Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 248 (JK)

Mohd. Jamal Khan v. State Of J. &K.

2003-08-22

MUZAFFAR JAN

body2003
The writ petition has been filed praying for direction to quash the order dated 24.04.1999 passed by respondent No. 3 and the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act, 1997, with further direction to confer proprietary rights on the petitioner and to restrain the respondents from causing any interference in the land involved in the litigation situated at Marinder Bagh, Harwan, Srinagar. 2. The main submissions made in the writ petition are that the petitioner is in un-interrupted possession of the land measuring 5 kanals and 12 Marlas in Survey No. 354, 358/352 situated at village Marinder Bagh. Harwan, Srinagar, as a tenant and is paying rent to the private respondents 5 to 9, who are resident of Residency Road, Srinagar and have not migrated and are not entitled to any protection under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. It is further submitted that the private respondents were not in actual possession of the said land but, on wrong facts, submitted an application dated 20.10.1998, before the Deputy Commissioner/District Magistrate, Srinagar, for protection under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, in which regular enquiry was conducted and it was reported that the petitioner is tenant in possession of the said land and the private respondents 5 to 9 are not migrants, despite this, the District Magistrate dis-approved the report of the field Officers and passed the impugned order of taking over of the possession dated 24.04.1999 in object disregard of the fact that the private respondents 5 to 9 have not migrated and cannot be declared as migrants, within the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997. It is further submitted that the order of the District Magistrate dated 24.04.1999 was challenged before the Financial Commissioner (Revenue), but the Financial Commissioner (Revenue) did not conduct the proceedings effectively and as such, writ petition was filed in this court seeking quashment of the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997, for the reason that the Act is ultra vires, irrational, unreasonable and unjustified. On these submissions, it is prayed that the writ petition be allowed and the impugned order dated 24.4.1999 passed by respondent No. 3 as also the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act 1997 be quashed. 3. The stand taken by the private respondents 5 to 9, in their objections is that the petitioner had an alternate efficacious and effective remedy by way of filing an appeal under section 7 of the Act before the Financial Commissioner. Since the petitioner has challenged the order in question by taking an appeal to the Financial Commissioner under section 7 of the Act and failed, the impugned order has become final and cannot be questioned now by filing a writ petition. It is further submitted by the private respondents 5 to 9 that on the date of filing the writ petition, the petitioner was not in possession of the land measuring 5 Kanals and 12 Marlas under Survey No. 354, 358/352 situated at village Marinder Bagh, Harwan, Srinagar as the possession of the land had been taken by the learned District Magistrate through Tehsildar who had kept it on Superdname of one Suna Mir S/o Ramzan Mir R/o Mandirbagh, Harwan on 10.05.1999. It is submitted by the private respondents 5 to 9 that they continued to be in actual physical possession of the said land from the date of purchase of the said land. The petitioner taking benefit of the militancy, exodus and migration of respondents 5 to 9 from valley made attempts to occupy the land, but on initiation of proceedings by the respondents before District Magistrate Srinagar, the suit land was cleared from illegal occupation of petitioner. The private respondents 5 to 9 have denied that the petitioner had become the prospective owner of the said land. The respondents 5 to 9 have further stated that on the consideration of annexure B-1 filed wit the writ petition, the District Magistrate acted on the report of Tehsildar, Additional Deputy Commissioner and other material available on the record, and came to the conclusion that the case of the respondents 5 to 9 was covered by the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. Lastly, it is submitted that the Financial Commissioner under section 7 of the Act, has power to hear the appeal and the petitioner is blowing hot and cold in the same breath, as on one hand he contends that he had challenged the orders of the District Magistrate before the Financial Commissioner, and on the other hand he has, without waiting for the outcome of appeal before the Financial Commissioner , filed this writ petition, which is not maintainable. On these submissions, it is prayed that the writ petition be dismissed with costs. 4. Heard and considered the submissions of learned counsel for the parties. 