Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 240 (JK)

Basharat Ahmad Sofi v. State of JK

2017-05-16

ALI MOHAMMAD MAGREY, BADAR DURREZ AHMED

body2017
Judgment Badar Durrez Ahmed, C.J.—This appeal has been filed against the order dated 31.08.2015 passed by a learned Single Judge of this Court in OWP No. 1221/2013. The said writ petition was filed by Farooq Ahmad Shah (respondent No. 7 in the present appeal). 2. By way of the said writ petition, a challenge was made to the order dated 12.08.2013 which had been passed by the District Magistrate (Anantnag) pursuant to directions of this Court in OWP No. 345/2010 and in purported exercise of powers conferred under Section 5 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales Act) 1997 (hereinafter referred to as ‘the said Act’). By virtue of the said order dated 12.08.2013, the District Magistrate, (Anantnag) ordered the removal of encroachment of whatsoever kind and to get the encroached upon land freed and handed over to the lawful purchaser after obtaining genuine documents of title. The Tehsildar (Anantnag) was authorized to execute the said order. The said order dated 12.08.2013 is set out hereunder:- “OFFICE OF THE DISTRICT MAGISTRATE ANANTNAG ORDER Whereas, one Basharat Ahmad Sofi S/o Sonaullah sofi R/o Khudwai approached this office through an application stating therein that he has purchased migrant land and after obtaining proper permission of alienation under the provisions of J&K Migrant Immovable property. Preservation, Protection and Restraint on Distress Sale Act, 1997 and accordingly executed a proper Sale deed which was affected under a mutation No: 9966, but on the spot one Farooq Ahmad Shah S/o Gh. Ahmad Shah R/o Kacchachkoot at present Anantnag and Farooq Ahmad Waza S/o Mohd Ramzan Waza have un-authorizedly encroached upon a major portion of the said land. Whereas, in order to ascertain the factual position of the case the Tehsildar Anantnag was asked to have a factual spot position reported with reference to records. Whereas, report from the revenue agency shows that the complainant has purchased 17 ½ marlas of land bearing survey No: 2109 of Qasba Baghat out of which Farooq Ahmad Shah has grabbed portion of 40x61 feet and Farooq Ahmad Waza portion of 15x22 feet on the pretext that they too have purchased some land from the migrant which also is part of same Khasra Number. Whereas, after completing codal formalities/issuing notice an eviction order under the provisions of MIP Act was issued vide this office No.DCA/MC/09/813-17 dated 02.01.2010. Whereas, after completing codal formalities/issuing notice an eviction order under the provisions of MIP Act was issued vide this office No.DCA/MC/09/813-17 dated 02.01.2010. Whereas, this eviction order was yet to be executed, the Hon’ble High Court in OWP No: 345/2010 issued order for maintaining Status-Quo. Thus the process was accordingly stopped in compliance of the direction of the Hon’ble Court. Whereas, the Hon’ble High Court on 07.02.2013 disposed of the petition, operative part of which reads as under:- “The impugned order is set aside. The Dy. Commissioner, Anantnag is directed to constitute a team of Revenue Officers who would conduct demarcation of land of the petitioner and respondent No. 6 in presence of the said parties. The Dy. Commissioner thereafter to pass orders in accordance with law in the light of report. The aggrieved party will have right to challenge the order passed by the Dy. Commissioner, Anantnag. Till fresh orders are passed by the Dy. Commissioner, Anantnag after obtained the report of demarcation, status quo in respect of the structures on spot shall be maintained. The Dy. Commissioner to initiate and conclude the enquiry preferably within four week from the date” Whereas, pursuant to the directions of the Hon’ble Court, a team of Revenue Officers/Officials was constituted Vide order No: 189-99/DCA/MC dated 29.05.2013 for demarcating the land in presence of the parties and furnish factual report. To ascertain the claims and counter claims of the parties they were summoned by the team head on the spot and a proper demarcation was conducted by the team, with reference to revenue records and the area/quantum of land purchased by them. Whereas, an opportunity of being heard has been provided to the parties, the records of right perused by the team and demarcation done by the team on the spot in presence of the parties as reported by Tehsildar, Anantnag vide No: T/A/OQ/13/477 dated 12.07.2013 and it is established beyond doubt that the encroachers have encroached land of 40x61 & 15x22 feet respectively. Now, therefore, pursuant to the directions of the Hon’ble High Court in OWP No; 345/2010, reproduced herein above and in authorization/exercise of powers vested in me under Section 5 of the J&K Migrant Immovable Property, Preservation protection & Restraint on Distress Sale Act, 1997, I District Magistrate, Anantnag hereby order the removal of encroachment of whatsoever kind