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2007 DIGILAW 189 (JK)

Bhushan Lal v. Makhan Lal Raina

2007-09-14

J.P.SINGH

body2007
1. This Civil Revision is directed against Additional District Judge, Jammus Order dated 22-08-2005 affirming Second Additional Munsiff, Jammus Order dated 04-10-2004 affirming ex-parte interim order dated 09-06-2004 staying the operation of Special Power of Attorney executed by the petitioners in favour of respondent Nos. 2 to 7, on 24-05-2004 and registered on 26-05-2004, during the pendency of the suit. 2. Mr. Nirmal Kotwal, learned counsel for the petitioners, submitted that in view of the specific averment of plaintiff Makhan Lal in the plaint that he was a migrant, his suit for declaration seeking annulment of the Special Power of Attorney executed by the petitioners in favour of respondent Nos. 2 to 7 was not cognizable by the Civil Courts in view of the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 and consequently, no injunctive relief could be granted by the trial court staying the operation of the Special Power of Attorney. He submits that the impugned orders of learned Second Additional Munsiff, Jammu and Additional District Judge, Jammu were illegal and without jurisdiction, warranting interference by this court under section 115 of the Code of Civil Procedure. 3. Mr. Ashok Bhan, learned Advocate appearing for respondent No. 1/plaintiff submitted that bar enacted by the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 under section 8 was not applicable to the facts of the case because the question raised in the suit was not such which was required to be settled, decided or dealt with under the provisions of the Act. 4. I have considered the submissions of learned counsel for the parties and gone through the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. 5. Before considering the submissions of learned counsel for the parties, regard needs to be had to the provisions of section 8 of the Act and the plaint of respondent No. 1. 5. Before considering the submissions of learned counsel for the parties, regard needs to be had to the provisions of section 8 of the Act and the plaint of respondent No. 1. Section 8 of the Act reads thus: - "Bar of jurisdiction of Civil Court Notwithstanding anything contained in any law for the time being in force- (a) no civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter arising under this Act, or the rules made thereunder; and (b) no order of any officer or authority passed under this Act or the rules made thereunder shall be called in question in any civil court." 6. Respondent No. 1 had filed a suit for declaration to the effect that the Special Power of Attorney dated 24-05-2004 registered on 26-05-2004 was null and void and inconsequential regarding the rights of the plaintiff, besides seeking a permanent prohibitory injunction restraining respondent Nos. 2 to 7 to give effect to the Special Power of Attorney and take possession of the land in question on its basis. 7. Perusal of the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 reveals that Section 3 restricts alienation of immovable property as defined in Section 2(d) of the Act, of a migrant by act of parties or a decree or order of a Court or of a revenue officer except under conditions as may be prescribed and with the previous permission of the Revenue and Relief Minister. Permission may not be needed for alienation of the properties description whereof is given in the section. 8. In terms of Section 4 of the Act, the District Magistrate is required to take over the possession of immovable properties belonging to the migrants falling within his territorial jurisdiction. Within thirty days from the commencement of the Act, the immovable property of the migrants is deemed to have vested in the custody of the District Magistrate. In terms of Section 4 (2) of the Act, the District Magistrate is required to take all such steps as may be necessary for preservation and protection of such property. 9. Section 5 of the Act authorizes the District Magistrate to use such force as may be necessary to retrieve the immovable property of the migrants from the unauthorized occupants. 10. 9. Section 5 of the Act authorizes the District Magistrate to use such force as may be necessary to retrieve the immovable property of the migrants from the unauthorized occupants. 10. There is no provision either in the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 or in the Jammu and Kashmir Migrant Immovable Property Rules, 1997 which provides any forum for adjudication of questions like the one which have been raised by respondent No. 1/plaintiff in his suit before Learned Second Additional Munsiff, Jammu. In terms of the provisions of the Migrant Immovable Property Rules, the only enquiry which the District Magistrate is empowered to hold under the Act and Rules is as to whether or not any alienation of the Migrants Property had been made in contravention of the provisions of the Act. If on enquiry, he finds that the alienation had been made in contravention of the provisions of the Act, he may take possession of the property after evicting the alienee. 11. It is thus apparent that the authorities under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 do not have any adjudicatory jurisdiction over all matters concerning the property of the migrants. The Act and the Rules vest only limited jurisdiction in the authorities to the extent indicated in the Act and Rules framed thereunder. 12. The question raised by respondent No. 1/plaintiff before the learned Munsiff that the Special Power of Attorney executed by the petitioners in favour of Respondent Nos. 2 to 7 was null and void, was not thus, cognizable by the authorities under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. 13. In terms of Section 8 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, the Civil Courts jurisdiction to settle, decide or deal with only those questions has been barred, which had arisen under the Act and the Rules framed thereunder. 14. The question as to whether the petitioners were competent to execute Special Power of Attorney in favour of Respondent Nos. 2 to 7 has neither arisen under the Act nor under the Rules framed thereunder. Jurisdiction of the Civil Court to deal with this question would not thus stand ousted as urged by Mr. Nirmal Kotwal. 14. The question as to whether the petitioners were competent to execute Special Power of Attorney in favour of Respondent Nos. 2 to 7 has neither arisen under the Act nor under the Rules framed thereunder. Jurisdiction of the Civil Court to deal with this question would not thus stand ousted as urged by Mr. Nirmal Kotwal. 15. The plaintiff/respondent No. 1 in the present suit had neither questioned any order of the authorities under the Act nor had he raised any such question which was required to be settled, decided or dealt with under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 and Rules framed thereunder. Respondents suit cannot thus be said to be barred by the provisions of the Act and the Rules framed thereunder. 16. The sole ground urged by Mr. Nirmal Kotwal that respondent No. 1s suit was, ex-facie, barred under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, therefore, fails. 17. No other point was urged by learned counsel for the petitioners in support of the revision petition. This revision petition, therefore, fails which is, accordingly, dismissed.