Manzoor Ahmad Narwari vs State Of J&K And Others
2023 Latest Caselaw 713 j&K/2

   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT SRINAGAR


                            LPA no.73/2010

                                                   Reserved on: 20.04.2023
                                               Pronounced on: 09.06.2023

Manzoor Ahmad Narwari
                                                        .........Appellant(s)

Through:   Mr Z.A.Shah, Senior Advocate with
           Mr A. Hanan, Advocate

                 V/s

State of J&K and others
                                                      .........Respondent(s)
Through: Mr Faheem Nisar Shah, GA


CORAM:
           HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
           HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE

                              JUDGMENT

TASHI RABSTAN-J

1. This Letters Patent Appeal is directed against the judgement and order

dated 23rd April 2010, passed by the learned Single Judge in a writ

petition, being OWP no.779/2002, titled as Maharaj Krishan Dass

and another v. State of J&K and others.

2. We have heard learned counsel for parties. We have gone through the

impugned judgement, writ record and considered the matter.

3. Assailing the impugned judgement, Mr Shah, learned senior counsel

appearing for appellant has stated that appellant was put in possession

by respondent no.4, as tenant on 24th December 1996 and, therefore,

J&K Migrant Immoveable Property (Preservation, Protection and

Restraint on Distress Sales) Act, 1997 (for short "Act of 1997") has no

Page 1 LPA no.73/2010 application to the case in hand. Besides, appellant's possession vis-à-

vis shop in question is authorised and lawful as it has been given to

him by its owner.

3.1. While dilating his submissions, learned senior counsel would contend

that respondents 5&6 filed a writ petition claiming therein that shop

no.16 at Budshah Chowk, Srinagar, stood rented out to them since

1961 and business in the shop was carried on under the name and

style of Janki Dass and Company Chemists. According to respondents

5&6 father of writ petitioner no.1 was the tenant of shop. Their further

case in writ petition is that in 1992 a huge bunker adjacent to the shop

was constructed by the Security Forces, which prevented them from

conducting business. A communication was addressed by them to

Additional Deputy Inspector General, Border Security Force, dated

9.9.1996 and to Divisional Commissioner Kashmir in which they

requested for grant of compensation to the owner of the shop if

deemed fit. Their further case is that respondent No: 4 broke open the

locks of shop when the said respondents had migrated and all the

documents were removed, so FIR no.08/1997 dated 14.01.1997 was

lodged by them with Police Station Maisuma. It is also stated by writ

petitioners in their writ petition that upon a request made by them to

Inspector General of Police on 3.3.1997 about the progress in the

investigation, a report was called in which it was stated that the

management of the Trust had broken the locks of the shop and after

destroying the expired medicine the shop was rented out by the Trust

to the appellant herein. Writ petitioners on the aforesaid facts claimed

protection of their property under the provisions of the Act of 1997.

Page 2 LPA no.73/2010 Further case of writ petitioners/respondents 5&6 is that they filed an

application before District Magistrate, Srinagar, but since no action

was taken, they filed a writ petition, being OWP no.948/1997, which

was decided on 10.11.1999 and Writ Court directed District

Magistrate to take necessary action under the Act within a period of

two months.

3.2. Learned senior counsel for the appellant would also contend that

respondents/writ petitioners filed a Contempt Petition, wherein

District Magistrate filed his report dated 30.09.2000, stating therein

that order dated 10.11.1999 had been complied with. Aggrieved of the

decision of the Contempt Court, the further case of these respondent-

writ petitioners is that they filed a Letters Patent Appeal before the

Division Bench, which upheld the order of the contempt court.

According to these respondents the Appellate Court allowed

respondents/writ petitioners to challenge the order of District

Magistrate. After obtaining copy of the order dated 30.09.2000 the

respondent-writ petitioners challenged the said order in OWP

no.779/2002. The writ court quashed the order dated 30.09.2000 and

directed that the appellant be dispossessed from shop No. 16.

3.3. Learned senior counsel for appellant has also averred that Writ Court

identified two questions for consideration. According to Writ Court,

respondents/writ petitioners were tenants of respondent no.4 and their

right stands protected under the Act of 1997. The second question

framed by the court is that the tenancy right of the respondent-writ

petitioners has been encroached without their written consent.

