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2015 DIGILAW 90 (JK)

Anoop Singh v. State of J&K

2015-03-11

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J.:- 1. The petitioners, son and father duo, have filed this writ petition seeking a writ of certiorari for quashing Order No. DMS/RD-843/Mig/182 dated 30.06.2014 issued by the Deputy Commissioner, Srinagar, respondent No. 3, whereby he has held that alienation of the house No. 289 situate at Jawahar Nagar, Srinagar, having been made without permission and in contravention of the provision of Section 3(b) of the Jammu and Kashmir Migrant Immovable Property (Preservation of and Restraint on Distress Sales) Act, 1997 (hereinafter, for short, the Act) is null and void and, has, therefore, directed that the house shall be got vacated and possession thereof restored to the migrant, respondent No. 7 herein. The petitioners have also prayed for a writ of mandamus to command the respondents not to evict them from the said house or cause any kind of interference with their possession and occupation over it. This is a novel case of its kind in the sense that the petitioners-non-permanent residents of the State - are claiming the immovable property in Srinagar on the basis of an agreement to sell. Equally novel is the impugned order passed by respondent No. 3. The foundational facts of the aforesaid claim of the petitioners, as averred in the petition, are narrated hereunder. 2. Respondent No. 7 rented out the ground floor of his house No. 289, comprising four rooms, one kitchen and a bath room, situated at Jawahar Nagar, Srinagar, to petitioner No. 1 in terms of rent deed executed on 11.03.1991 for a period of one year. The petitioner, along with his family members, occupied not only the ground floor of the house rented out to him, but respondent No. 7 permitted him to occupy the whole house as tenant thereof as he, respondent No. 7, was not in a position to return back to the Valley, and the petitioner continued to pay the rent. In the year 1997, respondent No. 7 approached the petitioner and his father, petitioner No. 2, and offered to sell the house to them for a consideration of Rs. 10.50 lacs. The petitioner and his father agreed to the proposal and paid an amount of Rs. 1.00 lac in cash to respondent No. 7; whereas the remaining amount of Rs. 9.50 was paid through three cheques in the year 1998, details whereof are given in paragraph 4 of the petition. 10.50 lacs. The petitioner and his father agreed to the proposal and paid an amount of Rs. 1.00 lac in cash to respondent No. 7; whereas the remaining amount of Rs. 9.50 was paid through three cheques in the year 1998, details whereof are given in paragraph 4 of the petition. Respondent No. 7 is said to have informed the petitioners that he had lost the three cheques and the petitioners then paid the amount of Rs. 9.50 lacs through four bank drafts mentioned in paragraph 5 of the writ petition. It is averred that since the petitioner and his father were not in possession of a State Subject Certificate, they could not get the document of sale executed. While they were in the process of finding out some person in whose name they could purchase the property, respondent No. 7 approached them in the year 2001, informing them that he had lost the bank drafts and asked them to settle the transaction afresh. The transaction was finalized at an amount of Rs. 12.84 lacs and petitioners paid the said sum through cheques. Thereafter, on the demand of respondent No. 7, the petitioners in the year 2005 paid a further amount of Rs. 9,600. 00 to respondent No. 7 through twelve cheques detailed in paragraph 7 of the petition. However, respondent No. 7 did not turn up to execute the sale deed. 3. It is further averred that, thereafter, respondent No. 7 approached respondent No. 6, Deputy Commissioner (Relief), Relief Organization, Jammu, for getting his house vacated. Respondent No. 6, in turn, addressed communication No. 94/Prop/PRCM dated 05.10.2013 to the Deputy Commissioner, Srinagar, respondent No. 3 herein, asking him to take appropriate action in the matter. 4. Respondent No. 3, in terms of his communication dated 26.10.2013 read with communication dated 06.11.2013 is stated to have asked respondent No. 4, Tehsildar (South) Srinagar, to furnish a detailed report. It is alleged that respondent No. 4 came on spot and threatened them of forcible eviction. 5. In order to seek protection from forcible eviction, petitioner No. 1 is stated to have filed writ petition, OWP No. 437/2014, seeking quashing communication dated 05.10.2013 addressed by respondent No. 6 to respondent No. 3 and the letters dated 26.11.2013 and 06.11.2013 addressed by respondent No. 3 to respondent No. 4. 