HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 943 OF 2008 Ghulam Mohi-Ud-Din Shah. Petitioners State & Ors Respondent !Mr. C. M. Koul, Advocate ^Mr. P. N Bhat, Advocate. HONBLE MR. JUSTICE SUNIL HALI, JUDGE Date: 26.08.2010 :J U D G M E N T :
Dispute in the present petition relates to House No. 199
situated at Jawahar Nagar, Srinagar, which the petitioner
claims to have purchased from respondent no.5 through
respondent nos. 4 and 6. Support is placed on an agreement
stated to have been executed by respondent nos. 4 and 6 for
sale of the aforesaid house for an amount of Rs. 7,50,000/-, out
of which an amount of Rs. 43000/- is stated to have been paid
in advance and subsequently vide demand drafty additional
amount of Rs. 80,000/- was also handed over to the aforesaid
respondent nos. 4 and 6. The remaining amount is stated to
have been offered to respondent no.5, who, according to the
petitioner, refused to accept the same. It is pertinent to mention
that on the date of execution of agreement to sell, petitioner is
stated to have taken over the possession of the property.
On coming to know about this fact, respondent no.5 has
shown his ignorance about any agreement having been
executed by respondent nos. 4 and 6 on his behalf. He clearly
stated that he does not know any of respondent nos. 4 and 6. In
nut shell he states that there is no document executed by him,
as such, the occupation of the property by the petitioner is unauthorized.
It is under these circumstances he filed an
application before the District Magistrate Srinagar for seeking
removal of the encroachment over his property under the
Jammu and Kashmir Migrants Property ) Preservation,
Protection and Restraint on Distress Sale) Act, 1997 (hereafter
to be referred as the Act. The District Magistrate, found that
petitioner did not produce any documentary evidence in the
shape of power of attorney or any sale deed or agreement
stated to have been executed by respondent no.5 with him and,
accordingly, held that occupation of the house by the petitioner
was un-authorized as he did not have any written consent or
document in his favour which could justify his occupation of the
house. As a result of which the Tehsildar Srinagar was directed
to restore the possession of the property in question to its
rightful owner as per records.
Aggrieved of this order of the District Magistrate, the
present petitioner filed an appeal under Section 7 of the Act
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before the Financial Commissioner. The appeal remained
pending before the Financial Commissioner. A writ petition was
filed by respondent no.5 bearing OWP no. 364/2005 wherein a
direction was issued by this Court to Financial Commissioner to
dispose of the appeal on its merits. It seems that a preliminary
objection was raised before the Financial Commissioner that
any person aggrieved of an order under the Act can file an
appeal before the Financial Commissioner, however, no such
appeal would be entertained against the order of eviction
unless the possession of the property is surrendered to the
competent authority. The Financial Commissioner, taking note
of this fact, directed the appeal to surrender the possession of
house in question as required under Section 7 of the Act before
his appeal could be entertained. The petitioner is stated to have
withdrawn the appeal with permission to file the same after
handing over the possession of the property to the competent
authority.
Without surrendering the possession after withdrawing the
appeal, the petitioner has filed the present writ petition
questioning the orders of the District Magistrate and Financial
Commissioner.
The case of the petitioner is that an agreement was
executed by respondent nos. 4 and 6 for the sale of the house
in dispute for an amount of Rs. 7,50,000/-, for which an amount
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of Rs. 1,23,000/- is stated to have been paid by the petitioner to
respondent nos. 4 and 6. He claims that he is in occupation of
the house on the basis of an agreement executed by
respondent nos. 4 and 6, as such, has the legal authority to
stay in the house aforesaid. The direction of the Financial
Commissioner to surrender the possession would arise only if
the petitioner is held to be an encroacher of the property. He
further claims that he has invested lot of money on the house
aforesaid on the basis of the agreement executed by
respondent nos. 4 and 6 with him. In nut shell his case is that
he has entered in to the house on the basis of an agreement
which gives him legal authority to remain in possession.
On the other hand, respondent no.5 states that reliance
placed by the petitioner on the agreement, which has been
executed by persons who are neither owners of the property
nor have been authorized by respondent no.5 in this behalf to
execute such an agreement. It is further contended that
respondent no.5 has not executed any power of attorney or
given any authorization to respondent nos. 4 and 6 to execute
any document on his behalf.
It is not being disputed by the petitioner that respondent
no. 5 is the owner of the property. It is contended that
occupation of the house by the petitioner is un-authorized as he
has neither any authority on behalf of respondent no.5 to hold
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the property nor has he given any authority to any person to
execute any agreement on his behalf. The contention of the
petitioner that there is an agreement executed by respondent
nos. 4 and 6, is not an issue required to be determined in this
petition, as respondent nos. 4 and 6 have no locus in law to
execute such an agreement. The occupation of the petitioner is
un-authorized and he is an encroacher.
