Raghunath Bhat vs State Of J&K
2023 Latest Caselaw 2305 j&K

                                                                  Serial No. 22


      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
Case:-    OWP No. 507/2018
          IA No. 1/2018
          CM No. 8390/2021
          CM No. 1822/2023

1. Raghunath Bhat                                       .....Appellant(s)/Petitioner(s)
2. Janki Nath Bhat
3. Badri Nath Bhat
4. Bansi Lal Bhat


                       Through: Mr. K. L. Pandita, Advocate
                                Mr. Imran Ahmed Rather, Advocate.

                 Vs

1. State of J&K                                                    ..... Respondent(s)
2. District Magistrate Srinagar Kashmir
3. Tehsildar Zainpora, Shopian Kashmir
4. Triloki Nath
5. Omkar Nath
6. Roshan Lal
7. Tej Nath

                       Through: Ms. Priyanka Bhat, Advocate vice
                                Mrs. Monika Kohli, Sr. AAG
                                Mr. P. N. Raina, Sr. Advocate with
                                Mr. Jahanzaib Ahmad Hamal, Advocate.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                      ORDER

(16.10.2023)

(ORAL)

01. The petitioners in the instant petition filed under Article 226 of the

Constitution of India, have sought the following reliefs:-

"Writ of Certiorari:

1. To quash the permission granted by the respondent No. 1 vide No. 1791/DIV/K/2011 dated 02.12.2011 in favour of illegal, forcible and unauthorized occupants on the basis of power of Attorney of dated 15.09.2007 regarding survey No. 751 measuring 1 kanal and 9 marlas

and survey No. 750 land measuring 1 kanal and 6 marlas executed by the private respondents No. 6 & 7 without the consent of the petitioners as the suit property is joint and unpartitioned till date. The permission granted by the respondent No. 1 is arbitrary, illegal in exparte and in violation of Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales Act), 1997.

Writ of Mandamus:

2. To command the respondents No. 1 to 3 to treat all the documents as null and void and inoperative executed by any shareholder which also includes private respondents No. 6 & 7 in violation of Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales Act), 1997.

3. To command the respondent No. 2 to evict the illegal, forcible, un-authorized occupants from the un-partitioned property falling under survey No. 884 measuring 4 kanals and 2 marlas, survey No. 885 30 kanals and 8 marlas, survey No. 1271/848 3 kanals and 9 marlas, survey No. 904 14 kanals and 9 marlas, 1204/218 8 kanals and 16 marlas, survey No. 1272/757 13 kanals and 17 marlas, survey No. 750 measuring 2 kanals 12 marlas survey No. 751 measuring 1 kanals and 9 marlas survey No. 1265/1019 measuring 3 kanals and 17 marlas situated at village Zainpora Tehsil Zainpora District Shopian in pursuance of section 4 and 5 of Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales Act), 1997.

4. To direct the respondent No. 2 to implement the judgment passed by the Joint Agrarian Reforms Kashmir in file No. 240 dated 10.07.1987 in a case under titled Sri Kanth Below versus Trilokinath and others."

02. The aforesaid reliefs are being claimed fundamentally on the ground

that the official respondents accorded permission in favour of the private

respondents 6 & 7 herein qua the sale of landed property covered under Survey

Nos. 751 & 750 situated at village Zainpora, District Shopian, despite the fact

that the said landed property is jointly owned by the petitioners as also the

private respondents 6 & 7 herein and the said respondents sold the same without

the consent of the petitioners and at their back.

03. Though, the petitioners have prayed for multiple reliefs in the petition,

yet during the course of hearing of the petition, learned counsel for the

petitioners made a statement at bar that notwithstanding the said reliefs prayed

in the petition, the respondent 2-Deputy Commissioner/District Magistrate,

Shopian (for short, „the District Magistrate‟) be directed to conduct an enquiry

into the matter in order to find out whether the landed property of the petitioners

has been unauthorizedly sold by the private respondents 6 & 7 herein.

04. Learned counsel for the private respondents 6 & 7 herein while

opposing the writ petition in general and the aforesaid submission made by the

counsel for the petitioners in particular would contend that there is no need and

scope even for directing holding such an enquiry into the matter by the District

Magistrate, in that, the answering respondents sold the landed property in

question owned and possessed by him validly and legally after obtaining a valid

permission vide Order No. 1791/DIVK/2011 of 2011 dated 22.12.2011 from the

respondent 1-Divisional Commissioner, Kashmir under and in terms of the

provisions of the Jammu and Kashmir Migrant Immovable Property

(Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short,

„the Act of 1997‟).

Heard learned counsel for the parties and perused the record.

05. The Act of 1997 came to be enacted by the then Jammu & Kashmir

State Legislature for providing Preservation, Protection and Restraint of Distress

Sales of the Immovable Property of the migrants, who had migrated from the

Kashmir Valley or any other part of the State after 01.11.1989 and were

registered as such with the Relief Commissioner.

06. Under Section 3 of the Act of 1997, sale of an immovable property of

a migrant except in terms of a permission granted by the Prescribed Authority

under the Act of 1997 is forbidden and is permissible only after holding of an

enquiry for the limited purpose that the sale is not distressed.

07. It is not in dispute that the private respondents 6 & 7 herein applied to

the Prescribed Authority under the Act of 1997 through their attorney namely

Nazir Ahmad Bhat, S/o Ghulam Qadir Bhat R/o Sofipora, Tehsil and District

Shopian for permission to alienate their property in accordance with the Act of

1997, which permission came to be accorded in terms of order dated 22.12.2011

permitting the private respondents 6 & 7 herein the alienation of property i.e.

land measuring 4 kanals 1 marla, 1 kanal 6 marlas covered under Survey No.

1593/750, 1 kanal 6 marlas under Survey No. 1703/750, 1 kanal 9 marlas under

Survey No. 751 situated at Village Zainpora, District Shopian.

08. The said permission dated 22.12.2011 is being questioned in the

instant petition by the petitioners, while invoking the extra ordinary writ

jurisdiction of this Court fundamentally and primarily as noticed in the

preceding para on the ground that the land in question is un-partitioned and

jointly owned by them with the private respondents 6 & 7 herein and same came

to be sold by the respondents at their back and without their consent. The said

contentions of the petitioners that the property in question is joint and un-

partitioned is a disputed question of fact and its decision would rest on the

evidence to be lead by the party as such may not properly be decided by this

Court in exercise of writ jurisdiction, more so, in presence of the permission

dated 22.12.2011 issued by the respondent 1-Divisional Commissioner,

Kashmir, authorizing the sale of same under and in terms of the provisions of

the Act of 1997 indisputably after having been permitted pursuant to an enquiry

held under Section 3 of the Act of 1997. Thus, this Court is not inclined to

exercise discretion under Article 226 of the Constitution of India in the matter,

in view of the nature of dispute involved in the petition being based on

complicated and disputed questions of facts. A reference in this regard to the

judgment of the Apex Court passed in case titled "Thansingh Nathmal and

others Vs. Superintendent of Taxes, Dhubri and others" reported in AIR 1964

SC 1419 will be relevant wherein at para-7 following has been held:-

"...............The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without

being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."

09. The petition resultantly fails and is, accordingly, dismissed, however,

reserving a right to the petitioners herein to seek redressal of their grievances in

appropriate proceedings before an appropriate forum, if available and if so

advised.

10. Connected applications shall also stand dismissed.

(JAVED IQBAL WANI) JUDGE JAMMU 16.10.2023 Shivalee

Whether the order is speaking : Yes Whether the order is reportable : Yes