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2021 DIGILAW 639 (JK)

Ghulam Rasool Bhat v. State of J&K

2021-12-04

SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J. Petitioners have challenged order bearing No.DCB/ARA/CC/366 dated 19.08.2015, passed by Deputy Commissioner, Budgam, whereby Tehsildar, Chadoora, has been directed to take over possession of the land measuring 7 kanals 5 covered by survey No.419 situated at Village Ropora Namthal Tehsil Chadoora from the petitioner. The aforesaid order has been passed by the Deputy Commissioner in exercise of his powers under Section 4(1) of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as the Act of 1997). 2. The case of petitioner, in brief, is that he purchased a parcel of land measuring 7 kanals 5 marlas under Survey No.419 situated at Village Ropora Namthal Tehsil Chadoora District Budgam from one Madusudan Razdan and Ashok Kumar Razdan-respondent No.9 herein, way back in the year 1989 and obtained possession of the said land from them. It is averred that a proper sale deed could not be executed. Nevertheless, on 23rd February, 1998, above named Madusudan Razdan and Ashok Kumar Razdan executed an agreement to sell in favour of the petitioner. It is further averred that the petitioner paid a consideration of Rs.4.00 lacs to the owners of the aforesaid land regarding which a separate receipt was executed by them. It is also averred that owners of the land, namely, Madusudan Razdan and Ashok Kumar Razdan, executed a Power of Attorney in favour of the petitioner on 23rd February, 1998. Petitioner claims his possession over the land in question on the basis of aforesaid documents. 3. It appears that respondent No.11 filed an application before Divisional Commissioner, Kashmir-respondent No.3, on 09.07.014, alleging unauthorized occupation of the aforesaid land. Respondent No.11-Ashok Kumar Razdan, is also stated to have made another application making similar allegations before Financial Commissioner (respondent No.2) on 01.04.2013. Various officers of the Revenue Department proceeded to conduct enquiry and other proceedings on the basis of these applications and ultimately Tehsildar, Chadoora, attached the land in question and put the same on Supardnama in terms of his order bearing No.OQ/2014-15/Chd-838 dated 13-01-2015. Against this order, petitioner filed a writ petition bearing OWP No.131/2015 which was disposed of by this Court in terms of order dated 02.02.2015, whereby aforesaid order of Tehsildar was set aside. Against this order, petitioner filed a writ petition bearing OWP No.131/2015 which was disposed of by this Court in terms of order dated 02.02.2015, whereby aforesaid order of Tehsildar was set aside. However, while setting aside the aforesaid order, the Court directed Deputy Commissioner, Budgam, to decide the matter with reference to taking over possession of the property claimed by respondent No.11 in terms of provisions of the Act of 1997. 4. Pursuant to the aforesaid direction, the Deputy Commissioner, Budgam, has passed the impugned order, whereby Tehsildar, Chadoora, has been directed to take over possession of the land in question. 5. Petitioner has challenged the aforesaid order on the grounds that it is not the Deputy Commissioner but it is the District Magistrate who is competent to pass an order of eviction in terms of Section 5 of the Act of 1997; that petitioner has, admittedly, come into possession of the property in question with the permission of its owners and, as such, his possession is not unauthorized in nature; that while passing the impugned order, the Deputy Commissioner i.e., respondent No.6, has not given an opportunity of being heard to the petitioner and that Ashok Kumar Razdan, the person who made the application before the Divisional Commissioner and the Financial Commissioner, is only a co-sharer of the property in question and not its sole owner. 6. The petition has been resisted by the official respondents as well as by respondent No.11 by filing separate replies thereto. Respondents No.1 to 10 in their reply have submitted that the property in question is, admittedly, a property owned by the migrants and, as such, petitioner cannot lay claim on the same on the basis of an agreement to sell or a Power of Attorney. It is further contended that in compliance to the directions of the Court passed in OWP No.131/2015, petitioner was put to notice and was given an opportunity of proving his case and it is only thereafter that the impugned order came to be passed. It is further averred that all the provisions of the Act of 1997 were adhered to before passing the impugned order and the only material which the petitioner produced was the notarized Power of Attorney and an agreement to sell. 7. It is further averred that all the provisions of the Act of 1997 were adhered