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2021 DIGILAW 51 (JK)

Mushtaq Ahmad Ganie v. UT of J&K

2021-03-03

SANJAY DHAR

body2021
Judgment Sanjay Dhar, J.—The petitioners have challenged the order dated 26.12.2020, passed by District Magistrate, Shopian, respondent No.2 herein, whereby an order of eviction in terms of Section 5 of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as the ‘Act of 1997’), has been passed against the petitioners. A further direction restraining respondent No.2 to 4 from acting upon aforesaid impugned order and from interfering in petitioners’ possession over the land measuring 04 kanals falling under Survey No.516/168 situated at Bongam, Shopian, has also been sought. 2. The case of the petitioners is that their predecessors-in-interest were cultivating land measuring 12 kanals and 05 marlas falling under survey No.169 and land measuring 04 kanals falling under Survey No.516/168 situated at Bongam, Shopian, as tenants from the times immemorial including in Kharif, 1971. The predecessors-in-interest of respondent No.7 to 9 are stated to be the owner/landlord of the aforesaid land. It is averred that so far as the land measuring 12 kanals and 05 marlas falling under Khasra No.169 is concerned, mutation under Section 4 and thereafter under Section 8 of the Jammu & Kashmir Agrarian Reforms Act came to be attested in favour of predecessor-in-interest of the petitioners. However, regarding land measuring 04 kanals falling under Survey No.516/168, mutation in terms of the provision of Agrarian Reforms Act in favour of predecessor-in-interest of the petitioners or in favour of the petitioners was never attested though they were in cultivating possession as tenants in Kharif, 1971. It is further contended that when respondent No.7 started making claims over the said land, the petitioners made an application before Financial Commissioner (Revenue), who vide order dated 19.02.2020 directed respondent No.3 to examine the matter and submit the report. Accordingly, the respondent No.3 conducted an enquiry and submitted his report in which it was clearly stated that 04 kanals of land, as afore-stated, had been under the possession of petitioners and their ancestors prior to 1971 and that they were paying land revenue and rent to the owners. 3. Accordingly, the respondent No.3 conducted an enquiry and submitted his report in which it was clearly stated that 04 kanals of land, as afore-stated, had been under the possession of petitioners and their ancestors prior to 1971 and that they were paying land revenue and rent to the owners. 3. It is contended that the respondent No.7 in the year 2009 filed an application under the provisions of the Act of 1997 and in the said proceedings, a report was filed by the Patwari concerned confirming that the land measuring 04 kanals under Khasra No.516/168 despite being in cultivation of the petitioners in the year 1971, has not been mutated in terms of Agrarian Reforms Act. It is alleged that upon receipt of the said report, the respondent No.7 was directed by the District Magistrate, Shopian, to seek appropriate remedy as the Act of 1997 is not applicable to his case. 4. Petitioners have further contended that they entered into an oral settlement with respondent No.7 and agreed to pay an amount of Rs.15.00/- lacs as cost of 04 kanals of land out of which an amount of Rs.9.00/- lacs was paid by the petitioners to respondent No.7 on different dates. However, respondent No.7 instead of executing requisite documents filed another application under the Act of 1997 before the respondent No.2 in the year 2017. 5. It seems that exparte proceedings were initiated against the petitioners herein, which later on came to be revoked and according to the petitioners despite production of material on record evidencing the fact that they are not unauthorized occupants but were/are holding the land in question i.e. land measuring 04 kanals, as tenants prior to 1971, the respondent No.2 passed the impugned order of eviction. The petitioners have further submitted that while the proceedings before the respondent No.2 were pending, mutation in respect of land measuring 04 kanals under Khasra No.516/168 was attested in favour respondent Nos.7 to 9 compelling the petitioners to file an appeal before Agrarian Reforms Commissioner, Shopian. It appears that the said appeal has been dismissed by the said Authority on 10.02.2021 and the petitioners have challenged the same in a revision petition before the J&K Special Tribunal. 6. It appears that the said appeal has been dismissed by the said Authority on 10.02.2021 and the petitioners have challenged the same in a revision petition before the J&K Special Tribunal. 6. With the aforesaid factual background, the petitioners have challenged the impugned order of eviction on the grounds that the same has been passed by respondent No.2 without jurisdiction, inasmuch as petitioners are the tenants of the property in question and not unauthorized occupants; that the petitioners were in occupation of the land in question even prior to 1989, as such, the provisions of the Act of 1997 are not applicable to the case in hand; that the impugned order of eviction has been passed mechanically and without application of mind and that the impugned order has been passed in derogation of the principles of reasonableness and fairness. 7. I have heard learned counsel for the petitioners and learned counsel for the respondent No.7. I have also gone through the petition, documents attached thereto, particularly the impugned order passed by respondent No.2. 