Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Mir And Another vs State Of J&K And Others on 31 December, 2020
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Serial No. 228
After Notice
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 739/2017
Reserved on: 23.12.2020
Pronounced on: 31.12.2020
Manzoor Ahmad Mir and another
.........Petitioner(s)
Through:- Mr. Mohammad Ayoub Bhat, Adv.
Vs.
State of J&K and others
...........Respondent(s)
Through:- Mr. Aijaz Chisthi, Adv.
CORAM:-
Hon'ble Mr. Justice Vinod Chatterji Koul, Judge.
JUDGEMENT
01. Petitioners claim that they are in possession of land measuring 05 kanals and 02 marlas, covered by Survey No. 92, situate at Hang Rajpora, Kawarhama, Tangmarg (for short "property in question") since long. They claim to be in possession of aforesaid land on the basis of an Agreement to Sell, executed by attorney holder of Shrimati Deviki, namely, Tej Krishan Bhat son of Raj Nath Bhat resident Kawarhama, Tangmarg, in their favour on 23rd October 2003, which was attested by the Public Notary at Jammu. It is the case of petitioners that the abovenamed Tej Krishan Bhat, was a duly appointed attorney holder of Shrimati Deviki in respect of the property in question and in this regard power of attorney was executed and got registered from Sub-
Registrar Tangmarg on 11th September 1997. The case of petitioners is that a writ petition bearing, OWP No. 1308/2014, filed by one Pushpati Koul titled AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 2 OWP No. 739/2017 Pushpati Koul and others vs. State and others, was disposed of vide order dated 20.08.2014, directing District Magistrate, (Deputy Commissioner) Baramulla, to take action on the application of said writ petitioner. Deputy Commissioner is said to have exercised powers under Section 4 of J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short "The Act") and vide order No.DMB/ ARA/ LC/129/TANG/2014/ 659-61 dated 31.10.2014, directed eviction of petitioners. The order, it is stated, was challenged by petitioners in a writ petition before this Court, which was disposed of on 12th March 2015, giving liberty to petitioners to file an appeal under Section 7 of the Act within one week. The petitioners filed Appeal before Financial Commissioner (Revenue) J&K, Srinagar, on 23rd March 2015. The appeal was dismissed on 29th May 2017 by Financial Commissioner (Revenue), J&K, Srinagar, on the ground that as possession of the property in question was not surrendered, the appeal could not be entertained. The petitioners have challenged this order of the Financial Commissioner, Revenue J&K, Srinagar on the grounds that:
i) The order of District Magistrate (Dy. Commissioner), Baramulla dated 31.10.2014, passing eviction order against petitioners is on the fact of it illegal and is also unconstitutional. Firstly, petitioners have not been heard and right of hearing has been denied to them, as such, the order is violativie of rules and natural justice and thereby contrary to constitutional guarantee of Article 14.
ii) Impugned order is, on the face of it, illegal because order of eviction passed by District Magistrate is de hors law and rules. In this behalf authority to act under the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, the District Magistrate (Dy. Commissioner), Baramulla, has an authority only on the ground if a person is unauthorized occupant; the said person fails or refuses to surrender the possession, then steps necessary for taking possession of the property are authorized to be taken. Secondly, the question who is unauthorized occupant is to be decided and a decision without hearing cannot be taken in this effect. The petitioners have not been heard in this behalf and the question who is unauthorized occupant is to be determined and decided as per the fact situation and also as per the provisions of the law in this behalf.
AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 3 OWP No. 739/2017iii) Petitioners have not encroached upon the property and have not taken possession of the property without any authority or consent and as submitted hereinabove, the petitioners are in possession of the property and the possession has been accepted to be handed over to the petitioners by a lawful attorney of the owner, as such, the order of the District Magistrate (Deputy Commissioner), Baramulla, suffers from inherent defect., the order of the District Magistrate ( Deputy Commissioner), Baramulla dated 31.10.2014 and the order of Ld. Financial Commissioner dated 24.05.2017, in this behalf, are illegal and have been passed in colorable exercise of the powers.
