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2011 DIGILAW 693 (JK)

Mohammad Ashraf Jan v. State of J&K & Ors.

2011-12-09

HASNAIN MASSODI

body2011
1. Challenge in this petition is to order dated 27th June 2011 of Financial Commissioner (Revenue) respondent No. 1 herein, in an Appeal titled Ashok Kumar Koul v. Mohd. Ashraf Jan (File No. 180/FC/AP), whereby respondent No. 1, has held the petitioner to be an unauthorised occupant of a shop at Palladium Galli, Lal Chowk, Srinagar, rented out by Shri Sanathan Dharam Pratab Sabha, Srinagar, in favour of Late Raghunath Koul-father of respondent No. 2 (herein after "disputed shop"). Before going to the grounds of challenge set out in the petition, it would be appropriate to have a bird's eye view of background facts. 2. The shop in question was admittedly rented out by Shri Sanathan Dharam Pratab Sabha, Srinagar, to Late Raghunath Koul - father of respondent No.2, sometime before 1971. Late Shri Raghunath Koul set up a Bakery Shop in the rented out premises. However, in the year 1971, he changed the business line and started sale and service'of Pressure Cookers, Stoves etc in the disputed shop. Shri Raghunath Koul passed away in 1987 and was succeeded by his widow - Smt. Tarawati Koul, and sons - S/Shri Ashok Kumar and Ramesh Kumar. The successors-in-interest of Late Raghunath Koul, because of turmoil in the Valley, migrated to Jammu in the year 1990. 3. Shri Ashok Kumar on 23rd November 2005 submitted an application to learned District Magistrate Srinagar, complaining that after he and his brother -Ramesh Kumar migrated to Jammu, their employee - Mohammad Ashraf Jan -petitioner herein, broke open the locks, made forcible entry into the shop, and illegally took over its possession. The respondent No.2 asked the District Magistrate to take over the possession of the suit shop in exercise of powers under J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (in short "Migrant Act 1997") and handover possession to him. 4. The petitioner opposed the application, insisting that he was inducted as partner by Late Shri Raghunath Koul in the year 1971 and he thereafter continued to be in permissive possession of the disputed shop. It was pleaded that after demise of Shri Raghunath Koul in the year 1987, S/Shri Ashok Kumar Koul and Ramesh Kumar Koul sons of Late Raghunath Koul stepped into the partnership business and adhered to the terms and conditions subject to which the partnership was constituted by the petitioner and Late Raghunath Koul. It was pleaded that after demise of Shri Raghunath Koul in the year 1987, S/Shri Ashok Kumar Koul and Ramesh Kumar Koul sons of Late Raghunath Koul stepped into the partnership business and adhered to the terms and conditions subject to which the partnership was constituted by the petitioner and Late Raghunath Koul. It was further pleaded that though in the year 1990 S/Shri Ashok Kumar Koul and Ramesh Kumar Koul migrated to Jammu, the petitioner thus continued to run the partnership business in the disputed shop, pay the share of profit, and even repaired the disputed shop after it was partially destroyed in fire mishap on 10th April 1993. In order to reinforce his claim that the petitioner was in permissive possession of the disputed shop and not an unauthorised occupant or a trespasser, the petitioner placed reliance on statement of Late Shri Raghunath Koul before the Municipal Magistrate, Srinagar, recorded on 20th June 1978 in a complaint filed by Srinagar Municipality, wherein Shri Raghunath Koul declared the petitioner to be the partner in the partnership business styled as Jai-Hind Workshop. The petitioner also sought to draw support from other documents referred to in the petition. 5. The District Magistrate vide order dated 6th September 2006 held the disputed shop to be migrant property but the petitioner to be in permissive possession of the disputed shop as partner in the business run under the name and style of Jai Hind Workshop in the disputed shop. The District Magistrate directed the petitioner to pay rent as laid down under section 13, J&K Migrant Act 1997 to the legal heirs of Late Shri Raghunath Koul and asked the Tehsildar, Srinagar, lo determine the rent payable to the legal heirs and also to reassess the rent from time-to time. 6. The respondent No.2, aggrieved with the order passed by the District Magistrate dated 06.09.2006, assailed the order through medium of an Appeal before the Financial Commissioner (Revenue) -respondent No. 1 herein. The Appellate Court, on hearing the parties and going through the record, vide order dated 27th June 2007 accepted the appeal and set-aside the order impugned in the appeal. The respondent No.2, aggrieved with the order passed by the District Magistrate dated 06.09.2006, assailed the order through medium of an Appeal before the Financial Commissioner (Revenue) -respondent No. 1 herein. The Appellate Court, on hearing the parties and going through the record, vide order dated 27th June 2007 accepted the appeal and set-aside the order impugned in the appeal. The Financial Commissioner (Revenue) directed District Magistrate, Srinagar, to immediately take over possession of the disputed shop as required under Migrant Act, 1997, after dispossessing the petitioner, held to be an unauthorised occupant/trespasser and also to get rent paid to respondent No.2 as required under section 13 of J&K Migrant Act 1997. 