Jammu & Kashmir High Court - Srinagar Bench
Rituraj S. Kathju vs Union Territory Of Jammu & Kashmir on 23 August, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 2508/2021
CM No. 7967/2021
Reserved On: 8th of August, 2024.
Pronounced On: 23rd of August, 2024.
1. Rituraj S. Kathju, Age: 63 Years
S/O Late Siddharth Kanwarlal Kathju
R/O Lal Mandi, Srinagar, Jammu & Kashmir
At Present 503, Sector 56, Plot 15,
Sukh Shanti Apartments,
Gurgaon, Haryana.
2. Kandarp S. Kathju, Age: 65 Years
S/O Late Siddharth Kanwarlal Kathju
R/O Lal Mandi, Srinagar, Jammu & Kashmir
At Present 10, Sarathi Society, Memnagar,
Ahmedabad, Gujarat.
... Petitioner(s)
Through: -
Mr Areeb Javed Kawoosa, Advocate.
V/s
1. Union Territory of Jammu & Kashmir
Through Commissioner/ Secretary to Government,
Revenue Department, Civil Secretariat,
Jammu/ Srinagar.
2. Deputy Commissioner, Anantnag.
3. Assistant Commissioner, Revenue, Anantnag.
4. Nodal Officer, Migrant Immovable Property/
Additional District Magistrate, Anantnag.
5. Tehsildar, Anantnag.
6. Naib Tehsildar, Achabal.
Page 2 of 7
WP (C) No. 2508/2021
CM No. 7967/2021
7. Shri Ramakrishan Mahasamelan Ashram
Vivekanada Kendra Nagdandi Achabal, Anantnag,
through Secretary R/O Trahpoo, Ang.
... Respondents
Through: -
None for R-1 to 6; and
Mr P. S. Ahmad, Advocate with
Mr Arshid Hussain, Advocate for R-7.
CORAM:
HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE
(JUDGMENT)
01. Through the medium of the present Petition, the Petitioners
have prayed for the grant of following relief(s) in their favour:
"(i) Issue an appropriate writ, order or direction,
including one directing quashment of the proceedings initiated
by the Respondent No.3 upon the application filed by the
Respondent No.7 titled as "Shri Ramakrishan Mahasamelan
Ashram Vivekanada Kendra Nagdandi through Secretary R/O
Trahpoo, Nagdandi, Ang";
(ii) Issue an appropriate writ, order or direction,
including one directing quashment of the application titled as
"Shri Ramakrishan Mahasamelan Ashram Vivekanada Kendra
Nagdandi Ang" and the order dated 01-11-2017 passed by the
Respondent No.3;
(iii) Issue an appropriate writ, order or direction,
including one directing the official Respondents particularly the
Respondent No.2 to adhere to the provisions of the Jammu &
Kashmir Migrant Immovable Property (Preservation,
Protection and Restraint on Distress Sales) Act, 1997 by
safeguarding the property of the Petitioners, land measuring 5
Kanals and 1 Marla falling under Survey Nos. 448, 563/449,
569/447 and 449/1 situated at village Trahpoo, Tehsil Achabal,
District Anantnag and evicting the unauthorized occupants
from the migrant property of the Petitioners;
(iv) Issue an appropriate writ, order or direction,
including one directing the Respondent No.2 to act upon the
application filed by the Petitioners seeking safeguarding of the
property of the Petitioners;
(v) Issue an appropriate writ, order or direction,
including one directing the official Respondents to preserve
and protect the property of the Petitioners from any
encroachment and interference whatsoever from any quarter,
including from Respondent No.7; and
(vi) Any other Writ, order or direction which this
Hon'ble Court may deem fit and property also be issued in
favour of the Petitioner and against the Respondents."
02. The Petitioners claim that their grandfather and father were the
owners and possessors of land measuring 05 Kanals falling under Survey
No. 566/465; 01 Kanal and 02 Marlas falling under Survey No. 569/447; 01
Kanal and 17 Marlas falling under Survey No. 488; 01 Kanal and 17 Marlas
falling under Survey No. 449/1; 03 Kanals and 06 Marlas falling under
Survey No. 562/449; and 05 Marlas falling under Survey No. 563/449
situate at village Trahpoo, Tehsil Achabal, District Anantnag. It is stated
that the aforesaid land was purchased by the grandfather of the Petitioners,
namely, Kanwarlal Kathju S/O Rattan Lal Kathju R/O Srinagar, whereafter,
the same was transferred to the father of the Petitioners, namely, Siddharth
Kathju, being the only child of the said Kanwarlal Kathju. On the said piece
of land, a cottage is also stated to have been built by the grandfather of the
Petitioners, which remained unattended due to the fact that the Petitioners
had to leave Kashmir Valley and could not come back because of the
uncertain conditions and threat to their lives as well as the property, post the
law and order circumstances having emerged in the Valley in the year 1990.