5. In order to seek protection from forcible eviction, petitioner No. 1 is stated to have filed writ petition, OWP No. 437/2014, seeking quashing communication dated 05.10.2013 addressed by respondent No. 6 to respondent No. 3 and the letters dated 26.11.2013 and 06.11.2013 addressed by respondent No. 3 to respondent No. 4. In the CMP accompanying the aforesaid writ petition, it is stated, the Court on 01.04.2014 passed an interim order, directing that respondent No. 3 may conduct an enquiry himself providing an opportunity of hearing to the petitioner with a further direction that the petitioner shall not be evicted forcibly from the house, except in due course of law. 6. After receiving the report from respondent No. 4, respondent No. 3 is stated to have entrusted the enquiry to respondent No. 8, the Additional Deputy Commissioner, Srinagar, who recorded the statement of the petitioner No. 1's father and respondent No. 7. It is alleged that the matter was adjourned on the assurance that the petitioners would be informed as and when further proceedings would be conducted. Nonetheless, it is stated, petitioners submitted written arguments. Respondent No. 8 is stated to have made some report to respondent No. 3, who on the basis of the said report, passed order No. DMS/RD-843/Mig/182 dated 30.06.2014, i.e., the order impugned herein. 7. The petitioners have challenged the aforesaid order, mainly on four counts: first, that respondent No. 7 is not a migrant, because he was posted as an Engineer in the Jammu Development Authority since 1984 and had not migrated on account of disturbed conditions in the Valley; second, that the petitioners are not unauthorized occupants, but had been, initially, let in pursuant to a rent deed as tenants and, thereafter, had been occupying the same by reason of having paid sale consideration thereof to respondent No. 7; third, that there is a civil dispute existing between the parties and, therefore, respondent No. 3 had no jurisdiction to take cognizance of the matter under the provisions of the Act; fourth that the petitioners and their family members have a legal right to remain in possession of the house in question. 8. 8. Respondent No. 7 in his reply has admitted that he had rented out the ground floor of the house to petitioner No. 1 for one year, but, according to him, the petitioner paid rent only for a period of 9 months and did not pay it from January, 1992 to the end of 1997. According to the respondent, the petitioners have encroached upon the other floors of the house after breaking the locks of the rooms and usurped his belongings, including Pashmina Shawls, Jewellery, other valuable items and house hold articles. It is averred that this was admitted by petitioners before him when they met him at his residence at Jammu. When the respondent told them that he would file a criminal complaint against them, they persuaded him not to proceed against them, and offered to compensate the respondent and pay him the rent. It is stated that the petitioners paid him an amount of Rs. 1.00 lac in cash and assured him that the balance amount would be paid as early as possible. Respondent No. 7 has denied having approached the petitioners for selling the house to them or having received any money, cheque, bank draft etc. from them. It is averred that even otherwise there was no occasion for the respondent to enter into a transaction with the petitioners, since he was aware of the fact that the petitioners are non-state subjects and, therefore, could not acquire or purchase any property in the State of Jammu and Kashmir. It is further stated that the petitioners approached the respondent in the year 2001 and agreed to pay the pending rent and also the amount determined on account of use of his belongings in the shape of Pashmina Shawls, Jewellery, other valuable items and house hold articles. The rent amount due determined till ending March, 1998 was to the tune of Rs. 3.25 lacs. As an amount of Rs. 1.00 lac was already received by the respondent, the balance amount of Rs. 2.25 lacs was paid by petitioner No. 1 through account payee cheque, reference whereof has been made in annexure F1 appended to the writ petition. 9. It is further stated that respondent No. 7 received a legal notice from the petitioner No. 1 which he duly replied. However, on receipt of the notice, the intention of the petitioners to grab the property of the respondent became clear. 9. It is further stated that respondent No. 7 received a legal notice from the petitioner No. 1 which he duly replied. However, on receipt of the notice, the intention of the petitioners to grab the property of the respondent became clear. Consequently, he approached respondent No. 6 with the request to have his house vacated from the unauthorized occupation of the petitioners. It is specifically pleaded in the reply that respondent No. 7 is a migrant and is duly registered with the Relief Commissioner, Jammu. Rest of the assertions made by the petitioners in their writ petition have been denied. 10. I have heard learned counsel for the parties, perused the record and considered the matter. 