S.Hakeekat Singh vs State of J & K

Hakekat Singh petitioner is challenging order dated 8111997 of District Magistrate Srinagar issued under section 5 of the Jammu and Kashmir

Migrant Immovable property preservation, protection and restraint Distress Sales Act of 1997 (hereinafter for brief Distress Sales Act 1997)

evicting petitioner from a portion of house No. 186 at Jawahar Nagar, Srinagar under his occupation and handing over possession thereof to

respondent No. 4 Shri Vijay Kumar Ujle, on the following grounds:

Petitioner claims to be tenant in authorised and lawful occupation of the first floor of residential, house. No. 186 at Jawahar Nagar Srinagar of

late Ram Lai Ujla (hereinafter to be referred as premises) since 1985 as evidenced by rent receipt (annexure PA). The occupation and possession

of the said house is even admitted by respondent no.4 alleged to be legal heir of landlord Ram Lal Ujla vide objections filed by him in the suit

pending before 1st. Additional Munsiff Srinagar (annexurePB). The occupation of the premises by petitioner is covered by provisions of Houses

and shops Rent control Act as a statutory tenant and the petitioner cannot be evicted there from except in due course of law and on grounds

envisaged by the Houses and Shops Rent Control Act.

The Government of Jammu and Kashmir, respondent No. 1 with a view to preserve and protect the distress sales of immovable properties of

Kashmir migrants enacted Distress Sales Act 1997. Section 5 of the said Act provides that if any unauthorised occupant of any migrant property

refuses or fails on demand to surrender possession thereof to competent authority, such authority may use such force as is necessary for taking

possession of such property. Unauthorised occupant in the Distress Sales Act 1997 is defined as any person who has encroached upon or taken

possession of any immovable property of migrant without letters written consent or authority of law.

The action of eviction under the Distress Sales Act 1997 is thus available only against an unauthorised occupant i.e. one in occupation of

immovable property of the migrant in the valley without migrants written consent of authority of law.

The petitioner's occupation and possession of the premises is under authority of law in so far as the petitioner is a tenant of the premises.

Besides rent receipts and the objections of respondent No.4 (Annexure PA and PB) would indicate that the petitioner is in occupation of the

premises with the consent of the lawful owner who has since died. The respondent No.4 managed to get the impugned order passed by District

Magistrate Srinagar, under section 5 of the Distress Sales Act 1997 to force the petitioner out of the premises. In the facts and circumstances of

this case, the impugned order of respondent No. 2 is without jurisdiction in so far as the very basis of the order is absent and nonexistent. The

petitioner was not afforded an opportunity of being heard before passing the impugned order. The order has civil consequences and it divests the

petitioner of occupancy rights and interests, so the order could not have been passed unless the petitioner was heard in the matter. An essential

facet of principles of natural justice of petitioner being heard has been violated in this case. The impugned order is exfacie ultravires authority.

Powers and jurisdiction of respondent no.2 as envisaged by the Distress Sales Act 1997. The petitioner does not have any other adequate

efficacious alternate remedy in law, therefore, the petitioner has filed this writ petition. The writ of certiorari is' prayed for in quashing the impugned

order of eviction dated 8111997 passed under section 5 of the Distress Sales Act 1997 by respondents to refrain from evicting the petitioner from

the premises.

Notice was issued to respondents. Respondent no. 4 has filed objections/reply on affidavit, in terms of the objections raised, it is averred that

under Jammu and Kashmir Migrants (stay of proceedings)Act 19 of 1997 (hereinafter for brief Stay of proceedings Act 1997), all proceedings

against a migrant interalie relating to immovable property situated in Kashmir division are stayed by the Government.. Proceedings include the

petitions before any court. Therefore, the writ petition is not maintainable. The nature of question being purely a question of fact, the writ court

cannot go into the questions of fact and therefore, the writ petition is not maintainable even on this count. The petitioner has not disclosed that a

civil suit is pending in the subordinate court regarding the property in question and approaching the writ court without allowing the civil court to

adjudicate on the suit is clearly objectionable and petitioner is not entitled to any relief even in equity on this score. The petitioner has been evicted

from the unauthorised occupation of the premises with the help of the police on 1091997. It was only after the premises was in occupation of