7. The order of appellate authority (Financial Commissioner (Revenue) is questioned in this petition on the grounds that the appellate authority relied on the documents, which were produced for the first time by respondent No.2 before the appellate authority and not brought to the notice of District Magistrate, Srinagar. It is pleaded that it was not open to the appellate authority to rely on- the documents not made available to District Magistrate at the time the application submitted by respondent No.2, was dealt with by District Magistrate. It is pointed out that the appellate authority was not competent to assess the legality of the order impugned before it on the strength of the documents not produced before the District Magistrate. It is next urged that even if the appellate authority felt persuaded to look into the documents produced by respondent No.2, it ought to have provided copies thereof to petitioner and afforded him an opportunity.to project his stand vis-a-vis the documents so produced. The appellate authority.is said to have even relied on a document that came into existence after the appeal was heard and reserved for orders. It is pleaded that respondent No. 1 completely ignored the case set up by petitioner before the District Magistrate and thereafter before appellate authority as also the documents produced by him in support thereof; 8. It is pleaded that the appellate authority in terms of Migrants Act 1997 could at the most set-aside the order of District Magistrate and leave it to District Magistrate to pass consequential orders. It is pleaded that the appellate authority in terms of Migrants Act 1997 could at the most set-aside the order of District Magistrate and leave it to District Magistrate to pass consequential orders. The appellate authority, it is pointed out, instead of restricting itself to the role assigned under Migrant Act 1997, has virtually stepped into the shoes of District Magistrate and passed order to dispossess the petitioner - an order that is only to be passed by the competent authority, i.e. District Magistrate, in terms of Section 2(b) Migrant Act 1997. 9. The respondent No.2, in his reply to the writ petition, has reiterated his stand that at the time of his departure from Valley in the year 1990 and that of his brother and widowed mother, the disputed shop was properly locked and petitioner at their back and without their consent, unauthorisedly, broke open the locks, made his entry into the disputed shop and unauthorisedly took over its possession. It is pleaded that the petitioner, worked as an employee with Late Raghunath Koul, was never made a partner of business and permitted to run the disputed shop. Explaining the statement attributed to Late Raghunath Koul, wherein Mr. Koul is said to have declared petitioner as partner in the business run in disputed shop, it is pleaded that the statement was out of love and affection to help the petitioner resist any claim for rent on the part of Srinagar Municipality. The respondent denies that any of the rights of the petitioner have been violated, so as to entitle the petitioner to maintain the writ petition. The respondent No.2 also refers to the previous conduct of petitioner to deny the stand that petitioner was partner in the business run in the disputed shop. 10. I have gone through the pleadings, record available on the file and have heard learned counsel for the parties. 11. The respondent No. 1, while dealing with the appeal and concluding that the petitioner was a trespasser in the shop and not in permissive possession of the shop and that the order impugned in the appeal was liable to be set-aside, has referred to and relied upon a number of documents that were either not placed before the District Magistrate or came into existence after order of District Magistrate dated 6th September 2006 was rendered. The respondent No. 1, inter-alia, relied on communication addressed by Assistant Labour Commissioner, Srinagar, to respondent No.2, informing therein that the Registration Certificate under Shops and Establishment Act issued by the Labour Department in favour of M/s Jai Hind Workshop, Lal Chowk, Srinagar, recorded two employees to have been working in the disputed shop. It was further reported that the shop was closed in the year 1989 and the Registration Certificate had not been renewed. The fact that the communication No. ALC/Sgr/09/75-77 dated 22nd May 2007 weighed heavily with respondent No. 1, is sufficiently clear from the following observations made by respondent No. 1 while allowing the appeal against the order of District Magistrate dated 06.09.2006: "As per the registration certificate issued on 24-12-1970 by the Labour Department under J&K Shops and Establishments Act, 1966, it is clear that late Sh. Rugh Nath Koul is the employer at S.No.05 and there is no other person as an employer or any other beneficiary at S.No.06 and S.No.07 one adult employee is recorded." 