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2007 DIGILAW 200 (JK)

Chuni Lal Bhat v. State Of J. &K.

2007-09-25

J.P.SINGH

body2007
1. Aggrieved by Tehsildar, Pattans order attaching land measuring Ten kanals and two marlas comprised in Survey No. 1654, one kanal nine marlas in survey No. 1655 and one kanal eleven marlas in survey no. 595 situated at village Chukar Tehsil Pattan District Baramulla and seeking direction to Divisional Commissioner, Kashmir to accord requisite permission in terms of Section 3 of the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997, the petitioners have filed this petition saying that petitioner Nos. 1 & 2 and respondent No. 5, the owners of the land, had sold the land to Abdul Aziz Wani, petitioner No. 3 by executing a general power of attorney on 8.3.1995 at Jammu. Respondent No. 5 is stated to have revoked the authority given to petitioner No. 3 and filed an application with Divisional Commissioner, Kashmir requesting him not to grant permission to petitioner No. 3 in respect of four kanals and fifteen marlas of land which was owned by her. 2. The petitioners say that respondent No. 5 had done all this to extract more money from petitioner No. 3. They question judgment delivered on 31st January, 2005 by this Court in OWP No. 609/2004, whereby a direction had been issued to the State to examine the issue relating to the protection of the property of the petitioners and other owners and initiate action in accordance with law within a period of three months, as not binding on them because they had not been made parties to the writ petition. The grievance of the petitioners is that attachment order issued by the District Magistrate was unsustainable because no direction for attachment of the property had been issued by this Court while disposing of OWP No. 609/2004. 3. Opposing the admission of the writ petition, respondent No. 5 has stated in her objections that the writ petition on behalf of petitioner Nos. 1 & 2 was not maintainable through petitioner No. 3 because the writ petition nowhere refers to the petition having been filed by petitioner No. 3 for and on behalf of petitioner Nos. 1 & 2. It is urged that petitioner Nos. 1 & 2 had neither signed the writ petition nor had they given any attorney either to the counsel or to petitioner No. 3 to file the petition on their behalf. 1 & 2. It is urged that petitioner Nos. 1 & 2 had neither signed the writ petition nor had they given any attorney either to the counsel or to petitioner No. 3 to file the petition on their behalf. Maintainability of the writ petition raising disputed questions of fact too has been questioned by the respondent. It is stated that petitioner Nos. 1 & 2 are owners of land measuring nineteen kanals two marlas under survey No. 1654 besides land measuring four kanals fifteen marlas falling under survey No. 1655 and one kanal eleven marlas under survey No. 595 situated at village Chuker Tehsil Pattan District Baramulla. 4. Respondent No. 5 further states that she had not sold her share of land to petitioner No. 3 and the power of attorney relied upon by. The petitioners in the writ petition was not the actual power of attorney executed by respondent No. 5 as the first page of the attorney does not tally with the details which appear in the correct general power of attorney Photostat copy of the certified copy whereof, has been placed on records by the respondent. She alleges fraud against petitioner No. 3 and submits that what for the revocation of the attorney, petitioner No. 3 would have grabbed her property. She submits that District Magistrate had protected the property of the respondent pursuant to the directions issued by this Court in OWP No. 609/2004 and the order issued by the District Magistrate does riot suffer from any illegality. It is further stated that the District Magistrate is under a statutory obligation under the Jammu and . Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997 to protect the property of the migrants. In the absence of any permission granted by the competent authority under the Act and execution of Sale deed by the respondent, petitioner No. 3 had no right to question the attachment of the property and claim rights in the property which had not been conveyed to him by any lawful conveyance. 5. I have considered the submissions made by learned counsel for the parties at the Bar. 6. It is true that this writ petition has not been signed by petitioner Nos. 1 & 2. 5. I have considered the submissions made by learned counsel for the parties at the Bar. 6. It is true that this writ petition has not been signed by petitioner Nos. 1 & 2. There is no attorney by these two petitioners either in favour of petitioner No. 3 or in favour of the Advocate, who appears to have been engaged only by petitioner No. 3, Abdul Aziz Wani. There is no mention in the writ petition as to whether or not petitioner No. 3 had been authorized by Petitioner Nos. 1 & 2 to file this petition. Petitioner No. 3 too has not stated anywhere in the writ petition that he was filing the writ petition as attorney of petitioner Nos. 1 & 2. The power of attorney, copy whereof, has been annexed with the writ petition, first page whereof, does not tally with the copy of the certified copy of this registered general power of attorney, too does not authorize petitioner No. 3 to file any proceedings in a court of law for and on behalf of petitioner Nos. 1 & 2. Writ petition by petitioner Nos. 1 & 2 will not, therefore, be maintainable above mentioned discrepancies in the writ petition; Writ petition on behalf of petitioner Nos. 1 & 2, thus deserves to be dismissed. It is ordered accordingly. 7. I will now examine as to whether the writ petition by petitioner No. 3 merits admission to hearing. 8. Petitioner No. 3, admits in paragraph No. 6 of the writ petition that respondent No. 5 had revoked the general power of attorney which had been given by her to him regarding her one third shire in the land in question. 9. Learned counsel for the petitioner, Mr. Nissar Ahmad had conceded during the course of consideration of this petition that neither petitioner Nos. 1 & 2 nor respondent No. 5 had executed any valid conveyance in his favour conveying petitioners and respondent No. 5s rights in the property to petitioner No. 3. He submitted that as the conveyance of the property was not permissible under law so the petitioner had purchased the property by a general power of attorney and learned counsel wants this Court to protect the rights of petitioner No. 1 which he says had vested in petitioner No. 3 because of the-execution of general power of attorney by petitioner Nos. 1 & 2 and respondent No. 5 who after having executed general power of attorney, could not have revoked that. 10. I do not find any substance in the submission of learned counsel for petitioner No. 3 because his submission on the face of it is misconceived besides being preposterous. What is not permitted by law, cannot be allowed to be achieved by modes other than those sanctioned by law. Mode of conveying immovable property stands prescribed by law inter-alia by the provisions of the Transfer of Property Act. Conveyance by execution of a power of attorney is not countenanced by law. In the absence of any valid conveyance either by petitioner Nos. 1 & 2 or by respondent No. 5 in favour of petitioner No. 3, he does not acquire any right in the property of petitioner Nos. 1 & 2 and respondent No. 5. That apart, conveyance of the properties of the migrants is prohibited by the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997 unless, however, conveyance of such property is with the permission of the authorities under the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997. Petitioner No. 3, having acquired no right in the property of petitioner Nos. 1 & 2 and , respondents No. 5, cannot thus, question the action of District Magistrate in attaching the property in question, which action had been taken by the learned District Magistrate in compliance to the directions issued by this Court on respondent No. 5s OWP No, 609/2004. 11. In view of the revocation of petitioner Nos. 3s authority by respondent No. 5, to deal with her properties, petitioner No. 3, cannot claim the reliefs sought by him in his writ petition. 12. For all what has been sought above, I do not find petitioner No, 3 to have made out any case for admission of the writ petition which is, accordingly, dismissed along with CMP No.877/2005.