Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Mir And Anr vs Union Territory Of J&K And Others on 17 August, 2021
Author: Pankaj Mithal
Bench: Chief Justice, Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
Reserved on: 09.08.2021
Pronounced on: 17.08.2021
LPA No.16/2021
CM No.908/2021
Manzoor Ahmad Mir and anr. ....Appellants.
Through: Mr. Mohammad Ayoub Bhat, Advocate.
Vs.
Union Territory of J&K and others. ....Respondent(s)
Through: Mr. D. C. Raina, AG, with Mr. Sajad Ashraf, GA.
Mr. Aijaz Chesti, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Pankaj Mithal, CJ
01. The judgment and order dated 31.12.2020 dismissing OWP No.739/2017 is impugned herein this appeal.
02. The controversy in the appeal is regarding possession and eviction of the appellants from 5 Kanals and 2 Marlas of land covered by Survey No.92 situate at Hang Rajpora, Kawarhama, Tangmarg.
03. The appellants claim that one Shrimati Deviki was the owner/ co- sharer of the said land. She executed a power of attorney on 11.09.1997 and LPA No.16/2021 1 her power of attorney holder vide agreement dated 23.10.2003 agreed to transfer the said land in favour of the appellants and delivered possession to the appellants.
04. The seventh respondent, Pushpati Nath Koul, filed OWP No.1308/2014 alleging that the appellants are in illegal possession of the land belonging to a migrant which was disposed of vide order dated 20.08.2014 directing the State respondents to take desired action in the matter in accordance with law.
05. In pursuance of the above order, the District Magistrate, Baramulla, passed an order dated 31.10.2014 holding that the possession of the appellants over the said land is not legal and the provisions of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter for short the Act) and rules thereunder have not been followed in acquiring the said land or its possession and accordingly directed the Tehsildar to take over the possession of the said land.
06. The aforesaid order was directly challenged by the appellants by filing OWP No.1590/2014 without exhausting the remedy of appeal provided under the Act. The said writ petition was disposed of vide order dated 12.03.2015 as the counsel for the appellants stated that the appellants shall feel satisfied if the writ petition is disposed of providing liberty to them to challenge the order of the District Magistrate, Baramulla, by means of an appeal under Section 7 of the Act before the Financial Commissioner LPA No.16/2021 2 (Revenue). The Court in disposing of the writ petition granted the liberty as prayed for on behalf of the appellants provided the appeal is preferred within one week which was directed to be decided on merits notwithstanding the delay in filing the same.
07. The appeal so filed by the appellants before the Financial Commissioner (Revenue) was dismissed vide order dated 24.05.2017 as Section 7 of the Act clearly provides no appeal shall be entertained if the possession of the property is not surrendered to the competent authority. Admittedly, the appellants have not surrendered the possession.
08. The above two orders passed by the District Magistrate, Baramulla, and the Financial Commissioner (Revenue) were challenged by filing OWP No.739/2017 which came to be dismissed by the impugned judgment and order dated 31.12.2020.
09. We have heard Mr. Mohammad Ayoub Bhat, learned counsel for the appellants, Mr. D. C. Raina, learned Advocate General assisted by Mr. Sajad Asrhaf, GA, and Mr. A. Chesti, Advocate, for the respondents.
10. On behalf of the appellants, it has been contended that the order passed by the district Magistrate, Baramulla, is violative of principles of natural justice. He has not applied his independent mind in passing the said order rather has simply relied upon the reports of the Tehsildar. The appellants are not unauthorized occupants of the land. They have come in its possession on the basis of a valid agreement to sell and as such, their possession is not liable to be disturbed by taking shelter of the Act. The LPA No.16/2021 3 appeal of the appellants before the Financial Commissioner (Revenue) was not liable to be dismissed as not maintainable unless they were afforded an opportunity to surrender possession.
11. Mr. Chesti, learned counsel for the seventh respondent, submits that with the enforcement of the Act, the District Magistrate was ipso facto custodia legis of the said land rendering the possession of the appellants as illegal. The agreement on the basis of which the appellants are claiming right of possession over the land in question is an unregistered document which has no legal force. Moreover, a mere agreement to sell do not confer any right upon the appellants in view of Section 138 of the Jammu & Kashmir Transfer of Property Act. The agreement to sell is virtually a waste paper as no sale deed can now be executed on the strength of the above power of attorney as the executor of the power of attorney is dead. The appellants never asked for time to surrender the possession before the appellate authority. The appeal, as such, has rightly been dismissed. No personal opportunity of hearing is necessary in passing an order under Section 4 of the Act as the migrant property automatically vests with the District Magistrate.
