IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on: 30.11.2021

Pronounced on:04.12.2021

OWP No.1597/2015

IA No.2/2015

IA No.1/2016

CM No.3731/2019

CM No.5586/2021

GHULAM RASOOL BHAT

...PETITIONER(S)

Through: - Mr. N. A. Kuchai, Advocate

Vs.

STATE OF J&K & ORS.

…RESPONDENT(S)

Through: - Mr. Shuja-ul-Haq, Advocate.

CORAM:

HON’BLE MR. JUSTICE SANJAY DHAR,JUDGE

JUDGMENT

1)

Petitioners

have

challenged

order

bearing

No.DCB/ARA/CC/366

dated

19.08.2015,

passed

by

Deputy

Commissioner, Budgam, whereby Tehsildar, Chadoora, has been

directed to take over possession of the land measuring 7 kanals 5

covered by survey No.419 situated at Village Ropora Namthal Tehsil

Chadoora from the petitioner. The aforesaid order has been passed by

the Deputy Commissioner in exercise of his powers under Section 4(1)

of the Jammu & Kashmir Migrant Immovable Property (Preservation,

Protection and Restraint on Distress Sales) Act, 1997 (hereinafter

referred to as the Act of 1997).

2 OWP No.1597/2015

IA No.2/2015

IA No.1/2016

CM No.3731/2019

CM No.5586/2021

2)

The case of petitioner, in brief, is that he purchased a parcel of

land measuring 7 kanals 5 marlas under Survey No.419 situated at

Village Ropora Namthal Tehsil Chadoora District Budgam from one

Madusudan Razdan and Ashok Kumar Razdan-respondent No.9 herein,

way back in the year 1989 and obtained possession of the said land from

them. It is averred that a proper sale deed could not be executed.

Nevertheless, on 23^rd February, 1998, above named Madusudan Razdan

and Ashok Kumar Razdan executed an agreement to sell in favour of

the petitioner. It is further averred that the petitioner paid a

consideration of Rs.4.00 lacs to the owners of the aforesaid land

regarding which a separate receipt was executed by them. It is also

averred that owners of the land, namely, Madusudan Razdan and Ashok

Kumar Razdan, executed a Power of Attorney in favour of the

petitioner on 23^rd February, 1998. Petitioner claims his possession over

the land in question on the basis of aforesaid documents.

3)

It appears that respondent No.11 filed an application before

Divisional Commissioner, Kashmir-respondent No.3, on 09.07.014,

alleging unauthorized occupation of the aforesaid land. Respondent

No.11-Ashok Kumar Razdan, is also stated to have made another

application

making

similar

allegations

before

Financial

Commissioner(respondent No.2) on 01.04.2013. Various officers of

the Revenue Department proceeded to conduct enquiry and other

proceedings on the basis of these applications and ultimately Tehsildar,

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IA No.2/2015

IA No.1/2016

CM No.3731/2019

CM No.5586/2021

Chadoora, attached the land in question and put the same on

Supardnama in terms of his order bearing No.OQ/2014-15/Chd-838

dated 13-01-2015. Against this order, petitioner filed a writ petition

bearing OWP No.131/2015 which was disposed of by this Court in

terms of order dated 02.02.2015, whereby aforesaid order of Tehsildar

was set aside. However, while setting aside the aforesaid order, the

Court directed Deputy Commissioner, Budgam, to decide the matter

with reference to taking over possession of the property claimed by

respondent No.11 in terms of provisions of the Act of 1997.

4)

Pursuant to the aforesaid direction, the Deputy Commissioner,

Budgam, has passed the impugned order, whereby Tehsildar,

Chadoora, has been directed to take over possession of the land in

question.

5)

Petitioner has challenged the aforesaid order on the grounds that

it is not the Deputy Commissioner but it is the District Magistrate who

is competent to pass an order of eviction in terms of Section 5 of the

Act of 1997; that petitioner has, admittedly, come into possession of the

property in question with the permission o