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2006 DIGILAW 56 (JK)

Masooda Akhtar v. State

2006-03-22

MANSOOR AHMAD MIR

body2006
1. By the medium of this writ petition, petitioners have prayed for issuance of writ of certiorari, quashing the order dated 11th June, 2005, passed by respondent No.2, hereinafter for short impugned order on the grounds taken in the writ petition. 2. Respondents have filed reply. Learned counsel for petitioner argued that the property in question is not migrant property, thus Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, hereinafter for short the "Act" was not applicable. While developing the arguments, argued that the impugned order has been passed without jurisdiction and power. The respondent No.2 arbitrarily and erroneously held that property in question is migrant property. 3. Learned counsel for respondent argued that property in question is a migrant property and provisions of the Act are applicable. 4. Heard. Admit. It appears that petitioner had already filed OWP 211/03 which came to be disposed of vide order dated 03.03.2005. It is profitable to reproduce the said order herein, which read as under:- "Heard. Admit. By consent of the parties, this matter is taken up for final disposal. Writ petition questions the order passed by the Deputy Commissioner Srinagar empowering the Tehsildar Settlement Srinagar to resort to eviction and put the rightful owner into possession. Contention of Mr. N.A.Beigh is that protection provided to the migrants in respect of their property by dint of statute has to be implemented. Responding to the contention, learned counsel for the petitioners submits that the power of attorney has ceased to be in force. In so far as power of the Deputy Commissioner in terms of relevant provisions of Act goes, no restriction can be placed on him for exercising such power. As regards objection of the learned counsel about the power of attorney, nothing prevents him to urge it. Since direction for eviction and delivery of possession has been passed in a very mechanical manner, the communication is not sustainable, it has to go. Nonetheless, the petitioners cannot have a license to maintain the encroachment upon migrants property and if at all it is a fact, such aspect has to be taken care of by the authority competent. Since direction for eviction and delivery of possession has been passed in a very mechanical manner, the communication is not sustainable, it has to go. Nonetheless, the petitioners cannot have a license to maintain the encroachment upon migrants property and if at all it is a fact, such aspect has to be taken care of by the authority competent. In the aforementioned backdrop, this writ petition is disposed of along with CMPs in the following terms: "The Deputy Commissioner Srinagar shall deal with the matter on the touch stone of the law governing the field and shall decide the matter as expeditiously as possible." 5. It appears that matter came up before District Magistrate (Deputy Commissioner) Srinagar, in terms of order dated 3rd of March, 2005 passed by this Court, referred hereinabove, who passed the impugned order.. 6. It is profitable to reproduce relevant portion of the impugned order herein, which reads as under:- "Whereas the parties were again summoned non-applicants failed to appear in this court on the various dates fixed for the case. Case came up for hearing on 28.5.2005. After taking into consideration the arguments on behalf of counsel fo Sanaullah Makroo and after examining the whole case and perused the records. The orders passed by this court dated; 05.07.2001 is up held. Let the Tehsildar Srinagar along with the concerned SHO proceed on spot and evict the illegal occupation under law and handover the possession of the land to the rightful owner (Sanaullah Makroo) after examining revenue records and spot, compliance report should reach to this office within 15 days." 7. Respondent no.3 was under legal obligation to pass detailed order in terms of direction passed by this Court. But Deputy Commissioner, Srinagar, commanded Tehsildar, Srinagar, to evict the illegal occupation under law and handover the possession of land to the rightful owner (Sonaullah Makroo). This direction runs contrary to the order passed on 5th July, 2001. It is useful to reproduce relevant portion the order dated 5th July, 2001, herein, which reads as under:- "You are as such directed to visit the spot personally along with concerned field staff and ensure eviction of illegal encroachment, if any, in light of the enclosed shajra Khasra/revenue extracts and handover the possession of the land to the rightful owner, (Shri Sanna Ullah Mukroo) after examining revenue records and spot and report compliance within a couple of days." 8. It appears that District Magistrate, Srinagar, asked Tehsildar concerned to hold that whether there was any illegal encroachment. 9. It is profitable to reproduce Sections 4 and 5 of the "Act" Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, herein, which reads as under:- "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. 5. Eviction of unauthorized occupants. -- If any unauthorized occupant of any migrant property refused or fails on demand to surrender possession thereof to the competent authority, such authority may use such force as is necessary for taking possession of such property and may for this purpose after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or break open any lock, bolt or door or do any other act necessary for the said purpose. 10. In terms of the mandate of law, referred hereinabove, District Magistrate, cannot delegate his powers but had to decide the issue whether the property falls within the ambit of the "Act" and whether there is any illegal encroachment. 11. Applying the test to the instant case, District Magistrate had asked the Tehsildar to pass order which is illegal. Thus, on this count the impugned order requires to be quashed. 12. It appears that District Magistrate (Deputy Commissioner), Srinagar had passed the impugned order mechanically and without application of mind. It is not mentioned in the impugned order that how District Magistrate, Srinagar, had come to the conclusion that property is `migrant property and the petitioner is in the illegal occupation of the same and is to be evicted. The impugned order is bereft of details and reasons. 13. It is not mentioned in the impugned order that how District Magistrate, Srinagar, had come to the conclusion that property is `migrant property and the petitioner is in the illegal occupation of the same and is to be evicted. The impugned order is bereft of details and reasons. 13. I am conscious that remedy of appeal was available to the petitioner but in view of the direction passed by this Court dated 3rd of March, 2005 and the fact that the petitioner had to surrender the possession and then had to file appeal in terms of provisions of the "Act", which cannot be said to be an efficacious remedy. 14. Viewed thus, the writ petition is maintainable and this Court can exercise the power and jurisdiction to entertain and decide the writ petition. 15. Division Bench of this Court in LPA No.72/2005 titled as Showkat Ahmad Puchloo v. State of J&K & Ors, decided on 08.06.2005, held as under:- "OWP no.227/2005 preferred by the appellant against the order of District Magistrate dated 21.05.2005 (supra) was dismissed by the learned Single Judge observing that the petitioner has got remedy of appeal under section 7 of the Act. It was submitted that in view of the provisions of section 7(a)(b) of the Migrant Act, appeal before the Financial Commissioner, can be entertained only on the appellant parting with possession of the property to the competent authority which would cause serious prejudice to the appellant. In course of hearing it transpired that the petitioner has preferred appeal against the order of the Divisional Commissioner dated 11.12.2004 granting permission to Khurshid Ahmad Bhat to execute transfer deed in respect of the property in question before the Financial Commissioner (Rev), J&K which is pending. After hearing counsel for the parties at length, we are of the view that till decision of the said appeal preferred by the appellant herein before the Financial Commissioner, status quo with respect to the property in question should be maintained." 16. In the given circumstances, impugned order is quashed and District Magistrate (Deputy Commissioner) Srinagar, is commanded to decide the matter afresh while keeping in view the observations made hereinabove, within one month from the date the copy of this order is served upon him. Parties are directed to caused appearance before District Magistrate, Srinagar, on 1st of April, 2006. In the given circumstances, impugned order is quashed and District Magistrate (Deputy Commissioner) Srinagar, is commanded to decide the matter afresh while keeping in view the observations made hereinabove, within one month from the date the copy of this order is served upon him. Parties are directed to caused appearance before District Magistrate, Srinagar, on 1st of April, 2006. Registry is directed to send down the record along with copy of this order.