8. Learned counsel for the respondent No.7 has raised a preliminary objection with regard to maintainability of the petition on the ground that the impugned order of eviction passed by respondent No.2 under Section 5 of the Act of 1997 is appealable under Section 7 of the said Act. In answer to this learned counsel for the petitioners has contended that the land, which is subject matter of dispute, was not under unauthorized occupation of the petitioners but they were in occupation of the said land as tenants and, as such, the respondent No.2 had no jurisdiction to pass the impugned order by taking resort to the provisions contained in the Act of 1997. It has been further contended by learned counsel for the petitioners that because respondent No.2 lacked the jurisdiction to pass the impugned order, as such, alternative remedy of appeal would not be a bar to petitioners to invoke the writ jurisdiction of this Court. The learned counsel has relied upon the judgments of this Court in Gh. Mohammad Changa & anr v. State & Ors, 2014(4) JKJ 578 [HC], Rajeev Verma & anr. V. State & anr., 2010 (2) JKJ 859 [HC] as also the judgment of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & others, AIR 1999 SC 22 . 9. Mohammad Changa & anr v. State & Ors, 2014(4) JKJ 578 [HC], Rajeev Verma & anr. V. State & anr., 2010 (2) JKJ 859 [HC] as also the judgment of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & others, AIR 1999 SC 22 . 9. There can be no quarrel with the proposition that when an Authority, against which a writ is filed, is shown to have acted without jurisdiction or in derogation of the provisions of the Act under which such Authority has been constituted, alternative remedy of appeal would not come in the way of maintaining a writ petition. The question arises whether or not in the instant case, the respondent No.2, while passing the impugned order, has acted without jurisdiction. 10. Learned counsel for the petitioners has contended that there were documents on record before the respondent No.2 to show that the petitioners were in possession of the property in question as its tenants and not as unauthorized occupants and, therefore, it was not open to the respondent No.2 to proceed ahead in the matter under the provisions of the Act of 1997. 11. A perusal of the impugned order would show that the respondent No.2 has taken note of the documents placed on record by the petitioners to show their possession of the land in question as tenants. In the impugned order, the respondent No.2 has dealt with the report dated 02.09.2020, shown to have been dispatched by Assistant Commissioner, Revenue, Shopian, on 05.09.2020, in which it was reported that the petitioners were in possession of the land in question as tenants. The respondent No.2 has, after making an enquiry with regard to the said report from Tehsildar, Shopian, found that the report in question is not genuine, inasmuch as the same was found unsigned and not dispatched from the relevant office. It has been further noted that the land in question has been mutated in the name of respondent No.7 to 9 as “Khud Kasht” (personal cultivation). It is on the basis of this material that the respondent No.2 has come to the conclusion that the petitioners are not in possession of the land in question as tenants but as unauthorized occupants which has resulted in passing of the impugned order. 12. It is on the basis of this material that the respondent No.2 has come to the conclusion that the petitioners are not in possession of the land in question as tenants but as unauthorized occupants which has resulted in passing of the impugned order. 12. Without going into merits of the impugned order and without determining rival contentions of the parties as regards their status qua the land in question, one thing is clear that before passing the impugned order, the respondent No.2 has satisfied itself as regards the nature of possession of the petitioners over the land in question. It is not a case where respondent No.2 has mechanically and without application of mind and without dealing with the contention of the petitioners herein with regard to nature of their possession over the land in question proceeded to assume jurisdiction under the Act of 1997 and passed the impugned order of eviction. Had it been so, then the petitioners would have been well within their rights to contend that the respondent No.2 has acted without jurisdiction while passing the impugned order. 13. Having held that the respondent No.2 while passing the impugned order has neither acted beyond jurisdiction nor has he acted in disregard of the provisions of the Act of 1997, the bar of alternative remedy of appeal as provided under Section 7 of the said Act would come into play for maintainability of the instant writ petition. 14. This Court in the case of Haseena Yaseen v. State and Ors, 2007(2) JKJ 218 [HC], has clearly laid down that when a petitioner has equally efficacious remedy available before the Civil Court and other forum of the Act, it would be an abuse of process to permit the petitioner to maintain a petition to invoke the extraordinary writ jurisdiction of the Court. 15. For the reason that the petitioners have an alternative and efficacious remedy of filing an appeal under Section 7 of the Act of 1997, the instant writ petition is held to be not maintainable and is, accordingly, dismissed along with connected CM. 15. For the reason that the petitioners have an alternative and efficacious remedy of filing an appeal under Section 7 of the Act of 1997, the instant writ petition is held to be not maintainable and is, accordingly, dismissed along with connected CM. However, having regard to the fact that the petitioners have under a bona fide impression filed and presented the instant writ petition against the impugned order of eviction and as such, could not file an appeal before the respondent No.2 within the stipulated time of 15 days, liberty is given to the petitioners to approach the Appellate Authority within 15 days from the date of passing of this order. 16. No order as to costs.