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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M.K. HANJURA, J.
Abdul Khaliq Rather - Appellant
Versus
State of J&K and Ors. - Respondent
OWP No. 915 of 2013
Decided On : 18-09-2018
Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales) Act, 1997 - Section 5 - Transfer Of Property Act - Sections 54 And 138 - Removal Of Alleged Encroachment - Nature of mandamus declaring the impugned action - Proprietary Land - Scrutiny Of Law - Order bearing passed by learned Deputy Commissioner is perverse and cannot withstand scrutiny of law - In order to understand contention of learned counsel for petitioner in its right perspective order aforesaid requires to be reproduced below word for word and letter for letter and it reads thus - Whereas an application had been moved by applicant at present Clinical Lab - Hon'ble Chief Minister requesting therein for removal of alleged encroachment on his proprietary land under and situated – Held, Petitioner and his predecessor-in-interest have been since in use enjoyment occupation and possession of all that parcel of land comprising and therefore impugned proceedings undertaken by respondent right from its inception to culmination viz. impugned order from vice of total lack of jurisdiction on part of respondent in matter rendering impugned proceedings as well as its culmination ultra vires provisions of law and non-est in law liable to be interdicted under appropriate writ of this court what can be said is that it is a specious and contrived argument when tested on touchstone of law and facts - Petitioner has not placed any document on record as would substantiate that his possession was lawful at any moment of time - Section 54 of Transfer of Property Act lays down that transfer in case of tangible immoveable property or in case of a reversion or other intangible thing can be made only by a registered instrument - Petition Is Dismissed.
The legal document primarily addresses the issue of the maintainability of the writ petition filed by the petitioner, highlighting the importance of exhaustion of alternative remedies provided under the relevant statutes. The court emphasizes that the petitioner had a statutory right to appeal against the order in question but failed to do so within the prescribed period, rendering the petition inadmissible. The court also underscores that the existence of an effective alternative remedy, such as an appeal, generally bars the High Court from directly entertaining a writ petition, unless exceptional circumstances are established.
Furthermore, the court notes that the facts of the case do not support the petitioner’s claim of lawful possession, as the possession was found to be unauthorized and in violation of the statutory provisions governing transfer and possession of immovable property. The findings of fact by the authorities, including the absence of a registered transfer deed and the violation of statutory procedures, reinforce the conclusion that the petitioner’s possession was illegal.
Additionally, the court considers the procedural aspects, such as the requirement for registration of transfer instruments and compliance with relevant laws governing property transfer, which the petitioner’s case does not satisfy. The court dismisses the petition on the grounds that it is meritless, primarily because the petitioner did not exhaust the statutory remedy and because the facts do not substantiate lawful possession or ownership.
In summary, the document underscores the importance of following statutory procedures and remedies, and it reinforces that the High Court should generally refrain from interfering in cases where effective alternative remedies are available and have not been availed of by the petitioner.
ORDER :
M.K. HANJURA, J.
1. In this petition, the petitioner beseeches and seeks the following reliefs:
i. Writ, order or direction including one in the nature of mandamus declaring the impugned action of the respondent no. 3 in the form of impugned order no. DCB/BPR/ARA/2008/614-17 dated 23.12.2008 served on the petitioner on 4.6.2013 ultra vires the power, authority and jurisdiction as by law vested in the respondent no. 3 under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 in particular section 5 thereof and therefore, non-est in law and liable to be interdicted under the appropriate writ of this Hon'ble Court, be issued in favour of the petitioner and against the respondents.
ii. Writ, order or direction including one in the nature of certiorari quashing/setting at naught the impugned order no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008, served on the petitioner on 4.6.2013, be also issued in favour of the petitioner and against the respondents.
iii. Writ, order or direction including one in the nature of mandamus commanding the respondents in particular respondents 1 to 4 to treat the impugned order no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008, served on the petitioner on 4.6.2013, non-est in law and desist and refrain from acting in furtherance thereof and/or carrying into execution the impugned order no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008, in any manner prejudicial to the possessory rights and interests of the petitioner and/or disturbing in execution of the impugned order no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008, in any manner whatsoever the lawful possession of the petitioner over the parcel of land measuring 4 kanals and 6 marlas situate at Awrenbal, Sonawari, Sumbal, being held and enjoyed by the petitioner since the year 1971, be also issued in favour of the petitioner and against the respondents.
2. The facts under the shade and cover of which the petitioner claims the aforesaid reliefs are that the order bearing no. DCB/BPR/ARA/2008/614-617 dated 23.12.2008 passed by the learned Deputy Commissioner, Bandipora, is perverse and cannot withstand the scrutiny of law. In order to understand the contention of the learned counsel for the petitioner in its right perspective, the order aforesaid requires to be reproduced below word for word and letter for letter, and it reads thus:
"Whereas an application had been moved by the applicant namely Som Nath Bhat S/O Late Pandith Sri Kanth Bhat at present C/O Shafa Clinical Lab. Ward No: 07, Shiv Nagar, Udharnpur 182101 Dated: 20th July 2003 to Hon'ble Chief Minister of Jammu & Kashmir requesting therein for removal of alleged encroachment on his proprietary land under khasra No: 225 and 026 measuring 07 kanals-18 Marlas and 04 Kanals - 5 1/2 marlas respectively, situated at Wangipora, Sumbal. This application had been forwarded to Deputy Commissioner Baramulla by the Additional Private Secretary to Hon'ble Chief Minister vide no. CMS/23/2004 Dated: 08.01.2004 for necessary action under J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
Whereas the Deputy Commissioner Baramulla directed Additional Deputy Commissioner, Baramulla vide his no. DCB/PS/Encr/4439-40 dated 09.01.2004 for eviction of the alleged encroachment on the applicant's land. Pursuant to this proof, Additional Deputy Commissioner Baramulla sought factual report from Tehsildar Sonawari as regards the subject vide his letter no. DCB/R/Inq/Encr/Migrant/141-43 dated 12.2.2004.
Whereas in the meantime, a petition (OWP no. 669/2005) seems to have been filed by six petitioners including the applicant before the Hon'ble High Court of Jammu and Kashmir for redressal of their grievances, which was disposed of by the Hon'ble High Court on 13.10.2005 with the orders reproduced below:
".... Respondent 3 (District Magistrate, Deputy Commissioner, Baramulla, Kashmir) is directed to decide the complaint of the petitioners
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