Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(J&K) 154

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Rajnesh Oswal, J.
Anoop Singh and Another - Petitioners
Versus
State of J&K & Others - Respondents
OWP No.1146 of 2015, CPOWP No.454 of 2015, CCP(S) No.51 of 2021
Decided On : 04-04-2024

Advocates:
Advocate Appeared:
For the Petitioner:Mr. Z. A. Shah, Sr. Advocate, with Mr. Hanan, Advocate.
For the Respondent:Mr. Jahangir Dar, GA., Mr. Nissar Ahmad Bhat, Advocate.

The main legal point established in the judgment is the importance of fair conduct and clean hands in seeking the extraordinary remedy of a writ of certiorari, and the principle that a litigant cannot take contradictory stands in the same case.

Headnote:
Inconsistent Stands - Property Dispute - Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, Sections 3(b), 4, 5 - The court discussed the provisions of the Jammu and Kashmir Migrant Immovable Property Act, 1997, and its applicability to the dispute. It highlighted the importance of clean hands doctrine and the principle that a litigant cannot take inconsistent positions in the same case. The court emphasized that the Migrant Act has an overriding effect over all other Acts in case of inconsistency between them, and the possession of migrant properties stands vested with the District Magistrate.
Fact of the Case:
The petitioners claimed possession of a property in Jawahar Nagar, Srinagar, initially as tenants and later on the basis of having purchased the property. The respondent No.3 issued an order directing the vacation of the house and restoration of possession to the migrant owner. The petitioners challenged the order, shifting their stand from claiming ownership to asserting tenancy.
Finding of the Court:
The court found that the petitioners had taken inconsistent stands, vacillating between claiming ownership and asserting tenancy, and failed to make out a case for interference. It emphasized the importance of fair conduct and clean hands in seeking the extraordinary remedy of a writ of certiorari.
Issues: The issues included the applicability of the Jammu and Kashmir Migrant Immovable Property Act, the status of the petitioners as unauthorized occupants or tenants, and the validity of the alleged sale of the property.
Ratio Decidendi: The court held that the petitioners' vacillation between claiming ownership and asserting tenancy demonstrated unfair conduct and unclean hands, leading to the dismissal of the writ petition. It emphasized the principle that a litigant cannot take contradictory stands in the same case.
Final Decision: The writ petition was found to be without merit and dismissed. The court refused to exercise its discretion to issue a writ of certiorari in favor of the petitioners due to their vacillation between contradictory stands.

JUDGMENT :

OWP No.1146/2015

1. The Hon’ble Supreme Court of India while deprecating the practice of taking inconsistent stands by a litigant at different stages of same litigation, in Amar Singh v. Union of India, (2011) 7 SCC 69, has observed as under:

“50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.”

2. The petitioner No.1 had earlier filed the writ petition bearing OWP No. 437/2014 in order to protect his possession qua the house No. 289 situated at Jawahar Nagar, Srinagar, wherein interim direction was issued to the respondent No.3 not to evict the petitioner forcibly from the house mentioned above. Thereafter the respondent No. 3 issued the order dated 30.06.2014, thereby holding that the alienation of house No.289 situated at Jawahar Nagar Srinagar, having been made without the permission and in contravention of the provisions contained in Section 3 (b) of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act, 1997 (hereinafter referred to as “the Migrant Act”), was null and void and directed for the vacation of the house and restoration of the possession thereof in favour of the respondent No.7 i.e. the migrant.

3. The petitioners thereafter filed the writ petition bearing OWP No.999/2014 assailing the order dated 30.06.2014 issued by the respondent No.3. The abovementioned writ petition was disposed of by the Court vide order dated 11.03.2015, thereby setting aside the order dated 30.06.2014 and the matter was remanded back to the respondent No.3 to return a finding whether in the facts and circumstances of the case the property falls within the ambit of the Migrant Act, whether the petitioners can be termed as unauthorised occupants of the house, especially so when they claim to be in possession on the basis of alleged sale of the house thereof in their favour by the respondent No.7. Subsequently, pursuant to the application moved by the petitioners, by virtue of order dated 02.06.2015, the Court issued a clarification that in terms of the directions passed by the Court vide judgment dated 11.03.2015, the District Magistrate shall also consider the admission made by the respondent No.7 vis-à-vis status of the petitioners as tenants thereof.

4. The District Magistrate-respondent No.3, pursuant to the directions issued by the Court vide orders mentioned above, framed the following three issues:

1. Whether the property falls within the ambit of provisions of J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act, 1997?

2. Whether the petitioners can be said to be the unauthorized occupants of the property/house?

3. Whether the property can be deemed to have been purchased by the petitioners?

5. The District Magistrate-respondent No.3 vide order dated 26.06.2015 decided all the above-mentioned issues in favour of the respondent No.7 and directed the respondent No.4 to take over possession of the house and keep the same in his custody on behalf of the respondent No.3. The District Magistrate while deciding the issue No.1 held that the property so left by the respondent No.7 falls within the ambit of the Migrant Act. So far as issue No.3 is concerned, the District Magistrate-respondent No.3 held that though the acknowledgement receipts of cheques/drafts are on record but in absence of any registered document, the sale of the house is not established and further the petitioners being the non-State subjects could not have purchased any property in the State (now U.T). The respondent No.3 while deciding the issue No.2, held that the provisions of the Migrant Act do not recognize any tenancy which is held without the consent of the migrant and the Migrant Act has an overriding effect over all other Acts in case of inconsistency between them.

6. The petitioners