JUDGMENT
Nirmal Singh, J.
1. This petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, has been filed for issuance of a writ in the nature of certiorari quashing order dated 6th Jan’ 06, annexure A to the writ petition, whereby direction has been given to Tehsildar Agrarian Reforms, Qazigund, to rush to the spot immediately and remove the encroachment, if any, found on spot over land measuring 1 kanal 15 marlas under Survey No. 209, situated at Kurigam including two residential houses. Further, a writ of mandamus is also sought directing respondent No. 2 to conduct an enquiry under law before passing any order under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as the Act).
2. The case of the petitioner is that one Trilokinath, husband of respondent No. 6-Sheela Devi and father of petitioners No. 4 and 5, was owner in possession of land measuring 1 kanal 15 marlas and two storey house tin roofed situated under Survey No. 209 at Kulibagh Kurigam, Qazigund, Anantnag, Due to the turmoil in the valley, all his kith and kins left the valley leaving Trilokinath at Kilibagn Kurigam, Qazigund, at the mercy of God. The petitioner who is residing in the same village took Trilokinath to his house. It is stated that Trilokinath executed a gift deed of the entire immovable property and put the petitioner in possession of the same. Trilokinath died on 31st Dec’94. It is further case of the petitioner that Trilokinath was not a migrant, and therefore, the provisions of the Act are not applicable to the property in dispute. It is thus stated that respondent No. 2 without giving any opportunity of being heard issued order of eviction against the petitioner and respondent No. 3, without giving any notice to the petitioner, seized the property aforementioned and dispossessed the petitioner from the same.
3. On notice, objections have been filed by private respondents 4 to 6 and a preliminary objection has been raised that the writ petition is not maintainable. It is pleaded that the petitioner had filed a civil suit before the Munsiffs court at Duroo, which was dismissed. It is admitted that respondents 4 to 6 are the legal heirs of Trilokinath who was one of the co-partner in the joint property which is in dispute. It is further pleaded that Trilokinath had also migrated from valley along with his other family members. The other averments made in the petition have been denied.
4. I have heard learned Counsel for the parties and perused the record. Writ petition is admitted and with the consensus of the learned Counsel for the parties, taken on board for final disposal.
5. As noticed above, objection has been raised to the maintainability of the writ petition on the ground that petitioner had filed civil suit on the same cause of action which has been dismissed. A copy of the said suit has been placed on record as Annexure E. In the said suit, the petitioner has claimed the following relief:
It is therefore prayed that a decree declaring the plaintiff as owner and possessor of 1/3 of property left by Trilokinath matter comprising of land Under Section No. 209, 2 1/2 residential house, one shop and trees existing in land Under Section 209 situated at Kurigam Qazigund with permanent injunction from dispossessing the plaintiff from suit property be passed in favour of plaintiff against the defendants. Any other relief which this Hon’ble court deem proper in the interest of justice be also granted in favour of plaintiff.
6. In the present petition, as stated above, the petitioner is seeking quashing of order dt. 6th Jan’06, whereby directions have been given to the Tehsildar concerned to evict the petitioner from the property in dispute. Therefore, the cause in the suit and the writ petition is separate and the same is maintainable.
7. Under Section 4 of the Act, the custody of the immovable property of the migrants is to be taken by the District Magistrate. This Section reads as under:
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 be 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: Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing.
8. Section 5 of the Act is also relevant and is being reproduced below:
Euiction of unauthorized occupants:- If any unauthorized occupant of any migrant property refused or fails on demand of surrender possession thereof to the competent authority, such authority may use such force as it 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.
9. A co-joint reading of the afore noticed provisions of the Act would show that order under the Act is to be passed by the District Magistrate concerned but in this case, order impugned has been passed by the Additional District Magistrate, Anantnag, who has no jurisdiction to pass order under the Act. Even if it is presumed that the Addl. District Magistrate is also competent, even then, order impugned has been passed in violation of the principles of natural justice. This order reads as under:
Government of Jammu and Kashmir office of the Deputy Comm-
issioner, Anantnag
The Tehsildar Agrarian Reforms No. 2289-90/Mig/Cornpt/122
Qazigund dated 6.01.2006Subject:- Protection of Migrant Property.
Sir,
Enclosed please find a copy of the complaint furnished by Sheela Devi and others Residence of Kurigam at present Migrant.