5. It seems that the private respondents, by virtue of various sale deeds purchased the land measuring 5 kanals and 12 Marlas in Survey No. 354, 358/352 situated at village Marinda Bagh, Harwan, Srinagar, and acquired the ownership rights of the land. It appears that, on account of disturbance, the private respondents had to leave the valley and on getting the information of encroachment on their land, the private respondents approached the Deputy Commissioner/District Magistrate, Srinagar, with an application dated 20.10.1998. The District Magistrate, acting on the complaint of encroachment, directed an enquiry from the field staff. The record reveals, that Tehsildar after spot inspection submitted his report with the observation that the petitioner was found in possession of the land and had cultivated maize and planted trees. Although a photocopy of the certificate issued by the Deputy Commissioner, South Mehrauli Baderpur Road, Delhi, dated 01-07-1999 was produced by one of the private respondents, namely Chander Mohan Koul, to show that Chander Mohan Koul was a registered migrant in Delhi under the Migrants Act, under Registration No. 11996, yet the Tehsildar did not accepted the migration certificate of the private respondents, Chander Mohan Koul and others, and submitted a report that the case of the private respondents is not covered by the Jammu and Kashmir Migrant Immovable Property (Preservation. Protection and Restraint on Distress Sales) Act 1997. Protection and Restraint on Distress Sales) Act 1997. It may be observed that the Tehsildar had no business to give a finding as to whether the private respondents are migrants or not the Tehsildar was only required to submit his report after spot inspection and not to enter the field beyond his Jurisdiction and authorization The manner in which Tehsildar has given the report dated 18.11.1998 clearly indicates the bias attitude of the Tehsildar against the private respondents 5 to 9. In any case, the Deputy Commissioner, on consideration of not only the report of tehsildar, but also all the documents submitted in support of their claim by respondents 5 to 9, came to a clear finding that the private respondents were registered migrants and that the present petitioner has encroached on the migrant (property action under section 4 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales ) Act 1997, was justified. The District Magistrate passed the impugned order dated 24.04.1999 directing the taking over of the possession of the land measuring 5 kanals and 12 Marlas under Survey No. 354, 358/352 situated at village Marinda Bagh, Harwan, Srinagar. Aggrieved of the order of District Magistrate, an appeal was filed before the Financial Commissioner, in which an order came to be passed on 12.5.1999 which reads as under:-- "Presented let the applicant produce the revenue record for admissibility in the appeal ." Sd (Sushma Chaudhary) IAS Financial Commissioner (Revenue)". 6. It seems that the present petitioner unable to produce supporting revenue record, did not pursue the appeal before the Financial Commissioner and the appeal, as per admission of the learned counsel for the petitioner, was dismissed, for non-prosecution on 12.5.1999. 7. In this admitted factual background, it will be pertinent to examine whether the private respondents 5 to 9, who are equipped with the certificate issued by the Deputy Commissioner, South Mehrauli Baderpur Road, Delhi, dated 1.7.1999 qualify to be declared as migrants in terms of Section 2(e) of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997. The relevant portion of the Act is reproduced as under:-- Section 2(e):-- "Migrant" means any person who has migrated from Kashmir Valley after Ist November, 1989 and is registered as such with the Relief Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office, or having left the Valley in pursuit of occupation or vocation or otherwise, and is possessed of immovable property in the Valley, but is unable to ordinarily reside there due to the disturbed condition." 8. On plain perusal of the provision, it is clear that any person who is registered, and a person who has not been so registered, but has left the valley and is possessed of immovable property, but is unable to reside in the valley due to disturbed conditions, would be a migrant. In the instant case, as per the certificate, submitted by the private respondents 5 to 9, alongwith their objections, issued by Superintendent of Police, City East Zone, Srinagar, under No. CR-5/99/SPE/2854 dated 17.8.1999, it is revealed that Chander Mohan Koul, whose permanent residence is M.A. Road, is under police guard. Although the certificate further mentions that the said Chander Mohan has not migrated from the valley, but as this observation is contradicted by other material on record, this aspect of the certificate will be considered at a later stage. The fact that Chander Mohan Koul is under police, protection coupled with the fact that a certificate has been issued by the Assistant Relief Commissioner, Jammu, dated 