Jammu & Kashmir High Court - Srinagar Bench
Haji Bahir Ahmad Want And Anr vs Showkat Hussian Dar & Others on 25 October, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
On board matter
Regular List
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
C. Rev. No 34/2017
MP No.01/2017
Date of Decision: 25.10.2017
Haji Bashir Ahmad Want & anr. Vs. Showkat Hussain Dar & others
Coram:-
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Appearance:
For the Petitioner(s): Mr. S. N. Ratanpuri, Adv.
For the Respondent(s): Mr. S. A. Naik, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. By medium of this Civil Revision Petition, order dated 12.09.2017 passed by the Court of Sub Judge (Chief Judicial Magistrate) Anantnag, is assailed. By virtue of order impugned, application filed by the petitioners under Order VII Rule 11 CPC for rejection of the plaint has been dismissed.
2. Noticing of precise factual background shall be advantageous for disposal of this petition:
(I) Mr. Kashi Nanth Kandroo, Rattan Lal Kandroo, Avtar Krishan Kandroo and Tej Krishan Kandroo sons of Late Neel Kanth Kandroo C. Rev No 34/2017 Page 1 of 14 R/o Nazuk Mohalla Qasba Baghat Anantnag at present Jammu, claimed to be owners in possession of land measuring 5 kanals 15 marlas covered by survey Nos.3167, 4227/3168 and 4226/3162 situated at Nazuk Mohalla Qasba Baghat Anantnag. They allegedly have executed a General Power of Attorney on 26.07.2011 in favour of Mr. Firdous Ahmad Bhat S/o Late Mohammad Ismail Bhat R/o Khoja Bagh Baramulla, on that date shown to be residing at Nazuk Mohalla Anantnag, authorizing him to look after and manage the said land, to dispose the said land after obtaining permission under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as the Act of 1997) by way of sale deed, gift deed, mortgage deed etc., has been further authorized to appoint the sub-
attorney, to engage the counsel for defending the cases before civil court, revenue authorities or any other authority, to sign pleadings etc. (II) On the said date i.e. 26th July, 2011, the said owners and Bilal Ahmad Want s/o Haji Bashir Ahmad Want R/o Lazbal (petitioner No.2) executed an agreement to sell, in terms whereof said land has been C. Rev No 34/2017 Page 2 of 14 agreed to be sold to Bilal Ahmad for a sale consideration of Rs.1.15 crores (rupees one crore and fifteen lacs) which amount has been paid to the owners. In the said agreement, it has also been made clear that the party No.1 i.e. actual owners shall have no right whatsoever over the said land from the date of execution of agreement to sell. The party No.2, Bilal Ahmad, has been authorized to enter his name in the revenue records, to sell the said land to any person of his choice regarding which the party first i.e. actual owners, shall have no objection.
(III) Tej Krishan Kandroo S/o Late Neel Kanth Kandroo and Bilal Ahmad (petitioner No.2) have executed another agreement to sell regarding residential house (one storeyed) measuring 35ʹx35ʹ with four rooms which was occupied by CRPF. In terms of the agreement, the said property has been sold in favour of Bilal Ahmad for an amount of Rs.4.00 lacs (rupees four lacs) which has been received by Tej Krishan Kandroo. The second party, Bilal Ahmad, has been left free to use the property and also to raise any construction over the same. C. Rev No 34/2017 Page 3 of 14 (IV) Firdous Ahmad Bhat, Attorney Holder, and one Showkat Hussain Dar have executed an agreement to sell on 22.07.2015, in terms whereof, 10 marlas of land covered by survey No.4227/3168 has been sold to Showkat Hussain Dar S/o Ghulam Nabi Dar R/o Brakpora Anantnag.
(V) Mr. Avtar Krishan Kandroo, one of the sons of Late Neel Kanth Kandroo, has executed another Irrevocable General Power of Attorney on 30.11.2015 in favour of Haji Bashir Ahmad Want (petitioner No.1) regarding land measuring 1 kanal 8 marlas and 7½ sirsais situated at Nazuk Mohalla, in terms whereof Haji Bashir Ahmad (petitioner No.1) has been authorized to look after and maintain the said land and to sell the said land to any person. (VI) Said Avtar Krishan Kandroo also executed an agreement to sell on 30.11.2015 in favour of petitioner No.2 (Bilal Ahmad) in respect of land measuring 1 kanal 8 marlas and 7½ sirsais to the extent of his share covered by survey Nos.3167, 4227/3168 and 4226/3172 for an amount of Rs.72,86,850 (rupees seventy-two lacs, eighty-six C. Rev No 34/2017 Page 4 of 14 thousand, eight hundred and fifty) which is shown to have been paid and received by said Avtar Krishan Kandroo.