Page 3 LPA no.73/2010 3.4. It is further contention of learned senior counsel that appellant was put

in possession by respondent no.4 as tenant thereof on 24.12.1996 and

he has not on his own entered in the shop or encroached upon the shop

and, therefore, the Act of 1997 has no application to the case of

appellant. His possession vis-à-vis shop is authorized and lawful

having been provided to him by the owner.

3.5. As per learned senior counsel the Writ Court has made Section 11 of

the Act of 1997 basis for its consideration. According to the writ court

the possession of the shop could not have been taken without the

written consent of the earlier tenants and if the possession was

required to be taken, it could be done only by any decree or order

passed by the Civil Court. The Writ Court has also noticed the

contention of the respondents/writ petitioners that they were

dispossessed by respondent No: 4 unauthorizedly and subsequently if

respondent no.4 has handed over the shop to the appellant the same

cannot be said to be authorized occupation of the shop.

3.6. As regards the application of the Act, Mr Shah has stated that the

Writ Court has proceeded to observe that the cause of action had

accrued to respondents/writ petitioners in the year 1996 and the right

to sue was available to them for the period provided by Limitation Act.

The writ court has observed that there is no period of limitation

provided Ibi' recovery of possession by the tenant dispossessed

illegally and as such Article 119 of the First Schedule of Limitation

Act would become applicable which provides period of six years to

file the Civil Suit. It is maintained by writ petitioners that they were

dispossessed on 08.01.1997, the period of six years would commence

Page 4 LPA no.73/2010 from the said date. But after the Act of 1997 came into force on

30.05.1997 and published in Government Gazette on 02.06.1997 the

remedy of suit was not available to the respondent-writ petitioners

though they were within the period of limitation. According to the

writ court the remedy against dispossession, therefore, lie with

District Magistrate under the Act. On the said basis the writ court has

ruled that the respondent-writ petitioners could not have filed a Civil

Suit for recovery of possession and their remedy would be squarely

covered under the Act of 1997.

3.7. Learned senior counsel would also contend that conclusions drawn by

the Writ court both on facts and law are clearly unsustainable in law.

If a person, whatever be his status, is dispossessed, the law provides

definite remedies against his dispossession. These remedies are:

i) If the act of dispossession results in breach of peace, remedy under Section 145 Cr. P.C. is available to a party dispossessed.

ii) A Civil Suit within a period of six months can be maintained against an act of dispossession and in such a suit the dispossessed party has only to prove that it was in settled possession and has been illegally dispossessed. The dispossessed party has not to prove title.

iii)That if a suit for recovery of possession is to be filed after a period of six months the party dispossessed has to prove that it has title to the property and on the basis of the title possession is sought.

3.8. Learned counsel has further stated that finding of the writ court that a

tenant has no remedy available in civil law against recovery of

possession is patently erroneous finding. It is, therefore, averred by

learned counsel that assuming, without admitting, that respondents/

Page 5 LPA no.73/2010 writ petitioners had been illegally dispossessed from the shop by

respondent no.4, the remedy of civil suit was available to these

respondents. Since they did not avail any remedy, the said respondents

could not subsequently rely on the provisions of the Act of 1997. The

writ court has also observed that the respondents/writ petitioners had

the remedy under the Act of 1997. It is submitted by the appellant

herein that these respondents had no remedy under the Act of 1997.

The act of alleged dispossession had taken place much earlier.

3.9. It is also averred by Mr. Shah, learned senior counsel for appellant,

that the writ court has also proceeded to examine the issue as to

whether respondents/writ petitioners could be dispossessed by the

landlord without taking recourse to law. The writ court has recorded

the finding based on Transfer of Property Act and Houses and Shops

Rent Control Act that the writ petitioners could not have been

dispossessed under the said statutes except in accordance with the

procedure established by law. According to the writ court since the

procedure of eviction had not been followed, the action of respondent

no.4 was unauthorized and illegal. The finding of the writ court on the

aforesaid questions is not correct. It is a general law that a lawful

tenant can be evicted under the provisions of Transfer of Property Act

and/or under the provisions of Houses and Shops Rent Control Act, if

the said Act applies by observing process of law. In the facts and

circumstances of the case and compelled by the security forces

respondent no.4 having found that the shop had been abandoned and

was a security risk, under the doctrine of necessity took over

possession of the shop, and handed over the shop and such

Page 6 LPA no.73/2010 circumstances it cannot be said to have acted illegally or

unauthorizedly.