and get the encroached upon land freed and handover to the lawful purchaser after obtaining genuine documents of title. I authorize the Tehsildar, Anantnag for execution of the order”. Announced: No: 515/DCA/Mig/Complt. Dated: 12.08.2013 District Magistrate, Anantnag.” (Underlining added) 3. The appellant is aggrieved by the impugned order dated 31.08.2015 and particularly by the observations of the learned Single Judge that Section 5 of the said Act was not available and could not have been pressed into service as the subject property was no more owned by the migrants and that the dispute, if any, was between the parties i.e., Farooq Ahmad Shah and Basharat Ahmad Sofi (appellant herein). The said dispute according to learned Single Judge was to be resolved without falling back on the said Act and, accordingly, the order dated 12.08.2013 was set-aside. The learned Single Judge also directed the Tehsildar (Anantnag) to get the proprietary land purchased by the parties from the migrants (co-sharers) demarcated and in case either of the parties was found to be in possession of the landed property in excess to what the party had purchased, they were directed to remove the encroachment and handover the excess land to other party. 4. The learned counsel for the appellant submitted before us that the observation of the learned Single Judge that Section 5 of the said Act was not applicable is contrary to law. On the other-hand, learned counsel for the respondent No. 7 supported the decision of the learned Single Judge. Learned counsel appearing for the official respondents, however, supported the order dated 12.08.2013 passed by the District Magistrate (Anantnag). 5. The appellant had purchased 17 ½ marlas, 4 Sirsai and 6 sq. feet of land falling under Survey No. 2109 Min situated at Qasba Baghat, Tehsil and District Anantnag from migrants. Prior to that, an application was filed on behalf of the migrants Radha Krishan, Chaman Lal and Durga Nath for permission to alienate the said property in accordance with the said Act. feet of land falling under Survey No. 2109 Min situated at Qasba Baghat, Tehsil and District Anantnag from migrants. Prior to that, an application was filed on behalf of the migrants Radha Krishan, Chaman Lal and Durga Nath for permission to alienate the said property in accordance with the said Act. Thereafter, the Divisional Commissioner, Kashmir by virtue of order No. 595-DIVK of 2008 dated 16.05.2008, after an enquiry and report of the Deputy Commissioner (Anantnag), ordered that the alienation of the proprietary rights of the said land would not be construed as a distress sale subject to following the conditions enumerated therein. This permission order was, as mentioned above, passed on 16.05.2008. 6. Subsequent thereto, a sale deed was executed by the said migrants through the Power of Attorney holder namely Ajaz Ahmad Bhat S/o Abdul Razak Bhat in favour of the appellant herein (Basharat Ahmad Sofi). The said sale deed was executed on 16.07.2008. Since, by virtue of the provisions of Section 4 of the said Act, the District Magistrate was deemed to be in custody of the said property which hitherto belonged to the migrants, an application was filed by the said Basharat Ahmad Sofi for handing over possession by the District Magistrate (Anantnag) to him. 7. By an order dated 02.01.2010, the District Magistrate (Anantnag), in purported exercise of powers vested under Section 5 of the said Act read with the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Rules, 1997 (hereinafter referred to as ‘the said Rules’) ordered that the Tehsildar (Anantnag) and SHO Police Station (Anantnag) shall proceed to the spot and remove the unauthorized construction from the land in question by removing any sort of encroachment over it and handover possession of the same to the alienee after proper verification and scrutiny of the documents. 8. Against this order dated 02.01.2010, the respondent No. 7 herein filed a writ petition bearing OWP No. 345/2010. The said writ petition was disposed of by a learned Single Judge of this Court by virtue of an order dated 07.02.2013 which essentially was a consent order. The said order reads as under:- “After arguing for a while, learned counsel for the parties agreed to the disposal of the writ petition in the following manner: The impugned order is set aside. The Dy. The said order reads as under:- “After arguing for a while, learned counsel for the parties agreed to the disposal of the writ petition in the following manner: The impugned order is set aside. The Dy. Commissioner, Anantnag is directed to constitute a team of Revenue officers who would conduct demarcation of land of the petitioner and respondent No. 6 in presence of the said parties. The Dy. Commissioner thereafter to pass orders in accordance with law in the light of report. The aggrieved party will have right to challenge the order passed by the Dy. Commissioner, Anantnag. Till fresh orders are passed by the Dy. Commissioner, Anantnag, after