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2020 DIGILAW 644 (JK)

Ghulam Nabi Pushu v. State of J&K

2020-12-01

VINOD CHATTERJI KOUL

body2020
Case Referred: 1. Mst. Masooda Akhtar & Ors. v. State and Ors., 2006(3) JKJ 521 [HC]. (Para 11) Appearing Counsel: For the Petitioner(s): Mr. S.A. Makroo, Advocate For the Respondent(s): Mr. N.H. Shah, Sr. AAG and Mr. M.A. Wani, Advocate Order Vinod Chatterji Koul, J.—Petitioners assail order no.DCA/MC/(184/15)/18/707 dated 12.10.2018, passed by Deputy Commissioner, Anantnag, directing Tehsildar to initiate action in terms of Section 4 and 5 of Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales ) Act, 1997 ( for brevity “Act of 1997”) on the grounds made mention of in writ petition on hand. They also seek a direction in the name of respondents not to interfere in the property, falling under survey No, 3877/1611, 1612 situated at Lal Chowk, Anantnag. 2. The case set up by petitioners in writ petition on hand is that they have acquired land measuring 13 Marlas and 01 sirsai along with three storeyed residential house with nine shops in the ground floor, falling under survey No.3877/1611, 1612, situated at Lal Chowk, Anantnag, from original owners, in pursuance of sale permission granted by Divisional Commissioner, Kashmir, followed by execution of sale deed. It is stated that on a false ad frivolous application moved by respondent no.5, Deputy Commissioner, Anantnag (respondent no.3), has issued impugned order dated 12.10.2018, directing Tehsildar to proceed on spot and initiate action in terms of Section 4 & 5 of the Act of 1997. The said order, according to petitioners, has been passed without authority/jurisdiction and also without affording opportunity of hearing to petitioners and, therefore, in violation of natural justice. 3. Reply has not been filed by respondents 1 to 4. However, respondent no.4 has filed his Reply, vehemently resisting the petition. 4. Mr N.H.Shah, learned Sr. AAG, has stated that he does not want to file Reply and would adopt the Reply filed by respondent no.5. Prayer allowed. 5. Heard and considered. 6. With the consent of learned counsel for parties, this writ petition is taken up for final disposal. 7. It is pertinent to mention here that with the migration of persons from Kashmir Valley since the year 1989, their immovable properties had remained unattended and in a dilapidated condition, besides there were quite a number of instances where migrants had resorted to distress sale of their immoveable properties. 7. It is pertinent to mention here that with the migration of persons from Kashmir Valley since the year 1989, their immovable properties had remained unattended and in a dilapidated condition, besides there were quite a number of instances where migrants had resorted to distress sale of their immoveable properties. Thus it was felt to take steps for preservation and protection of such immoveable properties as also to put a halt to distress sales by migrants. Accordingly, to achieve the said objective the Act of 1997 was tabled in the erstwhile J&K State Legislature in the Forth-eighth year of the Republic of India, which received assent of the Governor on 30th May 1997 and published in Government Gazette on 2nd June 1997. It extends to the whole of Jammu and Kashmir. Section 2(b) of Act of 1997 provides that “Competent Authority” shall be District Magistrate of area and shall include such officer of the area as Government may appoint in the area. Subsection (e) of Section 2 says that “Migrant” means any person who has migrated from Kashmir Valley or any other part of the State after 1st November 1989 and is registered, as such, with the Relief Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office, or having left the Valley or any other part of the State, in pursuit of occupation or vocation or otherwise, and is possessed of immovable property at the place from where he has migrated but is unable to ordinarily reside there due to the disturbed conditions; 8. Custody of immovable property belonging to migrants shall be in the custody of concerned District Magistrate. In this regard Section 4 is pertinent to be reproduced hereunder: 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 his 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. 9. (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. 9. From the above provisions of Section 4 of Act of 1997, it emerges that District Magistrate, within 30 days from commencement of the Act of 1997, shall take over possession of immovable property belonging to migrants, falling within his territorial jurisdiction and he shall be deemed to have custody of such immovable property. Besides, the District Magistrate shall take such steps as may be necessary for preservation of migrant property. 10. In the event, any migrant property is found to have been unauthorizedly occupied by any person, District Magistrate, as envisaged under Section 5 of the Ac of 1997, can take all such steps and force as may be required therefor. Section 5 of the Act of 1997 for ready reference is taken note of herein below: “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.” 11. While a District Magistrate under and in terms of provisions of Act of 1997, being custodian of migrant property, has been empowered to use force as may be necessary for taking possession of migrant property, he, however, cannot delegate his powers to decide the issue whether property falls within ambit of the Act and whether there is any illegal encroachment. My aforesaid view is fortified by a judgement rendered in Mst. Masooda Akhtar & ors. v. State and ors. 2006(3) JKJ 521 [HC]. In the said reported case, District Magistrate directed Tehsildar to evict illegal occupation under the Act of 1997, which direction came to be challenged and a Bench of this Court held that District Magistrate acted mechanically and without application of mind while delegating powers and as a consequence thereof quashed the order of District Magistrate. 12. 2006(3) JKJ 521 [HC]. In the said reported case, District Magistrate directed Tehsildar to evict illegal occupation under the Act of 1997, which direction came to be challenged and a Bench of this Court held that District Magistrate acted mechanically and without application of mind while delegating powers and as a consequence thereof quashed the order of District Magistrate. 12. In the present case as well, District Magistrate, Anantnag (respondent no.3), unmindful of provisions of Act of 1997, has issued impugned order 12.10.2018, directing Tehsildar, Anantnag (respondent no.4) to initiate action in terms of Section 4&5 Act of 1997. 13. Since learned counsel for parties agreed to disposal of instant writ petition, by directing respondent no.3 decide the matter in accordance with provisions of Act of 1997 within fixed timeframe, the writ petition is, disposed of in terms of following direction: “District Magistrate, Anantnag (respondent no.3) shall decide the matter in strict accordance with provisions of Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, and Rules made thereunder, within two months from the date copy of this order along with complete paper book is served upon him. He shall do well to give opportunity of hearing to petitioners and private respondent and pass orders accordingly.” 14. With the aforesaid observations and direction, this writ petition is disposed of along with all connected MP(s).