SAJAD MUZAFFER BHAT Vs. STATE

JUDGEMENT

(1.) RESPONDENT Iqbal Krishen Karihaloo made presentation before Divisional Commissioner Kashmir on 17.4.1998 for restortation of Shop No. 3 in the Municipal Building opposite Apna Bazar Lal Chowk Srinagar, after alleged unauthorized occupant respondent is removed on the ground that the shop under occupation of the petitioner, a migrant is unauthrisedly occupied by him without his consent or authority of law. The Divisional Commissioner referred application of Shri Karihaloo to Deputy Commissioner on 17.4.1998 for action under the Provisions of Jammu and Kashmir Migrants Immovable Property (Preservation, Protection And Restraint on Distress Sales) Act, 1997, (hereinafter for short Migrant Distress Sales Act 1997). The then Deputy Commissioner Srinagar disposed of the case by order dated 25.7.1998. However, an appeal was filed against the order before the Appellate authority of Financial Commissioner Revenue J&K.; This appellate authority disposed of this Appeal 99 -FC of 98 -99. While the impugned order of Dy. Commissioner was quashed, direction was given to the Dy. Commissioner to conduct the enquiry under law and 'after determining the nature of possession of the respondents to record a finding after providing opportunity to the parties'. Soon after the papers and record was received by the Deputy Commissioner Srinagar, the Dy. Commissioner by the Impugned order allowed the application and directed for restoration of the shop to the owner Iqbal Krishen Karihaloo. Petitioner alleges that the articles lying in the shop were lifted and transported in the Police Vehicle after his men were manhandled. However, subsequently under directions of the High Court regarding maintenance of status quo , the revenue authori - ties restored possession of shop to non -applicant. This order of 28.8.2000, evicting the non -applicant and restoring possession to Iqbal Krishen Karihaloo, is impugned in this amended writ petition. It is necessary to take note of a few more facts relevant for our present purposes as under.

(2.) PETITIONER before the High Court alleges that the shop belongs to Smt. Prana Karihaloo ( deceased) who was running 'King Star Restaurant', in the shop. She executed an Irrevocable General Power of Attorney on 16.5.1992 in favour of her son said Karihaloo, which was registered at Jammu on the same day (Annexure -A) Iqbal Krishen Karihaloo is alleged to have executed a partnership deed with the petitioner in respect of premises of 'King Star Restaurant' on 16.5.1992 and on the same day this partnership was dissolved after said Iqbal Krishen Karihaloo received lump sum amount of Rs. 1.50 lacs for the deal. (Annexures B, C and D). After the parties started filling apart the petitioner filed suit on 16.12.1994 for a decree of declaration and permanent injunction in the Court of Judge Small Causes Srinagar where the suit is pending. Iqbal Krishen Karihaloo approached Divisional Commissioner for action against the writ petitioner as an encroacher and illegal occupant under Migrants Distress Sales Act 1997 which presentation/ application was dealt with as stated above.

(3.) I have heard Ld. Counsel for the parties. The record of the Dy. Commissioner Srinagar is made available by Mr. Magrey, AAG. With the assistance of Mr. A. M. Magrey, AAG, and Mr. NH. Shah, Dy. AG, the record is examined.