12. Mr. D.C. Raina, learned Advocate General, assisted by Mr. Sajad Ashraf, GA, submits that the Act was assented to by the Governor on 30.05.1997 and was published in the Government Gazette on 02.06.1997 and came into force with immediate effect. Therefore, in view of Section 3 of the Act, no alienation of any immovable property of a migrant could have LPA No.16/2021 4 been validly made thereafter and if made in contravention thereof shall be null and void.
13. Notwithstanding the findings recorded by the writ court or the ground on which the appellants have been non-suited and the various submissions made before this Court, we find that the short controversy which requires the attention of the court is whether the possession of the appellants on the land of the migrant, on the strength of an agreement to sell dated 23.10.2003 is liable to be protected as they are not unauthorized occupants?
14. There is no dispute to the fact that the aforesaid Act was published in the Government Gazette on 2nd June, 1997 and came into force immediately on the same day. The alleged owner/ co-owner of the land Shrimati Deviki was a migrant as defined under the Act.
15. Sections 3, 4 and 5 of the Act are relevant for the purposes of the controversy involved herein and, as such, are reproduced herein below:
"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:LPA No.16/2021 5
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.
(2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property:
LPA No.16/2021 6
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."
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 LPA No.16/2021 7 of the property after evicting the person in possession so as to preserve and protect the property of the migrant.
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.
LPA No.16/2021 8
21. Admittedly, in this case, the procedure prescribed under the Act or the Rules was never followed and no permission of the Revenue and Relief Minister was sought before transferring the land i.e., by way of an agreement. Since the agreement dated 23.10.2003 on the basis of which the appellants are claiming possession was executed after the enforcement of the Act, it is null and void abinitio. No rights flows in favour of the appellants on the basis of the aforesaid agreement being contrary to the provisions of the Act and the Rules and being unregistered.
22. It is pertinent to mention here that it is not necessary that a person in possession of the immovable property of migrant ought to be in illegal or unauthorized possession as neither Section 3 nor Section 4 contemplates about the nature of the possession rather provides that the District Magistrate shall take over the possession of immovable property belonging to the migrants meaning thereby that immovable properties belonging to the migrants shall be deemed to be in possession of the District Magistrate irrespective of the nature of possession of any person other than the migrant himself.
23. Section 5 of the Act provides that the competent authority may use such force as may be necessary for taking possession of a property of a migrant if it is in unauthorized occupation of any person. It does not contemplate of any formal enquiry.
24. In the case at hand, the District Magistrate has taken the action on the basis of the directions of the High Court. It was well within its LPA No.16/2021 9 competence to take the action suo moto or on the basis of the information received. He has also followed the procedure for making a proper enquiry through the Tehsildar as contemplated by Rule 6 of the Rules.
25. In view of the aforesaid facts and circumstances, irrespective of the reasoning recorded by the writ court, the appellants who are admittedly in possession of the immovable property belonging to a migrant are rightly been held to be in illegal possession and since the District Magistrate, Baramulla, is custodia legis of the said land, he is well within his domain to direct the Tehsildar to take possession of the said land.
26. The District Magistrate has not committed any error of law in passing the order dated 31.10.2014 on the basis of the report of the Tehsildar. The opportunity of hearing though not necessary would not have in any way changed the result inasmuch as the agreement which forms the basis of the claim of the appellants is null and void so also the nature of their possession. The principles of natural justice are not to be applied in vacuum for just completing the formality of hearing when the facts are admitted and affording of hearing would not have in any way changed the result.
27. The submission that the appellate authority ought to have allowed time to the appellants to surrender possession so as to hear their appeal on merits is misconceived. Section 7 of the Act clearly provides for an appeal before the Financial Commissioner (Revenue) and that it shall not be entertained inter alia unless possession of the property is surrendered to the LPA No.16/2021 10 competent authority. The appellants have filed the appeal without surrendering the possession, thus, it could not have been entertained. The appellants never insisted for an adjournment enabling them to surrender the possession rather the appellants insisted that their possession is legal and authorized meaning thereby that they never intended to surrender the possession.
28. In view of the aforesaid facts, none of the arguments advanced by the counsel for the appellants have any force and in the light of the reasoning aforesaid as well as the findings of the writ court, we find no merit in this appeal and the same is dismissed with no order as to costs.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
17.08.2021
Abdul Qayoom, PS
Whether the order is speaking? Yes.
Whether the order is rep ortable? Yes.
LPA No.16/2021 11
ABDUL QAYOOM LONE
2021.08.17 14:23
I attest to the accuracy and
integrity of this document