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2007 DIGILAW 208 (JK)

Chairman, Managing Committee v. State Of J. &K.

2007-10-01

MANSOOR AHMAD MIR

body2007
1. This order will govern all the four above referred writ petitions as the subject matter of dispute in all the case is same. Before proceeding further, it is profitable to give a brief resume of the case hereunder: 2. District Magistrate, Srinagar, initiated proceedings in terms of mandate of Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, (hereinafter referred to as `the Act) in respect of immovable property -- buildings, the description of which is given in the impugned orders. In terms of the order dated 15-5-2006, notice came to be issued to the writ petitioner -- Chairman Managing Committee, with the direction to vacate the buildings (in which Kamla Nehru Girls High School, Barbar Shah, Srinagar is housed) within 15 days. Feeling aggrieved, the writ petitioner -- Chairman Managing Committee filed the writ petition and questioned the same on various grounds taken in the writ petition. 3. Contesting respondents 4 and 5 have filed reply and contested the writ petitions on various grounds including the one that the writ petition is not maintainable for the reason that petitioner has alternate remedy available. During the pendency of OWP No. 359/2006, final order dated 26-7-2006 came to be passed by the District Magistrate, Srinagar, whereby Tehsildar, Srinagar, was directed to proceed on spot along with SHO concerned. There-after another order came to be passed whereby Executive Magistrate was directed to make inventories of the furniture items including type writers etc. existing in the buildings. In compliance to the order dated 26-8-2006, the Executive Magistrate, Ist. Class passed order dated 28-8-2006, whereby the writ petitioner -- Chairman Managing Committee, came to be directed to vacate the building within three days with effect from 29-8-2006. The writ petitioner has the medium of OWP No. 630/2006, challenged the order dated 26-8-2006 passed by District Magistrate and order dated 28-8-2006 passed by Executive Magistrate, Ist. Class. The petitioner has not, however, challenged the final order dated 26-7-2006 passed by District Magistrate, Srinagar, in terms of the provisions of the Act. 4. Respondents have filed reply and resisted the petition on the grounds taken therein including the one that the writ petition is not maintainable. 5. Respondents 4 and 5 also filed two writ petitions titled above. The petitioner has not, however, challenged the final order dated 26-7-2006 passed by District Magistrate, Srinagar, in terms of the provisions of the Act. 4. Respondents have filed reply and resisted the petition on the grounds taken therein including the one that the writ petition is not maintainable. 5. Respondents 4 and 5 also filed two writ petitions titled above. By the medium OWP No. 847/2007 they have challenged the order dated 13-10-2006 passed by District Magistrate, Srinagar, allowing the students and staff of the school to undertake non-liabilities of the school premises, on the grounds taken therein. Respondent No. 4 -Chairman Managing Committee, has filed objections and resisted the petition on various grounds. 6. By the medium of OWP No. 885/2006, they have challenged the order dated 29-11-2006 passed by District Magistrate, Srinagar, permitting the Chairman, Managing Committee, to deposit the rent as would be assessed by the R&B authorities. The respondent no. 6 has also resisted the petition on the grounds taken in the objections. 7. Heard learned counsel for the parties and considered the matter. The crux of the matter is that proceedings came to be drawn in terms of the provisions of the Act. Show cause notice came to be issued to the Chairman, Managing Committee for vacating the buildings and there-after Chairman, Managing Committee came to be directed to vacate the premises and the Tehsildar concerned came to be directed to take over the possession of the school buildings. The provision of the Act is self contained code and it provides, how to conduct the proceedings and, remedy to the person aggrieved. In terms of section 7 of the Act, the aggrieved person can question the order passed by the District Magistrate by filing statutory appeal as provided under section 7 of the Act. 8. The question for determination is whether the writ is maintainable when alternate remedy is available? The answer is negative. Writ petition would lie only when efficacious and alternate remedy is not available to an aggrieved person. The Act has a social purpose and in order to achieve the Act, mechanism is provided. So by no stretch of imagination, it could be said that the writ petition is maintainable when alternate remedy in terms of section 7 of the Act is available. The Act has a social purpose and in order to achieve the Act, mechanism is provided. So by no stretch of imagination, it could be said that the writ petition is maintainable when alternate remedy in terms of section 7 of the Act is available. If said practice would be encouraged, that will amount to defeating the purpose and aim and object of the Act and will render the provisions of the Appeal under section 7 of the Act meaningless. Similar question arose before this court in case titled