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2022 DIGILAW 346 (JK)

Hilal Ahmad Wani v. UT of J&K

2022-07-18

SANJEEV KUMAR

body2022
JUDGMENT : SANJEEV KUMAR, J. Brief Facts WP(C) No. 890/2022 1. The petitioners are owners of agricultural land measuring 01 kanal and 04 marlas comprised in khasra No. 1313 situate at village Uttersoo Shangus, District Anantnag ['the subject land']. The subject land was under cultivating possession of the father of respondent Nos. 7 and 8 as tenant prior to their migration from the Valley in the year, 1990. The relationship of landlord and tenant between the petitioners and respondent Nos. 7 and 8 ['the migrants'] is admitted by the petitioners. By operation of J&K Agrarian Reforms Act, 1976 ['the Act of 1976'], the subject land vested in the State under section 4 of the Act of 1976 and mutation No. 1657 came to be attested in this regard. The said mutation is subject matter of challenge in an appeal before the competent authority. The said appeal is reportedly dismissed for non-prosecution and there is no application for restoration of the appeal moved by the petitioners. With respect to the subject land, the migrants i.e. respondent Nos. 7 and 8 have also executed a Power of Attorney in favour of respondent No. 9 which is also subject matter of challenge in a Civil Suit pending before the 2nd Civil Subordinate Judge (Passenger Tax), Jammu ['Civil Court']. There is an order of status quo with regard to the said Power of Attorney by the Civil Court. It is alleged that, on the strength of Power of Attorney issued by respondent Nos. 7 and 8, the respondent No. 9 started interfering with the subject land. The petitioners approached the District Magistrate, Anantnag to pass appropriate orders for protection of the subject property from the illegal occupation of respondent No. 9 under J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales) Act, 1997 ['the Act of 1997']. 7 and 8, the respondent No. 9 started interfering with the subject land. The petitioners approached the District Magistrate, Anantnag to pass appropriate orders for protection of the subject property from the illegal occupation of respondent No. 9 under J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales) Act, 1997 ['the Act of 1997']. Vide order No. DCA/MC/(341/15)/20-21/1131-33, dated 05.03.2021, the District Magistrate, Anantnag settled the matter by ordering as under: (i) The subject land falling under Survey No. 1313 measuring 01 kanal, 04 marlas situate at village Uttersoo shall be taken in custody by the Tehsildar Shangus on behalf of the District Magistrate, Anantnag under section 4 of the Act of 1997; (ii) Respondent No. 9 shall be at liberty to approach the competent authority for vesting of rights under the relevant provisions of the Act of 1976; (iii) In case, respondent No. 9, does not prefer to avail the opportunity, Tehsildar Shangus shall take action under the provisions of Section 28-A of Act of 1976 and furnish compliance report before the District Magistrate, Anantnag; and (iv) In the meanwhile, respondent No. 9 shall be allowed to lift his construction material dumped on the said patch of land within a month from the date of the order, failing which, the same shall be seized by Tehsildar Shangus for disposal under the relevant provisions of law. 2. The migrants [Tej Nath Matoo and Raj Nath Matoo] challenged the order of District Magistrate, Anantnag dated 05.03.2021 (supra) before this Court in WP(C) No. 557/2021. The said writ petition was dismissed as withdrawn with a liberty to the aforesaid migrants to file an application/representation before respondent No. 2. This Court maintained the order of District Magistrate, Anantnag insofar as it ordered the taking possession of the subject property by the Tehsildar Shangus on behalf of the District Magistrate, Anantnag Thereafter, there appears to be an application moved by the migrants before the District Magistrate to hand over the possession of the subject land in favour of their attorney i.e. respondent No. 9. 3. 