Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 335 (JK)

Ghulam Rasool Ganai v. State Of J&K

2023-08-02

SANJAY DHAR

body2023
JUDGMENT : 1) The petitioners, who happen to be the legal heirs of original petitioner, Shri Ghulam Nabi Ganai, have filed the instant petition challenging the order passed by respondent No.3, whereby the said authority, on the basis of communication No.Div.Com/MLA/ MIG/MISC/10/2017 dated 25.08.2017, addressed by respondent No.2, issued a direction to respondent No.4 to handover possession of the land claimed by private respondents No.6 to 8 in favour of the rightful owner. A further direction asking respondent No.2 not to dispossess the petitioners from the property, which is subject matter of the writ petition, has also been sought. 2) The case set up by the petitioners is that One Deena Nath Bhat agreed to sell property measuring 09 kanals and 03 marlas falling in Khasra Nos.5270, 544, 538, 539, 696, 530, 545 and 546 along with Shamilat Deh land measuring 05 kanals of Village Waskura Tehsil Ganderbal to original petitioner for a consideration of Rs.86,000/. It has been claimed that Shri Deena Nath received a sum of Rs.11,000/ and the balance amount was to be paid to him at the time of execution of the sale deed. The document/receipt in this regard is stated to have been executed by Deena Nath Bhat, the predecessor-in-interest of private respondents, on 27.09.1990. 3) It has been submitted that Shri Deena Nath Bhat migrated to Jammu where he passed away before execution of the sale deed. According to the petitioners, he was survived by his second wife, namely, Lalita Shouri and daughter Phoola Devi. From his second marriage, one Kakaji, who was born to Lalita Shouri out of her first wedlock, was adopted by Deena Nath Bhat. Besides this, Teja Devi, Rita Devi and Pyari Devi, happen to be the daughters of Deena Nath Bhat from his first wedlock. It is claimed by the petitioners that after the death of Deena Nath Bhat, his two sons-in-law, namely, Makhan Lal Bhan and Avtar Krishan Bhat, who were beneficiary of a will of Deena Nath Bhat, executed an irrevocable power of attorney dated 10.05.2001 in respect of land in question in favour of the original petitioner Ghulam Nabi Ganai. This was done on 10th May, 2001. This was done on 10th May, 2001. It is the further case of the petitioners that adopted son of Deena Nath Bhat, namely, Kakaji, as also Rita Devi, daughter of Deena Nath Bhat, born out of his second wedlock, executed an agreement to sell in respect of 03 kanals of land in favour of the original petitioner who paid a sum of Rs.1.00 lac as sale consideration. It is further submitted that even private respondents No.7 and 8 also executed a receipt for an amount of Rs.1.00 lac on 29.01.2001, whereby they agreed to sell their share of 03 kanals to the original petitioner. 4) According to the petitioners, private respondent No.6 filed a suit before the Court of Munsiff, Ganderbal, against private respondent No.7, seeking relief of declaration and injunction and during pendency of the said suit, a compromise was arrived at by the legal heirs of deceased Deena Nath Bhat, whereby they agreed that possession of whole of the estate left behind by deceased Deena Nath Bhat shall remain with the original petitioner who would have to pay an additional amount of Rs.2.50 lacs. Rita Devi, Lalita Shouri and adopted son, Kakaji, are stated to have executed separate affidavits admitting therein receipt of Rs.2.50 lacs and they have further undertaken that the possession of the original petitioner on the land in question is not forcible. It has also been submitted that respondent No.6, who has not migrated, has got mutation No.968 dated 31.08.2006, attested in favour of daughters of deceased Deena Nath Bhat and his wife Lalita Shouri excluding the adopted son Shri Kakaji. The aforesaid mutation has been challenged by Kakaji before Additional Commissioner, Kashmir, and in those proceedings an order of status quo has been passed. The original petitioner is stated to have filed an application for impleadment in the aforesaid proceedings before the Additional Commissioner, Kashmir. 5) It has been submitted that the private respondents have filed an application before the Court of Divisional Commissioner, Kashmir, under the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Act of 1997”) and the said application was forwarded to Deputy Commissioner, Ganderbal, by the office of Divisional Commissioner, Kashmir, in terms of communication dated 25.08.2017. It has been submitted that the Deputy Commissioner, Ganderbal, without conducting any enquiry into the claim of private respondents and without issuing a notice to the original petitioner, directed the Additional Deputy Commissioner, Ganderbal, to give possession of the property to the private respondents with the aid of the police. The Additional Deputy Commissioner, Ganderbal, in turn vide his order No.DCG/SQ/2017/11143 dated 31.08.2017, directed Tehsildar, Wakoora, to implement the order and allow the private respondents to pickup the fruits from the fruit bearing trees. 