KUMAR VERMA Vs. STATE & ORS.

JUDGEMENT

(1.) The petitioner impugns an order purporting to have been passed by the District Magistrate, Srinagar under Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act of 1997 (hereinafter referred to as the "Act") on 24.5.2005 directing eviction of illegal occupants of the building/ land under survey no.489 min, situate at Magarmal Bagh, Srinagar, etc. and prays for quashment thereof, and protection of his possession.

(2.) Grounds pleaded in support of the prayer are that petitioner is the protected occupancy tenant of a part of the premises, commonly known as "Nanda House" since last three decades under a valid lease deed dated 23.9. 1977, executed by owners of the house, who left the valley on 3. 8. 1989, appointing one Sham Lai Kapoor as their attorney to look after said property or dispose it of on their behalf, who on 5. 8. 1989, executed a fresh rent deed in his favour, and he continued to be in possession of the house while paying the rent etc. to the concerned. It is further pleaded, that on 25.6.2003, petitioner obtained a decree against the aforesaid attorney of the owner of the premises, when he tried forcible eviction, and despite that the impugned eviction order was passed at the behest of respondent No. 6 without holding any enquiry, which renders it arbitrary, particularly because it was passed without hearing the petitioner, even though he filed his objections etc. against the proposed action before the concerned District Magistrate.

(3.) Materials submitted include photo copies of the lease deed under which petitioner claims the premises to be in his position, the municipal and other receipts purporting to have been issued to him from time to time, and photo copy of the decree purporting to have been awarded by 2"d. Additional Munsiff, Srinagar in his favour against one Sham Lai Kapoor where-under, defendant has been perpetually restrained from interfering into possession of plaintiff Navit Kumar and ejecting him there from otherwise then in due course of law; as also the copy of power of attorney purporting to have been executed by the Nandas in favour of one M. L. Kapoor the earlier attorney holder on 23. 8. 1989. During course of his brief submissions, the petitioner's counsel, besides reiterating contents of the writ petition, also contended that proposed eviction against him was totally illegal and would render him shelter less, so the same was liable to be overset, particularly because the concerned District Magistrate, while passing the order, did not adhere to the procedure prescribed for the impugned action which renders the order bad. The counsel also quoted a judgment of this court, which, if necessary, would be discussed in due course.