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2005 DIGILAW 329 (JK)

Ab. Samad (Dr. ) v. Financial Commissioner

2005-11-30

BASHIR AHMAD KIRMANI

body2005
1. Objections have already been filed. With agreement of learned counsel petition is admitted to hearing and in view of the nature thereof taken up for final disposal. 2. Impugned in this petition are orders purporting to have been passed by respondent-District Magistrate and Financial Commissioner respectively on 02.07.02 and 15.04.2004, whereunder the District Magistrate assumed jurisdiction under Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales ) Act,1997 and declaring petitioners alleged encroachment of a common `pathway as illegal directed the Tehsildar Chadura to evict him therefrom forthwith, and Financial Commissioner confirmed the order on appeal. 3. It appears that private respondents namely Kanta Ganjoo and Veena Ganjoo along with some inhabitants of the locality approached District Magistrate Budgam with a complaint against the petitioner that he had blocked the common pathway which among others led to their residential plots, who after seeking reports from Tehsildar and Additional Deputy Commissioner assumed jurisdiction under Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales ) Act,1997 and treating the pathway to be a migrant property encroached upon by the petitioner directed his eviction therefrom. On appeal the Financial Commissioner did not find favour with petitioners contention against District Magistrates order and while observing that appellant had not surrendered the possession of migrant property involved, the appeal could not be entertained. It is these two orders those are impugned in this writ petition on the ground that since the pathway in question was in exclusive ownership and use of petitioner, it was not covered by Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales) Act,1997 and as such both the respondents in their official capacity acted illegally. During course of his submissions the petitioners counsel, while reiterating contents of petition with reference to materials appended therewith including, the sale deed and revenue record contended that in view of the records the petitioner was the exclusive owner/user of the pathway in question. 4. In their objections, private respondents 3 and 4 have among other things pleaded that the pathway in question was in their use commonly along with the petitioner, and provides access to their residential plots also along with that of Gh. Nabi and could not be exclusively claimed by petitioner under the pretext of its being recorded as "Rasta Khas", albeit wrongly. During course of his submissions their counsel has stood by that position. 5. Nabi and could not be exclusively claimed by petitioner under the pretext of its being recorded as "Rasta Khas", albeit wrongly. During course of his submissions their counsel has stood by that position. 5. I have heard learned counsel and considered the matter. In view of pleadings, particularly the above mentioned plea taken by respondents 3 and 4, even if one does not agree, for specific purpose of assessing the legal impact of impugned orders, with petitioners claim of exclusive ownership/user over the pathway in question still then it has to be taken to have been in common use of the parties alongwith aforesaid Gh. Nabi. Taking that admitted position as the base line for appreciation of the impugned actions I feel the order as they have been passed are not justifiable U/s 4 of the J&K Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales ) Act,1997, District Magistrates have been authorized to take over possession of immovable property belonging to migrants falling within their jurisdiction within 30 days of commencement of the Act and take all steps necessary for preservation and protection thereof, and not hand over possession of such property to any one, otherwise than with express consent of the migrant concerned in writing. For the sake of ready reference the section may be quoted herein below:- "4.Custody of immovable property. -- (1) Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to Migrants, falling within his territorial jurisdiction and shall, on the expiry of said period of 30 days, be deemed to have the custody of such immovable property. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property.: Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing." 6. Thus for a District Magistrate to assume jurisdiction, three conditions must necessarily exists before he acts. First, that the property in respect whereof jurisdiction is required to exercise must be immovable property; secondly, it should be located with his territorial jurisdiction, and thirdly, it should belong to a Migrants as defined in Section 2 (e) of the Act. Thus for a District Magistrate to assume jurisdiction, three conditions must necessarily exists before he acts. First, that the property in respect whereof jurisdiction is required to exercise must be immovable property; secondly, it should be located with his territorial jurisdiction, and thirdly, it should belong to a Migrants as defined in Section 2 (e) of the Act. Now instantly in so far as the location and description of property is concerned, it is admittedly immovable property situated within jurisdiction of the District Magistrate, and the fact that private respondents 3 and 4 are Migrants has not been disputed at any level. But the question whether the property in question admittedly the "pathway" common between the parties, can be said to be "Migrants property" requires debate. In that behalf the import of the expression "Immovable Property" as defined in the Act is relevant U/S 2 (d) this expression is to be deemed to include tenancy rights, or other interests created under any law for the time being in force, which convey migrants proprietorship of the immovable property or tenancy thereof including any other interest vesting in him under any law. 7. Taken in that context the interest of private respondents 3 and 4 in the property under reference as per their own stand appears to be the right of user over the above said pathway along with petitioner. As such they share whatever interest they have with the petitioner and do not have it to his exclusion. Thus, neither they nor petitioner can be ousted from the right to use the pathway, and viewed thus, what could attract the application of Section 4 and justify assumption of jurisdiction by competent authority thereunder was an invasion on the private respondent right of user over the said pathway, which in any case could not mean extinction of petitioners right to use it. Accordingly, petitioners eviction there from as ordered by the District Magistrate in exercise of power to protect migrants interests therein, appears to be mis-placed and perhaps based on a faulty understanding of the nature of controversy and the manner in which section 4 could apply in the right perspective. Accordingly, petitioners eviction there from as ordered by the District Magistrate in exercise of power to protect migrants interests therein, appears to be mis-placed and perhaps based on a faulty understanding of the nature of controversy and the manner in which section 4 could apply in the right perspective. In simple terms if respondents 3 and 4 cannot be debarred from common use of the pathway in question for access to their respective plots, the petitioner and other person aforementioned having same and similar rights to use the pathway can also not be ousted from use thereof, and thus the question of eviction does perhaps not arise at all, neither practically nor in legal sense. Conversely thereby it, follows that none of the parties can use the pathway or act with reference thereto in a manner which overshadows other right of user thereto, and that position equally binds them all. In that back ground, therefore, in strict technical sense the right of user of private respondents over the said pathway as an approach to their respective plots, being integral to their ownership over the said plots would be deemed to have vested in the District Magistrate along with petitioner for the reason that the plots to which the pathway leads are under the Act deemed to have come within possession of concerned District Magistrate, any transfer whereof would have to be done in accordance with the provisions of the Act and not otherwise. 8. For what has been said above, the conclusion is that the writ petition succeeds partially and is allowed to the extent of modifying the impugned orders to the effect that anything done by any body including petitioner to obstruct or limit the right of user of private respondents 3 and 4 over the said pathway would be undone keeping petitioners right of user over it intact. Anything contrary thereto therein stands over set. 9. Before parting, it may be clarified that this order has been passed purely on basis of the position as admitted by respondent migrant as being relevant with reference to the impugned orders of District Magistrate and the Financial Commissioner; and does not have any reflections upon any exclusive rights -- vesting in the parties or any of them with reference to the subject matter, which they shall be at liberty to agitate before the competent civil court. Such rights if any have not been addressed in this order and nothing herein shall be deemed to limit or extinguish them or right of parties to seek redressal. 10. The matter stands accordingly disposed of along with all connected CMP(s).