11. Mr. M.A. Qayoom, learned counsel for the petitioners, argued the matter on the lines of the pleadings made in the writ petition and the grounds taken therein, as narrated above. In support of his arguments, the learned counsel has cited and relied upon the following judgments: (i) S. Hakeekat Singh v. State of J & K, 1999 SLJ 562 : JKJ Soft JKJ/22433; (ii) Madan Lal Sahani v. Satpal Sahani, 2004 (11) SLJ 605 : 2004 (3) JKJ 183 [HC]; (iii) Mst. Masooda Akhtar v. State, 2006 (3) JKJ 521 [HC], (iv) Ghulam Nabi Najar v. State, 2009 (II) SLJ 493 : 2009 (2) JKJ 220 [HC]; and (v) Rajeev Verma v. State, 2010 (II) SLJ 759 : 2010 (2) JKJ 859 [HC]. Similarly, Mr. R.K. Duloo, learned counsel for respondent No. 7, argued the case on the lines of pleadings made in the reply. 12. From the pleadings of the parties, as narrated above, it is seen that whereas the petitioner No. 1 claims that initially he was let into the ground floor of the house as tenant thereof and, thereafter, had purchased the said property by paying the sale consideration to respondent No. 7, respondent No. 7 has categorically refuted to have entered into any kind of sale with the petitioners, more so because the petitioners are not the permanent residents of the State of Jammu and Kashmir. Respondent No. 7 had alleged that the house was under illegal occupation of the petitioners. Respondent No. 7 had alleged that the house was under illegal occupation of the petitioners. Respondent No. 3 in his impugned order has recorded a finding that the alienation of the migrant property has been made after coming into force of the Act, 1997 and in terms of Section 3(b) any alienation of migrant immovable property made on or after the commencement of the Act without permission of the prescribed authority is null and void. The impugned order reads as under: "Whereas, Shri Avtar Krishan Khar is a migrant having a three storied house in Jawahar Nagar (Nursinghar) in Khasra No. 1438. Whereas, Shri Avtar Krishan Khar rented out the ground floor of the house to Shri Trilik Singh, who is a non State subject, in March 1991 at the rental of Rs. 800/- per month. The rent deed executed by his son Anoop Singh. Whereas, it is established that the alienation of the migrant property has been made after coming into force of the J & K Migrant Immovable Property Act, 1997 and in terms of Section 3(b) any alienation of Migrant Immovable Property made (on or after the commencement of the Act) in contravention to the provisions of Section 3(b) (i.e. alienation made without permission of the prescribed authority) is null and void and the property shall vest in its owner. Therefore, in view of violation of the express provisions of the Act, the house shall be got vacated and possession be restored to the migrant. Now, Shri Trilok Singh the occupant is free to approach any available legal forum for recovery of the amount paid (if provided under law) and or enforcement of any contract/agreement between the parities." 13. Respondent No. 3 seems to have been wholly oblivious of the legal position that the petitioner, being a non-permanent resident of the State, could not have acquired the said immovable property within the State. It is not that respondent No. 3 was not aware of this fact; it is seen from the order that respondent No. 3 has shown his awareness in paragraph No. 2 of the order that the petitioner, Shri Trilok Singh is not a Permanent Resident of the State within the meaning of law. It is not that respondent No. 3 was not aware of this fact; it is seen from the order that respondent No. 3 has shown his awareness in paragraph No. 2 of the order that the petitioner, Shri Trilok Singh is not a Permanent Resident of the State within the meaning of law. Therefore, the question of alienation of the migrant property in favour of the petitioners or any one of them having taken place before or after coming into force of the provisions of the Act would not arise. This speaks by itself that respondent No. 3 has passed the impugned order in a mechanical manner and without applying his mind to the facts of the case. Though this is not a ground of challenge taken by the petitioners in the writ petition, yet the Court can take a judicial notice of this glaring aspect of the matter which, in fact, is of very serious nature. The order, therefore, cannot be sustained. 14. In view of the above, I need not go to the other aspects of the matter, as pleaded by the parties and argued by the learned counsel for them. The District Magistrate is required to consider the case in accordance with the mandate of the provisions of the Act, especially Sections 4 and 5 thereof and pass a reasoned order. He has to return a finding whether, in the facts and circumstances of the case, the property falls within the ambit of the Act and whether the petitioners can be said to be unauthorized occupants of the house, especially so when they claim its possession on the basis of the alleged sale thereof in their favour by respondent No. 7. 15. This petition is, accordingly, disposed of. The impugned order dated 30.06.2014 is quashed. Respondent No. 3 is directed to consider the case afresh and pass appropriate orders in accordance with law as expeditiously as possible, preferably, within a period of one month. This also disposes of the connected CMP. Interim direction, if any, subsisting shall stand vacated. No order as to costs. Original records produced are returned to Mr. Shah in the open Court.