obtaining the report of demarcation, status quo in respect of the structures on spot shall be maintained. The Dy. Commissioner to initiate and conclude the enquiry preferably within four weeks from the date copy of this order is served. Disposed of along with connected CMPs.” (Underlining added) 9. In other words, the position as it obtained immediately after 07.02.2013 was that the order dated 02.01.2010 stood set-aside and the Deputy Commissioner (Anantnag) was directed to constitute a team of revenue officers who would conduct the demarcation of the land of respondent No. 7 herein and the appellant herein in the presence of the said parties. The Deputy Commissioner (Anantnag) was thereafter directed to pass orders in accordance with the law in the light of the report. The learned Single Judge also observed that the aggrieved parties would have a right to challenge the said order. 10. Thereafter, the order dated 12.08.2013 was passed by the District Magistrate (Anantnag). In the said order, it has been clearly indicated that pursuant to the direction of the Court, a team of revenue officers was constituted by order dated 29.05.2013 for demarcating the land in the presence of the parties and to furnish the factual report. It is also stated therein that in order to ascertain the claims and counter claims of the parties, they were summoned by the team head on the spot and a proper demarcation was conducted by the team, with reference to revenue records and the area/quantum of land purchased by them. It is also stated therein that in order to ascertain the claims and counter claims of the parties, they were summoned by the team head on the spot and a proper demarcation was conducted by the team, with reference to revenue records and the area/quantum of land purchased by them. An opportunity of being heard had also been provided to the parties, the records of right was perused by the team and the demarcation was done by the team on the spot in the presence of the parties as reported by the Tehsildar (Anantnag) by his communication dated 12.07.2013. As per that, it was established that the encroachers had encroached land of 40x61 and 15x22 feet respectively. 11. Having factually established that the land in question which had been purchased by the appellant had been encroached upon, the District Magistrate, (Anantnag) by virtue of the order dated 12.08.2013 directed the removal of encroachment of whatsoever kind and to get the encroached upon land freed and handed over to the lawful purchaser after obtaining genuine documents of title. It is this order that was challenged by respondent No 7 in OWP No. 1221/2013 which has been set-aside by the learned Single Judge by virtue of the impugned order dated 31.08.2015. 12. The first point that we have to examine is whether the learned Single Judge was right in observing that Section 5 of the said Act was not applicable and could not be pressed into service as the property was no more owned by the migrants and that the dispute, if any, between the parties was to be resolved without falling back on the said Act. 13. To address this issue, it would be relevant to reproduce Sections 4 and 5 of the said Act which read as under:- “4. Custody of immovable property. (1) Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to Migrants, falling within this territorial jurisdiction and shall, on the expiry of said period of 30 days, be deemed to have the custody of such immovable property. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property: Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing. 5. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property: Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing. 5. Eviction of unauthorized occupants. If any unauthorized occupant of any migrant property refuses or fails on demand to surrender possession thereof to the competent authority, such authority may use such force as is necessary for taking possession of such property and may for this purpose after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other Act, necessary for the said purpose.” 14. It will also be necessary to refer to Rule 5 of the said Rules which reads as under:- “5. Grant of permission to the alienation of the property The Prescribed Authority, after taking into consideration all the facts mentioned in the application and reports made in this behalf as also after making such enquiry as it considers necessary, may grant permission in Form-3 subject to the following conditions; namely:- (a) that the alienation shall be in favour of permanent resident of the State; (b) that the property which matter of alienation is owned by intending aliener free from all encumbrances; (c) the prevalent market rate in respect of the property to be alienated will be determined by a revenue office not below the rank of an Assistant Commissioner in consultation with Executive Engineer of the Public Works Department having jurisdiction in the area; and (d) the possession of the property shall be handed over to the alienee(s) after it is released by the District magistrate concerned.” 