3.10. It is also stated by learned senior counsel that the writ court has not at

all considered the circumstances as emerged from the material placed

on record that the locks were broken in good faith on directions of

B.S.F. authorities. The case which stood registered has reached its

logical conclusion and Police has arrived at a conclusion that no

offence can be said to have been committed by respondent no.4

muchless by appellant. The records of the case clearly demonstrate the

circumstances in which respondent no.4 handed over the shop to

appellant herein as tenant. Impugned judgment is contrary to facts and

law. It does not resolve the controversy in accordance with law. The

order of the Deputy Commission was in accordance with law.

3.11. It is submitted that the jurisdiction of the Civil Courts is only barred in

respect of matters which require to be determined by District

Magistrate or by Appellate Authority under the Act of 1997. Since

neither District Magistrate nor Appellate Authority had any

jurisdiction to adjudicate the controversy which had arisen between

the parties, the jurisdiction of the Civil Court was not barred. The

view taken by the writ court on interpretation of Sections 11, 8 and 5

of the Act is erroneous. Appellant's positive case is that he is lawful

tenant of Shop No; 16. It has lawfully been provided to him by

respondent no.4. There is a valid Rent Agreement between the parties.

The order of the writ court is erroneous and unsustainable. The view

taken by the writ court is not legally the correct view. Impugned

judgment deserves to be set aside and OWP no.779/02 dismissed.

Page 7 LPA no.73/2010

4. Perusal of the file would reveal that writ petitioners (respondents in

this appeal) had earlier filed a writ petition, bearing OWP

no.948/1997, claiming therein that they were migrants within the

meaning of the Act of 1997 and that they were in occupation of a shop

in question and during their absence, respondent no.4 (appellant in

this appeal) had illegally and unauthorizedly come into possession of

the premises and they approached Deputy Commissioner for initiating

action under the provisions of the Act of 1997 for taking possession of

the premises and for compensation as permissible under law, but

without any success. It was also contention of writ petitioners that

they had also approached Divisional Commissioner, Kashmir, who

vide letter dated 21st August 1997 requested Deputy Commissioner,

Srinagar, to take action under law and evict unauthorized occupant,

but the same did not generate any response and, as such, they filed

writ petition. Petitioners sought a direction to respondent-Deputy

Commissioner to initiate action and discharge his statutory obligation

under the Act of 1997.

4.1. Appellant herein (respondent no.4) responded to writ petition by

maintaining that writ petitioners were not migrants and, therefore,

premises was not a migrant property and that he has been put in

possession of the premises by the owner, i.e., Dashnami Akhra Trust

and as such, is not an unauthorized occupant.

4.2. The Writ Court settled a question as to whether writ petitioners were

migrants and disputed premises was migrant property, was to be

decided by the District Magistrate and that even term "unauthorized

occupant" had to be decided by the authority and therefore, such

Page 8 LPA no.73/2010 questions could not be adjudicated in writ proceedings. The Writ

Court disposed of writ petition vide Order dated 10th November 1999,

directing official respondents therein to take all necessary action

under the provisions of the Act of 1997. Respondent no.4 there

(appellant here) was also given liberty to appear before District

Magistrate and plead his case.

4.3. Writ petitioners also filed a contempt petition, bearing COA(W)

no.104-B/2000, in which District Magistrate filed his report dated 30th

September 2000, stating therein that the order dated 10th November

1999 was complied with. It would be advantageous to reproduce

relevant portion of the order dated 18th May 2001:

"Petitioners seek implementation of Court order dated 10.11.1999 whereby District Magistrate, Srinagar has been directed to determine the question of status of the petitioners as 'Migrants' and decide the dispute with regard to the property mentioned in the petition under the provisions of the Migrant Immoveable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.