31.01.2001, in which it is revealed that Chander Mohan Koul, one of the private respondents, was registered as a migrant with the zone Office at Jammu, under Declaration Form No. 031698 registration No. 744 till the cancellation of this certificate on 13.08.1993, obviously makes the statement of Superintendent of Police, City Zone, Srinagar, as a false declaration that Chander Mohan Koul has not migrated from valley till date. Moreover, there is another certificate issued by Deputy Commissioner, South Mehrauli Badarpur Road, Delhi, dated 07.01.1999 in which it is revealed that Chander Mohan Koul is registered as a migrant under registration No. 11996, alongwith his all family members. Moreover, there is another certificate issued by Deputy Commissioner, South Mehrauli Badarpur Road, Delhi, dated 07.01.1999 in which it is revealed that Chander Mohan Koul is registered as a migrant under registration No. 11996, alongwith his all family members. The requirement for being declared a migrant under the Migrants Act, is that a person who is unable to ordinarily reside due to disturbed conditions in the valley, would be declared as a migrant. As per certificate of Superintendent of Police, City Zone, Srinagar, Chander Mohan Koul whenever residing in his residence at Residency Road, is under police guard and on the basis of certificate, issued by Assistant Commissioner (Z) Relief Organisation Jammu, dated 31.01.2001, it is established that Chander Mohan Koul was registered as a migrant upto 13.08.1993 and thereafter, as per certificate issued by Deputy Commissioner, South, Mehrauli Baderpur Road, Delhi, dated 07.01.1999, it is shown that Chander Mohan Koul is registered in Delhi as a migrant, it cannot by any stretch of imagination, be accepted that the private respondents 5 to 9 do not qualify to be declared as migrants under the provisions of section 4 of the Migrants Act. 9. No arguments have been addressed to make out a case to challenge the vires of the Act to show that the Act, or any provision of the Act is unreasonable, irrational or in conflict with any provision of law, to justify the quashing of the Act. The relief to this extent is rejected, as not pressed. 10. The submission of learned counsel for the respondent that in view of the fact that alternate remedy by way of appeal, has been availed, the writ would not lie, in the facts and circumstances, has to be accepted for multiple reasons. It is admitted that appeal was filed before Financial Commissioner in which the order dated 12.05.1999 was passed requiring the present petitioner to produce the revenue record. The petitioner does not seem to have pursued the remedy by filing revenue record and permitted the appeal to be dismissed. In these circumstances, it cannot be held that the appellant did not avail of the alternate remedy and if the proceedings were left half way, the petitioner cannot take benefit of his own default and seek remedy by filing the present writ petition. The writ petition on this disability is also not maintainable. 11. In these circumstances, it cannot be held that the appellant did not avail of the alternate remedy and if the proceedings were left half way, the petitioner cannot take benefit of his own default and seek remedy by filing the present writ petition. The writ petition on this disability is also not maintainable. 11. The contradictory stand taken in writ petition and while making submissions, makes the whole case of the petitioner not only inconsistent, but also impermissible under law. In para 2 of the petition, the submission made by the petitioner is that he holds the possession as a tenant and is paying rent to the private respondents 5 to 9, but in his relief clause, he prays for declaration that he may be declared owner and proprietary rights be conferred on him regarding 5 kanals and 12 Marlas of land of the private respondents, on account of his continued possession, which fact is not established by any record and is otherwise disputed. 12. It will be pertinent to observe that in pursuance of the order of District Magistrate dated 24.4.1999, it is shown that the possession of the land was after taking over by the Tehsildar, given on Superdname to one Sona Mir S/o Ramzan Mir on 10.05.1999. The status-quo order was issued by this court on 22.06.1999, which reads as under :--- "Notice. Reply within four weeks. CMP : 426/99 : Notice. Objections within above notice period. Meanwhile parties to maintain status quo as on the date in respect of the position on spot and impugned order shall not operate, in case, the order has not been implemented so far. Sd/- Honble Judge" 13. From perusal of the order, it is plainly clear that parties were directed to maintain status-quo as on the date and with the firm direction that impugned order shall not operate in case the order has not been implemented so far. Sd/- Honble Judge" 13. From perusal of the order, it is plainly clear that parties were directed to maintain status-quo as on the date and with the firm direction that