6) The petitioner has challenged the impugned orders/ communications on the grounds that the same have been passed/issued without jurisdiction and without hearing the petitioners. It has been further submitted that the original petitioner was not an unauthorized occupant of the property in question but he had acquired possession thereof on the basis of legally valid documents, hence no eviction order could have been passed against him. It has been further submitted that no enquiry has been conducted by the official respondents before passing the impugned orders/communications and, therefore, principles of natural justice have been violated in the instant case. 7) The writ petition has been contested by the private respondents by filing a reply thereto. In their reply, it has been submitted by the private respondents that the original petitioner is a stranger to the property in question having no right over the same. Th private respondents have denied execution of any document by late Deena Nath Bhat and have claimed that after his death, the property in question has devolved upon them. It has been submitted that both the wives of late Deena Nath Bhat, namely, Kamlavati and Lalita Shouri, have passed away, whereafter the land in question has devolved upon private respondents to the exclusion of all others. The private respondents have also denied executed any will by late Deena Nath Bhat in favour of his sons-in-law. It has been claimed that the original petitioner is trying to assert his right upon the property in question on the basis of fake and fictitious documents. According to the private respondents, the original petitioner was summoned by the Tehsildar concerned and after failing to establish his claim, he was directed not to interfere in the legal ownership and possession of the private respondents over the property in question. It has been submitted that the petitioner has furnished a bond before the Tehsildar. According to the private respondents, the original petitioner was summoned by the Tehsildar concerned and after failing to establish his claim, he was directed not to interfere in the legal ownership and possession of the private respondents over the property in question. It has been submitted that the petitioner has furnished a bond before the Tehsildar. 8) The official respondents have also filed their reply, in which it has been submitted that the land in question belongs to the private respondents and that in the year 2013, the land in question was handed over to them after removing the original petitioner Ghulam Nabi Bhat and others from its possession. It has been further submitted that the original petitioner again took over possession of the said land as soon as legal heirs of Deena Nath Bhat moved to Jammu and that at present petitioner Ghulam Nabi Ganai is in possession of the property. It has been further submitted that Shri Ghulam Nabi Ganai was called in the office and he was heard, whereafter he produced some documents justifying his possession over the land in question. According to the official respondents, the documents produced by the original petitioner before them have no sanctity in the eyes of law. 9) I have heard learned counsel for the parties and perused the record of the case. 10) The document which is under challenge before this Court is order dated 25.08.2017 recorded by the District Magistrate/Deputy Commissioner, Ganderbal, on the communication dated 25.08.2017 addressed by the office of Divisional Commissioner, Kashmir, to him. As per the said communication, the application stated to have been made by the private respondents before the Divisional Commissioner, has been forwarded to the District Magistrate, Ganderbal, with the request to look into the matter and take appropriate necessary action. It would be apt to reproduce the endorsement dated 25.08.2017 made by the District Magistrate/Deputy Commissioner, Ganderbal, on the said communication: “ADC/PA Ensure possession is given to rightful owners. Send police support for giving the possession to the rightful owners. Personally examine and enquire the case. Put up the report by 5th September. It would be apt to reproduce the endorsement dated 25.08.2017 made by the District Magistrate/Deputy Commissioner, Ganderbal, on the said communication: “ADC/PA Ensure possession is given to rightful owners. Send police support for giving the possession to the rightful owners. Personally examine and enquire the case. Put up the report by 5th September. 11) It appears that on the basis of afore-quoted direction passed by the District Magistrate/Deputy Commissioner, Ganderbal, the Additional Commissioner, Ganderbal, has issued communication dated 31.08.2017 to the Tehsildar, Wakura, whereby he has asked the Tehsildar to go on spot and allow the private respondents to thrash the fruit of walnut trees, which is a perishable item, and submit the action taken report. 12) The question that falls for determination is as to whether the action taken by the official respondents in the manner indicated above is in accordance with law. 13) In order to fined an answer to the aforesaid question, it would be apt to refer to certain provisions contained in the Act of 1997. Sections 3, 4 and 5 of the Act are relevant to the context and the same are reproduced as under: 3. Restriction on alienation of immovable property. 