Jammu & Kashmir High Court - Srinagar Bench
Abdul Khaliq Rather vs State Of J&K; And Others on 18 September, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no. 915/2013 Date of order: 18.09.2018 Abdul Khaliq Rather Vs. State of J&K and others Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge i. Whether to be approved for reporting In NET Yes/No ii. Whether to be approved for reporting In Digest/Journal Yes/No __________________________________________________________________ Appearing Counsel:
For Petitioner(s): Mr. R. A. Jan, Sr. Adv. For Respondent(s): Mr. Zahoor Jan, Advocate; Mr. N. H. Shah, AAG
1. In this petition, the petitioner beseeches and seeks the following reliefs:
i. Writ, order or direction including one in the nature of mandamus declaring the impugned action of the respondent no. 3 in the form of impugned order no. DCB/BPR/ARA/2008/614-17 dated 23.12.2008 served on the petitioner on 4.6.2013 ultra vires the power, authority and jurisdiction as by law vested in the respondent no. 3 under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 in particular section 5 thereof and therefore, non-est in law and liable to be interdicted under the appropriate writ of this Hon'ble Court, be issued in favour of the petitioner and against the respondents.
ii. Writ, order or direction including one in the nature of certiorari quashing/setting at naught the impugned order no. DCB/BPR/ARA/ 2008/614-617 dated 23.12.2008, served on the petitioner on 4.6.2013, be also issued in favour of the petitioner and against the respondents.
OWP No. 915/2013 Page 1 iii. Writ, order or direction including one in the nature of mandamus commanding the respondents in particular respondents 1 to 4 to treat the impugned order no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008, served on the petitioner on 4.6.2013, non-est in law and desist and refrain from acting in furtherance thereof and/or carrying into execution the impugned order no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008, in any manner prejudicial to the possessory rights and interests of the petitioner and/or disturbing in execution of the impugned order no. DCB/BPR/ARA/2008/614- 617 dated 23.12.2008, in any manner whatsoever the lawful possession of the petitioner over the parcel of land measuring 4 kanals and 6 marlas situate at Awrenbal, Sonawari, Sumbal, being held and enjoyed by the petitioner since the year 1971, be also issued in favour of the petitioner and against the respondents .
2. The facts under the shade and cover of which the petitioner claims the aforesaid reliefs are that the order bearing no. DCB/BPR/ARA/ 2008/614-617 dated 23.12.2008 passed by the learned Deputy Commissioner, Bandipora, is perverse and cannot withstand the scrutiny of law. In order to understand the contention of the learned counsel for the petitioner in its right perspective, the order aforesaid requires to be reproduced below word for word and letter for letter, and it reads thus:
"Whereas an application had been moved by the applicant namely Som Nath Bhat S/O Late Pandith Sri Kanth Bhat at present C/O Shafa Clinical Lab. Ward No: 07, Shiv Nagar, Udharnpur 182101 Dated: 20th July 2003 to Hon'ble Chief Minister of Jammu & Kashmir requesting therein for removal of alleged encroachment on his proprietary land under khasra No:
OWP No. 915/2013 Page 2 225 and 026 measuring 07 kanals-18 Marlas and 04 Kanals - 5 ½ marlas respectively, situated at Wangipora, Sumbal. This application had been forwarded to Deputy Commissioner Baramulla by the Additional Private Secretary to Hon'ble Chief Minister vide no. CMS/23/2004 Dated: 08.01.2004 for necessary action under J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
Whereas the Deputy Commissioner Baramulla directed Additional Deputy Commissioner, Baramulla vide his no. DCB/PS/Encr/4439-40 dated 09.01.2004 for eviction of the alleged encroachment on the applicant's land. Pursuant to this proof, Additional Deputy Commissioner Baramulla sought factual report from Tehsildar Sonawari as regards the subject vide his letter no. DCB/R/Inq/Encr/Migrant/141-43 dated 12.2.2004.
Whereas in the meantime, a petition (OWP no. 669/2005) seems to have been filed by six petitioners including the applicant before the Hon'ble High Court of Jammu and Kashmir for redressal of their grievances, which was disposed of by the Hon'ble High Court on 13.10.2005 with the orders reproduced below:
".... Respondent 3 (District Magistrate, Deputy Commissioner, Baramulla, Kashmir) is directed to decide the complaint of the petitioners in accordance with law expeditiously after hearing all the parties concerned in the dispute."
Whereas, afterwards, another application/representation appears to have been moved by the applicant, Autar Krishan Bhat on 16.6.2006 to District Magistrate Baramulla, for implementation of the above said court order.
