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2010 DIGILAW 471 (JK)

Gh. Mohi-ud-Din Shah v. State

2010-08-26

Sunil Hali

body2010
1. Dispute in the present petition relates to House No. 199 situated at Jawahar Nagar, Srinagar, which the petitioner claims to have purchased from respondent no.5 through respondent nos. 4 and 6. Support is placed on an agreement stated to have been executed by respondent nos. 4 and 6 for sale of the aforesaid house for an amount of Rs. 7,50,000/-, out of which an amount of Rs. 43000/- is stated to have been paid in advance and subsequently vide demand drafty additional amount of Rs. 80,000/- was also handed over to the aforesaid respondent nos. 4 and 6. The remaining amount is stated to have been offered to respondent no.5, who, according to the petitioner, refused to accept the same. It is pertinent to mention that on the date of execution of agreement to sell, petitioner is stated to have taken over the possession of the property. 2. On coming to know about this fact, respondent no.5 has shown his ignorance about any agreement having been executed by respondent nos. 4 and 6 on his behalf. He clearly stated that he does not know any of respondent nos. 4 and 6. In nut shell he states that there is no document executed by him, as such, the occupation of the property by the petitioner is un-authorized. It is under these circumstances he filed an application before the District Magistrate Srinagar for seeking removal of the encroachment over his property under the Jammu and Kashmir Migrants Property ) Preservation, Protection and Restraint on Distress Sale) Act, 1997 (hereafter to be referred as the Act". The District Magistrate, found that petitioner did not produce any documentary evidence in the shape of power of attorney or any sale deed or agreement stated to have been executed by respondent no.5 with him and, accordingly, held that occupation of the house by the petitioner was un-authorized as he did not have any written consent or document in his favour which could justify his occupation of the house. As a result of which the Tehsildar Srinagar was directed to restore the possession of the property in question to its rightful owner as per records. 3. Aggrieved of this order of the District Magistrate, the present petitioner filed an appeal under Section 7 of the Act before the Financial Commissioner. The appeal remained pending before the Financial Commissioner. As a result of which the Tehsildar Srinagar was directed to restore the possession of the property in question to its rightful owner as per records. 3. Aggrieved of this order of the District Magistrate, the present petitioner filed an appeal under Section 7 of the Act before the Financial Commissioner. The appeal remained pending before the Financial Commissioner. A writ petition was filed by respondent no.5 bearing OWP no. 364/2005 wherein a direction was issued by this Court to Financial Commissioner to dispose of the appeal on its merits. It seems that a preliminary objection was raised before the Financial Commissioner that any person aggrieved of an order under the Act can file an appeal before the Financial Commissioner, however, no such appeal would be entertained against the order of eviction unless the possession of the property is surrendered to the competent authority. The Financial Commissioner, taking note of this fact, directed the appeal to surrender the possession of house in question as required under Section 7 of the Act before his appeal could be entertained. The petitioner is stated to have withdrawn the appeal with permission to file the same after handing over the possession of the property to the competent authority. 4. Without surrendering the possession after withdrawing the appeal, the petitioner has filed the present writ petition questioning the orders of the District Magistrate and Financial Commissioner. 5. The case of the petitioner is that an agreement was executed by respondent nos. 4 and 6 for the sale of the house in dispute for an amount of Rs. 7,50,000/-, for which an amount of Rs. 1,23,000/- is stated to have been paid by the petitioner to respondent nos. 4 and 6. He claims that he is in occupation of the house on the basis of an agreement executed by respondent nos. 4 and 6, as such, has the legal authority to stay in the house aforesaid. The direction of the Financial Commissioner to surrender the possession would arise only if the petitioner is held to be an encroacher of the property. He further claims that he has invested lot of money on the house aforesaid on the basis of the agreement executed by respondent nos. 4 and 6 with him. The direction of the Financial Commissioner to surrender the possession would arise only if the petitioner is held to be an encroacher of the property. He further claims that he has invested lot of money on the house aforesaid on the basis of the agreement executed by respondent nos. 4 and 6 with him. In nut shell his case is that he has entered in to the house on the basis of an agreement which gives him legal authority to remain in possession. 6. On the other hand, respondent no.5 states that reliance placed by the petitioner on the agreement, which has been executed by persons who are neither owners of the property nor have been authorized by respondent no.5 in this behalf to execute such an agreement. It is further contended that respondent no.5 has not executed any power of attorney or given any authorization to respondent nos. 4 and 6 to execute any document on his behalf. 7. It is not being disputed by the petitioner that respondent no. 5 is the owner of the property. It is contended that occupation of the house by the petitioner is un-authorized as he has neither any authority on behalf of respondent no.5 to hold the property nor has he given any authority to any person to execute any agreement on his behalf. The contention of the petitioner that there is an agreement executed by respondent nos. 4 and 6, is not an issue required to be determined in this petition, as respondent nos. 4 and 6 have no locus in law to execute such an agreement. The occupation of the petitioner is un-authorized and he is an encroacher. 