iv) Impugned orders are illegal because of the fact that permission for alienation is required only for purposes of ascertaining that the sale of the property is not distress sale and if the sale is distress then the application for grant of permission to alienate the property shall be rejected. In the alternative it is submitted that the respondents authorities and in particular respondent - Divisional Commissioner, Kashmir, be directed to consider the case of the petitioners for grant of permission to alienate the property because the petitioners have paid Rs. 1,36,250/ in cash i.e prior to two years of execution of agreement to sell, and it is reiterated that the agreement to sell has been executed on 23.10.2003 and the price of the property mentioned in the agreement to sell at that time was higher than that of prevalent market rate in the locality and was in no way less than the prevalent market rate. In view of this, the impugned order of District Magistrate (Deputy Commissioner), Baramulla, also is not legally warranted and thereafter order, dismissing appeal on the ground that the possession has not been surrendered before filing of the appeal is totally illegal because of the fact that the petitioners are not in unauthorized possession and, as such, the condition of surrendering the possession to the competent authority before or at the time of filing of the appeal is not legally warranted.
v) Impugned order passed, is not an order covered by the provisions of the Jammu and Kashmir Migrant Act . Impugned order of Financial Commissioner, Revenue, is without authority and is against the mandate of law and justice.
vi) Impugned order dated 24.08.2017, passed Financial Commissioner, Revenue, dismissing the appeal is not legally correct because the same is in conflict with the order of the Hon'ble High Court dated 12.03.2015 , that the clear direction was that the appeal should be entertained by the FC and decided.
vii) There was a waiver of surrendering possession before entertainment of appeal as was implicit in the order of the Hon'ble High Court.
02. Petitioners seek grant of following relief in writ petition:
"i) A writ, order or direction one in the nature of certiorari/ mandamus quashing the order dated 31.10.2014 passed by the District Magistrate (Deputy Commissioner) Baramulla (as contained in Annexure -PC) and also the order dated 24.05.2017 passed by the Ld. Financial Commissioner (Revenue), J&K (as contained in Annexure-PE) and the respondents be restrained from dispossessing the petitioners from the possession of the land measuring 05 kanals 02 marlas under Survey No. 92/Min situated at Village Haing Rajpora Kawarhama, Tangmarg as mentioned in the impugned orders and the respondent Divisional Commissioner be directed to consider grant of permission for alienating the property in favour of the petitioners."AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 4 OWP No. 739/2017
03. Respondents, while objecting writ petition, have replied the claims made in writ petition and have also taken preliminary objections, which are as under:
i) Respondent No.7 is the owner of the land in question in the instant writ petition belonging to his mother namely Smt. Devki (Alias) Kamalwati who had inherited the said property from her mother Smt. Chanda Wf/o Jankinath Bhat R/o Karhama.
ii) Respondent No.7's mother died in the year 2006 and the respondents being the successors in the interest of the said property.
The demise of the mother of respondent No.7 vouch safe by issuance of a Death Certificate issued by the competent authority. That because of the unprecedented circumstances prevailing in the valley, the respondent No.7 along with his family members had to migrate from valley to Jammu who stand registered with the Commissioner Migrant Relief and Rehabilitation Jammu and are still residing at Jammu.
iii) Taking undue advantage of migration of respondent No.7 along with his family, the writ petitioners have fraudulently manufactured / executed the document of Power of Attorney by showing his mother Devki (Alias) Kamlawati R/o Sonawar without any specific address by an Act of impersonation before the Registering Authority which came out to surface by a Photostat copy of Power of Attorney bereft of producing the original Power of Attorney, thus the fact actuated by the so called attorney holder warrants to be probated to the extent that the deceased Devki (Alias) Kamlawati has never presented herself before any Registering Authority after her migration. The aforesaid fraud has been committed with a malicious design to grab the property of respondent No.7 illegally.
iv) Even the effect of power of Attorney which is per se a fraud document without its operation had come to an end after the demise of the Devki (alias) Kamlawati, thus the writ petitioners are barred in law otherwise also to stake a claim over the piece of land after the demise of Devki (Alias) Kamlawati without its operation and execution.
