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2006 DIGILAW 73 (JK)

Jagar Nath Bhan v. State Of J. &K.

2006-04-03

BASHIR AHMAD KIRMANI

body2006
1. Impugned in this petition are the District Magistrates order dated 23.05.2005 directing petitioners eviction from the alleged migrant property and financial Commissioners appellate order of 21.06.2005 confirming the same. Grounds pleaded are that the property in question on belongs to Nursing Ji Temple and as such is not migrant property; and respondents 5 to 7 who are in part possession thereof even though not owners despite their claim, have never migrated. Thus, neither the property in question was migrant property nor could the petitioners who are occupying part thereof and paying rent regularly be categorized as unauthorised occupants, much less evicted therefrom. In their objections official respondents 1 to 4 while questioning maintainability of the petition as being based on questions of fact have also pleaded that concerned District Magistrate assumed jurisdiction in the matter on after satisfying himself about the property belonging to migrants its and petitioners in unauthorized occupation thereof, and acting in exercise of his power under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales Act 1997 ordered eviction of petitioners therefrom. In hi separate set of objections private respondent No.5 has in addition to what has been put forth by official side pleaded that while in possession of the property he migrated to Jammu in 1990 where she is putting up presently and it was only in her absence that petitioners forcibly took possession of property without any lawful sanction, whereafter she approached the concerned Magistrate who acted in the matter etc. 2. During course of arguments petitioners counsel has further elaborated the contents of petition to contend that District Magistrate has passed the order without conducting any enquiry in the matter and has only acted on dictations `from above which is apparent from the nature of proceedings also; while as counsel for respondents while objecting to petitioners locus standi to maintain the writ petition has further explained his pleadings to maintain that the property in question belonged to deceased husband of respondent No. 5 and petitioners have never been in possession thereof, much less as tenants, and that the fact of respondents being migrants and the petitioners in unlawful occupation of the property was fully established during enquiry duly conducted by District Magistrate only whereafter he exercised jurisdiction an ordered eviction of petitioners therefrom. 3. I have heard learned counsel and considered the matter. 3. I have heard learned counsel and considered the matter. It appears that landed properly in question is situate in estate Maisuma under Survey Nos. 45-45/1, 125/2, 46/1 and 50 of Khewat No.10 with two old "inklings existing thereupon, one double storeyed and the other single. While petitioners claim to be tenants thereof to the extent of their respective holding the respondent claim it to be her property forcibly occupied by petitioners after they migrated away from Srinagar. With that factual conflict the District Magistrate, Srinagar acting in exercise of his power under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 directed Tehsildar, Srinagar to proceed on spot and evict the petitioner therefrom under impugned order which was confirmed by Financial Commissioner in his appellate order of 21.06.2005 and hence the writ petition. 4. Proceedings before the District Magistrate appear to have taken off after receipt of respondents application for eviction of petitioners, with an endorsement from Deputy Chief Minister in following manner:- "Please look into it personally and vacate the migrant property from mischievous urgently under intimation to this office." The application appears to have been marked by him to Additional District Magistrate for necessary action vide his letter No. MR/RD/DM/656/RD/450 dated 30.12.2004 who further marked it as "most important" and asked concerned Tehsildar to go through the contents thereof and "report in view of J&K Migrant Act." Tehsildar marked the same to Naib Tehsildar who further endorsed it to one Patwari "Lone" for report, who in turn reported that on spot verification he found some Sikhs in possession of property and on asking they could not furnish anything to suggest that they were tenants, despite their claim as such. This report was submitted by concerned Naib to Tehsildar with the remark that some Sikh families are residing in the house in question who have failed to produce any documents to justify their possession of the properly. Acting on this report the District Magistrate while observing that the matter was got verified through Tehsildar, Srinagar as per whose report the petitioners herein failed to produce any document in support of their claim of being in authorized possession, passed the impugned order. Acting on this report the District Magistrate while observing that the matter was got verified through Tehsildar, Srinagar as per whose report the petitioners herein failed to produce any document in support of their claim of being in authorized possession, passed the impugned order. Aggrieved thereby the petitioners appear to have appealed against the same before Financial Commissioner who even while observing that the manner in which District Magistrate has conducted the proceedings was unsatisfactory as he had not even bothered to maintain an order sheet in the file, dismissed the appeal on the ground that occupants had preferred the same without surrendering possession as was required to be done under appeal provision of the Act and without which it could not be entertained. 