respondent no.4 that on 1391997 at about 3.30 P.M., the petitioner again encroached upon the premises with the assistance of unidentified gunda

elements and occupied a portion of the house illegally. The documents, photostat copies annexure A to A17 are on record to demonstrate eviction

and subsequent occupation of the premises by the petitioner. The order of statusquo obtained in the civil suit in the court below ceases to be

operative in terms of report that the order was not extended beyond 1591997 (annexure Bl). It was only thereafter that on approaching the

concerned authorities that District Magistrate passed the impugned order and possession was restored to the (Sic). It is further contended that

being a special Act, the provisions of General Act are not applicable and the order impugned is legal and has been passed within the parameters of

authority and jurisdiction. The alternative remedy under the Distress Sales Actl997 being available to the petitioner, the writ petition cannot lie and

is sought to be dismissed.

The petition was admitted. Counsel for the petitioner Mr. R.A. Jan and counsel for the respondents M/S M.I.Qadri, Sr. Additional Advocate

General and Molvi Aijaz were heard. Record has been made available.

Counsel for the respondents have canvassed that after passing the Stay of proceedings Act 1997, the writ petition has also to be stayed until the

Government notifies otherwise in terms of Section 3 read with Section 2(d) of the stay of proceedings Act 1997, in so far as the petition covers the

immovable property of the migrant in terms of Section 2(d) and (c) of the Stay of proceedings Act 1997. The counsel further argues that in view of

the provisions of the stayof proceedings Act 1997, the courts are generally barred from proceeding to adjudicate all proceedings pending or to be

filed in further against a migrant for the recovery of loan or relating to immovable property situated in the Kashmir Division. All such proceedings

against migrants have been stayed for the present.

The counsel for the petitioner submits that though the proceedings also include suit, appeal, application, petition, execution pending before any

court, office, Tribunal or forum for recovery of loan on possession or pertaining to a dispute relating to immovable property, but the power of the

judicial review of the High Court under section 103 of the Jammu and Kashmir Constitution Corresponding to Article 226 of the Indian

Constitution is not at all affected. The extraordinary powers in writ jurisdiction cannot be effected by a change effected in municipal law unless the

fundamental law itself is amended to create a bar or restrict the exercise of powers under Article 226 of the Constitution.

It would be seen that the powers of judicial review under Article 226 corresponding to Section 103 of the Jammu and Kashmir Constitution is

not one of those provisions of the Constitution which can be changed by ordinary legislation. The powers under Article 226 of the Indian

Constitution cannot be taken or curtailed or restricted by any legislation, short of amendment of the Constitution. No Municipal law can impose

fetters on the exercise of extraordinary writ jurisdiction powers as such a law is subserveint to the fundamental law of the Constitution which is

fountain of Municipal laws. As all the Municipal laws flow from the Constitution, therefore, all those laws have to be subservient to the fundamental

law. The High Court is entitled to exercise the powers under section 103 of the State Constitution free from the fetters imposed by the stay of

proceedings Act 1997, as such a law cannot take away or restrict the jurisdiction of the High Court under the Article. This is even so where the

statutory provisions like Section 3 read with Section 2 of the Stay of proceedings Act 1997 bars the jurisdiction of the courts generally.

Examination of provisions of the Stay of proceedings Act 1997 reveal that all proceedings pending or to be instituted after the passing of the

said Act filed against a migrant in respect of the recovery of loan advanced in respect of immovable property situated in Kashmir Division, shall

remain stayed during the operation of this Act. The proceedings include suit, appeal , application, petition, execution pending before any court,

office, Tribunal or forum for recovery of loan or possession of the immovable property or a dispute relating to an immovable property. The writ

proceeding has not been obviously and for well considered reasons not included in the proceedings. What the Stay of proceedings Act of 1997

has done is that the jurisdiction of the civil courts and other offices, Tribunals and Forums have been generally buried in respect of matters specified

there in so far as the proceedings have been or are being filed against a migrant. Obviously the contention of the counsel for the respondents cannot

be upheld and is overruled.

The contention of the counsel for the petitioner is that impugned order (Annexure PD) passed under section 5 of the Distress Sales Act 1997

evicting the petitioner from the premises is mechanical and violates the law in so far as the petitioner has not been heard before the order was

passed. The counsel for the State submits that the District Magistrate Srinagar being empowered under section 5 of the Distress Sales Act 1997 to

pass the order of eviction after finding the petitioner an unauthorised occupant, has applied his mind to this case and the order falls within the

parameters of law laid down by the Distress Sales Act 1997.

