Gh. Rasool Bhat and Others vs Badrinath Bhat and Others

M. Yaqoob Mir, J.—Land measuring 51 Kanals covered by Survey Nos. 381, 382, 399 and 400 min situated at Morianderbagh, Srinagar

is owned by respondents. Vide agreement to sell executed on 10.07.2001 at Jammu the owners agreed to sell the said land to the petitioners in

lieu of Rs. 66.00 lacs, which amount was to be paid in four installments; first installment in the month of July 2001, second in the month of

September, 2001, third in the month of November, 2001 and the last one in the month of January, 2002. After payment, documents in pursuance

of existing SRO for the sale of migrant property were consented to be executed in favour of the petitioner. It is also incorporated in agreement that

the petitioner is authorized to apply to the Commissioner, Srinagar for obtaining permission for the purpose and also authorized to follow the case

and to get the land transferred by way of mutation and was also authorized to look after the land. It appears that some of the installments as fixed

were not received by the respondents which prompted the petitioners to file the suit for specific performance and for injunction before the Court of

District Judge, Srinagar.

Later on, vide order-dated 23.08.2004 of this Court, the case has been transferred to the court of District Judge, Jammu. In the written

statements filed by the respondents execution of agreement to sell has been admitted but has been resisted on the count that it has become void

and inoperative after January, 2002 when the petitioners failed to make the payment as per schedule fixed in the agreement. It is also contended

that Rs. 15.50 lacs were paid to the respondents and the remaining amount was asked to be paid before execution of the sale deed.

It appears that on 22.03.2006 respondents have filed application under order 7 rule 11 CPC for rejection of plaint. Ld. District Judge, Jammu

disposed of the said application opining therein that Section 3 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection

and Restraint on Distress Sales) Act 1997 not only bars the alienation but also bars the court in passing decree. The court has also opined that

Section 11 of the said Act has overriding effect on all other ""Act"" which are inconsistent. Has finally concluded as under:

In view of the above discussion I find a fit case to hold that the property is a migrant property and agreement to sell regarding a migrant property is

not enforceable. However, the plaint can not be rejected as plaintiff seek alternate relief i.e. the recovery of money which is maintainable and file be

put up for further order on 18.10.2006.

Appearing counsel for the petitioner at the very out set stated that the conclusion drawn by learned District Judge, is not in consonance with law,

neither is it in consonance with the prayer as made in the plaint. The submission as made could not be controverted by appearing counsel for the

respondents. In this connection, it is quit apposite to reproduce the prayer clause as made in the plaint:

In the above premises it is, therefore, prayed that the Hon'ble Court may be pleased to pass a decree in favour of plaintiffs against defendants for

specific performance of contract dated 10th July, 2001 and the defendants may be directed to execute the sale deed in favour of the plaintiffs for

the disputed land measuring 51 Kanals situated at Morianderbagh Tehsil Khas District Srinagar and alternative a decree for injunction may

additionally be passed, if required, directing the defendants to obtain the permission from the competent authority for execution of sale deed with

regard to disputed land in favour of the plaintiffs and execute the sale deed in favour of the plaintiffs and not to alienate the disputed land in favour

of any third party and not to interfere in possession of plaintiffs over the disputed land.

From the prayer clause of the plaint it is quite evident that the petitioners (plaintiffs) have not sought alternate relief for the recovery of money, so

the conclusion on this point is totally illegal and unwarranted.

The second important point for consideration is as to whether alienation is totally barred under the Jammu and Kashmir Migrant Immovable

Property (Preservation, Protection and Restraint on Distress Sales) Act 1997 hereinafter to be referred as the Act. My answer is in negative

because keeping in view the scheme of the Act distress sale is prohibited and it is in that backdrop safeguards have been provided for proper sale

of the migrant property. Learned trial court has on superficial reading of the Section 3 of the Act concluded that the alienation is barred. Though

Section 3 has been reproduced in the order, but it has not been correctly applied. Section 3 of the Act is reproduced as under:

Restriction on alienation of immovable property:

Notwithstanding any thing to the contrary contained in any other law for the time being in force:

(a) alienation of immovable property of a migrant by act of parties or a decree or order of a court or of a revenue officer except under such

conditions as may be prescribed and with previous permission of Revenue and Relief Minister, or such officer as may be authorized by him in his

behalf, is forbidden: Provided that no such permission shall be necessary in case of a mortgage without possession of such immovable property in

favour of an institution mentioned in Section 4-A of the Jammu and Kashmir Alienation of Land Act Samvat 1995 and transfer of the said

immovable property in favour of Government of Jammu and Kashmir;

Provided further that the permission to alienate shall be deemed to have been granted, if an application seeking permission for alienation of such

property is not decided by the prescribed authority within fifteen days from the date of receipt of such application;

Provided also that the enquiry for the purposes of the grant of permission by the prescribed authority shall be limited to the question of sale being

not distress;

(b) any alienation of immovable property on or after the commencement of this Act, in contravention to the provisions thereof, shall be null and

void and immovable property so alienated shall, after such enquiry as may be prescribed, vest in its owner; and

(c) no document purporting to alienate such immovable property in contravention of the provisions of this section shall be admitted to registration.

The plain reading of Section 3 of the Act provide for three situations: Firstly, that the alienation of immovable property of a migrant by ""the Act

is forbidden except with the previous permission of the Revenue and Relief Minister, or such officer as may be authorized by him in this behalf,

which means that the alienation is permissible after satisfying certain conditions prescribed. What is prescribed is contained under the rules of the

Act. Rule 5 provides as to how alienation of property of the migrant can be permitted and it is in this context, in the agreement to sell, condition has

been incorporated that the petitioner is authorized to obtain necessary permission.

The second situation provides that any alienation of immovable property on or after the commencement of this Act, in contravention to the

provisions thereof, shall be null and void.

Whereas the third situation provides for refusal of registration, if alienation is in contravention of the Act.

The learned trial court has wrongly concluded that the alienation under the Act is barred and has also wrongly concluded that the Court cannot

pass the decree. It is fact that Section 11 has an over ridding effect but at the same time, as rightly pointed out by the appearing counsel for

petitioner, the Jammu and Kashmir Migrant (Stay of Legal Proceedings) Act 1997 has come into force on 02.06.1997. Simultaneously, the Act of

Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997 has also come into force

on 02.06.1997. The Stay of Proceedings Act has also over ridding effect. If the same was to be applied then proceedings should have been

stayed.

The Learned trial court has wrongly quoted that Jammu and Kashmir Migrant (Stay of Legal Proceedings) Act 1997 was promulgated after the

Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997, therefore, proceedings are

not required to be stayed. This aspect of the matter has not been correctly appreciated. The trial court has simply referred the Act No. 16 & 17

and on that analogy has concluded that the Jammu and Kashmir Migrant (Stay of Legal Proceeding) Act 1997 has been promulgated at the later

point of time which is not correct.

The agreement to sell in fact is not alienation unless all the conditions stipulated therein are not satisfied. On its satisfaction and after obtaining

proper permission under the Act the execution of sale deed will give effect to the alienation. But when the parties claim breach of contract, the

specific performance is not barred. The specific performance thereof will result in taking the required follow up steps for obtaining necessary

permission as provided and prescribed under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on

Distress Sales) Act 1997 so the suit for specific performance of the contract by no stretch of imagination could be termed to be unenforceable.

Same is enforceable, more particularly when the execution of the agreement to sell is admitted. However, its finality vis-a-vis alienation shall be

controlled by permission required to be obtained under the Act.

Cumulative effect of the aforesaid law is that the trial court has acted in the exercise of its jurisdiction illegally and with material irregularities

warranting reversal of the order which is set aside being unsustainable.

Revision petition accordingly succeeds. Case remanded to trial court for proceedings in accordance with law.

During the course of arguments appearing counsel for the parties submitted that whatever the result, case may be transferred to the court of

District Judge, Srinagar for avoiding any inconvenience. Submission is accepted.

Case is transferred to the court of Additional District Judge, Srinagar for disposal under law.

Appearing counsel to cause their appearance before the transferee court on 20.05.2008. Copy of the order alongwith subordinate record be

sent to the transferee court well before the date fixed. Revision petition disposed of.