to before passing the impugned order and the only material which the petitioner produced was the notarized Power of Attorney and an agreement to sell. 7. Respondent No.11 in his reply has submitted that the agreement to sell and Power of Attorney, on the basis of which petitioner is laying claim on the land in question, are forged. It has been submitted that the said respondent has lodged an FIR bearing No.43/2015 for offences under Section 420, 468, 471, 120-B RPC with Police Station, Crime Branch Kashmir. A copy of the FIR has been placed on record by respondent No.11. It has been contended that the land in question belongs to the said respondent who is a migrant and, as such, in terms of the provisions contained in the Act of 1997, the District Magistrate is the Custodia Legis of the said property. According to respondent No.11, the possession of petitioner over the land in question is unauthorized. It has also been contended that the petitioner has not obtained any permission in terms of the provisions of the Act of 1997 for transfer of the land in question in his favour, as such, he cannot claim any right or title over the said property. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The crux of the case of the petitioner is that he has purchased the land in question by way of a notarized agreement to sell and notarized Power of Attorney from the owners of the land in question i.e., Madusudan Razdan and Ashok Kumar Razdan. Thus, it is not in dispute that the original owner of land in question is not the petitioner but it is Madusudan Razdan and Ashok Kumar Razdan. It is also not in dispute that Madusudan Razdan and Ashok Kumar Razdan are migrants. The primary contention of the petitioner is that he is in possession of the land in question on the basis of agreement to sell, Power of Attorney and receipt of money executed by owners of the land in his favour, which means that his possession over the land in question is permissive and not unauthorized. The primary contention of the petitioner is that he is in possession of the land in question on the basis of agreement to sell, Power of Attorney and receipt of money executed by owners of the land in his favour, which means that his possession over the land in question is permissive and not unauthorized. On the other hand, learned counsel for the respondents has contended that the Act of 1997 is a special legislation and it overrides all other laws. Therefore, petitioner cannot claim possession over the land belonging to a migrant except in accordance with the procedure prescribed in the Act of 1997. 10. The background regarding enactment and the peculiar features of the Act of 1997 have been considered by a Division Bench of this Court in the case of Manzoor Ahmad Mir and another v. Union Territory of J&K and others (LPA No.16/2021 decided on 17.08.2021). The Division Bench, after noticing Sections 3, 4 and 5 of the Act of 1997, made certain observations which are relevant to the context and the same are reproduced as under: “16. Section 3 of the Act prohibits alienation of immovable property of a migrant not only by the act of the parties but also by a decree or order of the Court without the previous permission of the Revenue and Relief Minister. It further provides that any alienation of immovable property in contravention to the provisions of the Act shall be null and void. 17. In addition to the above provisions of the Act, the Government in exercise of powers under Section 14 of the said Act has also framed a set of Rules which provides for the manner in which application for grant of permission to alienate the property has to be moved and dealt with and that in case any property is transferred in contravention thereof, the District Magistrate of the area may suo moto or on the basis of the information received or otherwise hold an enquiry himself or through revenue officer not below the rank of Tehsildar so that, if necessary, he may take possession of the property after evicting the person in possession so as to preserve and protect the property of the migrant. 18. 18. The object of the Act is primarily to preserve and protect the property of a migrant and it is with the aforesaid purpose in mind that the legislature vide Section 4 of the Act provides that the District Magistrate within thirty days of the commencement of the Act, shall take over the possession of the property belonging to the migrants and on the expiry of the said period of thirty days shall be deemed to have the custody of said immovable property. 19. A plain reading of Section 4 of the Act reveals that any immovable property of a migrant would ipso facto come into the custody of the District Magistrate having jurisdiction over the area on the expiry of thirty days from the commencement of the Act. In other words, in the present case, on the expiry of thirty days from the enforcement of the Act w.e.f. 02.06.1997, the above property came into the custody of the District Magistrate, Baramulla. 