v) Writ petitioners also manufactured an agreement to sell fraudulently and got notarized to stake their claim on the land in question in the instant writ petition which in law cannot be countenanced as per the judgement of this Hon'ble Court "2004 SLJ Srinagar Law Journal Page 736 Captioned J.M. Mattoo Vs. G.R. Sofi" which proposition of law is again conferred by the Hon'ble Supreme Court of India reflected in AIR 1995 SC 1891.
vi) Respondent No.7 being a migrant after gaining the knowledge of the land belonging to him grabbed by the writ petitioners, approached the Deputy Commissioner Baramulla who as per the J&K Migrant Immoveable Property Preservation Protection and Distress Sales Act 1997 being custodia-legius of the Migrant Property, who after thorough enquiry passed an order bearing No. DMB/ARA/LC/129/Tang/2014/659-61 dated 231.10.2014 directing the Tehsildar concerned to take over the possession of the land measuring 5 kanal and 2 marlas under Khasra No. 92 min AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 5 OWP No. 739/2017 situated at village Haing Rajpora in respect of the share of Smt. Devki (alias) Kamlawati. A copy of the order supra passed by the Deputy Commissioner in exercise of his powers conferred under Section 4 of the J&K Migrant Immoveable Property Preservation Protection and Distress Sales Act 1997 and the Tehsildar Karhama was authorized to take over the possession of the land aforementioned.
vii) Writ petitioners being aggrieved by the order passed by the Deputy Commissioner Baramulla against them, in view of the fraud surfaced, assailed the same before this Hon'ble Court through the medium of writ petition bearing OWP No. 1590/2014 which came to be decided after filing the objections from the answering respondent and this Hon'ble Court at Para No. 5 of the judgment found merit in the objections of the answering respondent and gave a liberty to the writ petitioners/Land Grabbers to file an appeal within a period of one week in terms of Section 4 of the J&K Migrant Immoveable Property Preservation Protection and Distress Sales Act 1997.
viii) Writ petitioners in light of the judgment preferred an appeal before the Financial Commissioner though delayed one which also came to be decided by the Financial Commissioner on 24.05.2017 wherein the appeal of the writ petitioners got dismissed pursuant to the impugned order dated 24.05.2017 in favour of the answering respondent No.7. That in order to hoodwink the process of law the writ petitioners have now preferred the instant writ petition against the impugned judgment passed by the Financial Commissioner in favour of the respondent No.7 by dismissing the appeal of the writ petitioners, which is neither maintainable in law nor is countenanced by the facts as alleged in the writ petition and in view of the judgement passed by the Hon'ble Court in case M.S. Tahira Shafi Vs. State & Ors reported in 2007 II SLJ 549 wherein it has been decided that the property dispute that too of a migrant involves disputed questions of fact and law as such the writ petition is not maintainable. More so their favour no infirmity in law vis-a-vis the impugned order as such the writ petition captioned above entails dismissal.
04. Heard learned counsel for the parties and perused the record on file.
05. There is no dispute with regard to the fact that the property in question belongs to a migrant, who had migrated from Kashmir Valley to other part of the country due to turmoil. To protect and preserve the property left behind by the migrants, the Government of Jammu and Kashmir enacted the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act. The Act received assent of the Hon'ble His Excellency, the Governor, on 30th May 1997. Before coming to the merits of AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 6 OWP No. 739/2017 the case, the undisputed facts are that Shrimati Devki (alias) Kamlawati was the owner of the property in question. She had migrated from Kashmir Valley to other part of the country. As per the petitioners, power of attorney was executed in the year 1997 and was registered on 11.09.1997 by Sub Registrar, Tangmarg. The said Power of Attorney is stated to have been executed by the Shrimati Deviki D/o Janki Nath W/o Prithvi Nath Koul R/o Sonwar, Srinagar before Sub-Registrar at Tangmarg. The photostat copy of said power of attorney has been placed on record. As per the said power of attorney, Shri Tej Krishan Bhat of Kawarhama, Tehsil Tangmarg was appointed as attorney holder. The said power of attorney was executed and registered on 11.09.1997, i.e., after enactment of "the Act". According to petitioners, agreement to sell was executed on 23rd October 2003 by Tej Krishan S/o Raj Nath Bhat, the attorney holder at Jammu, the possession was handed over to them and consideration of Rs. 1,36,250 was paid to the attorney holder. The petitioners, thus, claim to be in possession of the property in question by virtue of the said agreement to sell. Photostat copy has been placed on record.