3. With a view to abort the attempt of respondent No. 9 to take over the possession of subject land, the petitioners, who were erstwhile owners of the subject land, have filed this petition seeking, inter alia, a direction to the District Magistrate, Anantnag to implement his own order passed on 05.03.2021 and restrain respondent No. 9 from raising any sort of construction over the subject land. On this petition coming up for consideration, this Court vide its order dated 28.04.2022, while issuing notice to the respondents for filing objections, also provided, by way of an interim order, that the District Magistrate, Anantnag shall adhere to and implement his own order dated 05.03.2021 and shall ensure that no construction by either of the parties is undertaken on the subject land. It appears that, in compliance to the interim directions passed by this Court on 28.04.2022, the District Magistrate, Anantnag has acted in the matter and has, through Tehsildar Shangus, issued notice dated 17.06.2022 directing the Power of Attorney of the migrants, the respondent No. 9, to vacate the possession of the subject land. It is this notice of Tehsildar Shangus issued pursuant to the directions of the District Magistrate, Anantnag and in compliance to the interim order dated 28.04.2022 passed by this Court in WP(C) No. 890 of 2022, which is subject matter of challenge by the Power of Attorney-respondent No. 9 herein along with one Sharika Pandita, in WP(C) No. 1316 /2022. WP(C) No. 1316/2022 4. Petitioner No. 1 Sharika Pandita, who claims to be the daughter of late Niranjan Nath and co-sharer of migrants Tej Nath Matoo and Raj Nath Matoo has joined the Power of Attorney holder of the migrants, namely Nazir Ahmed Teli (respondent No. 9 in earlier petition) to file the instant petition challenging notice dated 17.06.2022 passed by Tehsildar Shangus with a view to implement the interim directions passed by this Court in WP(C) No. 890/2022. Petitioner No. 1 claims that she along with the migrants Tej Nath Matoo and Raj Nath Matoo are co-sharers in the subject land which was under cultivating possession of their predecessor-in-interest as tenant in kharif 1973 and, therefore, by operation of Section 4 of the Act of 1976, the subject land came to be vested in the State by virtue of mutation No. 1657. It is pleaded that, owing to the migration, the ownership rights in terms of Section 8 of the Act of 1976 could not be conferred upon them. It is urged that petitioner No. 1, being a migrant, shall be deemed to be in cultivating possession of the subject land along with other co-sharers and, therefore, the subject land, a migrant property, deserves to be protected under the Act of 1997. It is also pleaded by petitioner No. 1 that since she through petitioner No. 2 is in possession of 06 marlas out of the subject land where a residential house has been constructed by petitioner No. 2 on her behalf, as such, that part of the property should be released and permitted to be used by petitioner No. 2. This is in a nutshell the entire case set up by the petitioners in this petition. Arguments & Analysis 5. Having heard learned counsel for the parties in both the petitions and perused the material on record, I am of the considered view that the order of District Magistrate, Anantnag dated 05.03.2021 deserves to be maintained, implemented and adhered to in letter and spirit. 6. Indisputably, the migrants, namely Tej Nath Matoo, Raj Nath Matoo and Sharika Pandita are co-tenants under the writ petitioners of WP(C) No. 890/2022 i.e. Hilal Ahmed Wani and Javed Ahmed Wani. The tenancy created by father of the petitioners Hilal Ahmad Wani and Javed Ahmad Wani with the predecessor-in-interest of the migrants qua the subject land is not in dispute. It has also come on record that during kharif 1971, the predecessor-in-interest of the migrants was in cultivating possession of the subject land and that by operation of Section 4 of the Act of 1976, the subject land came to be vested in the State. Before the mutation under section 8 of the Act of 1976 could be attested conferring ownership rights in favour of predecessor-in-interest of the migrants, there was large scale migration of Kashmiri Pandit Community from the valley and, therefore, the mutation under section 8 of the Act of 1976 could not materialize. It is a different matter that mutation attested under section 4 of the Act of 1976 was challenged by the petitioners of WP(C) No. 890/2022 before the Appellate Authority, but the same was not pursued and was dismissed for non-prosecution. It is a different matter that mutation attested under section 4 of the Act of 1976 was challenged by the petitioners of WP(C) No. 890/2022 before the Appellate Authority, but the same was not pursued and was dismissed for non-prosecution. There is nothing brought on record to show that any restoration application has been filed or the appeal has been restored to its original number. 