IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 640 of 2005 Pushkar Nath Koul petitioner State of J&K and ors respondent
! Mr. Virender Bhat, Advocate
^ Mr. A. H. Qazi, AAG
JUSTICE J. P. SINGH, JUDGE
Date : 29/10/2008
: Judgment :
_______________________________________________________
Claiming to be one of the Co-sharers of two
houses situated at 16-Zainder Mohalla Habba
Kadal, Srinagar-Kashmir and the land
underneath and appurtenant thereto, Pushkar
Nath Koul, the petitioner, has filed this writ
petition seeking issuance of a writ of mandamus
directing the respondents to cause the eviction of
any occupant of any part of the property and not
to accord permission for sale of the property in
parts or in the name of individual co-sharers.
The case set up by the petitioner in his writ
petition is that Gopi Nath Razdan and Maharaj
Krishan Razdan, respondent nos. 3 & 4, the other
co-sharers of the property in question had
executed a Power of Attorney with respect to their
35% share of the four storied house in favour of
Mir Shafiq Ahmed and were in the process of
inducting him in possession of part of the house
and this arrangement of respondent nos. 3 & 4
was designed to defeat the provisions of the
Jammu and Kashmir Migrant Immovable Property
(Preservation, Protection and Restraint on
Distress Sale) Act, 1997(hereinafter to be referred
as the “Act”), the official respondents were
therefore, required to be restrained from granting
permission to respondent nos. 3 & 4 for sale of
the property.
On this writ petition coming up for motion
hearing, petitioner’s counsel, Mr. Virender Bhat
submitted that the act of respondent nos. 3 & 4 in
executing a Power of Attorney in favour of
respondent no. 5 authorizing him to look after,
manage and control the property covered by the
power of attorney and to take all steps for its
betterment, up-liftment, protection and watch and
ward including seeking permission from
authorities to sell, lease out and mortgage the
property was in violation of the provisions of the
Act. Referring to the provisions of Sections 3, 4 &
5 of the Act in support of his submissions,
learned counsel projects the petitioner’s case for
seeking directions as prayed for in the writ
petition.
Mr. Qazi, learned State counsel, on the other
hand, submitted that the dispute raised by the
petitioner through his writ petition being an interse
dispute between the co-sharers, the provisions
of the Act would not apply for resolution of such
disputes. He submitted that the writ petition was
based on mere apprehensions and was as such
not maintainable.
I have considered the submissions of learned
counsel for the parties and gone through the
provisions of the Jammu and Kashmir Migrant
Immoveable Property (Preservation, Protection and
Restraint on Distress Sale) Act, 1997.
Section 3 of the Act contemplates restriction
on alienation of immovable property of migrants.
Alienation, as defined in Section 2 means sale,
gift, and mortgage with possession or exchange
excluding gift in favour of an heir. Section 4
requires the District Magistrate to take all such
steps as may be necessary for preservation and
protection of such immovable property.
Eviction of un-authorized occupants of the
migrant property is provided for in Section 5 of
the Act.
Petitioner has not laid any basis in his writ
petition to seek the relief of issuance of direction
against the official respondents to cause the
eviction of any particular occupant or occupants
of any part of the property and to refuse
permission for sale of property in parts or in the
name of individual co-sharers because he has
neither complained of any one’s un-authorized
occupation over his property nor has he alleged
that anyone had applied for seeking permission
for alienation thereof.
In the absence of any such case having been
set up in the writ petition, the petitioner may not
be entitled to seek the relief of issuance of
directions against the official respondents to
direct eviction of any person who may occupy the
migrants’ land and refuse permission for
alienation of land.
Petitioner has filed this writ petition on mere
apprehensions, which would not, in my opinion,
provide him any cause of action to maintain his
writ petition, which even otherwise is misconceived
as the dispute raised by him in the writ
petition is a pure and simple dispute inter-se cosharers
of the migrant property determination and
resolution whereof is not contemplated by any of
the provisions of the Act, which are intended to
preserve, protect and guard against distress sale
of the immovable property of the migrants.
Petitioner has not raised any such complaint in
the writ petition which may require invoking the
provisions of the Jammu and Kashmir Migrants
Immovable Property (Preservation, protection and
Restrain on Distress Sales) Act, 1997.
No case for admission of the writ petition has
thus been made out by the petitioner. This writ
petition is, accordingly, dismissed.
( J. P. Singh )