Petitioners claim that they are in possession of the same since long. On the basis of the said possession, they claim their right to remain in possession of the said property. As per record on the file, the owner who is said to have executed the attorney in question, appointing Tej Krishan Bhat as her attorney holder, has died on 08.09.2006. In this regard, death certificate of Shrimati Devki (alias) Kamlawati w/o Prithvi Nath Koul is on record.
06. Following points are also required to be taken into account before coming to the merits of the case. The aim and object of the Act is preservation, protection and restraint on distress sale of Immovable property of the AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 7 OWP No. 739/2017 migrants. The Act has the aim and object of preserving and protecting the immovable property of the migrants and has also to check the distress sales but for doing so, status of the person being migrant is sin quo non. So far as case in hand is concerned, there is no dispute with regard to the fact that the owner of the property in question was a migrant. In Kanaya Lal and others v.
Mohammad Ashraf Mir and others, AIR 2016 J&K 80, this court has held as under:
"13. J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, is aimed at preservation, protection, restraint on distress sales of immovable property of migrants. It is a fact of common knowledge that a section of population was constrained to leave their home and hearth in wake of turmoil in the Valley and other areas, and migrate to Jammu and other parts of the State and Country. They left behind their immoveable property. It was soon realised that with their absence from Valley and inability to protect their property, the property was open to mischief, encroachment and unauthorised occupation. It was also felt that migrants, because of lack of resources and support., were compelled to go for distress sale to sustain themselves and their families. Migrant Act of 1997 is an effort of Legislature to address problems that cropped up in wake of migration from the Valley and other areas. The fact that it was so intended, is clear from definition of "migrant" in Section 2 (e) of Migrant Act of 1997. In terms of Section 3 of Migrant Act of 1997, restriction was put on alienation of immoveable property by a migrant except in accordance with procedure laid down therein. Prescribed authority in terms of Section 3 was expected to examine as to whether proposed sale was a distress sale or genuine transaction and did not prejudice interests of migrant. In terms of Section 4 of Migrant Act of 1997, District Magistrate is presumed to have taken over possession of migrant property and to have custody of such property. Section 5 confers power on District Magistrate to order eviction of unauthorised occupant. Section 8 bars jurisdiction of Civil Court."
07. In Kashi Nath Tikoo v. State Th. Home and others, 2009 SCC Online JK 67 , this Court has held that statutory authorities are duty bound to protect the rights and interests of the owners in accordance with the provisions of the law.
08. An unauthorized occupant is defined in Section 2 (1) of the Act as any person, who has encroached upon or taken possession of any immovable property of migrant without his written consent and authorities of law. Section 5 of the Migrant Act provides that if any unauthorized occupant of any migrant property refuses or fails to surrender the possession, the force is to be used for AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 8 OWP No. 739/2017 taking over the possession. In Rajeev Verma and another v. State and others, AIR 2011 J&K 117 , it has been held by the Division Bench of this Court that unauthorized occupant as defined in Clause (i) of Section 2 of the Migrant Act means a person who has encroached upon or has taken possession of any immovable property of a migrant without his written consent and authority of law.
09. The claim of the petitioners is that they have been in possession of property in question since long on the basis of an agreement to sell. Admittedly, agreement to sell, which has been placed on record, is a photostat copy;
besides it is not a registered document. Before proceeding further in the matter on the auspices of Migrant Act, it would be profitable to have glance of provisions of Section 138 of the J&K Transfer of Property Act, as it has clinching impact on the case in hand. For ready reference, Section 138 is reproduced hereunder:
"138. Transfer of immovable property after due registration (1) 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 subsection (3) of section 61 of the Registration Act, 1977.
(2) No Court shall entertain a suit for pre-emption in respect of transfer of any such immovable property unless the transfer complies with the provision of subsection (1).
(3) No person shall take possession of, or commence to building or building 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 subsection (1).
