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2019 DIGILAW 34 (JK)

Abdul Majid v. State of J&K

2019-01-30

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 1. The case of the petitioner is that his father purchased one shop at ground floor and two shops at third floor in a building constructed on one marla of land bearing Khasra No. 292 situated at Bus Stand Trithloo, Tehsil Gandoh District Doda, where his father was running a shoes shop in the ground floor in the year 2006. It is stated that prior to 2006, the father of the petitioner was tenant of respondent no. 5 in respect of the aforesaid property. In the year 2010, the father of the petitioner died and the aforesaid shops devolved upon the petitioner and the petitioner continued his father’s business in the aforesaid shop situated at ground floor. In so far as two shops of third floor is concerned, the petitioner rented out the same to one Ghulam Mustafa S/o Mangta Sheikh who is unning a vegetable and fruit shop therein.It is further stated that respondent no.5 in the year 2014 made an application to respondent no.3 whereby seeking directions from the office of the respondent no. 3 to vacate the petitioner from the aforesaid building as the petitioner is overstaying and not paying the rent in respect of the building and the respondent no.3 without ascertaining whether his office has the power to entertain any such application straight way issued notice to the petitioner. 2. It is contended that the petitioner came to know about the filing of the application in the office of the respondent no.3, the petitioner alongwith his counsel filed objections to the aforesaid application and in objections the petitioner categorically stated that the office of the respondent no.3 has no jurisdiction to entertain any such application for the reason the jurisdiction to entertain any such application lies with the civil court. Thereafter the respondent no.3 did not proceed in the application for some time. But unfortunately respondent no.5 thereafter forcibly tried to dispossess the tenant of the petitioner i.e., Ghulam Rasool and raised a criminal dispute in respect of the building. It is further stated that when the respondent no.3 came to know about the action of respondent he immediately directed the concerned police officer to file a report in this regard. But unfortunately respondent no.5 thereafter forcibly tried to dispossess the tenant of the petitioner i.e., Ghulam Rasool and raised a criminal dispute in respect of the building. It is further stated that when the respondent no.3 came to know about the action of respondent he immediately directed the concerned police officer to file a report in this regard. The concerned police officer thereafter submitted an written report/complaint u/s 145 of Cr.P.C in the office of respondent no.2 and on the basis of the said report filed by the SHO Police Station, Gandoh passed an order dated 11.04.18, whereby he attached the building of the petitioner consisting of shops and direct Naib Tehsildar Gandoh and SHO Police Station Gandoh to keep the said building in the custody of responsible citizen viz Lambardar, Chowkidar or president Byopar Mandal Bus Stand, Trithloo Gandhoh. 3. Learned counsel for the petitioner further contends that after the passing of the order dated 11.04.2018 the petitioner approached the office of the respondent no.3 and filed detailed objections to the istgasa/complaint filed by the concerned police station as the property in dispute was not a subject matter of the building. It is stated that the respondent no.3 did not give any audience to the objection raised by the petitioner and straight way declined to modify the order dated 11.04.2018. 4. The petitioner being aggrieved of the inaction on the part of the respondent no. 3 filed a revision petition in the court of Principal Sessions, Judge, Bhaderwah whereby challenged the validity of the order dated 11.04.18 passed by respondent no. 3. In the said revision petition the respondent no. 5 appeared and filed his objections, thereafter the Court of Principal Sessions Judge, Bhadherwah heard both the parties at length and thereafter passed an order dated 29.082018 in favour of the petitioner, stating that the respondent no.3 has no jurisdiction to attach the property in question as the property does not fall within the definition of land as required by Section 145 Cr.?.?; thereby set aside the order dated 11.04.2018. After passing of the aforesaid judgment dated 19.09.2018 the petitioner filed an application for implementation of the order dated 29.08.2018 and again on 03.10.2018 made another application in the office of respondent no.3 but the respondentno.3 did not take any action in this regard and the property in question remained attached. 5. After passing of the aforesaid judgment dated 19.09.2018 the petitioner filed an application for implementation of the order dated 29.08.2018 and again on 03.10.2018 made another application in the office of respondent no.3 but the respondentno.3 did not take any action in this regard and the property in question remained attached. 5. Being aggrieved of the inaction on the part of the respondent no.3 the petitioner approached the office of the respondent no.2, whereby requested him to direct the respondent no. 3 to handover the possession of the attached property in the light of the judgment dated 24.09. 2018 passed by the Principal Sessions Judge, Bhaderwah. Thereafter the office of the respondent no. 2 issued a communication to the respondent no. 3 dated 26.10.2018 whereby directing him to immediately take necessary action and furnish a detailed report in the light of the contents of the application made by the petitioner. It is stated that respondent no. 3 who was hand in glove with the respondent no.5 and wanted to provide some undue benefit to the respondent no.5, in so far as the property in question is concerned, did not comply the directions of respondent no.2 and the property still remain attached. It is further stated that thereafter petitioner approached the new SDM and requested him to implement the judgment/order passed by the Sessions Judge and handover the possession of the property in question to the petitioner and respondent no. 3 after the perusal of the matter passed order dated 21.12.2018, whereby revoked the order dated 11.04.2018 and directed the respondent no.4 to handover the possession of the shops/building in dispute as peractual position as on the date of issuance of attachment order to the occupants, so they can utilize the material/stocks whatever lying in the shops. It is contended that prior to the issuance of attachment order dated 11.04.2018, the petitioner was in possession of the property/building in question, therefore, as per order dated 21.12.18 the petitioner is entitled to get back the possession of the shops/building. 6. The only grievance of the petitioner is that respondent No. 4-Naib Tehsildar, Gandoh is not implementing the order dated 29.08.2018 of Sessions Judge and order dated 21.12.2018 passed by respondent No. 3-Sub-Divisional Magistrate, Gandoh. 7. 6. The only grievance of the petitioner is that respondent No. 4-Naib Tehsildar, Gandoh is not implementing the order dated 29.08.2018 of Sessions Judge and order dated 21.12.2018 passed by respondent No. 3-Sub-Divisional Magistrate, Gandoh. 7. At this stage, learned counsel for the petitioner states that petitioner would be satisfied if respondent No. 2 is directed to look into the matter and direct respondent No. 4 to execute the legal orders passed by the competent authorities. His statement is taken on record. There is no legal impediment in granting such relief. 8. In view of the submissions made, the instant writ petition is disposed of with the direction to the respondent No. 2-Deputy Commissioner, Doda to look into the matter and direct respondent No. 4- Naib Tehsildar, Gandoh to execute the legal orders passed by the competent authorities. Let this exercise be undertaken and concluded within a period of four weeks from the date of receipt of certified copy of this order. 8. The writ petition stands disposed of, in the above terms.