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2020 DIGILAW 630 (JK)

Poonam Mehra v. Union Territory of J&K

2020-11-26

PUNEET GUPTA

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Judgment Puneet Gupta, J.—The petition is preferred by the petitioners, daughters of Late Sh. Rajinder Kumar Sahani, through Attorney holder with the averments that petitioners are owners in possession of land measuring 04 Kanals 05 Marlas and 210 Sqft. under Survey No. 1 Min, 5 Min, 6 Min, Khewat No. 139 and Khata No. 350 situate at Gupkar Road, Srinagar. The petitioners are presently residing outside the State (Union Territory of J&K) and are registered migrants. The petitioners submit that they entered into negotiations with the pro-forma respondent No. 4 for the purposes of sale of the aforesaid property for consideration of Rs. 13.00 Crore and the permission for sale of the property is required in terms of Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restrain of Distress Sale) Act, 1997 (hereinafter called the Act). Section 3 of the Act prescribes period of fifteen days within which the permission is required to be granted for alienation of property and in default the permission for alienation of property shall be deemed to have been granted. The petitioners approached respondent No. 2, designated authority under the Act, and submitted an application and also filled up the Form for accord of permission by the said authority. The petition also mentions of the sale price fixed between the parties with regard to the properties in question. It is further pleaded that the prescribed authority instead of disposing of the application within the prescribed period is engaged in further enquiries which is un-called for. As the formal permission has not been granted by the respondent No. 2 though required to be granted within a period of fifteen days, the court may command that deemed permission has been granted in favour of the petitioners for sale of the property in question. The other ancillary reliefs are also sought for in the petition. 2. The official respondents have filed response to the writ petition. It is submitted in the objections by the respondents that from the available revenue record it is borne out that the father of the petitioners had one son also namely Parneet Kumar and the petitioners as daughters but there is no verification with regard to the share of the brother of the petitioners and his status at the time of his death with regard to the property measuring 14 Marlas falling under Khasra No. 1176/3 situated at Sonawar Srinagar. The title of the petitioners being doubtful and unless the interest of any other person in the property of the deceased is properly verified permission under the Act cannot be issued to the petitioners for alienation of land in question. The contention of deemed permission as raised by the petitioners is also refuted in the objections. 3. The record has been submitted by learned Sr. AAG. The submission of learned senior counsel Mr. A. H. Naik, Sr. Advocate on behalf of the petitioners is that the petitioners have completed all the formalities and the agencies which are concerned with the verification of the property in question have also in clear terms reported that for alienation of the properties in question permission can be granted. The revenue record clearly reveals the title of the petitioners in the property and the office of the respondent No. 2 without any reason is again into the process of verifying the case of the petitioners. Lastly, it is argued that the deemed permission should be considered to have been given in favour of the petitioners in terms of provision of the Act as the respondent No. 2 has failed to pass any order within the stipulated period as prescribed under the Act. 4. Mr. N. H. Shah, learned Sr. AAG while controverting the arguments of the learned counsel for the petitioners has urged before the Court that the petitioners are required to clear the doubts which have been raised by the respondent No. 2 before their application could be decided for alienation of properties. Indeed, the learned counsel has also argued that the petitioners cannot claim deemed permission in their favour in the facts and circumstances of the case. The petitioners in the attorney and the affidavit have concealed the description of the property of Parneet Kumar, brother of the petitioners. 5. The controversy in the present case pertains to purported in- action of the respondents in granting necessary permission for sale of properties of which the mentioned is made in the writ petition. The purpose of the Act is loud and clear that there is no distress sale of the immovable property of the migrant of the State (now Union Territory) and that the property is also preserved and protected of the migrant. 6. The purpose of the Act is loud and clear that there is no distress sale of the immovable property of the migrant of the State (now Union Territory) and that the property is also preserved and protected of the migrant. 6. Learned senior counsel for the petitioners has taken the Court through the Annexures which form part of the petition in order to impress upon the Court that there is no impediment in according the permission to sell the property in question as the various agencies which have been deputed to verify the claim of the petitioners have endorsed the case of the petitioners without any caveat attach to the same. The perusal of Annexure-4 with the petition reveals that Tehsildar South, Srinagar issued a notice inviting objections, if any, with regard to alienation of the lands in question. The Assistant Commissioner (R&B) Srinagar vide letter No. 492/DCS/SQ/MLA/3069/MR dated 31.07.2018 addressed to the Divisional Commissioner, Srinagar recommended that the permission be granted for alienation of land in question. The Tehsildar South, Srinagar vide communication No. 49/M/TS dated 22.10.2019 addressed to Deputy Commissioner, Srinagar has also recorded that no religious land is involved in the instant case. From the record it is made out that some other communications/reports also support the case of the petitioners with regard to the intending sale of property in favour of the purchaser. The matter however does not rest here. The precise submission of the learned senior counsel for the petitioners is that the respondent No. 2 inspite of the reports in favour of the petitioners has again started enquiry into the matter for which there is no justification. Learned Sr. AAG, on the other hand, has submitted that the respondent No. 2 being the final authority to accord permission with regard to the property of the migrant has every right to satisfy himself with regard to the subject matter of the intending sale and thereafter pass necessary orders. 