Sr. No. 06 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Mukhtar Ahmad Sheikh …..Appellant(s)/Petitioner(s)

Aged about 42 years, S/o Late Mohammad Sultan Sheikh, R/o Achabal, District Anantnag.

Through: Mr. M. K. Raina, Advocate Vs

1. State of Jammu & Kashmir .…. Respondent(s)

Through Financial Commissioner Revenue, J&K, Jammu/ Srinagar.

2. Divisional Commissioner, Kashmir, Srinagar.

3. District Magistrate, Anantnag.

4. Tehsildar, Shangus. 5. Avtar Krishen Koul, S/o Late Sri Samar Chand Koul, R/o Achabal Anantnag At present Lone No. 2/120 Saraswati Vihar (Tomal), Jammu.

Through: Mrs. Monika Kohli, Sr. AAG for R- 1 to 4.

Mr. P. N. Bhat, Advocate for R-5.

Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

ORDER

11.10.2023 (ORAL)

01. Through the medium of the instant petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ of certiorari for quashing order dated 28/29.12.2011 (for short, ‘the impugned order’) passed by the District Magistrate, Anantnag- respondent 3 herein (for short, ‘the Magistrate’) under and in terms of the provisions of Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales)

Act, 1997 (for short, ‘the Act of 19 9 7’).

02. The facts emerging from the record of the petition would reveal that the respondent 5 herein is claimed to have executed an agreement to sell with the petitioner herein on 14.06.2001 for sale of his 1 ½ storied residential house along with land underneath and appurtenant thereto measuring 18 marlas covered under Khasra No. 183 situated at Achabal Anantnag, Kashmir for consideration of Rs. 4.75 lacs.

03. It is stated by the petitioner, that the respondent 5 herein despite receiving the major portion of sale consideration of Rs. 4.10 lacs did not execute the formal sale-deed with the petitioner herein as agreed in the sale agreement and instead started avoiding the same and instead took recourse to the filing of the proceedings under the Act of 1997 alleging therein that the petitioner herein forcibly and without his consent took over his property and is in unauthorized occupation of the same.

04. It is also stated that the petitioner herein before filing the instant petition earlier filed OWP No. 283/2008 before this Court in regard to the proceedings initiated against him by the respondent 3 herein on the complaint of respondent 5 herein under the Act of 1997 which petition came to be dismissed on 12.05.2011 by this Court, however, providing therein that the respondent 3 – District Magistrate would look into the grievance of the petitioner in totality of facts and circumstances, especially in light of Annexure-E.

05. It is also averred in the petition that the District Magistrate- respondent 3 herein proceeded in the matter under the Act of 1997 and after hearing the petitioner herein as well as the respondent 5 herein and upon examining the entire record held the petitioner to be as an unauthorized occupant of the property in question and consequently in terms of the impugned order directed the Tehsildar, Shangus - respondent 4 herein to take over the possession of the property in question.

06. Objections to the petition have been filed by the respondent 5 herein, wherein the execution of agreement to sell qua the property in question is admitted, yet it is being denied that the petitioner herein was put in possession of the property in question. It is specifically averred in the objections that the petitioner herein encroached upon the property in question and without the consent of the respondent 5 herein and took over the possession of the same.

Heard learned counsel for the parties and perused the record.

07. It is not in dispute that the respondent 5 herein is a “migrant” within the definition of „Migrant‟ provided under Section 2(e) of the Act of 1997. It is also not in dispute that the respondent 5 herein agreed to sell the property in question to the petitioner pursuant to the terms and conditions reduced into writing