migrants Distress and Sales Act 1997. The contentions of the parties are and documents/material placed before the Deputy Commissioner and the

evidence, if any led in the case, has to be scanned to reach the conclusion. Here what the Deputy Commissioner has done is that he accepted the

stand/objections of Iqbal Krishen Karihaloo. The objection is sustained by him on the premise that the District Magistrate has compared copy of

Power of attorney obtained from Sub Judge Jammu with the power of attorney produced by the Writ petitioner non-applicant before the District

Magistrate, to say that there are insertions and malafidies and the case of non applicant before him is false. He also has dinged on to open ended

circumstance that the applicant before the District Magistrate has produced some papers to show that the non-applicants were receiving relief in

Jammu on the day when partnership and dissolution deed were executed. Even so, what the District Magistrate (Dy. Commissioner), Srinagar has

done is that he has not at all heard the writ petitioner/non-applicant. It is pitiable that the Dy. Commissioner has in the impugned order stated that

he has heard the counsel for the parties and given an impression that the order has been passed after hearing the parties. But examination of the

record and perusal of the minutes main- tained show that on 14.10.2000 only applicant Iqbal Krishen Karihaloo's counsel was present. The non-

applicant Sajad Muzaffer Bhat was absent. His lawyer was not also present. In fact proceedings were set exparte against him and it is on this date

that the Dy. Commissioner has recorded that he has heard the arguments only of the applicant and posted the matter for final orders to 20.1.2000.

However, there is no record as to what happened on 20.1.2000, but on 28.10.2000 the impugned order is annexed to order restoration of

possession to Iqbal Krishen Karihaloo.

M/s A.M. Magrey, AAG, N H. Shah, Dy. AG and Mr. M.S. Latecf counsel for State Government and non-applicant to this petition are

admitting this position and have been candid enough to concede fairly that the writ petitioner (non-applicant before the District Magistrate) has not

been heard in the matter before the Impugned order was passed.

It is obvious that the then District Magistrate Srinagar has gone on record against the directions of the appellate of Divisional Commissioner' to

afford opportunity to the parties and determine the controversy in enquiry', envisaged under law. There is a wrong statement in the impugned order

that the parties have been heard.

In S. Hakeekat Singh v. State of J&K and Ors. 1999 SLJ 562 (J&K) which this court has decided on 13.2.1998 , it is observed:

....The District Magistrate Srinagar being under an obligation to act judicially can not pass an order which is in violation of the principles of natural

justice. The record fairly reveals that the petitioner has not been heard in the matter. He has not been provided any opportunity to put forth his case

before the District Magistrate who alone is competent to take a decision regarding the nature of occupation of the occupant. But all the same a

party has a right to put his case before the authority. This is all the more so as it gives sweeping powers to the District Magistrate to evict any

person found in unauthorized occupation of the migrant's property who refuses or fails to surrender possession thereof to them competent

authority. The authority is free to use force for taking and restoring possession. The very nature of powers and the consequences thereof would

require the competent authority to determine the issues involved after meeting the parties and considering their view point and the cases put forth

before him and in any case to provide reasonable and sufficient opportunity to the person against whom the order u/s 5 of the Distress Sales Act of

1997 is to be passed. Article 14 strikes at arbitrariness of said action in any form After all its object is to ensure fairness and equality of treatment.

Non-arbitrariness, an ingredient of Article 14 which pervades entire realm of State action governed by the Article requires in this case compliance

with 'audi altrium partem' a facet of natural justice. Natural justice after all is ante-thesis of arbitrariness. The requirement of natural justice applies

not only to judicial or quasi judicial orders, but also to administrative orders effecting prejudicially unless expressly, excluded by the enactment,

which is valid. The procedure to be adopted under the Act of 1997 has to be reasonable, fair and just, if the said action is to survive the test of

fairness. The test of reasonableness implies that the person affected or concerned must have a reasonable opportunity of presenting his case before

he is effected by the order, having civil consequences and broadly speaking even visiting the party with penal consequences.

In result, for the aforesaid view, the impugned order of October 28,2000 of District Magistrate Srinagar under The Jammu and Kashmir

Migrant Immovable Property ( Preservation, Protection and Restraint on Distress Sales) Act, 1997 is quashed and respondent No. 2 is

commanded and directed to pass fresh orders in the matter in accordance with the provisions of law and the observations made herein above.

Disposed of. The record is returned to Mr. A. M. Magrey, AAG in open court.