impugned order shall not operate in case the order has not been implemented so far. In view of the taking over of the possession of the suit land and handing it over to superdar on 10.5.1999, the impugned order dated 24.4.1999 had been implemented and the status-quo which was to operate after the passing of the order dated 26.06.1999 would have the effect of continuing the possession of the land with the superdar and not with the present petitioner How the present petitioner continued with the possession with the active aid and assistance of the Revenue Authorities, including Tehsildar Harwan, who interpreted the status-quo order to his and to the liking of the petitioner, is deprecated and amounts to direct interference in the execution of the justice and needs a serious view. The tehsildar vide his letter No. 302/OQ dated 26.06.2000 has submitted the report that the petitioner continues to be in possession and has cultivated maize. The relevant portion of the letter is reproduced as under:-- "Kindly refer to the subject cited above. In this connection I am to request that the report of Naib Tehsildar Harwan Srinagar vide his No. 90/NTH dated 6.6.2000, is in detail, which reveals that the land measuring 5 kanals, 12 Marlas situated in Khasra No. 352, 354/358, belongs to Chander Mohan Koul and others, as per the extracts of Jamabandi, Girdawari. The Naib Tehsildar has further reported that as per spot, the land in question as under the possession of one Mohammed Jamal Khan S/o Ali Mohammed Khan R/o Murinderbagh Harwan Srinagar. The Naib Tehsildar has further reported that Oats and Maize has been cultivated on the said land by one Mohammed Jamal Khan. The Status-quo copy issued by the Honble High Court Srinagar is enclosed. Hence submitted for favour of further necessary action. Sd Tehsildar Srinagar." 14. The Tehsildar, before issuing such a communication should have realized his duty to abide by the court direction and not to create evidence in favour of the petitioner who was not entitled to continue in possession in violation of the court direction dated 26.6.1999. Hence submitted for favour of further necessary action. Sd Tehsildar Srinagar." 14. The Tehsildar, before issuing such a communication should have realized his duty to abide by the court direction and not to create evidence in favour of the petitioner who was not entitled to continue in possession in violation of the court direction dated 26.6.1999. The Deputy Commissioner, by passing review order dated 19.3.2001, which is neither permissible nor covered by any law, either under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Distress Sales) Act, 1997, or even under inherent powers, was not justified to cancel the earlier order of the District Magistrate dated 24.04.1999. The order of the Deputy Commissioner dated 19.03.2001 is reproduced as under :-- "The non-applicant has submitted an application with the prayer to dispose off the case under law, J&K Immovable Property of Migrant Act-1997. He has further prayed that the applicant as it reveals from the report of police authorities and Relief Organisation, Jammu is non-migrant and, therefore, the case does not fall within the purview of Migrant Act, 1997. I have examined the record of the case and the order issued by the Honble High Court dated 22.6.1999. I have also perused the report of Tehsildar, Srinagar dated 26.6.2000. Subject to the outcome of the writ petition, I came to the conclusion that the case does not fall within the purview of Migrants Act-1997 and seems to be of a Civil Nature. The application is considered and disposed off accordingly under law. Interim direction, if any, passed in the matter is withdrawn." 15. This order dated 19.3.2001, cancelling the earlier order of District Magistrate, Srinagar dated 24.4.1999 without notice to the private respondents 5 to 9 whose rights were effected and without having regard to the status-quo order passed by this court on 22.6.1999 or even persuing the record which would show that the land in question was on superdnama, has been passed in abject disregard of law without any legal justification and without even powers to pass such an order. The order dated 19.3.2001, having been passed without jurisdiction cannot be sustained and is quashed. Resultantly, the order dated 24.4.1999 revives and is upheld. 16. The order dated 19.3.2001, having been passed without jurisdiction cannot be sustained and is quashed. Resultantly, the order dated 24.4.1999 revives and is upheld. 16. Copy of the judgement be sent to the Chief Secretary and Director General of Police, to ascertain the reasons which persuaded Superintendent of Police, City East Zone, Srinagar, posted on 17.8.1999 to issue false certificates, and take appropriate action against the Officer. Chief Secretary will also ascertain the reasons why Tehsildar who was posted at Harwan on 26.6.2000 issued a report not based on facts, and take appropriate action as would be permissible under law. 17. The writ petition is accordingly, disposed of.