MOHD JAMAL KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) THE writ petition has been filed praying for direction to quash the order dated 24.04.1999 passed by respondent No. 3 and the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act, 1997, with further direction to confer proprietary rights on the petitioner and to restrain the respondents from causing any interference in the land involved in the litigation situated at Marinder Bagh, Harwan, Srinagar.

(2.) THE main submissions made in the writ petition are that the petitioner is in un -interrupted possession of the land measuring 5 kanals and 12 Marlas in Survey No. 354, 358/352 situated at village Marinder Bagh. Harwan, Srinagar, as a tenant and is paying rent to the private respondents 5 to 9, who are resident of Residency Road, Srinagar and have not migrated and are not entitled to any protection under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. It is further submitted that the private respondents were not in actual possession of the said land but, on wrong facts, submitted an application dated 20.10.1998, before the Deputy Commissioner/District Magistrate, Srinagar, for protection under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, in which regular enquiry was conducted and it was reported that the petitioner is tenant in possession of the said land and the private respondents 5 to 9 are not migrants, despite this, the District Magistrate dis -approved the report of the field Officers and passed the impugned order of taking over of the possession dated 24.04.1999 in object disregard of the fact that the private respondents 5 to 9 have not migrated and cannot be declared as migrants, within the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997. It is further submitted that the order of the District Magistrate dated 24.04.1999 was challenged before the Financial Commissioner (Revenue), but the Financial Commissioner (Revenue) did not conduct the proceedings effectively and as such, writ petition was filed in this court seeking quashment of the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997, for the reason that the Act is ultra vires, irrational, unreasonable and unjustified. On these submissions, it is prayed that the writ petition be allowed and the impugned order dated 24.4.1999 passed by respondent No. 3 as also the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act 1997 be quashed.

(3.) THE stand taken by the private respondents 5 to 9, in their objections is that the petitioner had an alternate efficacious and effective remedy by way of filing an appeal under section 7 of the Act before the Financial Commissioner. Since the petitioner has challenged the order in question by taking an appeal to the Financial Commissioner under section 7 of the Act and failed, the impugned order has become final and cannot be questioned now by filing a writ petition. It is further submitted by the private respondents 5 to 9 that on the date of filing the writ petition, the petitioner was not in possession of the land measuring 5 Kanals and 12 Marlas under Survey No. 354, 358/352 situated at village Marinder Bagh, Harwan, Srinagar as the possession of the land had been taken by the learned District Magistrate through Tehsildar who had kept it on Superdname of one Suna Mir S/o Ramzan Mir R/o Mandirbagh, Harwan on 10.05.1999. It is submitted by the private respondents 5 to 9 that they continued to be in actual physical possession of the said land from the date of purchase of the said land. The petitioner taking benefit of the militancy, exodus and migration of respondents 5 to 9 from valley made attempts to occupy the land, but on initiation of proceedings by the respondents before District Magistrate Srinagar, the suit land was cleared from illegal occupation of petitioner. The private respondents 5 to 9 have denied that the petitioner had become the prospective owner of the said land. The respondents 5 to 9 have further stated that on the consideration of annexure B -1 filed wit the writ petition, the District Magistrate acted on the report of Tehsildar, Additional Deputy Commissioner and other material available on the record, and came to the conclusion that the case of the respondents 5 to 9 was covered by the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. Lastly, it is submitted that the Financial Commissioner under section 7 of the Act, has power to hear the appeal and the petitioner is blowing hot and cold in the same breath, as on one hand he contends that he had challenged the orders of the District Magistrate before the Financial Commissioner, and on the other hand he has, without waiting for the outcome of appeal before the Financial Commissioner , filed this writ petition, which is not maintainable. On these submissions, it is prayed that the writ petition be dismissed with costs.