5. Before adverting to different limbs of controversy as projected by contesting sides at Bar, it would be appropriate to set forth the substance of the relevant provisions of "Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997," (hereinafter referred to as the Act) which governs the matter in hand. While defining the expressions `migrant and `unauthorized occupant under clause `e and `i of Section 2 thereof, the Act under Section 4 provides that within thirty days from commencement of the Act the concerned District Magistrate would take over possession of all migrant immovable properties within his territorial jurisdiction, and after lapse of thirty days all such property would be deemed to have passed into his custody for protection thereof. Under Section 5 the District Magistrate has been authorized to use necessary force for dispossessing any unauthorized occupant thereof on his refusal or failure to surrender possession on demand etc. With an appeal provision under Section 7 the jurisdiction of Civil Courts has been completely barred in so far as determination of any question or matter arising under the Act is concerned, and the provisions of the Act, rules made and instructions issued thereunder, have been given an over riding effect over all laws, customs, usages, contracts and instruments inconsistent therewith. At the same time under Section 3 alienation of any migrant immovable property by act of parties, or decree or order of court or a Revenue Officer without appropriate permission from the competent authority under the Act is prohibited, and any such alienation declared to be null and void, and the restriction imposed as such deemed to be reasonable for purposes of clause (1) of Article 19 of the Constitution of India. Thus the Act appears to have been conceived as a completely self contained Code in so far as the preservation, protection and restraint on distress sale of immovable property of migrants is concerned, and has been enacted in such a manner as to exclude operation and attraction of contravening laws including the procedural ones relating to institution of appeals and limitation etc. As would appear, the appeal provision under Section 7 is the only remedial mode prescribed under the Act, against any order passed thereunder including eviction orders. Despite that and perhaps in keeping with general texture of the Act it is stringently circumscribed in so much that with only fifteen days limitation, eviction would not be entertained. In that legal context arise the questions of the legality etc. of impugned orders. 6. Before coming to District Magistrates order, it would be appropriate to find out as to what precisely the District Magistrate is required to do while entering upon exercise of his power under Sections 4 and 5 of the Act. At this stage it would be appropriate to quote the verbatim as hereinbelow:- "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. 5. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property. 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 any door or do any other act necessary for the said purpose." On plain reading of these provisions it appears that for exercise of powers thereunder the District Magistrate has to assume satisfaction that concerned immovable property situate within his jurisdiction belongs to a migrant, and is in unauthorized occupation. The questions that property is migrant property and the possession of the occupant is unauthorized are mixed questions of fact and law and have to be assessed by the District Magistrate precisely in the sense in which these expressions have been used in the Act. In plain words, it would mean that on receipt of a complaint invoking his jurisdiction under said Sections the concerned District Magistrate would have to satisfy himself subjectively on three things. First, that the immovable property in question belongs to a person who is a "migrant" within meanings of Clause (e) of Section 2; secondly, that it is in physical possession of a person other than the migrant without his consent or authority of law, and thirdly, that possession of the occupant thereof amounts to unauthorized occupation in terms of clause (i) of said Section. It would be pertinent to point out that while considering these aspects for assuming subjective satisfaction regarding existence thereof, the District Magistrate as the designated person performs a quasi judicial function for performance whereof the Act, has specifically vested power in and trusted him alone and his capability, to act judiciously in the matter so as to arrive at correct conclusions. The proceedings required to be undertaken by him have in fact almost all the features of a judicial proceeding and the conclusions arrived at by him on these questions have to be so well founded in fact and law as to justify the implications.. The proceedings required to be undertaken by him have in fact almost all the features of a judicial proceeding and the conclusions arrived at by him on these questions have to be so well founded in fact and law as to justify the implications.. The nature of power vested in him is such that its very exercise implies a duty to act judiciously. Viewed thus, the said power does certainly not appear to be capable of being delegated to any other authority or officer under him, which necessarily means that the enquiry culminating into his subjective satisfaction to enable him to exercise the power vested in him is to be conducted by him as "persona designate" and not through any other agency whatsoever even though such an agency may be employed by him for rendering necessary assistance for collection of materials to arrive at correct conclusion. The District Magistrates responsibility to act as such is multiplied by the fact that exercise of power vested in him results in eviction of a person from possession of property which is an extremely harsh measure that should be taken with all available care and caution particularly in view of the element of semi finality attributed to his findings by statute in so far as the aggrieved persons right of appeal against his order is concerned which would come in some detail elsewhere hereinafter. 7. Viewed thus the procedure adopted by District Magistrate in the instant case appears to be wanting on more than one counts. In the first instance, what appears to have been at the back of whole process is the Deputy Chief Ministers instruction for "removing mischievous..." with intimation to him which has the colour of a tacit direction that as a matter of fact appears to have prompted the District Magistrate to take cognizance in the matter, liven thereafter also lie has not conducted the requisite enquiry in the requisite manner up to the requisite mark in accordance with the procedure summarized above. Instead the whole process appears to have been conducted by the field agency to the extent that ultimately it is the finding and perception of concerned Patwari that finally appears to have precipitated in the impugned order without any further verification at his level. Instead the whole process appears to have been conducted by the field agency to the extent that ultimately it is the finding and perception of concerned Patwari that finally appears to have precipitated in the impugned order without any further verification at his level. The procedure employed by the District Magistrate as such appears to be not only inconducive to the requirement of the Act, but also in direct contrast therewith because in the first instance as rightly observed by the appellate authority neither the District Magistrate has maintained any order sheet or record of the case nor is there anything to suggest that he conducted anything even like a semblance of an enquiry which on lace of it suggest that he has quite cursorily or if one may say so callously dealt with the matter quite oblivious of the depth of responsibility that he is charged with in the matter and the seriousness of the repercussions of his order. On that count alone the impugned order of District Magistrate as also the appellate order confirming the same deserve to be quashed. 