NIGHAT MAJID Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) PETITIONERS 1 and 2 and respondents 2 and 3 have purchased immovable properties of migrants. The dispute is about a part of the immovable properties which the petitioners allege to be in illegal and unauthorized possession of respondents 2 & 3.

(2.) LAND measuring 2 kanals one marla and 92 Sfts as also double storied annexe, single storied, garage and double storied annexe comprising of survey No. 152/22 at Sathu Barbar Shah, Habakadal, Srinagar was purchased by petitioners 1 & 2 from migrant owners after permission was given by the competent authority under Section 3 of the J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales Act) of 1997 (for short Act of 1997).

(3.) PARA (c) of the permission provide that after completion of the formalities District Magistrate Srinagar (Custodian of Migrant Immovable property) to handover the possession thereof through the prescribed procedure. Sale deed was executed by migrants of the said property in favour of the petitioners 1 and 2. Petitioner No.3 who is attorney holder of the migrants made an application in Sept. 1999 to District Magistrate Srinagar requesting him for ordering for handing over the possession of the immovable property in terms of Rule 5 of the Rules of 1997. It appears that Divisional Commissioner Kashmir vide order dated 17.9.99 requested to Dy Commissioner Srinagar to depute a revenue officer on spot for Nishandihi and for handing over of possession. The Deputy Commissioner marked the said application to ACR. The subordinate revenue authorities visited the spot. The report reveals that land measuring 31 = sq.ft is in unauthorized occupation of respondent No.2 and the possession whereof has to be given to petitioners. The District Magistrate Srinagar vide order no. 744 -48 of 2000 dated 26.05.2000 ordered for removal of encroachment in respect of area land measuring 31 -1/2 sq. ft. The respondents 2 and 3 being aggrieved of the said order, challenged the same in appeal before Financial Commissioner. The Financial Commissioner disposed of the appeal with direction to District Magistrate to put the parties in possession for the land according to their entitlement as per revenue record and sale deeds after ascertaining as to whether land is part of land purchased or it is common boundary wall between the two plots of land. It was further directed that if the land as per the revenue record and sale deed is found to be of the petitioners , it is to be restored to them and the damaged wall be restored to its original position. This order was passed on 12th May 2004. The Tehsildar Srinagar vide his communication dated 12.07.05 addressed to District Magistrate Srinagar again reported that there is encroachment of area of 31 -1/2 Sq. ft. The District Magistrate vide his order dated 21st July 2005 directed the Tehsildar Executive Magistrate First Class to implement the orders within weeks time. The Tehsildar accordingly directed Naib Tehsildar Srinagar vide order dated 1.1.08 to implement the orders of the Financial Commissioner and District Magistrate. It appears that a civil original suit has been filed by respondent No.3 in the court of ld. Sub Judge/Chief Judicial Magistrate Srinagar and a consent decree has been passed on 17.10.05 wherein it was directed that parties would retain the possession of the land according to their entitlement as per revenue records and sale deeds. It was further provided that encroachment on either side be removed by Competent Authority by resorting to the procedure established by law. The Tehsildar Srinagar vide his communication dated 8.2.06 addressed to the Additional District Magistrate Srinagar requested for consideration of implementation of the orders of the District Magistrate dated 21.07.05. The District Magistrate vide his order 1st of May 2006 directed the Tehsildar Srinagar to restore the vacant physical possession of the migrant property as per orders issued by Div. Commissioner vide his No. MR(84)/199 dated 26.05.2005 and also as per directions issued by District Magistrate dated 21.07.2005. The said order however came to be challenged in appeal before the ld. Financial Commissioner revenue who set aside the said order. The ld. Financial Commissioner held that the provisions of Act of 1997 are not applicable to this case.