(4) No person who has obtained a transfer of immoveable property referred to in subsection (1) shall apply for and obtain from any Revenue or Settlement Officer or Court any alteration in any existing entry in any Settlement record or paper, unless such person produces before such officer or Court a duly executed registered instrument, the registration whereof has been completed in the manner prescribed in subsection (1).AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 9 OWP No. 739/2017
And no such officer shall alter or cause to be altered any such entry except upon the production of an instrument registered in the aforesaid manner.
Provided that nothing in this section applies to a lease of agricultural land for one year or to a lease of any other land for a period not exceeding seven years;
Provided also that nothing in sub section (3) (4) shall be deemed to apply to transfers by will or by any rule of intestate succession or by the operation of the law of survivorship."
10. From the above it emerges that Subsection (1) of Section 138 provides that the transfer of immovable property is valid only when it is in writing, and registered under the provision of the Registration Act, 1977. Sub Section 3 specifically provides that no person shall take possession of any land in Province of Kashmir, which has been transferred or has been contracted to have been transferred to him, unless and until such a transfer becomes valid under the provisions of Sub Section 1 of Section 138. It is important to be seen that Sub Section 3 is a special provision for Kashmir Province only. So it is duty of the courts in Kashmir Province to see while dealing with the document like agreement to sell, relating to the land in the Kashmir Province, that the requirement of the Sub -Section 1 of Section 138 of the J&K Transfer of Property Act, is complied with. Transfer of possession relating to such a land is valid only when the land is transferred in accordance with the provisions of the Sub Section 1, otherwise not. Transfer of the possession in violation of such provision will not create any right or interest in the person, who takes possession of the land under the document executed in violation of Section 138. In the present case, there is no valid document, shown to have been executed in favour of the petitioners, by virtue of which they claim to have taken possession of the property. Therefore, the possession of the petitioners if seen within the prism of above Section 138 cannot be said to be AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 10 OWP No. 739/2017 a legal possession but it would be an unauthorized possession. Reliance is placed on 2004 (II) SLJ 736 titled Gh. Mohammad Matoo Vs. Gh. Rasool Sofi and Ors.
11. So, it is clear from the aforesaid provision that the possession which the petitioners claim to be is not an authorized possession and the possession not being an authorized is in respect of the land which belonged to a migrant and the property in question is required to be protected as per provisions contained in "the Act". The respondent (Pusphapti Koul) approached this Court by way of writ petition bearing OWP No. 1308/2014 seeking a direction to the State for protection of her property and in pursuance to the order passed by this Court in the said writ petition on the application moved by Pushapati Nath Koul, the District Magistrate (Deputy Commissioner, Baramulla, passed following order:
"Whereas, in pursuance of Hon'ble High court J&K Srinagar's vide order dated 20.08.2014, the Sub-Divisional Magistrate Gulmarg and Tehsildar Tangmarg were directed vide this office letter No. DCB/ARA/LC/129/Tang/2014/572-73 dated 27.09.2014 for compliance as desired by Hon'ble Court.
Whereas, prior to the direction of New Administrative Units village Hainge Rajpora was falling within the jurisdiction of Tehsil Tangmarg and afer the creation of New Administrative Units the said village is included in Tehsil Kawarhama.
Whereas, the Tehsildar Kawarhama has submitted report vide No. The-Karh/OQ/170/2014 dated 28.08.2014.
Whereas, the report on extract of Jamabandi for the year 1993-94 duly counter signed by the Tehsildar for Survey No. 92 situated in village Hainge Rajpora reveals that the inheritance (Warasat) of Chandai Wd/o Janki Nath has been mutated under Mutation NO. 251 in the name of Raj Nath son and Devki Daughter of Chandai.
