Mohammad Amin Kawa vs Union Territory Of JK & Ors

Ali Mohammad Magrey, J

Petitioner is aggrieved of the action initiated by the Respondents 1 to 3 on the complaint of Respondent No. 4, in terms whereof, the Respondents 1 to 3 are in the process of evicting the petitioner from the shop, which he claims to be in authorized occupation, before coming into force of The Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short the “Act”).

Learned counsel for the petitioner submits that the compliant of Respondent No. 4 regarding unauthorized occupation of the shop by the petitioner, can only be decided by the District Magistrate in terms of provision of the Act. He has invited attention of the Court to the communication issued by the Assistant Commissioner (Revenue), Srinagar on 18th June 2019, asking the Tehsildar South, Srinagar, to proceed on spot and take appropriate necessary action under the provisions of Immovable Migrant Property Act, 1997. He has further invited attention of the Court to the orders passed by the Divisional Commissioner, Kashmir, asking the Tehsildar concerned to evict the petitioner.

Objections stand filed by Respondents 1 to 3 as also compliance by the Deputy Commissioner, Srinagar, perusal whereof reveals that the Respondent-Deputy Commissioner, Srinagar, has on receipt of the complaint of the Respondent No. 4-Migrant, directed the Tehsildar concerned to proceed on spot and take appropriate action in terms of the Act. The Respondent-Deputy Commissioner, Srinagar, has also referred to the report of the Tehsildar, who has mentioned therein that the shop in question is under unauthorized occupation of the petitioner.

The Respondent No. 4 has also filed the objections, wherein it is stated that the shop in question was rented out to Ghulam Rasool Gilkar S/o Mohammad Sidiq Gilkar R/o Kraljhud and not to the petitioner. It is submitted that the petitioner has occupied the shop unauthorizedly, therefore, the property being of Migrant, needs to be handed over to him in terms of the provisions of the Act.

Heard learned counsel for the parties, considered the matter and perused the record.

Perusal of the record reveals that the Respondents 1 to 3 have on entertaining the complaint of Respondent No. 4-Migrant, passed directions for eviction of the petitioner from the shop in question. Further perusal of the record reveals that, there is no order passed by the District Magistrate, Srinagar on the complaint of Respondent No. 4, declaring the petitioner unauthorized occupant and thereafter, directing handing/taking over of the possession as mandated by Sections 3, 4 and 5 of the Act. On the strength of the pleadings and documents on record and after hearing the counsel for the parties, the Court has come to the conclusion that complaint of Respondent No. 4 has not been dealt with in accordance with the provisions of the Act and no orders are passed, declaring the petitioner as unauthorized occupant, with further order of eviction and taking over the possession. Sufficient material is on record, which can form basis for taking decision by the District Magistrate, Srinagar, subject to hearing the petitioner as mandated by law, in tune with the provisions of the Act and further supported by the judgment passed by this Court in case titled Mohammad Ashraf Jan vs State of J&K & Ors reported in 2012 (1) JKJ 150 [HC] as also in case titled Gh. Nabi Najar vs State & Ors decided on 19th March 2009.

In the above background, this writ petition is disposed with direction to the District Magistrate, Srinagar, to pass orders in the matter in tune with the mandate of Sections 3, 4 and 5 of the Act. The order shall be passed after hearing the parties with reference to providing opportunity of being heard. The exercise can be completed within a period of two months from the date of receipt of copy of this order. In the event, the petitioner fails to appear before the District Magistrate on notice, the District Magistrate, Srinagar, shall have no option but to proceed in the matter in accordance with the law. It is made clear that the eviction of the petitioner from the shop in question will depend on the further orders from the District Magistrate, Srinagar.

Writ petition disposed of along with connected CM(s).