12. It needs to be pointed out that respondent No. 1, after concluding that Late Raghunath Koul as per Registration Certificate was recorded as sole employer, rushed to conclude that as the petitioner was not running the business in the disputed shop as a partner of the business concern, was thus a trespasser/unauthorised occupant of the disputed shop. 13. It is pertinent to point out that communication No. ALC/Sgr/09/75-77 dated 22nd May 2007, addressed by Assistant Labour Commissioner, Srinagar, to respondent No.2, came into existence about four weeks after the appeal was heard and reserved for orders. The respondent No. 1, in the circumstances, ought not to have taken into account the communication of Assistant Labour Commissioner, Srinagar, dated- 22.05.2007, while framing an opinion that the order impugned in the appeal was liable to be set-aside. The respondent No. 1 was required to conclude whether the order impugned in the appeal was inconformity with law or liable to be set-aside in the background of the record available to the District Magistrate at the time, the order impugned in the appeal was rendered. The respondent No. 1 was required to conclude whether the order impugned in the appeal was inconformity with law or liable to be set-aside in the background of the record available to the District Magistrate at the time, the order impugned in the appeal was rendered. If for one or other reason, respondent No. 1 was of the opinion that communication No.ALC/Sgr/09/ 75-77 dated 22nd May 2007 was relevant to the controversy involved and deserved to be noticed, while dealing with and disposing of the appeal, the right course for respondent No. 1 was to inform petitioner that the said communication had been produced by respondent No.2 and that petitioner was at liberty to respond to the said communication. The respondent No. 1 instead has decided the matter primarily on the basis of the document not made available to District Magistrate or to petitioner, and received after the matter was finally heard and reserved for orders. It needs no emphasis that a judicial or quasi judicial authority cannot look into and place reliance on documents not available on the file before the hearing was concluded, and brought to its notice after a matter is reserved for orders. Such a course would be in conflict with dictates of fairness, transparency and above all principles of natural justice. The order of the appellate authority impugned in the present petition, thus does not satisfy test of fairness, is in conflict with principle of audi alteram partem and does not stand legal scrutiny. 14. The order impugned in the petition is also bad in law and liable to be set aside for the reason that the appellate authority has stepped into shoes of the custodian of property within the meaning of section 4 of Migrants Act by directing the District Magistrate, Srinagar, to takeover possession of the disputed shop in exercise of his powers under the Migrants Act and handover its possession to the respondent. Even when the appellate authority under the Migrants Act finds merit in the appeal and sets aside the order questioned in the appeal, the right course is to leave it to the District Magistrate — authority under section 4 of the Migrants Act to have custody of the migrant property and saddled with the duty to take all necessary steps for preservation and protection of such property, to pass appropriate orders in light of observations made by the appellate authority. It is beyond competence and jurisdiction of the appellate authority to act as the authority under section 4 of the Migrants Act and direct taking over control and custody of the migrant property or pass a direction for delivery of the property to either of the parties. 15. For the reasons discussed above, the writ petition is allowed and order of Financial Commissioner (Revenue) - respondent No. 1, dated 27th June 2007, set-aside. Resultantly, District Magistrate, Srinagar, shall hear the application filed on 05.08.2006 by respondent No.2 for taking over possession of disputed shop -M/s Jai Hind Workshop, located at Palladium Gali, Lal Chowk, Srinagar, afresh, afford the parties adequate opportunity to project their stand and place all the documents that they may choose to produce before him to substantiate their respective stands and thereafter pass order warranted under law. 16. Disposed of along with CMP(s). 17. Record be sent down.