SHABIR AHMAD RUFAI Vs. UT OF J&K

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied by the judgment and order dtd. 21/11/2023 passed by the Writ Court in WP(C) 2714/2022, the original writ petitioners have preferred this intra-Court appeal. The writ Court vide judgment impugned herein, dismissed the writ petition. The relevant extract of the impugned judgment is reproduced hereunder:

(2.) The father of respondent No. 7 namely Sham Lal Fotedar approached the appellants herein in the year 1997 offering to alienate all the immovable property comprising gutted/dilapidated house with land underneath and appurtenant thereto measuring 4343 sq.ft falling in khasra No. 1230/546 situated at Mouza Bagati Barzulla. It is stated that in furtherance of the offer of sale of the aforesaid immovable property, aforesaid Sham Lal Fotedar executed Irrevocable General Power of Attorney signifying therein his willingness and desire to sell the aforesaid immovable property in favour of Shabir Ahmad Rufai and Shaheen the appellants herein. Contract for sale dtd. 22/7/1997 and personal affidavit was executed by Sham Lal Fotedar stating therein that he is the owner in physical possession of aforesaid immovable property and has sold the same with his sweet will consent and without any undue pressure from any quarter to the appellants herein. It is stated that an application was drawn and signed by Sham Lal Fotedar by his own hand seeking permission for effecting sale of the property in question and submitted to Minister for Revenue which was forwarded to the Divisional Commissioner, Kashmir for further necessary action which was a voluntary act done by the Fotedar and that all legal formalities to effectuate sale in favour of the appellants had been accomplished.

(3.) The judgment impugned is challenged on the ground that the Writ Court while rendering the judgment has erred in law in not appreciating that the appeal provided under Sec. 7 of J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 ('the Act of 1997' for short) being subject to onerous condition of possession of the property is not and cannot be called an adequate or efficacious remedy and that even otherwise as is settled, the statutory appeal does not operate as a bar in the case the order impugned is challenged on the ground of being without jurisdiction. It is submitted that the Writ Court while rendering the judgment impugned has erred in law in not appreciating that respondent No.4 gets jurisdiction in law to pass an order under Sec. 5 of the Act of 1997 only in case of unauthorized occupation of a migrant property. It is further submitted that the Writ Court while rendering the judgment impugned has erred in law in not appreciating that the impugned action of respondent No.4 is ultra vires the power, authority and jurisdiction, therefore, non-est in the eye of law. It is submitted that the approach of the leaned Writ Court in dismissing the writ petition on the ground that the remedy of appeal is available to the appellant is not correct as the appeal could have been filed only after surrendering the possession and the statutory obligation casts upon the appellant to avail the remedy provided by the statute was onerous, therefore, the remedy cannot be termed as efficacious. In support of his submissions, learned counsel has relied upon a judgments of this Court rendered in Ghulam Nabi Najar vs. State and others (OWP No. 505/2007, decided on 19/3/2009 and S. Hakeekat Singh vs. State (OWP No. 1329/1997, decided on 13/2/1998).