(VII) Firdous Ahmad, Attorney Holder, filed a suit before the Court of Munsiff, Jammu, against Avtar Krishan Kandroo and Bashir Ahmad with a prayer for declaring the power of attorney executed in favour of Haji Bashir Ahmad (petitioner No.1) as null and void. The said suit has been dismissed for want of prosecution on 26.12.2016. (VIII)On 26.04.2016, Avtar Krishan Kandroo has revoked the power of attorney executed in favour of Haji Bashir Ahmad (petitioner No.1). (IX) Said Avtar Krishan Kandroo is shown to have filed an application under Section 5 of the Act of 1997, based on which District Magistrate, Anantnag, has passed two orders dated 20.06.2017 and 03.08.2017. Both the two orders were challenged by Avtar Krishan Kandroo, Kashi Nath Kandroo and Rattan Lal Kandroo through their attorney Firdous Ahmad Bhat before the Financial Commissioner by medium of an appeal but later on same has been withdrawn, as is clear from the order dated 21.07.2017 passed by Financial Commissioner, photocopy of which has been placed on record.
C. Rev No 34/2017 Page 5 of 14 (X) Avtar Krishan Kandroo again is shown to have filed a suit before the Court of Sub Judge (Special Mobile Magistrate), Jammu, on 28.07.2017 against Haji Bashir Ahmad Want (petitioner No.1) and another with regard to same land measuring 1 kanal 8 marlas and 7½ sirsais covered by Survey Nos.3167, 4227/3168 and 4226/3168, wherein prayer has been made for restraining the District Magistrate from passing any order in respect of the said land.
(XI) Avtar Krishan Kandroo has sworn an affidavit on 25th July, 2017, deposing therein that he was owner of land measuring 1 kanal 8 marlas 7½ sirsais covered by survey Nos.3167, 4227/3168, 4226/3172 situated at Nazuk Mohalla Anantnag, he had appointed Firdous Ahmad Bhat as Attorney Holder with power to sell the land who had sold the same vide agreement to sell to different persons including 10 marlas to one Showkat Hussain S/o Kh. Ghulam Nabi Dar R/o Brakpora Anantnag. Further has deposed he undertakes that he had not approached DC, Anantnag, with regard to land and that Firdous Ahmad Bhat is the only rightful attorney. The Deputy Commissioner has been requested to quash the order regarding the said land.
C. Rev No 34/2017 Page 6 of 14 (XII) The respondent Showkat Hussain Dar has now filed a suit titled "Showkat Hussain Dar Vs. State of J&K and others on 31.08.2017 before the Court of Sub Judge (CJM), Anantnag, wherein ex-owners (Pandits) are not the party. In the suit he has prayed the following reliefs:
"In the premises it is therefore prayed that Hon'ble Court may be pleased to pass a decree of declaration in favour of the plaintiff and against the defendants declaring the impugned orders dated 20/06/2017, 03/08/2017issued by the District Magistrate Anantnag as Null and void ineffective and inoperative. A decree of Mandatory Injunction be passed commanding the defendant no 3 to restore the possession of suit property to the Plaintiff. A decree of Permanent Prohibitory Injunction be passed in favour of the plaintiff and against the defendants restraining the defendants from causing any sort of interference with the suit property or from changing the nature of the suit property."
(XIII)In essence, suit has been filed to declare orders dated 20.06.2016 and 03.08.2017 passed by District Magistrate, Anantnag, as null and void, in effective, inoperative with a further direction to command defendant No.3 (District Magistrate) to restore the possession of the suit property to Showkat Hussain (plaintiff), furthermore defendants C. Rev No 34/2017 Page 7 of 14 which include petitioners and respondents No.2 to 7 be restrained from causing any interference with the land in question. (XIV) Petitioners (defendants No.7 and 8 in the suit) filed an application under Order VII Rule 11 CPC for rejecting plaint on the ground that the Court lacks jurisdiction in view of clear bar contained in Section 8 of the Act of 1997.
(XV) Learned trial court after detailed discussion has opined that the ouster of jurisdiction cannot be readily inferred. The exclusion of jurisdiction must be explicitly expressed or clearly implied. The defendant No.3 therein (District Magistrate) while issuing the orders has not followed the proper procedure which not only vitiates the proceedings but also offends statutory obligation. Learned trial court has observed that the bar of jurisdiction of the Civil Court cannot be readily inferred mainly on the ground that the statute provides it and cannot be inferred on the ground of remedy or forum under the special Act, if the impugned action is not within the framework of provisions of the Act, it can be tried in the civil court despite bar created therein.
C. Rev No 34/2017 Page 8 of 14
3. Learned counsel for the petitioners highlighted that the learned trial court has erred in drawing conclusions which are totally illegally because the bar created by Section 8 of the Act of 1997 is absolute, clear and there is no scope for any deviation whereas on the other hand learned counsel for the respondents submitted that the actual owners (Pandits), now migrants) have played a havoc, they have migrated in the year 1990, have executed so many Power of Attorneys and agreement to sell, received the consideration amounts, therefore, migrant status of the property no more existed, the said ex-owners are not now party before the Court, therefore, Section 8 would not apply, as has been rightly decided by the learned trial court.