Respondent has filed statement of facts and also the consideration order dated 30.09.2000 observing therein that the shop in question has been rented out through trustee. The case does not fall within the purview of the Act of 1997 and the dispute being civil, the parties shall approach appropriate forum. The court direction has been complied with. Contempt petition is disposed of. Rule, if any, issued is discharged."

4.4. As is gatherable from order dated 18th May 2001, the Court has

observed that case does not fall within purview of the Act of 1997 as

the dispute being civil in nature and the parties should approach

appropriate forum. However, writ petitioners felt aggrieved of the

order of the said order and filed LPA. The Division Bench vide order

dated 1st May 2002, upheld the order of the Contempt Court on the

following lines:

Page 9 LPA no.73/2010 "The present appeal has been preferred against an order passed by the learned Single Judge of this Court. Learned Single Judge has come to the conclusion that no case is made out for initiating or continuing with the contempt proceedings. We are of the opinion that the view expressed by the learned Single Judge cannot be faulted. The appellants are left free to challenge the order which is said to have been passed in pursuance of the judgment given by this Court in OWP No:948/1997 dated 10.11.1999 in forums available to them."

4.5. Writ petitioners/respondents, however, again filed writ petition,

seeking vouchsafe of following reliefs:

"In the premises it is respectfully prayed that this Hon'ble Court may graciously be pleased to allow this Writ petition and to pass an appropriate Writ, direction or Order including a Writ of certiorari and be pleased to quash the Order of the District Magistrate dated 30.9.2000 passed in the case titled Maharaj Krishan Dass and Sheela Dass Versus Shri Manzoor Ahmad AND Further be pleased to issue a Writ of mandamus and command the Respondent No.2 to take action under Sections 4,5,6 and 13 of the J & K Migrant Immovable Property (Protection, Preservation and Restriction on Distress Sales) Act 1997 and evict the Respondent Manzoor Ahamd and take the vacant possession thereof in his custody.

AND To recover compensation at double the market rate of rent from 1.8.1996 till his eviction in terms of Section 13 of the said Act. AND Present a Charge Sheet against the accused persons in a Court of Competent jurisdiction."

4.6. Reply was filed by appellant/respondent no.4 (Manzoor Ahmad

Narwari) before the Writ Court. He stated in his reply that he has been

lawfully inducted tenant in the shop in question by its lawful owner

inasmuch as provisions of the Act of 1997 could not be invoked

retrospectively. It is also insisted in the reply that there is no

documentary evidence brought on record by writ petitioners regarding

any relationship between Dashnami Akhara Trust and M/s Janki Dass

and Co. and there is no evidence brought on record about subsistence

of tenancy in respect of shop in question. It is also stated in the reply

that contents regarding location of bunker are totally incorrect because

Page 10 LPA no.73/2010 the business is being smoothly run even by him and there seems to be

an attempt on part of petitioners to carve out a case in their favour

which in fact was not there. Appellant has also stated that plea of

breaking open the locks of the shop in question by him has already

been negated by the inquiry conducted by competent authority, i.e.,

Deputy Commissioner, Srinagar, who has come to the conclusion that

shop in question has been rented out to appellant on 26th December

1996 by the Trust and that the case does not fall within the purview of

Act of 1997 but is a matter of civil nature and if petitioners are

aggrieved, they may approach the proper forum. It is also stated by

appellant in his reply that he was put in possession by the Trust much

before coming into being of the Act of 1997 and, therefore, the Act of

1997 cannot be given effect retrospectively.

4.7. The Writ Court vide judgement impugned concluded as under:

"For the reasons stated hereinabove, I find that respondent no.4 is an unauthorized occupant of the Shop No.16 in the building owned by Mahadev Gir Dashnami Akhara Trust, Srinagar and is required to be dispossessed from it. Accordingly, respondent no.2 is directed to remove respondent no.4 who is an unauthorized occupant of the shop in question and handover the possession of the same to the petitioners."

5. The Writ Court, while passing judgement impugned, has taken note of

the fact that the parties had already been pursuing the matter before

the learned Writ Court, Contempt Court and the Division Bench.

Nevertheless, an important aspect of the matter, which has been

ignored and overlooked by the Writ Court is Order dated 30th

September 2000, passed by District Magistrate, Srinagar, which was

even under challenge in writ petition and quashment thereof was also

sought for by writ petitioners/respondents.