20. A conjoint reading of Sections 3 and 4 of the Act would reveal that once the District Magistrate becomes custodia legis of any property belonging to a migrant, no one is free to alienate the same without the previous permission of the Revenue and Relief Minister and that any alienation, if made, without such permission or in contravention of the Act shall be null and void.” 11. From a perusal of the aforesaid ratio laid down by the Division Bench, it is clear that any alienation of immovable property of a migrant without previous permission of Revenue and Relief Minister has to be treated as null and void. Admittedly, in the instance case no permission of Revenue and Relief Minister has either been sought or granted for alienation of the land which is subject matter of this petition. Therefore, the documents, on the basis of which petitioner is claiming possession and which have been, admittedly, executed after coming into force of the Act of 1997, are null and void. The petitioner, therefore, cannot claim any right including the right to possess the property in question on the basis of aforesaid documents which are not even registered. 12. As per Section 4 of the Act of 1997, within 30 days from the commencement of the Act, District Magistrate becomes custodia legis of the property belonging to the migrants. The petitioner, therefore, cannot claim any right including the right to possess the property in question on the basis of aforesaid documents which are not even registered. 12. As per Section 4 of the Act of 1997, within 30 days from the commencement of the Act, District Magistrate becomes custodia legis of the property belonging to the migrants. Thus, within 30 days of enforcement of Act of 1997, which is 2nd June, 1997, the District Magistrate, Budgam, became custodia legis of the property which is subject matter of the present petition. Thereafter any person who comes in occupation of said property except in accordance with the procedure prescribed under the Act of 1997 and the rules framed thereunder which contemplates prior permission of Revenue and Relief Minister, would become an unauthorized occupant thereof. Thus, occupation of the petitioner over the property in question has been unauthorized in nature from its very inception. Therefore, respondent No.6 was well within his jurisdiction to pass the impugned order directing eviction of the petitioner from the property in question. 13. The contention of the petitioner that he was not given an opportunity of hearing before the passing of the impugned order is without any merit. The impugned order clearly indicates that the petitioner was given an opportunity of hearing pursuant to which he produced the notarized Power of Attorney and affirmed to sell before the District Magistrate and all these documents have been duly considered by the Magistrate while passing the impugned order. 14. Another contention raised by the petitioner is that respondent No. 11 is only co-owner of the property in question, as such, the proceedings at his instance could not have been initiated. It is true that respondent No. 11 is a co-owner of the property in question but the whole property admittedly belonged to migrants and, as such, District Magistrate is the custodia legis of the said property. Thus, District Magistrate even on his own motion was competent to initiate eviction proceedings against the petitioner who is in unauthorized occupation of the said property. The contention of the petitioner is, therefore, without any merit. 15. Thus, District Magistrate even on his own motion was competent to initiate eviction proceedings against the petitioner who is in unauthorized occupation of the said property. The contention of the petitioner is, therefore, without any merit. 15. So far as contention of the petitioner that the impugned order has been passed by the Deputy Commissioner and not the District Magistrate is concerned, the same is without any substance because even though in the impugned order, designation of the Authority signing the order is mentioned as Deputy Commissioner, yet it is clearly mentioned in the order that Tehsildar, Chadoora, shall take over possession of the land on behalf of District Magistrate (Custodian Migrant Immovable Property). Even otherwise, Deputy Commissioner of a District also exercises power of a District Magistrate within his jurisdiction and, as such, it cannot be stated that there is any infirmity or illegality in the impugned order. 16. For the foregoing reasons, I do not find any merit in the instant writ petition. The same is, accordingly, dismissed along with connected CM(s). Interim order shall stand vacated. 17. No order as to costs.