Whereas, Raj Nath S/o Chandai has sol his share of land measuring 05 Kls-02 Mls under Survey No. 92 in estate Hainge Rajpora through Registered sale deed as is clear from Note on extract of Jamaband, whiloe as the share of Smt. Devki is under the possession of Manzoor Ahmad and Mushtaq Ahmad S's/o Ghulam Hassan Mir R/o Kawarhama.AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 11 OWP No. 739/2017
Whereas, from perusal of the report of Tehsildar Kawarhama and extract of revenue records, it appears that the possession of the said Manzoor Ahmad and Mushtaq Ahmad S's/o Ghulam Hassan Mir R/o Kawarhama is snot legal as the provisions of J&K Migrant Immovable Property 9preservation., Protection and Restraint on Distr3ess Sales) Act and rules thereof have not been followed as acquiring owners hip rights by execution of proper documents (Sale Deeds0, though a P/s copy of an agreement and power of attorney have ben appended with the case submitted by the Tehsildar.
In view of the above facts of the case, in exercise of powers conferred under Section 04 of Jammu and Kashmir Immovable Property (Presevation Protection and Restraint on Distress Sales) Act 1997, the Tehsildar Kawarhama is authorized to take over the possession of land measuring 05 Kls-02Mls under Khasra No. 92/min situated in village Haing Rajpora in respect of share of Smt. Devki D/o Chandai till final verdict of the Hon'ble High Court or land transferred by legal means. The Tehsildar shall furnish the compliance report along with the take over certificate to this office by 05.11.2014 positively for onward submission of the Hon'ble court."
12. This order passed by the Deputy Commissioner, Baramulla, came to be challenged in a writ petition, bearing OWP no.1590/2015, by petitioners herein, which was disposed of on 12.03.2015 and following order was passed:
"Petitioners have questioned order No. DMB/ARA/LC/ 129/ Tang/ 2014 /659-6 dated 31.10.2014 whereby and whereunder respondent NO. 2 (District Magistrate) Baramulla, in exercise of powers conferred uner Section 4 of the Jammu and Kashmir Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 authorized Tehsildar Kawarhama to take over the possession of land measuring 05 KIs-02Mis under Khasra No. 92/Min situated in village Haing, Rajpora in respect of share of Smt. Devki D/o Chadai.
On notice, respondent No. 7 has entered appearance and raised preliminary objections regarding the maintainability of the writ petition with reference to the petitioners having alternative remedy of filing an appeal available in terms of section 7 of the Said Act.
Learned counsel for the respondents, has given particular reference of judgment of the Hon'ble Division bench of this Court passed in LPA No. 243/2006 titled Mehraj-ud-din Mir Vs. State of J&K and Ors.
Heard learned counsel for the partis.
Objections raised by Mr. Aijaz Chesthi, learned counsel for respondent No. 7 has substance.
Learned counsel for the petitioners submits that he shall feel satisfied if the writ petition is disposed of at this stage by providing liberty to the petitioners to challenge the order before ethe Financial Commissioner, Revenue in terms of Section 7 of the Act, however AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 12 OWP No. 739/2017 the only impediment is the delay of which he seeks condonation from this Court.
Since the petitioners have chosen a remedy, despite the fact that they had an alternative remedy available therefore they are required to be given the benefit of section 14 of the Limitation Act and the delay if any with reference to the filing of the appeal within a week herein after shall stand condoned.
In the given circumstances, the writ petition is disposed of with liberty to the petitioners to file an appeal if any, in terms of Section 7 of the Jammu and Kashmir Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, within one week and same shall be entertained by the Financial Commissioner, Revenue notwithstanding any delay which shall be treated as condoned by this Court."
13. In pursuance of the order of this Court, appeal as directed under Section 7 was preferred by the petitioners before the Financial commissioner, (Revenue), Srinagar, who passed the following order:
"The instant appeal has been preferred under Section 7 of the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 against the order dated 31.10.2014 passed by District Magistrate, Baramulla with regard to land measuring 05 kanals -02m under Survey No. 92 min situated in Village Haing Rajpora Tehsil Karwarhama Tangmarg. The District Magistrate through the impugned orders has directed the Tehsildar concerned to take over the possession of the suit land and furnish compliance report. The appellants herein challenged this order of District Magistrate by way of Writ petition before the Hon'ble High Court which came be disposed of vide order dated 12.03.2015 with a direction to the present appellants to file an appeal before Financial Commissioner in terms of section 7 of the above said Act.