8. The other contention raised by respondent no.5 is that after the order of dispossession was issued by the District Magistrate, appeal was filed against the said order by the petitioner, however, petitioner was required to surrender the possession as required under Section 7 of the Act. He did not comply with the requirement of Section 7 of the Act as a result of which his appeal was dismissed as withdrawn. Instead of surrendering the possession and filing a fresh appeal, he has directly approached this Court, as such, without availing alternative remedy, the writ petition of the petitioner is liable to be dismissed. 9. I have heard the learned counsel for the parties. 10. Instead of surrendering the possession and filing a fresh appeal, he has directly approached this Court, as such, without availing alternative remedy, the writ petition of the petitioner is liable to be dismissed. 9. I have heard the learned counsel for the parties. 10. The intended purpose of the Jammu and Kashmir Migrants Property ) Preservation, Protection and Restraint on Distress Sale) Act, 1997 is to safeguard the immovable property left out by the migrants from being encroached upon. The word " un-authorized occupant" has clearly been defined in Section 2 of the Act, which reads thus:- ""Un-authorized Occupant" means any person who has encroached upon or taken possession of any immovable property of a migrant without his written consent and authority of law." 11. A person would claim to be in authorized possession of the property only when he produces a written consent from the owner or is in possession of any document, authorizing him to remain in possession of such possession. Even if any such document had been executed it has still to be scrutinized by the District Magistrate to ensure that the sale is not a distress sale. A person gets right in the property only after permission is obtained from the competent authority prescribed under the rules. The idea is only to ensure that under no circumstances a migrant is allowed to sell his property in distress. 12. In the present case what is clearly visible is that petitioner has entered into the premises on the basis of an agreement executed by respondent nos. 4 and 6 in his favour, who are neither owners of the property nor have been authorized by the owner of the property to execute such agreement. The petitioner has no where in his petition stated that there is an document executed by respondent no.5 in his favour or any power of attorney executed by respondent no.5 in favour of respondent nos. 4 and 6. He also no where mentions in his petition that respondent nos. 4 and 6 are some how connected with the property as owners or attorney holders. 13. It is not the case of the petitioner that any document has been executed by respondent no.5 of on his behalf by respondent nos. 4 and 6 in his favour. It may be noted that petitioner admits that respondent no.5 is the owner of the property in question. 13. It is not the case of the petitioner that any document has been executed by respondent no.5 of on his behalf by respondent nos. 4 and 6 in his favour. It may be noted that petitioner admits that respondent no.5 is the owner of the property in question. Faced with this situation, one fails to understand as to what is the basis on which the petitioner could claim authorized possession of the house in question. His contention that the possession of the prospective Vendee under an agreement to sell is permissive, is not only misconceived but contrary to the facts also. A person cannot be put into the possession of a property unless there is a valid agreement to sell executed by the owner in his favour. On his own showing the only document on which petitioner places reliance is an agreement stated to have been executed by respondent nos. 4 and 6, whom petitioner admits not to be the owners of the property. 14. From the aforesaid discussion what clearly emerges is that petitioner is an un-authorized occupant of the property. He has not been able to show any document before the District Magistrate in support of his contention, which was the only requirement to decide as to whether the petitioner was an un-authorized occupant of the property or not. Having failed to produce any valid document the District Magistrate has rightly directed that petitioner is an encroacher and should be asked to vacate the premises. 15. The other aspect of the matter is that appeal is stated to have been filed by the petitioner against the order of District Magistrate without surrendering the possession of the property, as required under Section 7 of the Act, which clearly mentions that before filing appeal, appellant is required to handover the possession of the property to the competent authority. Section 7, for facility of reference, is reproduced as under:- "(1) Any person aggrieved of an order passed under this Act, may file an appeal before the Financial Commissioner, Revenue:- Provided that no such appeal shall be entertained against (a) an interlocutory order; (b) An order of eviction unless possession of the property is surrendered to the competent authority; (c) ........................" 16. The petitioner, when confronted with this position, withdrew his appeal with permission to file fresh appeal after handing over the possession to the competent authority. The petitioner, when confronted with this position, withdrew his appeal with permission to file fresh appeal after handing over the possession to the competent authority. He has directly approached this Court under Article 226 of the Constitution. The appeal preferred by the petitioner was not competent as he has not complied with the requirement of Section 7 of the Act. On this count alone the writ petition is required to be dismissed as the petitioner has not availed the alternate remedy available to him under law. 17. Therefore, I find no force in this writ petition, which is, accordingly dismissed with costs of Rs. 10,000/-, to be paid by the petitioner to respondent no.5. The District Magistrate is directed to take over the possession of the property in terms of order passed by him on 27.12.2003 within a period of two months from the date a copy of this order is received by him. Registry is directed to send a copy of this order to District Magistrate Srinagar for compliance. 18. District Magistrate Srinagar shall inform this Court about the steps taken by him in terms of this judgment, on or before 15th of October, 2010. 19. Index of this petition shall be listed on 15.10.2010 for compliance purposes only.