OWP No. 915/2013 Page 3 Whereas in 2007, after the creation of District Bandipora, the said file, however incomplete in many respects was forwarded to this office along with the other record pertaining to the territorial jurisdiction of District Bandipora. Seemingly after no action on the subject having been taken by the District Magistrate, Baramulla, the petitioners filed a contempt petition no. 80 of 2006 before the Hon'ble High Court against Baseer Khan (District Magistrate, Baramulla) in person for non-compliance of the court orders. The notice of the said contempt available on record reveals that the contempt case had been fixed for hearing on 18.01.2008.
Whereas the Deputy Commissioner, Bandipora having not been arrayed as party in the said contempt petition, the said file was returned to the Deputy Commissioner, Bararnulla on his verbal telephonic request vide this office letter No:
DCB/ARA/08/917 dated: 01.03.2008. After a gap of eight months, the said file was again returned by Deputy Commissioner, Baramulla by back dating his letter no. DCB/LC/106 Dated: 04.06.2008, which was received by this office on 11.11.2008. Since around this date, election process in the District Baridipora was, 17th November 2008 being the Polling date for three constituencies of District Bandipora, the file could not be processed further. However, immediately after the election process was over in the District, a factual report as regards the subject was sought from Tehsildar concerned vide this office letter No: DCB/ ARA/2008/564 Dated: 03.12.2008.
Besides, the case was fixed for hearing on 18.12.2008 in order to resolve the dispute between the parties as directed by the Hon'ble High Court in its order dated: 13.10.2005.
OWP No. 915/2013 Page 4 Summons in this respect were issued through Tehsildar Sonawari vide No: DCB/ARA/08/580-81 Dated: 06.12.2008 and through Relief Commissioner Migrants Jammu vide No: DCB/ARA/08/582-83 Dated: 06.12.2008. The date was subsequently fixed on 19.12.2008;
Whereas Tehsildar Sonawari was expressly directed on 13.10.2008. to evict the unauthorised occupation if any and report back;
Whereas the Tehsildar vide his letter No: 1011/Sona/OQ/008 Dated: 15.12.2008 furnished the following report:
". . . land measuring 04 kanals - 5 ½ Marlas comprising survey No. 206 min situated at east Sumbal Inderkote and the said portion of land is mortgaged with Bank and entries in revenue records continue till date. So far the spot of the said land is concerned the land is under illegal occupation of Ab. Khaliq Rather S/o Haji Gullah Rather R/o Sumbhal Inderkote.
After obtaining kind information on the letter vide this office no. 1009/Sona/06/008 dated: 12.12.2008 undersigned rushed on spot along with the field agency viz. Patwari halqa, GQ Sumbal, Naib Tehsildar and made the ejectment of the said land and after ejectment the said land was given the custody of Namberdar namely Ali Mohd. Bhat R/o Sumal Inderkote as per the supurd nama enclosed. Hence submitted for further necessary action please."
Whereas the case was heard at Tehsil Headquarter Sonawari on 19.12.2008 in absence of petitioners who intimated through Relief and Rehabilitation Commissioner (M) Jammu vide Fax reply OWP No. 915/2013 Page 5 No: RCM/PA/08/671 Dated 18.12.2008, their inability to attend due to 'prevailing militancy disturbance'. Respondent No: 7, Abdul Khaliq Rather S/0: Haji Gullah Rather R/o Sumbal, Sonawari, however, was present in person. His statement was recorded wherein he claimed that the land in question was handed- over to him, in lieu of an amount of Rs. 28,000/- [twenty eight thousand] lent by his father to Shri Som Nath Bhat and Shri Makhan Lal Bhat [petitioner No: 2 & 3 of OWP 669/2005] way back in 1987 but was actually in his possession before 1971. To this effect, he produced a Stamp Paper (Hundi in original) duly signed by the petitioner Nos 2 & 3 in presence of the witnesses, a Photostat copy of which is kept for the record. He further asserted that since the said land was also mortgaged to a Bank by the owners, as such the revenue department declined to make appropriate entries in the revenue record under the J&K Agrarian Reforms Act 1976. Besides, he further stated that the Hundi provides that in case of default by the owners, they shall have to pay penalty to the tune of Rs. 70,000/- towards respondent No 7 and therefore as per his understanding, the J&K Migrants Immovable Property [Preservation, Protection and Restraint on Distress Sales] Act 1997 is not applicable to the instant case;
Whereas, statement of Abdul Khaliq Rather son of Gullah Rather and perusal of the Hundi apparently suggest that there has been some sort of private agreement between the parties as regards the land in question. However, the land has neither been transferred/mutated under the provisions of J&K Agrarian Reforms Act nor by way of any sale deed, in the name of Shri Khaliq Rather OWP No. 915/2013 Page 6 S/0: Haji Gullah Rather, therefore, the occupation/possession of the land in question by Shri Ab. Khaliq Rather son of Haji Gullah Rather is illegal and violates the provisions of the J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997. Accordingly, the illegal occupation has justifiably been removed and after ejectment the land has been given in the custody of numbardar concerned Shri Ali Mohammad Bhat.