Ld. Counsel for the private respondents raised preliminary objections about the maintainability of the appeal by pleading that the Appeal of the appellants is time barred and also that the appellants have not surrendered the possession before preferring the appeal as required under section 7 of the above referred Act.
Ld. Counsel for the appellants has resisted the stand of the counsel for respondents by pleading that instant appeal has been filed pursuant to the directions of the Hon'ble High Court. The appeal is stated to be within time as the order of the Hon'ble High Court was issued on 16.03.2015 and the appeal filed well within time. It is also pleaded that he possession of the appellants is permissible possession having been authorized by migrant Deviki herself by virtue of agreement to sell and as such Migrant Act is neither applicable nor the possession of the appellants can be disturbed in any manner whatsoever.
Having considered the arguments of the Ld. Counsel for both the parties, it is seen that the Hon'ble High Court vide above referred order has given the petitioners (present appellants), the liberty to file an appeal if any, in terms of Section 7 of the J&K Migrant Immovable Property (preservation, protection and Restraint on Distress Sales) Act, 1997 within AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 13 OWP No. 739/2017 one week and the same shall be entertained by the Financial Commissioner, Revenue notwithstanding any delay which shall be treated as condoned by the Hon'ble High court.
It will be relevant to mention here that apart from preferring an appeal under Section 7 of the Act referred to above within a period of 15 days from the date of passing of an order, it is also laid down in the said section that no such Appeal shall be entertained against an order of eviction unless the possession of the property is surrendered to the competent authority. Although the Hon'ble high Court vide Order referred to above, has directed the Financial Commissioner to entertain the appeal notwithstanding any delay but the possession of the suit land as required before preferring an appeal has not been surrendered by the appellants before the competent authority.
On this ground alone, the present appeal being not maintainable is dismissed.
Interim orders, if any, issued by this court are vacated. File to be consigned to records after due completion."
14. The appeal of the appellants/petitioners was rejected because they did not surrender the possession before filing the appeal. Section 7 of the Act which provides for filing an appeal against the order of the District Magistrate reads as under:
"7. Appeal: 1) any person aggrieved of an order passed under the Act, may file an appeal before the Financial commissioner, Revenue:
Provided that no such appeal shall be entertained against:
a) An interlocutory order;
b) At 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 l9imitation for filing an appeal under sub-section (1) shall be fifteen days from the date of order appealed against."
15. Surrender of the possession is a condition precedent for filing an appeal under Section 7 of the Act. This is a statutory requirement. Appeal, without complying with this requirement, is not maintainable. It is specifically provided under the Act that the appeal shall not be entertained against the order of eviction unless the possession of the property is surrendered to the competent authority as stated above in that backdrop. Possession of petitioners AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document 14 OWP No. 739/2017 over property in question, which belongs to a migrant, cannot be said to be an authorized possession on the basis of an agreement to sell which is not in conformity with Section 138 (3) of the J&K Transfer of the Property Act and also the said agreement to sell has been executed by a person who claims to be an attorney holder of Kamlavati alias Deviki who has died in 2006 and the attorney has come to an end with the death of principal. In WP(C) No.1992/2019 (O&M), the Division Bench of this Court vide order dated 04.07.2019 while dealing with the requirement of surrender of the possession being essential for filing an appeal held as under:
"Section 7. perusal of the aforesaid provision shows that the appeal against the order of eviction can be filed within 15 days from the date of order. Vide impugned order eviction has been ordered. The appeal cannot be entertained unless possession of the property in dispute is surrendered to the competent authority"
16. In Jagar Nath Bhan and others v. State of J&K and others, 2006 (3) JKJ 407 HC, this Court has held that provision regarding surrender of the possession as a condition for entertainment of the appeal is not unreasonable. The appeal is creation of statute to which condition can be attached. In that view of matter, writ petition is not maintainable and is liable to be dismissed.
17. For the reasons discussed above, I do not find any merit in writ petition, and the same is, accordingly, dismissed with connected CM(s).
18. Interim direction, if any, shall stand vacated.
(Vinod Chatterji Koul) Judge SRINAGAR 31.12.2020 "Aasif"
AASIF GUL 2020.12.31 21:29 I attest to the accuracy and integrity of this document