4. True it is that the ex-owners (Pandits) either appear to have been in confusion or appear to have wreak vengeance which is quite inferable from their acts i.e. execution of various power of attorneys, agreements to sell etc. and finally they appear to have used provisions of the Act of 1997 as a tool to harass the persons who have allegedly paid huge consideration amounts. A complaint is shown to have been lodged by Avtar Krishan Kandroo, one of the brothers, under Section 5 of the said Act, based on which District Magistrate has passed the orders. In case migrants had any C. Rev No 34/2017 Page 9 of 14 grievance, at least they would have complained against it for last more than two and half decades. It appears they have been satisfied with the transactions and the consideration amounts received, now there was a simple formality to complete i.e. execution of formal sale deed after proper permission.
5. District Magistrate, acting on the complaint filed by Avtar Krishan under Section 5 of the Act of 1997, vide order dated 20.06.2017, has directed Tehsildar, Anantnag to visit the spot and demarcate the land to the extent of share of said Avtar Krishan measuring 1 kanal 8 marlas and 7½ sirsais falling under survey Nos.3167, 4227/3168, 4226/3172 situated at Nazuk Mohalla and same shall be taken into custodies-legis of undersigned by removing all sorts of encroachments. Then vide order dated 03.08.2017, directed Tehsildar to immediately proceed on spot and take property in his possession. At the same time notice has been issued to Avtar Krishan to appear in person so that his statement is recorded. It is these two orders which have been challenged by medium of suit.
6. Admittedly, both the two orders have been passed under the Act of 1997. Section 8 of the said Act is reproduced here-under: C. Rev No 34/2017 Page 10 of 14
"8.Bar of Jurisdiction of Civil Court- Notwithstanding anything contained in any law for the time being in force-
a) no civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter arising under this Act, or the rules made thereunder; and
b) no order of any officer or authority passed under this Act or the rules made thereunder shall be called in question in any Civil Court."
7. Plain reading suggests that any order passed by an officer or authority under the Act or the rules made thereunder shall not be called in question in any civil court. The word "shall" used is mandatory. Keeping in view the scheme of the Act, there is no scope for holding that the jurisdiction of the civil court is not ousted. Against the order of an officer or authority passed under the Act, an aggrieved party has a right of appeal before the Financial Commissioner, as prescribed under Section 7 of the Act.
8. It is true that the two orders dated 20.06.2017 and 03.08.2017, in the peculiar facts and circumstances of the case, may operate harshly. After all District Magistrate was required to take note of the fact that the migrants, virtually now ex-owners of the property, have not complained for more than two and half decades. When after two and half decades complaint is lodged, before directing taking over of possession, parties at least should have been heard. It is true that under Section 4 of the Act of 1997, the District C. Rev No 34/2017 Page 11 of 14 Magistrate is required to take over possession of the immovable property belonging to migrants and to take necessary steps for its preservation and protection but the Proviso to sub-section (2) of Section 4 of the said Act was required to be kept in view. Said Proviso is reproduced here-under:
"Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing."
9. When number of power of attorneys and agreements to sell were available and for more than two and half decades possession remained as it was, then this Proviso was to be looked into before directing taking over of the possession. After all migrants are alleged to have received huge amounts as consideration for the said property. The District Magistrate is an authority under the Act and is required to act justly. On the strength of documents placed on record, it appears that the possession is lying with the persons on spot with the consent of migrants, as is explicit and implicit from the documents executed by the migrants as referred to above.
10. It appears that it is in the background of the peculiar facts and circumstances, learned trial court has retained the jurisdiction by rejecting application by observing that the ouster of jurisdiction cannot be readily C. Rev No 34/2017 Page 12 of 14 inferred. Approach of the learned trial court, in the facts and circumstances of the case, may be in-keeping with the cannons of justice but justice has to be administered in accordance with law. The aggrieved parties have other remedies available against the orders passed by the authority under the Act. Civil suit is not a remedy in view of the clear bar contained in Section 8 of the Act, as quoted hereinabove.
11. In the plaint from para 21 to 32, the plaintiff has projected grounds of attack against the said orders. So while taking averments of the plaint in its totality coupled with the relief clause, there was no scope for maintaining the suit for want of jurisdiction. Order VII Rule 11 (d) CPC clearly applies, same is reproduced here-under:
"11. Rejection of plaint The plaint shall be rejected in the following cases;-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) xxx xxx xxx
(f) xxx xxx xxx"C. Rev No 34/2017 Page 13 of 14
12. The application seeking rejection of the plaint should have been accepted in view of the clear bar of jurisdiction.
13. Viewed thus, revision petition succeeds. Order passed by the learned trial court dated 12.09.2017 is set aside. The plaint shall stand rejected. Liberty to the parties to work out appropriate remedies as shall be available to them, both under the Act and otherwise.
14. The observations made hereinabove regarding orders passed by District Magistrate are simply made so as to caution the concerned authorities who are expected to exercise powers with due care and caution in-keeping with the facts and circumstances of the case. The District Magistrate shall also ensure that the provisions of the Act are not exploited by the migrants to the disadvantage of many deserving.
15. Disposed of as above.
(Mohammad Yaqoob Mir) Judge Srinagar "Bhat Altaf PS"
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