GHULAM NABI NAJAR Vs. STATE

JUDGEMENT

(1.) A hazy scenario about the conflicting factual claims has been put forth by the parties in the writ petition and the objections filed thereto. The writ court is called upon to adjudicate upon the facts which are not admitted but are disputed. This court is not powerless to enter into factual dispute, but as the writ petition can be decided on a pure question of law, so refrains to enter into factual thicket. For appreciating the controversy claims are briefly stated:-The petitioner claims to have purchased residential house including an outhouse known as "geetanjili" located at Shivpora Srinagar. Petitioner claims that respondent no. 9 acting through respondent No. 8 and 10 negotiated deal for sale of the said house, which initially was rented out to the petitioner. The petitioner, thus, claims to be authorized occupant of the property, being in occupation and possession of the property with the consent of migrant owner. Respondent No. 9, hereinafter, referred to, as owner, allegedly agreed to sell the property to the petitioner who was already in possession thereof in the capacity of a tenant, for an amount of Rs. 6/- lacs. It is further alleged that out of the consideration amount of rs. 6/- lacs, Rs. 4/- lacs were paid on 7. 12. 1996 and from out of balance of rs. 2/- lacs, it is alleged by the petitioner, that an amount of Rs. 1. 30 lacs was paid to the owner on 3rd march 1998. The petitioner has placed on writ record a communication dated 28th August 1995 from respondent No. 8 authorizing the petitioner to occupy and posses the property as tenant for a period of 20 months on a fixed rent of Rs. 500/- per month. Other documents have been placed on record by the petitioner, by which an effort is made to demonstrate that the property has been sold to him by the owner. One such document is an application made to Divisional Commissioner Kashmir seeking permission to alienate the migrant property to the petitioner. Another document placed on writ record is a communication made by the owner addressed to Inspector General of Police, dated 05. 09. 2000, which reflects the mind of the owner about disputed property, as she has in unequivocal terms withdrawn the complaint against the alleged illegal occupant and requested the authority that action, if any, initiated against the present occupant be stopped. This withdrawal of the complaint appears to be fallout of the agreement which respondent No. 8 had entered into with respondent No. 10. Record also reveals that communication was issued by additional deputy Commissioner Srinagar and addressed to Tehsildar Srinagar dated 17th May 2002 in which the Tehsildar was directed to evict the illegal occupant, if any, strictly under law. The said communication is reproduced as under:-"the Tehsildar srinagar no. 27-76/ri/om/mig/02 dated 17. 5. 2002 sub:- Illegal occupation of House known as "geentanjali" House at Shivpora Srinagar. Sir, in connection with the subject and reference cited above, your are directed to evict the illegal occupant, if any strictly under law, after inventory-sation in presence of S. H. O concerned and take over the immovable property in question under your custody on behalf of the District Magistrate srinagar. The compliance report should reach this office by or before 18. 05. 2002. "

(2.) THE Tehsildar had marked the said order/communication to Naib Tehsildar who in turn submitted its report to Tehsildar Srinagar vide communication dated 1. 11. 2002. The Naib tehsildar after visiting the spot and hearing the petitioner concluded by observing that the petitioner has occupied the property in question legally and is in peaceful possession of the same, so cannot be disturbed. Along with the said communication eighteen leaves were enclosed thereof. The writ record further reveals that the matter went in to hibernation till 7th April 2007 when District Magistrate Srinagar passed an order based on the communication dated 17th May 2002 directing Tehsildar to submit compliance report in view of the order dated 17th May 2002. The writ record further reveals that immediately thereafter the petitioner submitted an application seeking recalling of order dated 7th April 2007. The District Magistrate sent communication to Sr. Superintendent of police Crime branch Srinagar bearing No. RO/dm/mig/81/184 dated 28th of May 2007 enclosing therein the application filed by the petitioner against private respondents along with seven leaves as annexures, requesting him to conduct enquiry into the matter on the basis of the application filed by the petitioner and also sought report at the earliest. Without waiting for the report of the SSP Crime Branch Srinagar the District Magistrate passed another order dated 27th june 2007 in which he has referred to two reports of Naib Tehsildar Khonmuh and tehsildar Srinagar, and also referred to the order dated 17th May 2002 and directed the tehsildar Srinagar to proceed on spot and restore the possession of the property to the attorney holder under rules. Petitioner is aggrieved of these orders. Respondents 8,9 and 10 have filed their objections in which they have denied the claim put forth by the petitioner in the writ petition and have controverted the allegations made by him. It has been pleaded that the property is a migrant property and was unauthorizedly occupied by the petitioner. Reports of various subordinate revenue officers have been referred to in the objections to indicate that the migrant property is in unauthorized occupation of the petitioner. The replying respondents at para 10 of the objections have stated that orders were passed by District Magistrate after issuing notice to the petitioner. It is further claimed that order passed on 7th April 2007 was not eviction order but Tehsildar was therein directed to report compliance of the order dated 7th May 2002. Heard learned counsel for parties. In order to regulate and maintain proper order in society governed by rule of law, legislatures enact laws. Some laws are of permanent nature, whereas some are temporary phenomenon.

(3.) PERMANENT laws are enacted in respect of the actions, infractions which have the affect of subverting rule of law in civilized society. Such permanent laws are based on past experiences. Temporary laws are those laws which are enacted to tackle a situation which cannot be foreseen and anticipated and which, otherwise, are short lived. Unfortunate events which unfolded themselves in the State of Jandk in the year 1989 had serious impact on one section of the population which forced them to leave their home and hearth.