GHULAM MOHI UD DIN SHAH Vs. STATE

JUDGEMENT

(1.) 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. 43,000/- is stated to have been paid in advance and subsequently vide demand draft 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.

(2.) 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 Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) 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 unauthorized 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.

(3.) Aggrieved of this order of the District Magistrate, the present petitioner filed an appeal under Section 7 of the Act 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.