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Judgment
Rajnesh Oswal, J
OWP No.1496/2016:
1) The petitioner No.1 claims to have purchased the land measuring 02 kanals comprising Survey No.437-min and 01 kanal 10 marlas comprising Survey No.433-min situated at Rapora Namthal Chadoora District Budgam from the respondent No.5. The petitioner No.1 also claims to have paid an amount of Rs.1,73,110/ to the respondent No.5 on 31.05.2001 as entire sale consideration for the land measuring 02 kanals comprising Survey No.437-min. The petitioner No.1 further claims to have made a payment of Rs.1.00 lac on 08.02.1999 to respondent No.5 in respect of land measuring 01 kanal 10 marlas comprising Survey No.433-min situated at Village Rapora as part of the sale consideration.
The petitioners further state that the respondent No.5 had also executed an Irrevocable General Power of Attorney in favour of petitioner No.2 in respect of land measuring 02 kanals comprising Survey No.437-min and also the petitioners had submitted an application to the respondent No.3 in respect of sale of land measuring 02 kanals comprising Survey No.437-min. The claim projected by the petitioners in the present petition is that the respondent No.5 has sold the land measuring 02 kanals comprising Survey No.437-min and has received sale consideration in part qua the land measuring 01 kanals 10 marlas comprising Survey No.433-min but the respondent No.5 has now changed his mind and has refused to receive the balance amount.
2) The petitioners through the medium of present petition have impugned the notices dated 01.12.2016 and 07.12.2016 issued by the respondent No.4 whereby the petitioner No.1 has been asked to submit the proof of his claim in respect of the migrant property. The notices have been impugned on the ground that once the property has been sold by the respondent No.5, the notices could not have been issued to the petitioners. The petitioners have further made a prayer for directing the competent authority to consider the request of the petitioners for issuance of permission for alienation of the property in terms of the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Migrant Act”).
3) During the pendency of the present petition, the respondent No.5 has expired and his Legal Representatives (LRs) have brought on record vide order dated 23.08.2023. The LRs of deceased respondent No.5 have filed an application for vacation of the order dated 20.12.2016 passed by this Court on the ground that the Power of Attorney dated 31.05.2001 stands revoked by virtue of Cancellation of General Power of Attorney dated 28.04.2010 registered by Sub Registrar, Jammu. The cancellation of Power of Attorney was well within the knowledge of the petitioner Farooq Ahmad but in order to obtain an exparte order from this Court, the petitioners suppressed the factum of cancellation of Power of Attorney. It is further stated that the petitioners have suppressed the fact before this Court to the extent of passing of order dated 14.01.2011 by the Deputy Commissioner, Budgam, on the application filed by the predecessor-in-interest of the private respondents wherein it was stated that the land measuring 01 kanal 10 marlas comprising 433 and 408 min at village Repora has been encroached by Mohammad Sabir, Bashir Ahmad and Farooq Ahmad. Subsequently, a report was called from Tehsildar, Chadoora and the encroachers were summoned. During hearing before the Deputy Commissioner, Budgam, they pleaded that they had purchased the land from the father of the private respondents but no documents could be produced by them and resultantly order dated 14.01.2011 was issued by the Deputy Commissioner, Budgam.
4) Heard learned counsel for the parties and perused the record.
5) The perusal of order dated 14.01.2011 reveals that the predecessor-in-interest of the private respondents had filed an application before the District Magistrate, Budgam, pursuant to which the District Magistrate directed Tehsildar, Chadoora, to take possession of the migrant property till further orders and to restrain the encroachers from making any sort of interference on the migrant property. The private respondents have admitted the execution of Power of Attorney in respect of the land measuring 02 kanals. However, it is stated that the said Power of Attorney was cancelled vide Cancellation Deed dated 28.04.2010 registered with Sub Registrar, Jammu. In respect of land measuring 01 kanal 10 marlas, there is neither any Power of Attorney nor any agreement to sell with the petitioners in respect of the land measuring 1 kanal 10 Marlas.
6) In view of the fact that the petitioners have not assailed the order dated 14.01.2011, therefore, the present petition is dismissed so far as relief sought by the petitioners in respect of land measuring 01 kanal 10 marlas comprising Survey No.433-min is concerned. So far as prayer of the petitioners in respect of land measuring 02 kanals comprising Survey No.437-min situated at Rapora Namthal Chadoora is concerned, it is for the competent authority to decide the same as it is not forthcoming from the record that any such application was received by the competent authority because there is no receipt of the application forming Annexure-PD to the writ petition, as such, no directions can be issued in the present writ petition.
CCP(S) No.270/2023
In view of the decision in the main writ petition, the order out of which instant contempt petition has arisen, has merged in the final judgment. Therefore, nothing further survives for consideration in this contempt petition. The same is, accordingly, disposed of.