Poonam Mehra vs P. K. Polay
2021 Latest Caselaw 464 j&K/2

                                                                  S. No. 204
                                                                  Supplementary


                    HIGH COURT OF JAMMU AND KASHMIR
                                AT SRINAGAR

                                 CCP (D) no. 9/2021

                                   (Virtual Mode)

Poonam Mehra
                                                              .... Petitioner(s)
                             Through:    Mr A. H. Naik, Sr. Advocate with
                                         Mr Shabir Ahmad, Advocate

                                         V/s
P. K. Polay
                                                               ... Respondent(s)
                              Through:   Mr B. A. Dar, Sr. AAG
CORAM:
              Hon'ble Mr Justice Ali Mohammad Magrey, Judge
               Hon'ble Mr Justice Vinod Chatterji Koul, Judge

                                     ORDER

21.04.2021 Statement of facts stands filed by the Divisional Commissioner, Kashmir, wherein the merits of the case are discussed qua entitlement of the petitioner to have permission with regard to alienation of property in question as directed by this Court while disposing of the LPA no. 160/2020 in terms of order dated 31 st December, 2020.

The perusal of the statement of facts would make it amply clear that the Divisional Commissioner, Kashmir, is seeking to review the judgment of this court. It is reiterated herein that this court in terms of judgment and final order dated 31.12.2020 had issued directions to Divisional Commissioner, Kashmir, respondent no. 1 herein, to issue permission for alienation with regard to the property in question in tune with the reports/ No Objection Certificates (NOCs) of the concerned agencies in this regard forthwith which was further reiterated while dismissing the review petition filed by the said respondent vide order dated 23.2.2021.

The way the respondent, Divisional Commissioner, Kashmir, is taking a stand qua implementation of the judgment which has become final, amounts to reversing the judgment of this Court.

Further, while doing so, as a safety measure, the Divisional Commissioner, Kashmir, in paragraph no. 4 of the Statement of facts, states that the judgment is subject to further decision by the Law, Justice & Parliamentary Affairs Department by referring to a well settled policy of the Government. Paragraph no. 4, being relevant, is taken note of in the first instance, thus:

"4. That, since it is well settled policy of the government that prior to taking of any action in pursuance of the Judgment of the Hon'ble Court, the concurrence of the Department of Law, Justice and Parliamentary Affairs through Administrative Department is necessary. Accordingly, on receipt of the Judgment dated 31.12.2021 of the Hon'ble Court through the Hon'ble High Court portal on 12.02.2021, the deponent vide letter No. DivCom/MLA/2918/Sgr/2021 dated 13.02.2021 has took up the matter with the Administrative Department for seeking of necessary concurrence of Law Department, which is still awaited. However, in case, the petitioners are moved an application in respect of the Land under their absolute/ exclusive ownership and possession and free from encumbrances, the case of the alienors can be considered in terms of section 3 of J&K Migrant Immovable Property (Prevention, Protection and Restraint on Distress Sale) Act, 1997 as already submitted in the previous paras."

Prima-facie the respondent, Divisional Commissioner, Kashmir, has committed the contempt of the court, therefore, We direct the registry to issue notice to the said respondent to show cause as to why he shall not be punished for the contempt of the court. The reply to the show cause notice shall be supplied within a period of two weeks. Besides, a notice shall be issued to the Secretary, Law, Justice and Parliamentary Affairs Department, for filing his response to paragraph no. 4 of the statement of facts inasmuch as it refers to well settled policy of the government for examining the judgments before compliances are filed.

Mr B. A. Dar, learned Sr. AAG, submits that there is no such circular/ policy of the Government and he might be referring to the guidance of the Law Department vis-a-vis implementation of the judgment.

List on 6th May, 2021. On the next date, the Divisional Commissioner, Kashmir, shall appear in person before the court with the compliance.

Copy of the order be furnished to the learned counsel for the parties.

                                        (Vinod Chatterji Koul)       (Ali Mohammad Magrey)
                                                  Judge                        Judge
      Srinagar
      21.04.2021
      Amjad Lone PS




AMJAD AHMAD LONE
2021.04.22 10:47
I attest to the accuracy and
integrity of this document