7. The court finds merit in the submission of the learned Sr. AAG. No doubt various agencies have recorded no objection in favour of the petitioners yet the satisfaction of the respondent No. 2 can be independent of what the other agencies have recorded in their respective reports. The court cannot direct the respondent No. 2 not to enquire independently the case of the petitioners despite no objection from various agencies. AAG. No doubt various agencies have recorded no objection in favour of the petitioners yet the satisfaction of the respondent No. 2 can be independent of what the other agencies have recorded in their respective reports. The court cannot direct the respondent No. 2 not to enquire independently the case of the petitioners despite no objection from various agencies. The record produced by the respondents reveals that the enquiry is still ongoing with regard to the application filed by the petitioners. The court finds from the record that vide communication No. DivCom/MLA/2918/Sgr/2020 dated 05.09.2020 certain clarification has been sought by the office of the Divisional Commissioner from the petitioners which is required to be answered by the petitioners. Only for the reason that the reports filed earlier by the different agencies are in favour of the petitioners and therefore no further enquiry is required to be done by the respondent No. 2 cannot be accepted. The response to letter dated or the 05.09.2020 (supra) is required to be given by the petitioners. The court cannot direct the respondent No. 2 not to seek any further clarification from the petitioners in terms of letter dated 05.09.2020 (supra) or any other clarification may be required to be answered during the course of enquiry being conducted by the respondent No. 2. The authority of the respondent no.2 to enquire cannot be fettered. The court cannot substitute its satisfaction at the expense of the satisfaction to be accorded by the respondent No. 2 while exercising the powers under the Act. The Court should not usurp the authority of the respondent No. 2 which is within the exclusive domain of the said respondent. 8. Learned senior counsel for the petitioners has also argued that the permission to sell the land should be otherwise deemed to have been given in favour of the petitioners as the application of the petitioners has not been decided within the stipulated period as prescribed under Section 3 of the Act. 9. Learned counsel for the official respondents has contested this argument of the petitioners by submitting that the application of the petitioners in Form-1 has been received by the competent authority and the same is to be decided by the prescribed authority within stipulated period prescribed under Section 3 of the Act only after the enquiry is complete in all respects and not before the same. The argument of deemed permission is without any basis. 10. It may be pertinent to mention herein that Section 3(a) of the Act provides that permission to alienate shall be deemed to have been granted in case the application is not decided by the prescribed authority within fifteen days from the date of receipt of the application filed for permission. It is also important to take note of Rule 4 of the rules framed under the Act. As per rule 4(1) the application filed by the applicant is to be entered in the Register to be maintained in Form-2 in case the application is found complete in all respects and thereafter receipt is to be given in Form-5 by the office of the prescribed authority. Further, the application shall be deemed to have been presented on the date on which it is entered in the Register and the time limit of fifteen days shall be counted from this date. 11. Rule 5 speaks of grant of permission in Form-3 in case the application is not rejected. The perusal of Rule 4 leaves no doubt in mind of the court that time limit of fifteen days as mentioned in the said Rule 4 when read in conjunction with Section 5 of the Act would imply that the application is registered in Form-2 only after the application is found complete in all respects and not before that. The provision cannot be admitted to any other interpretation. The Court is therefore not in agreement with the submission of the learned counsel for the petitioners in view of the above provisions that the fifteen days period as stipulated in the Act is to be counted from the date of mere filing of the application. Admittedly, the respondent No. 2 has not found the application of the petitioners to be complete in all respects and the matter is still in enquiry phase and the petitioners have been asked to clarify certain points during the course of enquiry. In case the petitioners respond to the clarifications of the respondent No. 2 and the said respondent No. 2 feels satisfied with the reply which may be submitted by the petitioners that the case of the petitioners can proceed further. In case the petitioners respond to the clarifications of the respondent No. 2 and the said respondent No. 2 feels satisfied with the reply which may be submitted by the petitioners that the case of the petitioners can proceed further. Thus, the argument of the petitioners that deemed permission be considered to have been accorded due to the default committed by the respondent No. 2, prescribed authority for grant of permission under the Act, cannot be entertained and allowed in view of the discussion made above. No case is made out by the petitioners. 12. In the light of the discussion made above, the court is of the considered view that the petitioners are not entitled to the relief seeking direction to the respondents to declare the permission for alienation of properties in question to be deemed one in favour of the petitioners and also consequently other reliefs which are ancillary to the main prayer. The petition is dismissed. 13. The court however takes note of the fact that the application of the petitioners is hanging fire for the last two years and is otherwise required to be disposed of expeditiously. It is expected that the enquiry shall be completed without any further delay after the petitioners clarify the issues that are or may be raised by the respondent No. 2 with regard to the application filed by them and the matter is finally decided by the respondent No. 2 keeping in view all the facts and circumstances of the case and the mandate of the Act and rules framed thereunder. 14. The petition is, accordingly, dismissed along with connected CM. 15. The record received be sent to Registrar Judicial, High Court of J&K, Srinagar Wing, for onward transmission to learned Sr. AAG.