13) In order to fined an answer to the aforesaid question, it would be apt to refer to certain provisions contained in the Act of 1997. Sections 3, 4 and 5 of the Act are relevant to the context and the same are reproduced as under: 3. Restriction on alienation of immovable property. – Notwithstanding anything to the contrary contained in any other law for the time being in force– (a) alienation of immovable property of a migrant by act of parties or a decree or order of a court or of a revenue officer except under such conditions as may be prescribed and with previous permission of Revenue and Relief Minister, or such officer as may be authorised by him in this behalf, is forbidden: Provided that no such permission shall be necessary in case of a mortgage without possession of such immovable property in favour of an institution mentioned in section 4-A of the Jammu and Kashmir Alienation of Land Act, Samvat 1995 and transfer of the said immovable property in favour of Government of Jammu and Kashmir: Provided further that the permission to alienate shall be deemed to have been granted, if an application seeking permission for alienation of such property is not decided by the prescribed authority within fifteen days from the date of receipt of such application: Provided also that the enquiry for the purposes of the grant of permission by the prescribed authority shall be limited to the question of sale being not distress; (b) any alienation of immovable property on or after the commencement of this Act, in contravention to the provisions thereof, shall be null and void and immovable property so alienated shall, after such enquiry as may be prescribed, vest in its owner; and (c) no document purporting to alienate such immovable property in contravention of the provisions of this section shall be admitted to registration. 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. 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 one save with the express consent of the migrant in writing. 5. Eviction of unauthorised occupants. – If any unauthorised 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. 14) Section 3 of the Act of 1997 prohibits alienation of immovable property of a migrant not only by act of parties but also by a decree or order of a Court or a revenue officer without previous permission of Revenue and Relief Minister. It further provides that any alienation of immovable property in contravention of the Act shall be null and void. 15) The Rules framed by the Government in exercise of its powers under Section 14 of the Act of 1997, prescribe the manner in which an application for grant of permission to alienate the property has to be dealt with. These Rules further provide that in case any property is transferred in contravention thereof, the District Magistrate of the area suo moto or on the basis of information received or otherwise has to hold an enquiry into the matter himself or through a Revenue Officer not below the rank of Tehsildar and if necessary, he may take possession of the property after evicting the person in possession so as to preserve and protect the same. 16) A perusal of Section 4 of the Act of 1997 would reveal that the District Magistrate becomes custodia legis of any property belonging to a migrant and the same cannot be alienated without the permission of Revenue and Relief Minister and any alienation in violation of the same or without such permission is null and void. 17) Section 5 of the Act of 1997 authorizes the competent authority to evict an unauthorized occupant from a migrant property and use such force as may be necessary for taking possession of the property if the unauthorized occupant refuses to surrender the possession. 18) Thus, as per the scheme of the Act of 1997, the District Magistrate, who is a competent authority in terms of Section 4 of the Act, is authorized to take such steps as may be necessary for preservation and protection of such property which includes eviction of an unauthorized occupant but the question arises as to in what manner the District Magistrate has to exercise his power to preserve property of a migrant and to protect it from encroachment by unauthorized occupants. 19) While passing an order of eviction under the provisions of the Act of 1997, the District Magistrate has to make an enquiry as to whether the property, which is the subject matter of an enquiry, is a migrant property. He has to satisfy himself as to whether the person who is in occupation is an unauthorized occupant and for this purpose, he has to be given an opportunity of hearing and an opportunity of producing any material on the basis of which he is claiming his occupation of the property. It is only then that the District Magistrate can pass an order of eviction against the unauthorized occupant. 