Now, therefore, it is hereby ordered that the land in question comprising 04 kanals - 5 ½ marlas shall remain in the custody of the Deputy Commissioner Bandipora (Custodian Migrant Property) through Tehsilddar Sonawari, till the possession is handed over to rightful owners under law. Shri Avtar Krishan and co-petitioners/owners of the land can take possession of the said land any time they like after setting the issue of encumbrance with the concerned Bank, if any.
3. Heard and considered.
4. Section 5 of the J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales Act, 1997, (hereinafter referred to as the Act), provides that 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 OWP No. 915/2013 Page 7 open any lock, bolt or any door or do any other Act, necessary for the said purpose.
5. Section 7 of the Act runs under the head "Appeal" and it lays down that any person aggrieved of an order passed under this Act, may file an appeal before the Financial Commissioner, Revenue: Provided that no such appeal shall be entertained against-- a) an interlocutory order; b) an order of eviction unless possession of the property is surrendered to the competent authority; c) an order of payment of compensation determined under this Act unless the amount of compensation is deposited with the appellate authority. (2) The period of limitation for filing of an appeal under sub-section (1) shall be fifteen days from the date of order appealed against.
6. Without adverting to the contentious issues and controversy emanating from the case set up by the parties and given the submissions and counter submissions made by the learned counsel for the parties, it is imperative to have a discourse qua the maintainability of the petition on hand preferred by the petitioner under and in terms of Section 103 of the Constitution of Jammu and Kashmir State, and Article 226 of the Constitution of India.
7. On the face of the provisions of law as contained in section 7 of the Act, the petitioner had a statutory right to file an appeal which he has OWP No. 915/2013 Page 8 not availed. The law on the subject as evolved in LPA no. 243/2006 bearing the title Mehraj ud Din Mir versus State of J&K and others, decided on 31.08.2007, is lucid and clear and it provides as follows:
"Mr. Qayoom submitted that on both counts the view taken by the writ Court was untenable. He submitted that the provision of appeal under the Act was not efficacious but highly onerous. He referred to clause (b) of sub section (1) of section (7) that made the surrender of possession of the occupied property the condition precedent for filing appeal against an order of eviction. According to him, the condition rendered the provisions of appeal highly onerous and hence, the Court was in error in declining to entertain the writ petition on grounds of alternative remedy. In support of the submission, he relied upon an earlier decision by a learned Single Judge of the Court in Hakeekat Singh v. State of J&K, 1999 SLJ 562.
We are unable to accept this submission for a minute. In our considered view, the condition prescribed for filing an appeal against an order under section 5 of the Act is completely in harmony with the overall object and purpose of the Act and it cannot be held to be unduly onerous or stringent so as to render the remedy of appeal as ineffective or illusory. It is another matter that in the given facts and circumstances of a case the writ Court may deem it just and proper to interfere in the matter directly without relegating the parties to the remedy of appeal provided under the Act. But such cases would be few and far between. The decision relied upon by Mr. Qayoom was in such a case in the facts and circumstances of which the Court deemed proper to not relegate the petitioner (Hakeekat Singh) to the appellate authority but to decide the matter itself. Nevertheless, the learned Single Judge was careful to make OWP No. 915/2013 Page 9 a qualified observation on the question of appeal being an alternative remedy in paragraph 19 of the judgement which is as follows :
"Without commenting on the question whether the forum of appeal provided by section 7 of the Distress Sales Act of 1997........ under the said Act would in all cases bar the relief in the writ jurisdiction on the principle of existence of alternative remedy, the provisions of said appeal against an order passed by District Magistrate, Srinagar under section 5 of the Act would not in the totality of facts and circumstances of this case come in the way of relief to which petitioner is found entitled in these writ proceedings. Even on consideration the appeal is not efficacious and effective enough to prevent the relief to the petitioner in this case."