The complaints have agitated that land measuring 1 kanal 15 marlas under survey No. 209 situated at Kurigam belonging to the migrants has unauthorizedly been encroached upon by one Nissar Ahmed Ganie. The two residential houses belonging to the Migrants have also been forcibly occupied by the said contravener. You may rush to the spot, immediately and remove the encroachment if any found on spot. A detailed report may be furnished to this office within 15 days.
Sd/-…
Addl. District Magistrate
Anantnag….
10. As noticed above, under Section 4 of the Act, District Magistrate is the competent authority to take possession of the immovable property belonging to the migrants and under Section 5, the said authority has the power of eviction of an unauthorized occupant. ‘Immovable property’, ‘migrant’ and ‘unauthorized occupant’ have been defined in Section 2(d), (e) and (i) of the Act, which read as under:
2(d): “Immovable property” shall also include tenancy rights or interest created under any law for the time being in force;
2(e): “Migrant” means any person who has migrated from Kashmir valley after 1st November, 1989 and is registered as such with the Relief Commissioner and includes a person who has not been so registered on the ground of his service of the Government in any moving office, or having left the Valley in pursuit of occupation or vocation or otherwise, and is possessed of immovable property in the valley but is unable to ordinarily reside there due to the disturbed conditions;
“2(i): “Unauthorized 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.
11. Before eviction of an unauthorized occupant, an enquiry is to be held by the District Magistrate to find out whether the immovable property owned and possessed by a migrant who has unable to reside there due to the disturbed conditions has been encroached upon or taken in possession by some other person without his written consent and authority of law and has been unauthorisedly occupied. Once the District Magistrate comes to a conclusion that the immovable property owned by a migrant has been unauthorisedly occupied by the other person, then he has to take action under Sections 4 and 5 of the Act. But in this case, no enquiry has been held by the District Magistrate nor any opportunity of hearing has been given to the petitioner and the order impugned has been passed in violation of the principles of natural justice.
12. Learned Counsel for private respondents has pointed out that the petitioner has filed a civil suit seeking a declaration to the effect that he is in possession of the property in dispute in pursuance of a gift deed alleged to have been executed by Trilokinath but the said suit has already been dismissed meaning thereby that there is no such gift deed in favour of the petitioner.
13. I have considered this submission of the learned Counsel appearing for private respondents. Without affording an opportunity of being heard and without holding a proper enquiry, as envisaged under this Act, the District Magistrate cannot pass an order Sections 4 and 5 of the Act.
14. The second contention raised by the learned Counsel for private respondents is that under Section 7 of the Act, any person aggrieved of an order passed by the concerned authority under this Act, may file an appeal before the Financial Commissioner. It is stated that when an alternation efficacious remedy is available, then the writ petition filed by the petitioner is not maintainable.
15. I have considered the above submission of the learned Counsel for the private respondents. In all cases, appeal is not an effective and efficacious remedy. When an order has been passed in violation of the principles of natural justice, the writ court can entertain the petition. Similar view has been taken by this Court in the case of Hakeekat Singh v. State of J&K OWP No. 1329/97, decided on 13th Feb’98. In para 129 of the said judgement, it has been observed as under:
Without commenting on the question whether the forum of appeal provided by Section 7 of the Distress Sales Act of 1997… under the said Act would in all cases bar the relief in the. writ jurisdiction on the principles of existence of alternative remedy, the. provisions of said appeal against an order passed by District Magistrate, Srinagar, under Section 5 of the Act would not in the totality of facts and circumstances of this case come in the way of relief to which petitioner is found entitled in these writ proceedings. Even on consideration the appeal is not efficacious and effective enough to prevent the relief to the petitioner in this case.
16. For the reasons mentioned above, this petition is allowed. Order impugned dated 6th Jan’06, passed by the Additional District Magistrate, Anantnag is set aside and respondent No. 2 is directed to pass a fresh order after holding a proper inquiry into the matter in accordance with the Act, within a period of thirty days from the receipt of a copy of this order. While holding the enquiry, the District Magistrate will also take into consideration the judgment and decree passed by the civil court. Parties are directed to appear before respondent No. 2 in person or through their counsel on 10th April’06. They will also produce copy of this order before respondent No. 2. In case, any of the party fails to appear before respondent No. 2 on the said date, respondent No. 2 would be at liberty to proceed in the matter.
Disposed of accordingly along with connected CMP(s), if any.