20) Coming to the facts of the instant case, from a bare perusal of the impugned directions, quoted hereinbefore, it is clear that the District Magistrate has not held any enquiry at all. He has left everything to be determined by the Additional Deputy Commissioner, who, in turn, has left it to the Tehsildar concerned. The District Magistrate was obliged to enquire into the question whether the property in question was a migrant property. He has left everything to be determined by the Additional Deputy Commissioner, who, in turn, has left it to the Tehsildar concerned. The District Magistrate was obliged to enquire into the question whether the property in question was a migrant property. He had also to satisfy himself as to whether or not the original petitioner was an unauthorized occupant and for this purpose, the District Magistrate was obliged to hear the occupant of the property and to give him an opportunity to produce material in support of his claim. This exercise had to be undertaken by the District Magistrate prior to issuing blanket directions regarding handing over of possession and police assistance etc. The District Magistrate has not even taken trouble to verify the claim of the private respondents and has proceeded to issue the blanket directions. 21) The power to issue an order of eviction of an unauthorized occupant under the provisions of the Act of 1997, is drastic in nature and a District Magistrate is expected to make a proper enquiry and give an opportunity of hearing to the effected person before making such an order, which in the instant case respondent No.3 has not done. Therefore, the impugned order dated 13.09.2017passed by the District Magistrate, Ganderbal, is not sustainable in law. 22) During pendency of this writ petition, certain developments have taken place which are required to be noticed. At the motion stage, this Court passed an interim order dated 13.09.2017 in the instant writ petition, which is reproduced hereinbelow: “Notice. Notice in MP also. In the meantime, subject to objections and till next date of hearing before the Bench, no action in terms of endorsement order dated 25th August, 2017, on communication dated 25th August, 2017 (Annexure J to writ petition), shall be given effect, unless Deputy Commissioner, Ganderbal, holds inquiry and finds who is actual owner of subject matter of writ petition. List immediately after service is complete.” 23) On 11.05.2018, an order of status quo came to be passed by this Court. It seems that pursuant to the interim order dated 13.09.2017, the District Magistrate/Deputy Commissioner, Ganderbal, held an enquiry wherein an opportunity of hearing was given to the original petitioner and he was asked to produce the documents in support of his claim. It seems that pursuant to the interim order dated 13.09.2017, the District Magistrate/Deputy Commissioner, Ganderbal, held an enquiry wherein an opportunity of hearing was given to the original petitioner and he was asked to produce the documents in support of his claim. After holding enquiry, the District Magistrate found that the documents produced by the original petitioner in support of his claim have no legal sanctity. 24) Another development took place on 16th October, 2019, when this Court passed an order whereby order dated 13.09.2017 was modified and respondent No.3-Deputy Commissioner, Ganderbal, was directed to proceed in the matter and ensure that the property in question is protected and preserved in tune with mandate of law. 25) It seems that pursuant to the aforesaid order of this Court, the District Magistrate, Ganderbal, issued order dated 25th October, 2019, whereby eviction of the original petitioner from the land in question was ordered as the original petitioner was declared as an unauthorized occupant. In the meantime, the original petitioner challenged order dated 16th October, 2019, by way of LPA No.264/2019. The LPA was allowed and order dated 16th October, 2019, was quashed. It was further directed that the order of status quo passed on 11th May, 2018, shall continue. 26) In the face of quashment of order dated 16th October, 2019, pursuant to which the District Magistrate, Ganderbal, had passed order dated 25.10.2019. when the basis for passing the said order has been knocked down, as such, the same has ceased to exist. However, that does not mean that the enquiry that has been conduced by the District Magistrate pursuant to the orders of this Court would loose its significance. The same can very well be taken into consideration by the District Magistrate while considering the matter afresh. 27) In the face of what has been discussed hereinbefore, the impugned endorsement dated 25th August, 2017, on the communication dated 25.08.2017 of the Divisional Commissioner, Kashmir, and the steps taken pursuant thereto are quashed. However, the District Magistrate, Ganderbal, is at liberty to pass a fresh order of eviction if the situation warrants so and while doing so, he shall be at liberty to take into consideration the report of the enquiry that has been conducted pursuant to the directions of this Court. Prior to passing any fresh order, the District Magistrate shall afford an opportunity of hearing to the parties. Prior to passing any fresh order, the District Magistrate shall afford an opportunity of hearing to the parties. 28) The writ petition stands disposed of accordingly. 29) No order as to costs.