Hakeekat Singh Vs. State of J&K, 1999 SLJ 562, wherein this court held that writ petition is not maintainable. Again similar issue came up for consideration before a Division Bench of this court in LPA No. 243/2006, Mehraj-ud-Din Mir Vs. State of J&K decided on 31-8-2007, wherein it has been held that when remedy of statutory appeal is available, the writ petition is not maintainable. It is profitable to reproduce relevant portion of the judgement under: ".............................. We are unable to accept this submission for a minute. In our considered view, the condition prescribed for filing an appeal against an order under Section 5 of the Act is completely in harmony with the overall object and purpose of the Act and it cannot be held to be unduly onerous or stringent so as to render the remedy of appeal as ineffective and illusory.........." 9. The apex court in another case Punjab National Bank Vs. O.C. Krishnan and others, (2002) 6 SCC 569, observed that when remedy of appeal is available, writ is not maintainable. It is profitable to reproduce para 6 of the said judgement hereunder:-- ".........................................The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the act, namely, filing of an appeal under Section 20 and this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly bared. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Article 226 and 227 of the Constitution. Nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Article 226 and 227 of the Constitution. Nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." 10. The writ petitioner -- Chairman Managing Committee has also raised some disputed questions of fact -- property in question is not migrant property and the respondents 4 and 5 are not migrants and are not owners thereof. These are the questions of fact, cannot be gone into in writ jurisdiction and the appellate court has jurisdiction to deal with these questions. I am fortified in my view by the apex court judgement reported as U.P. State Bridge Corporation Ltd. Vs. U.P.Rajya Setu Nigam S,. Karamchari Singh, 2005 AIR SCW 3149, wherein their lordships have held that where alternate remedy is available, writ is not maintainable. It is profitable to reproduce para 17 of the judgement, hereunder:- ""The only reason given by the High Court to finally dispose of the issues in its writ jurisdiction which appears to be sustainable, is the factor of delay, on the part of the High Court in disposing of the dispute. Doubtless the issue of alternative remedy should be raised and decided at th earliest opportunity so that a litigant is not prejudiced by the action of the Court. Since the objection is one in the nature of a demurer. Nevertheless even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even when there is a delay, short circuit the process for effectively determining the facts. Indeed the factual controversies which have arisen in this case remain unresolved. They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned single Judge in Anad Prakashs case had correctly refused to entertain the writ petition for such relief." 11. The apex court also in case Khimji Vidhu Vs. They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned single Judge in Anad Prakashs case had correctly refused to entertain the writ petition for such relief." 11. The apex court also in case Khimji Vidhu Vs. Premier High School, AIR 2000 SC 3495 has held that writ jurisdiction cannot be exercised to upset pure findings of fact. It is profitable to reproduce relevant portion of para 5 of the judgement hereunder:- "......These findings of fact could not have been interfered by the High court in exercise of its jurisdiction under Article 227 of the Constitution. Jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of act which falls in the domain of an appellate court only. The High Court, thus exceeded the jurisdiction vested in it by upsetting finding of fact and the impugned order, suffers from a jurisdictional defect. ..........." 12. For the reasons stated hereinabove, the writ petitions filed by the writ petitioner (Chairman Managing Committee) are not maintainable and are accordingly dismissed. 13. Now coming to the writ petitions filed by respondents 4 and 5, I deem it proper to refrain from offering comments, as to whether the District Magistrate has the jurisdiction to pass such orders or otherwise, for the reasons that the writ petitions of the Managing Committee came to be dismissed, as discussed hereinabove. It is also worth while to mention here that the committee has not challenged the final order of eviction dated 26-7-2006 passed by the District Magistrate, Srinagar till date. Having regard to the facts and circumstances of the case, the impugned orders in petitions filed by the respondents 4 and 5 have become meaningless. In the given circumstances parties are at liberty to avail appropriate remedy, if any, available. It is also made clear that the respondents 4 and 5 are at liberty to seek appropriate remedy by filing miscellaneous petition before the District Magistrate for redressal of their grievances, if at all required in the given circumstances of the case. Having glance over the above discussions, all the writ petitions are dismissed. Interim orders, if any, also stand vacated.