It may be noted here that the above quoted passage from the decision in Hakeekat Singh was also noticed by the writ Court.
Coming now to the other ground that the case involved disputed facts, Mr Qayoom submitted that there were hardly any disputed facts in the case. He submitted that there were certain elementary facts that were undeniable, namely, the execution of an agreement to sell by the private respondent and the payment of Rs. 50,000 by the writ petitioner to him as part payment of the consideration money. He further submitted that in view of those facts the appellant's occupation of the disputed property could not be described as unauthorized and the exercise of power under Section 5 of the Act was wholly unwarranted. Therefore, the Writ Court was completely in error in declining to exercise its jurisdiction in favour of the appellant, citing involvement of disputed facts as one of the reasons.
OWP No. 915/2013 Page 10 Learned counsel further submitted that the Writ Court was not barred from entertaining disputes based on disputed facts and in support of the submission relied upon a Supreme Court decision in ABL International Limited v. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553. In our view, the decision of the Supreme Court has no application to the facts of this case. It is to be noted that the observations made in the decision were mostly in the background of the lis between a private party and the State or an instrumentality of the State. In the present case, the lis, purely of a civil nature, is between the two private individuals and, therefore, in our view, the Writ Court was quite right in declining to entertain the writ petition for the reasons of involvement of disputed questions of fact.
Mr Qayoom next submitted that the order passed by the District Magistrate was prima facie bad and untenable and, therefore, it was incumbent upon the Writ Court to interfere in the matter regardless of the provision of appeal or any factual aspects in the controversy. Learned counsel submitted that on hearing the parties and on a consideration of the materials brought before him the District Magistrate recorded five findings of fact which are as follows:
A. The application and non-applicant have agreed to sale/purchase land measuring 1 kanal against the consideration of Rs. 3.05 lacs. B. Non applicant has paid an amount of Rs. 50,000/- to applicant through bank draft as advance/ part payment against sale consideration.
C. Non applicant has failed to produce any authentic document in support of his claim that he has paid Rs. 2.50 lacs or balance amount of consideration.
D. The applicant has received an amount of Rs. 50,000/- from the non-applicant as part payment against the sale of property in question.
OWP No. 915/2013 Page 11 E. The parties have not executed any legal/authentic document in connection with sale/ purchase of the property in question till date.
Learned counsel further submitted that in view of the findings at 'A', 'B' and 'D' the appellant (writ petitioner) could not be described as unauthorized occupant of the property within the meaning of Section 2(1) of the Act. Hence, the Collector's direction for the appellant's forcible eviction was contrary to his own findings. The submission plainly overlooks the terms and conditions of the agreement to sell that constitutes the very basis of the appellant's case. In the agreement to sell it was categorically stipulated that till the entire consideration money was paid the appellant would not be empowered to take possession of the property in any manner nor he would have the authority to use or construct any house or any property on it in any manner. The agreement to sell also stipulated that full consideration money would be paid by the first week of January, 1998 failing which the respondent could forfeit 25% of the earnest money (Rs. 50,000.00). The findings recorded by the District Magistrate seen in light of the stipulations in the agreement to sell leave no room for doubt that the possession of the appellant over the property in question was unauthorized within the meaning of the Act and it plainly attract the provisions of Section 5 of the Act.
On hearing Mr. Qayoom, we find no merit in the appeal. It is dismissed."
8. Looking on the petition of the petitioner from the perspective of the law laid down above, the petitioner had an alternative remedy available to him which he has not exhausted. This aspect has been delved into in the aforesaid enunciation of law. Therefore, the appeal OWP No. 915/2013 Page 12 of the appellant is ineffective, incomplete, incompetent and defective. Dealing with a matter almost identical to the present one a Division Bench of this Court in case bearing LPA No. 173/2007 titled "Western Bus Service Vs. Assistant Labour Commissioner & Ors", decided on 16.10.2007 has held as under: "
In a more recent decision in A.P. Foods Vs. S. Samuel, (2006) 5 SCC 469, a case arising under the labour law, the Supreme Court once again re-affirmed the same legal position, making reference to the earlier decisions, in U.P State Bridge Corportion Ltd. V. U.P. Rajya Setu Nigam, (2004) 4 SCC 268, Premier Automobiles Ltd. V. Kamelkar Shantaram Wadke, (1976) 1 SCC 496, Rajasthan SRTC V. Krishna Kant, (195) 5 SCC 75, Chanderkant Tukaram, Nikam V. Municipal Corpn. of Ahmedabad (2002) 2 SCC 542 Scooters India V Vijai E.V. Eldred, (1998) 6 SCC 549 and Basant Kumar Sarkar V. Eagle Rolling Mills Ltd. (1964) 6 SCR 913. The decision reiterates the view that a writ petition under Article 226 of the Constitution of India should not be entertained when the statutory remedy is available under the Act unless exceptional circumstances are made out.