8. That brings me to the question of unreasonableness of the absolute power vested in District Magistrate and the alleged limitation of right of appeal. It would be appropriate to recapitulate that appeal in the instant case was dismissed by the appellate authority because the petitioners herein had failed to surrender possession to District Magistrate before instituting the appeal, for which reason the petitioners have in addition to other things also argued that the requirement of surrendering possession before institution of the appeal as prescribed for under the Act, is liable to be struck down as being unreasonable. Accordingly, before proceeding ahead it would be appropriate to address that aspect of the matter. Accordingly, before proceeding ahead it would be appropriate to address that aspect of the matter. As already said, the sole purpose of the enactment of Act is preservation and protection of migrants property and restraint on distress sale thereof by the concerned migrant, which was necessitated due to well known mass exodus of many people from valley in and around 1990 in the wake of general public disorder, consequent whereupon frequent incidents of forcible and unauthorized occupation of their landed properties and houses were noticed alongwith certain cases of sale/purporting to have been executed by disgruntled migrants in loss of hope to return back to the valley, laced with negative thinking and frustration, and the resultant urge to get whatever little they could; for their property left behind. Accordingly, the `migrant was defined as any person possessed of immovable property in the valley but unable to reside there due to disturbed conditions, having migrated away from Kashmir after 01.11.1989, and registered as such with Relief Commissioner; and an `unauthorized occupant, as any person having encroached upon or taken possession of any immovable properly of a migrant without his written consent or authority of law. Alongwith that the power lo determine whether or not the original owner was a migrant, and the current occupant in unauthorized occupation of his property as also the nature of property has been vested in the concerned District Magistrate, who normally is a very senior officer of vast experience with due sense of responsibility and capable of exercising power vested in him in relation to migrant property with all the care, caution, and concern that should invariably attend exercise of power to evict or dispossess somebody from his possessed premises; and in consonance with the theme of the Act his findings have been given due weight for achieving the purpose of preservation and protection of migrant property by restricting operation of other laws to enable all the concerned authorities prescribed under the Act to operate freely within declared orbit of the Act. 9. With provision of appeal in the `Act, the plea of unreasonableness of power vested in District Magistrate cannot be raised at all, because of its being subject lo appellate jurisdiction of the prescribed forum. The challenge therefore gets restricted to the condition of surrendering possession before appealing against eviction order, which in essence is a procedural requirement only. 9. With provision of appeal in the `Act, the plea of unreasonableness of power vested in District Magistrate cannot be raised at all, because of its being subject lo appellate jurisdiction of the prescribed forum. The challenge therefore gets restricted to the condition of surrendering possession before appealing against eviction order, which in essence is a procedural requirement only. It is well settled that a right of appeal being purely statutory, as different from a vested right, the enabling statute can in keeping with its object regulate or even circumscribe the same. Same appears to have been done instantly also; and while doing so by prescribing the restriction in appeal provision requiring surrender of possession by appellant, the Act appears to have taken into consideration the circumstance well founded in view of the scheme of Act, that at the level of District Magistrate the factum of all questions relating to migration of the owner, and unlawfulness of the possession of present occupant must have been subjectively considered and jurisdiction exercised only after such satisfaction, which essentially covers the two basic questions of fact relating to migration of owner and unlawful occupation of concerned property by a person other than the owner without his consent, and once the concerned District Magistrate returns an affirmative finding thereupon, the property in question automatically passes into his custody by operation of Sections 4 and 5 of the Act; and in view of the element of semi finality attached to District Magistrates subjective opinion in the matter, the surrender of possession by person ordered to be evicted only appears to be integral with general features of the Act. Viewed thus, the condition of surrendering possession before, going into appeal does not appear to be unreasonable, particularly because reasonableness or otherwise of the procedure prescribed for exercise of a right under a particular statute has got to be assessed in general context and the central theme of the statute, and the purpose that is sought to be achieved thereby. Instantly the Act as already said has been enacted only to ensure preservation and protection of migrant property; for which necessarily unauthorized occupation by any person could not be allowed to continue even for the shortest while. Instantly the Act as already