7. Be that as it may, if the attestation of mutation under section 4 of the Act of 1976 attains finality or has attained finality, the consequent attestation of mutation under section 8 of the said Act would be inevitable and a necessary consequence of finality attained by mutation under section 4 of the said Act. The mutation under section 8 of the Act of 1976 would, obviously, be attested in favour of the migrants as per their share in the subject land. The District Magistrate, Anantnag has rightly concluded that the migrant immoveable property as defined under section 2(d) of the Act of 1997 also includes tenancy rights or interest created under any law for the time being in force. The District Magistrate, Anantnag is, thus, under an obligation under the Act of 1997 to protect such rights of the migrants as well. It needs to be clarified that till an appropriate mutation under section 8 of the Act of 1976 is attested in favour of the migrants, the subject property is a land vested in the State and, therefore, it is all the more incumbent upon the District Magistrate, Anantnag to protect such property from encroachments from any of the parties to this litigation. The migrants had no right, title or interest to issue any Power of Attorney in favour of Nazir Ahmad Teli-respondent No. 9 of WP(C) No. 890/2022 and petitioner No. 2 of WP(C) No. 1316/2022. 8. Neither the erstwhile owners i.e. the writ petitioners of WP(C) No. 890/2022, nor the migrants have any right over the subject property which, by virtue of mutation attested under section 4 of the Act of 1976, has vested in the State. That being the clear position, one would wonder as to how and on what basis, the petitioners in these petitions are litigating with respect to the subject land. That being the clear position, one would wonder as to how and on what basis, the petitioners in these petitions are litigating with respect to the subject land. With the attestation of mutation under section 4 of the Act of 1976, the migrants have become only the prospective owners and may have interest in the subject land, however, this interest is only limited to the extent of seeking conferment of ownership rights under section 8 of the aforesaid Act. They may be within their right to claim the protection of subject land so that they are in position to reap the benefit of attestation of mutation under section 4 of the Act of 1976 and getting the ownership rights qua the subject land by attestation of mutation under section 8 of the said Act, but certainly, neither the erstwhile owners i.e. petitioners of WP(C) No. 890/2022, nor petitioner No. 2, namely Nazir Ahmad Teli have any right, title or interest to enter the land. The power of attorney, if any, issued by the migrants qua their rights in the subject land is clearly in violation of the provisions of the Act of 1976 which clearly prohibit the transfer of tenancy rights in any manner. The tenant, who is conferred the ownership rights under section 8 of the Act of 1976 must cultivate the subject land personally. Any alienation of the property or creation of tenancy by such tenant, who is conferred the ownership rights under section 4 and Section 8 of the Act of 1976 renderes such land liable to be escheated to the State. I have, therefore, no hesitation to hold that the power of attorney executed by some of the migrants in favour of Nazir Ahmed Teli is of no effect. Neither Nazir Ahmad Teli, nor the migrants can deal with the subject land, in any manner, till the mutation under section 4 of the Act of 1976 attains finality and a consequent mutation under section 8 of the said Act is attested in favour of the prospective owners i.e. the migrants. Admittedly, the migrants are not in a position to put the subject land to personal cultivation at this point of time. Conclusion 9. Admittedly, the migrants are not in a position to put the subject land to personal cultivation at this point of time. Conclusion 9. For the foregoing reasons, both the petitions are disposed of by providing as under: (i) The order of District Magistrate dated 05.03.2021(supra) is upheld and the same shall subsist and remain in operation till the mutation under section 4 of the Act of 1976 attains finality and a consequent mutation under section 8 of the said Act is attested in favour of the migrants; (ii) Even after the attestation of mutation under section 8 of the Act of 1976 conferring ownership rights on the migrants, the subject land shall remain under the custody of District Magistrate, Anantnag till the same is claimed by the migrants and is disposed of in accordance with law; (iii) The District Magistrate, Anantnag shall ensure that all the encroachments on the subject land made by any of the parties to this litigation or somebody else, are removed in a time bound manner and the subject property free from all encumbrances and encroachments is taken possession of by or on behalf of the District Magistrate, Anantnag; (iv) The District Magistrate, Anantnag may put the subject land to some fruitful use so that the profits, if any, arising out of the subject land are utilized for its upkeep. Both the petitions stand disposed of in the above terms.