15. On a plain reading of Section 4, it is evident that within 30 days from the commencement of the Act i.e. 2nd June 1997, the District Magistrate (Anantnag) was mandated to take over possession of the immovable property, belonging to migrants, falling within his territorial jurisdiction. Section 4(1) further stipulates that on the expiration of the said period of 30 days, the District Magistrate would be deemed to have custody of such immovable property. This clearly means that the property of migrants came into the custody of the District Magistrate. Section 4(1) further stipulates that on the expiration of the said period of 30 days, the District Magistrate would be deemed to have custody of such immovable property. This clearly means that the property of migrants came into the custody of the District Magistrate. In the present case, the property was situated in Anantnag and, therefore, is deemed to have been taken into custody by the Magistrate as far back as in 1997 itself. The proviso to Section 4 (2) clearly stipulates that possession of such property which has been taken over by the District Magistrate in terms of Section 4(1) will not be handed over to any one save with the express consent of the migrant in writing. In other words, till such consent is given by the migrant, the property remains in the custody of the District Magistrate. 16. In order to ensure that there are no unauthorized occupants who encroach upon the properties belonging to migrants which are under the custody of the District Magistrate, powers have been given under Section 5 of the said Act to the competent authority (the District Magistrate) to exercise such powers as would be necessary for taking possession of such property and he may for this purpose, after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the said purpose. In other words, while the properties of migrants remain in the custody of the District Magistrate, he has full powers, being the competent authority, to have any unauthorized occupants removed from the said property. 17. If one looks at Rule 5 of the said Rules, it is also evident that it prescribes the grant of permission for the alienation of such property. The prescribed authority after taking into consideration all the facts mentioned in the application and reports made in this behalf as also after making such enquiry as it considers necessary, may grant permission in Form-3 subject to the conditions enumerated therein. One of the conditions has been spelt out in clause (d) which stipulates that the possession of the property shall be handed over to the alienee(s) after it is released by the District Magistrate concerned. One of the conditions has been spelt out in clause (d) which stipulates that the possession of the property shall be handed over to the alienee(s) after it is released by the District Magistrate concerned. In other words, till the alienee receives possession of the property, it is deemed to continue in the custody and the possession of the District Magistrate. 18. It is in the light of these statutory provisions that the impugned judgment has to be examined. The learned Single Judge has observed that Section 5 of the Act was not available and could not be pressed into service as the property was no more owned by the migrants. This, we are afraid is not factually correct. It was the duty of the District Magistrate (Anantnag) to ensure that the property was handed over to the alienee of the migrant after the permission had been granted and the same was released by the District Magistrate concerned. Therefore, the action taken by the District Magistrate (Anantnag) in passing the order dated 12.08.2013 clearly fell within the ambit and scope of Section 5 of the said Act. We may also notice the fact that the order dated 07.02.2013 passed in OWP No. 345/2010 clearly required two things to be done. First of all, the demarcation report was to be prepared by a team of revenue officers and secondly, the District Magistrate was required to pass an order in accordance with law. Both these things have been done by the District Magistrate (Anantnag). The demarcation report was prepared in the presence of the parties and, thereafter, the order in accordance with Section 5 of the said Act has been passed. 19. Therefore, we are of the view that the learned Single Judge was not correct in observing that Section 5 of the said Act was not applicable. In view of this, the order dated 31.08.2015 passed by the learned Single Judge in OWP No. 1221/2013 is set-aside and the writ petition is dismissed. 20. We are making it clear that it is open to the respondent No. 7 to seek his remedies under Section 7 of the said Act. In case, the respondent No. 7 files an appeal within 15 days of this order, then the plea of limitation shall not be pressed into service against him. 21. The appeal stands allowed as above.