said has been enacted only to ensure preservation and protection of migrant property; for which necessarily unauthorized occupation by any person could not be allowed to continue even for the shortest while. In addition thereto, is the general probability that the unauthorized occupant, whose eviction has been ordered by the District Magistrate, would try to prolong the proceedings after instituting the appeal for perpetuating his unauthorized occupation of the migrant property. Even without that the provision does not appear to be unique or unprecedented. In many enactments where purpose of the Legislation has been apprehended to be capable of being defeated under an uncontrolled or unbridled right of appeal, such riders on exercise of right have been prescribed and also judiciously acknowledged. For instance, under the "Jammu and Kashmir Electricity Act" where a writ of demand has been issued to a consumer by the prescribed authority for payment on account of use of energy by him under Section 53 thereof, he cannot challenge the same before depositing the amount demanded of him. After such deposit albeit under protest, he can challenge the vires or even the quantum of the demanded amount. Similarly, under Workmens Compensation Act, an award by the competent authority in favour of a labourer can be challenged by aggrieved employer only after depositing the amount of award. Now in both these enactments these conditions appear to be integral to the purpose of enactment by lending the colour of something like semi-finality to the conclusions arrived at by the competent authority. In the first, the purpose is realization of outstanding on account of use of electrical energy that is to be paid for as a purchased commodity, and in the second, the welfare of worker/servant and an embargo against his exploitation. Instantly, however, as already said, the purpose being protection of migrant property, the right of appeal has rightly been circumscribed in the manner as aforesaid, particularly because the aggrieved persons right to appeal has to be weighed against concerned migrants right to property, and the statutory requirement of its preservation. The conclusion, therefore, is that the fetter created on exercise of right of appeal by an aggrieved party against an eviction order by District Magistrate appears to be well placed in the legal context as aforesaid. The conclusion, therefore, is that the fetter created on exercise of right of appeal by an aggrieved party against an eviction order by District Magistrate appears to be well placed in the legal context as aforesaid. The only aspect that appears to be integral therewith is the disposal of appeal with reasonable speed, which has to be taken care of. 10. Before concluding, however, it would be appropriate to mention that in view of the conclusions arrived at as aforesaid, it is not necessary to advert to oilier aspects of the controversy as raised at Bar regarding the factum of property in question being migrant property or the status of parties, and other facts/circumstances incidental thereto, which would be better left to be determined by the District Magistrate in a fresh enquiry. Before parting, however, it would be in fitness of things to outline the factors those should attend the exercise of jurisdiction by concerned District Magistrate under the Act, as deducible from foregoing discussion; as follows:- (a) On receipt of an application from or on behalf of a migrant, the concerned District Magistrate must subjectively satisfy himself about the status of applicant as a migrant; the nature of property involved, as migrant property and occupants possession as being unauthorized, within meanings of the Act. In that behalf a note may be taken of two judicially noticeable phenomena first, that sometimes the migrant vendors execute documents other than requisite sale deeds in favour of vendees to bypass the requirements of the Act, and later such vendees invoke the provisions thereof to secure their interest under the summary procedure provided thereby, even while they use the element of the possession of property concerned by somebody else as a factor for diminishing the sale value thereof and secondly, that sometimes the migrants after execution of such documents allow the prospective owners to take over possession of the property, but later develop second thoughts either under domestic compulsions or some other considerations, and simply use the Act for retracting from the transactions even after having received considerations. In such cases the District Magistrates require to conduct the requisite enquiries with greater concentration. In such cases the District Magistrates require to conduct the requisite enquiries with greater concentration. (b) While assuming satisfaction as aforesaid, the District Magistrate must undertake a thorough enquiry, and while giving effective hearing to all concerned parties maintain a record of his proceedings: and only after subjectively satisfying himself about existence of all these aspects, pass a reasoned order to exercise jurisdiction under the Act. (c) At the time of announcement of orders, he must in case of anybodys eviction, give or cause to be given a certified copy of his order to the evicted person on the day of passing the order. (d) After eviction order, he may not deliver the possession of property in question , if surrendered by the evicted person, to any other person, before expiry of the period of limitation prescribed for filing appeals; whereafter appellate authoritys orders, if any, would hold the field. (e) After entertaining an appeal, the appellate authority must conclude the same with utmost speed, preferably within a month, and dispose of the same with speaking orders, and clearly mention as to whom the possession of concerned property is to be delivered. 11. For what has been discussed above, and with all the observations made, the petition is allowed, and both the orders impugned i.e. orders dated 23.05.2005 and 21.06.2005 purporting to have been passed by the District Magistrate and Financial Commissioner respectively are quashed, with a direction to District Magistrate concerned for conducting a fresh enquiry in the matter and passing fresh orders after thorough enquiry and audience to the parties. 12. Matter stands accordingly disposed of alongwith connected CMPs. Copies of this order be communicated to all District Magistrates, Financial Commissioners and the Chief Secretary of the State.