Section 5 of the Distress Sales Act 1997 clothes District Magistrate competent authority with powers of eviction of an unauthorised occupant.

The unauthorised occupant as defined by Section 2( 1) of the Distress Sales Act of 1997 means person who has encroached upon or taken

possession of any immovable property of a migrant without his written consent or authority of law. The powers of eviction of the unauthorised

occupant is thus available against a person(s) in occupation or possession of the immovable property of the migrant without such migrant's written

consent or authority of law. The contention of the petitioner propped up on annexures PA, PB, PC and PE that the petitioner is in possession of

the premises as a tenant and thereby his possession of the premises is under authority of law, is in any case disputed question of fact in the face of

reply filed by the State and respondent no.4 in the context of annexures A1 to A11 and B to B4. The pendency of the civil suit before the

subordinate court of 1st. Additional Munsiff, Srinagar is also a pointer that the parties have raised a dispute regarding the occupation and

possession of the premises by either of the parties. These questions can be determined on an enquiry where the parties have an opportunity of

producing the evidence and admittedly the writ jurisdiction is not forum available thereto. This court cannot obviously go into the disputed

questions of fact. Seen in this context, it is incumbent on the District Magistrate while passing the order of eviction of the petitioner from the

premises to determine the nature of occupation/possession of the premises and if he comes to the conclusion that the occupation of petitioner is

authorised, then the District Magistrate has to act in the manner as specified by Section 5 of the Distress Sales Act of 1997. The impugned order

(annexurePD) would show on its face that the District Magistrate Srinagar has ordered the SubDivisional Magistrate Srinagar to go on spot to

evict the illegal occupant and handover the possession to respondent No.4 and has further directed the Senior Superintendent of Police Srinagar to

provide adequate force to SubDivisional Magistrate, Srinagar for the purpose. The impugned order and/or the record produced by Mr. Qadri Sr.

Additional Advocate General nowhere reveals that the District Magistrate Srinagar has applied his mind, considered the matter in totality and

arrived at a decision that the petitioner is an' illegal occupant. Even in the order, the name of the petitioner as illegal occupant is not mentioned. The

impugned order further goes on to reveal that the respondent no. 2 represented the matter before the Chief Minister and Divisional Commissioner,

Kashmir that the premises has been unauthorisedly occupied and the District Magistrate Srinagar on such representation, not made to the District

Magistrate himself but to Divisional Magistrate and the Chief Minister without anything more ordered eviction of the petitioner occupant. The order

on the face of it speaks of nonapplication of mind and suffers from nonconsideration of the matter both on legal as well as factual grounds. After all

the District Magistrate is not a push bottom. He is not to act mechanically on the dictation and directions of higher ups without application of his

mind, when he is exercising statutory powers. Legal duty is cast upon him by the statutory provisions of the Distress Sales Act of 1997 to bring on

to hear his independent considered judgment on application of mind to the fact situation of the case in hand. The judgment, culminating in an order

u/s 5 of the Distress Sales Act of 1997 to exclusively of the District Magistrate.

In exercise of powers of judicial review under section 103 of the State Constitution (corresponding to Article 226 of the Indian Constitution)

High Court sits in judgment only on correctness of decision making process and not on the correctness of the decision itself. Admittedly the High

Court cannot act as a court of appeal or revision to correct mere errothers of law or fact, but the jurisdiction being essentially supervisory in nature

the court has to interfere even on merits with determination made by an authority invested with statutory powers were it is made in contravention of

principles of natural justice.

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 as 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 unauthorised occupation of the migrant's property who refuses or fails to surrender possession thereof to the 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 hearing the parties and considering their view point and the cases putforth

before him and in any case to provide reasonable and sufficient opportunity to the person against whom the order under section 5 of the Distress

Sales Act of 1997 is to be passed. Article 14 strikes at arbitrariness of said action puashed by certiorari and the respondent no. 2 District

Magistrate Srinagar is issued mandamus/direction to pass fresh orders in the matter in accordance with provisions of law and the observations

made hereinabove. In the circumstances of the case, parties are left to bear their own respective costs.