Back
2020 Supreme(J&K) 384
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Puneet Gupta, J.
(Through Virtual Mode from Jammu)
Poonam Mehra and Anr.
Versus
Union Territory of J&K and Ors.
CM No.2606/2020 in WP(C) No.1090/2020
Decided on 26-11-2020
For the Petitioner(s):Mr. A.H. Naik, Sr. Advocate with assisting counsel
For the Respondent(s) Nos.1 to 3: Mr. N.H. Shah, Sr. AAG
Headnote:
Jammu and Kashmir Migrant Immovable Property Preservation, Protection and Restrain of Distress Sale Act, 1997 - Section 3 - Claim deemed permission - Enquiry - Petitioners submit that y entered into negotiations with pro-forma respondent for purposes of sale of aforesaid property for consideration and permission for sale of property is required in terms of Jammu and Kashmir Migrant Immovable Property Preservation Protection and Restrain of Distress Sale Act hereinafter called Act- Section Act prescribes period of fifteen days within which permission is required to be granted for alienation of property and default permission for alienation of property shall be deemed to have been granted - Petitioners approached respondent designated authority Act and submitted an application and also filled up Form for accord of permission by said authority - Petition also mentions of sale price fixed between parties with regard properties in question- It is further pleaded that prescribed authority instead of disposing of application within prescribed period is engaged in further enquiries which is uncalled for As formal permission has not been granted by respondent though required to be granted within a period of fifteen days court may command that deemed permission has been granted in of petitioners for sale of property in question- or ancillary reliefs are also sought for in petition –Held Case application is not rejected- perusal of Rule leaves no doubt in mind of court that time limit of fifteen days as mentioned in said Rule when read in conjunction with Section Act would imply that application is registered in Form only after application is found complete in all respects and not before that- provision cannot be admitted to any or interpretation- Court is therefore not in agreement with submission of learned counsel for petitioners in view of above provisions that fifteen days period as stipulated in Act is to be counted from date of mere filing of application- Admittedly respondent light of discussion made above court is of considered view that petitioners are not entitled to relief seeking direction to respondents to declare permission for alienation of properties in question be deemed one favour of petitioners and also consequently or reliefs which are ancillary to main prayer court however takes note of fact that application of petitioners is hanging fire for last two years and is otherwise required to be disposed of expeditiously- It is expected that enquiry shall be completed without any further delay after petitioners clarify issues that are or may be raised by respondent with regard to application filed by m and matter is finally decided by respondent keeping in view all facts and circumstances of case and mandate of Act and rules framed - Petition dismissed
Judgment
Puneet Gupta, J.—The petition is preferred by the petitioners, daughters of Late Sh. Rajinder Kumar Sahani, through Attorney holder with the averments that petitioners are owners in possession of land measuring 04 Kanals 05 Marlas and 210 Sqft. under Survey No. 1 Min, 5 Min, 6 Min, Khewat No. 139 and Khata No. 350 situate at Gupkar Road, Srinagar. The petitioners are presently residing outside the State (Union Territory of J&K) and are registered migrants. The petitioners submit that they entered into negotiations with the pro-forma respondent No. 4 for the purposes of sale of the aforesaid property for consideration of Rs. 13.00 Crore and the permission for sale of the property is required in terms of Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restrain of Distress Sale) Act, 1997 (hereinafter called the Act). Section 3 of the Act prescribes period of fifteen days within which the permission is required to be granted for alienation of property and in default the permission for alienation of property shall be deemed to have been granted. The petitioners approached respondent No. 2, designated authority under the Act, and submitted an application and also filled up the Form for accord of permission by the said authority. The petition also mentions of the sale price fixed between the parties with regard to the properties in question. It is further pleaded that the prescribed authority instead of disposing of the application within the prescribed period is engaged in further enquiries which is un-called for. As the formal permission has not been granted by the respondent No. 2 though required to be granted within a period of fifteen days, the court may command that deemed permission has been granted in favour of the petitioners for sale of the property in question. The other ancillary reliefs are also sought for in the petition.
2. The official respondents have filed response to the writ petition. It is submitted in the objections by the respondents that from the available revenue record it is borne out that the father of the petitioners had one son also namely Parneet Kumar and the petitioners as daughters but there is no verification with regard to the share of the brother of the petitioners and his status at the time of his death with regard to the property measuring 14 Marlas falling under Khasra No. 1176/3 situated at Sonawar Srinagar. The title of the petitioners being doubtful and unless the interest of any other person in the property of the deceased is properly verified permission under the Act cannot be issued to the petitioners for alienation of land in question. The contention of deemed permission as raised by the petitioners is also refuted in the objections.
3. The record has been submitted by learned Sr. AAG. The submission of learned senior counsel Mr. A. H. Naik, Sr. Advocate on behalf of the petitioners is that the petitioners have completed all the formalities and the agencies which are concerned with the verification of the property in question have also in clear terms reported that for alienation of the properties in question permission can be granted. The revenue record clearly reveals the title of the petitioners in the property and the office of the respondent No. 2 without any reason is again into the process of verifying the case of the petitioners. Lastly, it is argued that the deemed permission should be considered to have been given in favour of the petitioners in terms of provision of the Act as the respondent No. 2 has failed to pass any order within the stipulated period as prescribed under the Act.
4. Mr. N. H. Shah, learned Sr. AAG while controverting the arguments of the learned counsel for the petitioners has urged before the Court that the petitioners are required to clear the doubts which have been raised by the respondent No. 2 before their application could be decided for alienation of properties. Indeed, the learned counsel has also argued that the p
