MOHAMMAD AMIN KAWA Vs. UT OF J&K

JUDGEMENT

(1.) Aggrieved of the order dtd. 10/11/2023 (hereinafter referred to as 'the order impugned') passed by the learned Writ Court in WP (C) No.2748/2023 titled 'Mohammad Amin Kawa vs. UT of J&K and Ors.', whereby the writ petition preferred by the appellant against the order dtd. 26/9/2023 passed by the respondent No.2 has been dismissed, this intra-court appeal under Clause 12 of the Letters Patent has been filed assailing the order impugned on the ground that the learned Writ Court has failed to appreciate the facts as well as the law governing the matter because the appeal preferred by the appellant before the respondent No.2 was within the period of limitation in terms of Sec. 7 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as 'the Migrant Act'). It is submitted that the appellant, in fact, had assailed two orders, one dtd. 25/10/2022 and the other dtd. 23/8/2023, as such, the appeal was within the period of limitation but only on the technical ground, the appeal preferred by the appellant was dismissed by the respondent No.2. It is also urged that the appellant had earlier filed a writ petition bearing WP(C) No.3884/2019 which was disposed of by the learned Writ Court vide order dtd. 1/6/2022 and the District Magistrate, Srinagar was directed to pass orders in the matter in tune with the mandate of Sec. 3,4 and 5 of the Migrant Act. Thereafter the respondent No.3 passed the order dtd. 25/10/2022, which was assailed by the appellant through the medium of another writ petition bearing WP(C) 1998/2023 but the same was dismissed by the learned Writ Court vide order dtd. 7/8/2023 with a liberty to the appellant to move the appellate forum. It was in compliance to the directions passed by the learned Writ Court that the appellant preferred an appeal but the same was wrongly dismissed by the respondent No.2. It is also averred that the legal issue 'as to whether the shop in question shall come within the ambit of the Migrant Act or not' has neither been considered nor adjudicated upon by the appellate authority, as also by the Writ Court.

(2.) The learned counsel for the appellant argued that the appeal in terms of Sec. -7 of the Migrant Act is maintainable only when the possession of the migrant property is surrendered to the competent authority and as the possession of the migrant property was taken over by the Naib-Tehsildar, Srinagar, only on 23/8/2023, the appeal filed by the appellant was well within the period of limitation prescribed under Sec. -7 of the Migrant Act. He also urged that the appellant was not an unauthorized occupant of the shop but was a tenant as the appellant had entered in to partnership in the year 2014 with Ghulam Rasool Gilkar, who was the original tenant in respect of shop situated at Habba Kadal Srinagar.

(3.) Per contra, Mr. M. K. Raina, learned counsel for respondent No.6, submitted that the appellant did not impugn the order dtd. 30/9/2022 within the period of limitation prescribed under Sec. 7 of the Migrant Act by surrendering the possession of the property in question and he continued to remain in unauthorized occupation of the shop despite the order passed by the Statutory Authority under Sec. 5 of the Migrant Act. It was only when the possession was taken over by the Naib-Tehsildar, Srinagar, on 23/8/2023, pursuant to the order dtd. 30/9/2022, that the appellant availed the statutory remedy of appeal which was hopelessly time barred.