9. On the dimensions of the provisions of the Act detailed herein before, the petitioner had a right to seek the remedy under section 7 of the Act. Learned counsel for the petitioner has not been able to persuade this Court as to how and in what manner the writ petition can be entertained on the anvil of the availability of an alternative remedy. No reasons have been put forward in brushing aside the right to exhaust the alternative remedy available to the petitioner and to file OWP No. 915/2013 Page 13 the writ petition. There can be no denial of the fact that the existence of an alternative remedy does not ipso facto curtail or bar the jurisdiction vested in the High Court under Article 226 of the Constitution of India. The remedy under Article 226 is, in general, a discretionary one and the High Court has the power to refuse to grant it where the alternative remedy, which is equally efficient and adequate, is in existence unless there are good grounds therefor. The rule of exhaustion of alternative remedy is a rule of discretion but it is difficult to comprehend as to why this Court should entertain the petition filed under section 226 of the Constitution of India and pass the orders thereon by remaining oblivious to the fact that the petitioner has a remedy provided by the legislation/Statute in which a detailed mechanism has been evolved. On the face of the existence of such a remedy, the Court has to exercise circumspection, care and caution in the exercise of discretion in attending to such matters. It is true that in peculiar cases, if the petitioner(s) is/are able to show that his/her/their case falls on the pedestal of the exceptions carved out to this rule, the Court can pass appropriate orders. However, in the writ petition, the petitioner has not been able to bring his case within the canons of the exceptions chiselled out in various judicial pronouncements.
OWP No. 915/2013 Page 14
10.Testing the instant case on another scale that is that the petitioner and his predecessor-in-interest have been since the year 1971 in use, enjoyment, occupation and possession of all that parcel of land comprising 4 kanals and 6 marlas situate at Awrenbal, Sonawari, Sumbal, and therefore the impugned proceedings undertaken by the respondent no. 3 right from its inception to culmination viz. impugned order dated 23.12.2008 from the vice of total lack of jurisdiction on the part of respondent no. 3 in the matter rendering the impugned proceedings as well as its culmination ultra vires the provisions of law and non-est in law liable to be interdicted under the appropriate writ of this court, what can be said is that it is a specious and contrived argument when tested on the touchstone of the law and the facts. The petitioner has not placed any document on record as would substantiate that his possession was lawful at any moment of time. Section 54 of the Transfer of Property Act lays down that transfer, in the case of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Section 138 of the same Act provides no transfer of immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing registered and the registration thereof has been completed in accordance with OWP No. 915/2013 Page 15 sub-section (3) of section 61 of the Registration Act, 1977. Sub- section 3 of Section 138 provides that no person shall take possession of, or commence to build or build on, any land in the Province of Kashmir which has been transferred or has been contracted to be transferred to him unless and until such transfer becomes valid under the provisions of sub-section (1). Not only this, the land detailed and described in the petition was under the tenancy of Sona Teeli, as gets revealed and crystalized from Annexure-R1 attached to the objections. It was resumed by the private respondents from the tenants by a mutation bearing no. 129 much after the year 1973 under the provisions of the Agrarian Reforms Act. The law is that transfer of possession in violation of provisions will not create any right or interest in the person who takes possession of the land under a document executed in violation of the section. The subject matter of the petition was also mortgaged by the father of the private respondents in favour of the State Bank of India by a registered mortgage deed dated 26.3.1984 for obtaining a loan, and to cap it all, the petitioner executed a personal bond (attached to the objections as Annexure-R8) wherein he has stated that he has surrendered the possession of the land delineated in the petition and he will not cause any interference whatsoever in it. Therefore, the contention of the OWP No. 915/2013 Page 16 petitioner that he and his predecessors-in-interest possessed the land detailed herein prior to the year 1971 does not hold to be true when tested on the parameters of the material available on record.
11. In the backdrop of what has been said and done above, the petition is meritless and deserves to be dismissed, and is accordingly dismissed along with the connected MPs.
( M. K. Hanjura ) Judge Srinagar 18.09.2018 N Ahmad OWP No. 915/2013 Page 17