Page 11 LPA no.73/2010 5.1. District Magistrate, Srinagar, in terms of Order dated 30th September

2000, had given all facts of the case as had been projected before it by

writ petitioners/respondents. Report had also been sought from field

functionaries by District Magistrate. It was found that appellant herein

had not entered into the shop on his own illegally, unlawfully or

unauthorizedly, but has been put in possession of shop in question by

its owner, i.e., Mahadev Gir Dashnami Akhara Trust, Budshah Chowk,

Srinagar. To this effect, statement of Mahantji had also been recorded

by Tehsildar, Srinagar. In view of this fact situation, it has been held

by the authority/custodian as provided under and in terms of the Act

of 1997, i.e., District Magistrate, that appellant as per Section 2(i) of

the Act of 1997 is not an illegal or unauthorized occupant but a legal

and lawful occupant as he has been put in possession of shop by its

owner. And as a consequence of which, District Magistrate has

concluded that the matter does not fall within the purview of the Act

of 1997 but is of a civil nature and if writ petitioners are aggrieved,

they may approach the proper forum.

6. The Writ Court has in impugned judgement mentioned that writ

petitioners maintain that they were tenants of respondent no.5 and

their right as tenant are protected under the Act of 1997 and that

encroachment on the tenancy rights of writ petitioners regarding

immovable property could not be taken away unless there is a written

consent in this behalf. It had been the plea of writ petitioners that they

could not have been dispossessed and their right on the property could

not have been encroached upon without their written consent.

Page 12 LPA no.73/2010 6.1. On the other hand, it has been contention of appellant (respondent

no.4) before the Writ Court that he has been put in possession of

property on 26th December 1996 by its owner, as such, the Act of

1997 has no application in the present case. The title of writ

petitioners is very much in dispute, so disputed questions relating to

title cannot be satisfactorily gone into or adjudicated upon in a writ

petition. Appellant also disputes the status of writ petitioners as

according to him the writ petitioners have not even placed an iota of

documentary evidence on record and still, they want to act as tenants

of shop inasmuch as there is no documentary evidence brought on

record by writ petitioners regarding any relationship between the

Trust and writ petitioners; besides there is no evidence brought on

record about subsistence of tenancy in respect of shop in question. It

is also mentioned by appellant in his reply that plea of alleged

breaking open the locks of the shop in question by respondent no.5

has been negated by inquiry conducted by Deputy Commissioner,

Srinagar. It is also stated by appellant in his reply that writ petitioners

appealed the order of learned Single Judge before the Division Bench

but the Division Bench concluded that the opinion expressed by

learned Single Bench cannot be flouted and that in view of finality

attached to the order of dismissal by learned Single Judge, writ

petitioners cannot be permitted in law to agitate the same issues time

and again that too by raising disputed questions of fact. It has also

been contention of appellant that on one hand writ petitioners rely

upon the provisions of the Act of 1997, in which District Magistrate

Page 13 LPA no.73/2010 has been given full powers to act upon and on the other hand they

challenge order of District Magistrate that too in a writ petition.

6.2. The Writ Court has taken contentious contentions of writ petitioners

surefire by ignoring the fact that the Act of 1997 cannot be given

retrospective effect qua subject-matter of writ petition/appeal. It is a

matter of fact that possession of shop in question has been given to

appellant by its owner in the year 1996 and the Act has come into

being in the year 1997. And this fact has been admitted by the Writ

Court, but at the same time it has declared appellant as unauthorized

occupant under and in terms of Act of 1997. As noted above

appellant has not entered into the shop in question of his own. The

shop in question, as record would show, has been in under control of

security forces and it had been in view of the concerns raised by

security forces that shop in question was cleaned and thereafter rented

out to appellant.

6.3. The Writ Court while declaring appellant as unauthorized occupant

has not taken into consideration the fact that under and in terms of the

law, viz., the Act of 1997, it is exclusive domain of District Magistrate

concerned to declare a person an unauthorized occupant of a particular

property, including shop in question. The shop in question, in the

present case, was/is not proprietary/ownership of writ petitioners but

is a property of a pious, virtuous and religious Trust, viz. Mahadev

Gir Dashnami Akhara Trust, Budshah Chowk, Srinagar. The action of

Trust taken cannot and does not fall under the purview of the Act of

1997 inasmuch as instant case is totally and exclusively a matter that

falls under civil realm.

