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2019 DIGILAW 326 (JK)

Mohmmad Shafi Naikoo v. State of J&K

2019-07-04

RAJESH BINDAL, RASHID ALI DAR

body2019
JUDGMENT : Rajesh Bindal, J.—The petitioner has approached this Court praying for quashing of order dated 28.05.2019 passed by the Financial Commissioner, Revenue in appeal filed by the petitioner against order dated 15.05.2018 passed by District Magistrate, Pulwama, on application filed by the private respondent. She approached the District Magistrate by filing application on 24.05.2012 seeking to protect her property in terms of provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short “the Act”). The District Magistrate by order dated 15.05.2018 directed eviction of the petitioner. The same was challenged by the petitioner by filing OWP No. 956/2018, which was disposed of on 01.06.2018. Even LPA No. 80/2018 filed against the order passed by the learned Single Judge was dismissed by this Court on 16.04.2019. It was, thereafter, that the petitioner filed appeal before the Financial Commissioner on 09.05.2019 which was dismissed vide impugned order dated 28.05.2019. 2. Learned counsel for the petitioner submitted that the petitioner has been condemned unheard. He was in possession of the land in pursuance of an agreement to sell executed by the owner of the property in his favour. Hence, he cannot be said to be a person in unauthorised possession. The District Magistrate was required to first consider this aspect of the matter before directing eviction of the petitioner. 3. He further submitted that the appeal filed by the petitioner was not time barred as earlier he had approached this Court and his writ petition and LPA remained pending. He further submitted that if an opportunity is given to the petitioner, he can establish that he is not in unauthorised possession of the property. 4. On the other hand, learned counsel for the Caveator-respondent No. 4 submitted that the present petition cannot be entertained for the reason that the order passed by the Financial Commissioner is strictly in accordance with law. No appeal lies unless the possession is surrendered. In the case in hand, it is not disputed that appeal was filed by the petitioner without surrendering possession. He further submitted that the appeal filed by the petitioner was highly belated. He could not seek condonation of delay on any ground as the provisions of the Limitation Act, SVT. 1995 (1938 A.D.) do not apply to the authorities constituted under the Act. He further submitted that the appeal filed by the petitioner was highly belated. He could not seek condonation of delay on any ground as the provisions of the Limitation Act, SVT. 1995 (1938 A.D.) do not apply to the authorities constituted under the Act. It applies only for the proceedings in the Court and the Financial Commissioner is not a Court. In support of his arguments reliance has been placed on the judgment of Hon’ble the Supreme Court in Civil Appeal No. 4582 of 2019, titled as Ganesan Represented by its Power Agent G. Rukmani Ganesan vs. The Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board & Ors. decided on 03.05.2019 and a judgment of this Court in Jagar Nath Bhan & Ors. vs. State of J&K and Ors., 2006 (3) JKJ 407 [HC]. 4. Heard learned counsel for the parties and perused the paper-book. 5. As is evident from record, the proceedings against the petitioner have been initiated by respondent No. 5 by filing an application on 24.05.2012. The petitioner instead of defending the case before the District Magistrate filed OWP No. 1659/2012 in this Court which remained pending. The same was disposed of on 19.12.2017. Thereafter, only the District Magistrate passed order of eviction on 15.05.2018. The petitioner was duly represented before the District Magistrate. 5. After considering the arguments, the District Magistrate vide order dated 15.05.2018 held that the petitioner was in unauthorised possession of the property in question. The possession was directed to be handed over to the owner thereof. Though there is remedy of appeal provided in Section 7 of the Act, however, the petitioner challenged the order passed by the District Magistrate by filing OWP No. 956/2018 which was dismissed on 01.06.2018. Order was challenged by filing LPA No. 80/2018 and the same was also dismissed on 16.04.2019. 6. Section 7 of the Act, which provides for remedy of appeal, is extracted below: “7. Appeal (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) an order of payment of compensation determined under this Act unless the amount of compensation is deposited with the appellate authority. (2) The period of limitation for filing of an appeal under sub-section (1) shall be fifteen days from the date of order appealed against.” 7. A perusal of the aforesaid provision shows that an appeal against order of eviction can be filed within 15 days from the date of the order. Vide impugned order, eviction has been ordered. Appeal cannot be entertained unless possession of the property in dispute is surrendered to the competent authority. 8. This Court in Jagar Nath Bhan’s case (supra) had opined that the provision regarding surrender of the possession as a condition for entertainment of appeal, is not unreasonable. Appeal is creation of statute to which conditions can be attached. 9. In the case in hand, it is not disputed that the petitioner had not complied with the pre-condition for entertainment of appeal. Hence, his appeal could not be entertained. Even on the issue of the condonation of delay, I do not find that the petitioner has any merit in his arguments. The Financial Commissioner cannot be said to be a Court. Even otherwise the period provided for filing of appeal is 15 days. Whereas, in the case in hand, the petitioner is fighting this luxury litigation. For more than five years, the matter remained pending in this Court. Then the eviction proceedings were started by the District Magistrate. Order of eviction was also challenged by the petitioner before this Court though the same was appealable. The writ petition was dismissed on 01.06.2018. Intra-court appeal was filed, which was dismissed on 16.04.2019. Even if the period is counted from the date LPA was dismissed, the same was beyond the period of limitation provided for filing appeal i.e. 15 days, as the appeal was filed on 09.05.2019. 10. For the reasons mentioned above, I do not find any merit in the present writ petition, and the same is accordingly dismissed. Rashid Ali Dar, J.—The judgment is pronounced in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.