The other contention raised by respondent no.5 is that
after the order of dispossession was issued by the District
Magistrate, appeal was filed against the said order by the
petitioner, however, petitioner was required to surrender the
possession as required under Section 7 of the Act. He did not
comply with the requirement of Section 7 of the Act as a result
of which his appeal was dismissed as withdrawn. Instead of
surrendering the possession and filing a fresh appeal, he has
directly approached this Court, as such, without availing
alternative remedy, the writ petition of the petitioner is liable to
be dismissed.
I have heard the learned counsel for the parties.
The intended purpose of the Jammu and Kashmir
Migrants Property ) Preservation, Protection and Restraint on
Distress Sale) Act, 1997 is to safeguard the immovable property
left out by the migrants from being encroached upon. The word
un-authorized occupant has clearly been defined in Section 2
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of the Act, which reads thus:-
Un-authorized Occupant means any
person who has encroached upon or taken
possession of any immovable property of a
migrant without his written consent and
authority of law.
A person would claim to be in authorized possession of
the property only when he produces a written consent from the
owner or is in possession of any document, authorizing him to
remain in possession of such possession. Even if any such
document had been executed it has still to be scrutinized by the
District Magistrate to ensure that the sale is not a distress sale.
A person gets right in the property only after permission is
obtained from the competent authority prescribed under the
rules. The idea is only to ensure that under no circumstances a
migrant is allowed to sell his property in distress.
In the present case what is clearly visible is that petitioner
has entered into the premises on the basis of an agreement
executed by respondent nos. 4 and 6 in his favour, who are
neither owners of the property nor have been authorized by the
owner of the property to execute such agreement. The
petitioner has no where in his petition stated that there is an
document executed by respondent no.5 in his favour or any
power of attorney executed by respondent no.5 in favour of
respondent nos. 4 and 6. He also no where mentions in his
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petition that respondent nos. 4 and 6 are some how connected
with the property as owners or attorney holders.
It is not the case of the petitioner that any document has
been executed by respondent no.5 of on his behalf by
respondent nos. 4 and 6 in his favour. It may be noted that
petitioner admits that respondent no.5 is the owner of the
property in question. Faced with this situation, one fails to
understand as to what is the basis on which the petitioner could
claim authorized possession of the house in question. His
contention that the possession of the prospective Vendee under
an agreement to sell is permissive, is not only misconceived but
contrary to the facts also. A person cannot be put into the
possession of a property unless there is a valid agreement to
sell executed by the owner in his favour. On his own showing
the only document on which petitioner places reliance is an
agreement stated to have been executed by respondent nos. 4
and 6, whom petitioner admits not to be the owners of the
property.
From the aforesaid discussion what clearly emerges is
that petitioner is an un-authorized occupant of the property. He
has not been able to show any document before the District
Magistrate in support of his contention, which was the only
requirement to decide as to whether the petitioner was an unauthorized
occupant of the property or not. Having failed to
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produce any valid document the District Magistrate has rightly
directed that petitioner is an encroacher and should be asked
to vacate the premises.
The other aspect of the matter is that appeal is stated to
have been filed by the petitioner against the order of District
Magistrate without surrendering the possession of the property,
as required under Section 7 of the Act, which clearly mentions
that before filing appeal, appellant is required to handover the
possession of the property to the competent authority. Section
7, for facility of reference, is reproduced as under:-
(1) 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) ……………………
The petitioner, when confronted with this position,
withdrew his appeal with permission to file fresh appeal after
handing over the possession to the competent authority. He has
directly approached this Court under Article 226 of the
Constitution. The appeal preferred by the petitioner was not
competent as he has not complied with the requirement of
Section 7 of the Act. On this count alone the writ petition is
required to be dismissed as the petitioner has not availed the
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alternate remedy available to him under law.
Therefore, I find no force in this writ petition, which is,
accordingly dismissed with costs of Rs. 10,000/-, to be paid by
the petitioner to respondent no.5. The District Magistrate is
directed to take over the possession of the property in terms of
order passed by him on 27.12.2003 within a period of two
months from the date a copy of this order is received by him.
Registry is directed to send a copy of this order to District
Magistrate Srinagar for compliance.
District Magistrate Srinagar shall inform this Court about
the steps taken by him in terms of this judgment, on or before
15th of October, 2010.
Index of this petition shall be listed on 15.10.2010 for
compliance purposes only.
(SUNIL HALI)
Judge
JAMMU:
26.08. 2010
Anil Raina, Secy.
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