Page 14 LPA no.73/2010 6.4. Perusal of the file reveals that Company Commander, 106 Bn, BSF,

Budhshah Chowk, Srinagar, vide letter dated 20th November 1996,

informed the Trust about the dangerous and spoiled smell of chemical

lying in the shop in front and near the bunker where often blasts took

place, with a request to remove such exhausted and spoiled chemicals

lying in the shop as immediately as possible otherwise chemicals

would absolutely prove dangerous, fatal and fire to the property of the

Trust building as well as security personnel living in the building.

6.5. Thereafter a communication bearing Ref. No.MGDAT/82 dated 7th

December 1996 was made, which reveals that it had been written by

Supervisor of the Trust to Station House Officer police station

Maisuma, in which it was mentioned that after perusal of complaint

from Company Commander, B.S.F. 106 Bn Budshah Chowk, Srinagar,

dated 20th November 1996, the Trust had been directed by the Trustee

to take necessary action so that the spoil chemicals from the shop

would be destroyed after taking the same out of the shop in order to

save human lives and the Trust property.

6.6. Perusal of the file also reveals that the Trust in terms of letter dated

24th December 1996, possession of shop in question was handed over

to appellant by the trust subject to the condition that he would pay

Rs.4.00 Lacs as also monthly rentals. Thereafter, a Rent Agreement

was also executed by the Trust in favour of appellant. So, appellant

has been put in possession of the shop in question by the authorities of

the Trust, so he cannot be declared an unauthorized occupant under

the Act of 1997 that too in writ proceedings under Article 226 of the

Constitution of India as it would amount to conferring in itself the

Page 15 LPA no.73/2010 jurisdiction of Civil Court as well as the authority as envisioned under

the Act of 1997. The authority under the Act of 1997 has already

declared that appellant is not an unauthorized occupant in terms of the

Act of 1997, so the Writ Court has wrongly declared appellant as

unauthorized occupant of the property in question.

6.7. It may be added here that the Writ Court at one place has made

reference to provisions of the Transfer of Property Act and the Houses

and Shops Rent Control Act, to observe that the case falls under these

Acts and that action of the Trust was in contravention of the said Acts,

but at another place the Writ Court has said that provisions of Act of

1997 apply to the case in hand. This reflects contradictory opinions

and views of the Writ Court. So, it would have been better for the

Writ Court to ask the parties to fall back on the remedy as made

available to them and as said by District Magistrate, Srinagar, while

passing order dated 30th September 2000.

6.8. It is worthwhile to mention here that District Magistrate vide order

dated 30th September 2000 has declared that the present case does not

fall within the purview of the Act of 1997 as it is civil in nature. Better

it would have been for writ petitioners to avail appropriate remedy of

filing the civil suit where the parties could be able to adduce evidence

and produce proof in support of their rival pleadings, more

particularly when the matter requires full-fledged trial. When

impugned judgement and order is looked into in the backdrop of

above discussion, it calls for interference.

7. In the context of foregoing discourse, the appeal in hand is allowed

and judgement and order dated 23rd April 2010, passed by the learned

Page 16 LPA no.73/2010 Single Judge in a writ petition, being OWP no.779/2002, titled as

Maharaj Krishan Dass and another v. State of J&K and others, is set-

aside. Respondents/ writ petitioners are, however, free to avail

appropriate remedy as has been said and held by the District

Magistrate, Srinagar, while passing order dated 30th September 2000.

8. Disposed of as above.

                               (Puneet Gupta)           (Tashi Rabstan)
                                       Judge                  Judge
SRINAGAR
09.06.2023
Madan Verma-PS

                        Whether approved for reporting? Yes/No.

Pronounced today by me in terms of Rule 138(4) of J&K High Court

Rules, 1999.

(Tashi Rabstan) Judge Srinagar 9th June, 2023

Page 17 LPA no.73/2010