03. It is further stated that when the Petitioners approached the
concerned revenue authorities/ official Respondents herein for getting the
land owned by their father mutated in their names, the Petitioners were
informed that some persons, on behalf of some Ashram/ Committee, had
approached them regarding the land in question. The father of the
Petitioners, namely, Siddharth Kathju, passed away in the year 2014 and the
Petitioners, being the only legal heirs of Siddharth Kathju, represented
before the Respondent No.2 vide communications dated 19th of October,
2020, 30th of November, 2020 and 6th of January, 2021 for safeguarding the
property of the Petitioners, who being Kashmiri Migrants, in terms of the
Jammu & Kashmir Migrant Immoveable Property (Preservation, Protection
and Restraint on Distress Sales) Act, 1997 (for short "the Act of 1997") ,
but no action with respect thereto has been taken till date. Rather, the
Petitioners claim to have been informed that the office of the Deputy
Commissioner, Anantnag/ Respondent No.2 had, in fact, received a request
from certain people claiming to be in occupation of the property recorded in
the name of the father of the Petitioners, who wanted their names to be
entered in the revenue records as owners of the property. The Petitioners
further claim that they represented before the Respondent No.2 not to
entertain any such illegal request/ demand from anyone with regard to their
ancestral property by stating that any possession of the said land, except
that of the Petitioners, is per se illegal and, accordingly, requested the
Respondent No.2 to ensure safeguarding of the property of the Petitioners.
It was also requested by the Petitioners before the Respondent No.2 to
initiate an enquiry into the matter as to how their landed property has been
illegally encroached upon, however, no action thereto has been taken till
date.
04. The Petitioners also claim to have moved a complaint on the
Online portal which has been launched by the Hon'ble Lieutenant
Governor, Union Territory of Jammu & Kashmir for seeking redressal of
their grievance, however, there too, no positive response came in favour of
the Petitioners. In such circumstances, the Petitioners, on 13th of November,
2021, claim to have filed an application under the provisions of the Act of
1997 before the Respondent No.2, under whose custody the land is
presumed to be in terms of the said Act, but no order was passed on the said
05. After filing of the aforesaid application, the Petitioners,
through their Counsel, claim to have got the knowledge of the fact that the
Respondent No.7 herein has filed two applications before the official
Respondents, without even arraying the Petitioners as party Respondents. In
one of the said applications filed by the Respondent No.7, protection of the
illegal possession of the property of the Petitioners falling under Survey
Nos.448, 563/449, 569/447, 449/1 measuring 05 Kanals and 01 Marlas has
been sought. Being aggrieved of the aforesaid application moved by the
Respondent No.7 as also the action being taken thereto by the official
Respondents, the Petitioners have knocked at the portals of this Court for
seeking the afore-sated relief.
06. On notice having been issued, the Respondent No.7 has filed
Counter Affidavit, wherein it has been stated that the Writ Petition filed by
the Petitioners is grossly misconceived, inasmuch as, the Petitioners want to
circumvent the procedure established by law under the Land Revenue Act
and Standing Orders issued thereunder, especially Standing Order Nos. 22
and 23-A. It has been averred that the land in question is 'Sankalped'
(religiously donated) by one Shri Kanwar Lal Kathjoo, a sincere devotee of
Swami Ashokananda Ji Maharaj in early 50's to the Ashram-Respondent
No.7, through its founder, however, the entries could not be changed due to
incorrect perception of law of State subject. It is also stated that the
Respondent Nos. 5 and 6 have found that the Respondent No.7 has been in
physical possession of the disputed land for the last more than 40 years,
which period surpasses the year 1989, thereby establishing the fact that the
answering Respondent is in possession of the land in question prior to the
period of migration and, therefore, the Act of 1997 has no application to the
land subject matter of the Writ Petition. It has been urged that since the
Petitioners do not come within the definition of 'Migrant', as defined in the
Act of 1997, as such, the present Petition deserves to be dismissed.
07. The Petitioners have filed their Rejoinder to the Reply
Affidavit filed by the Respondents, asserting therein that both the
applications moved by the private Respondent (Respondent No.7) had been
dismissed by the Respondent No.3 vide Order dated 20th of November,
2021. It has been further pleaded that the wavering contention of the private
Respondent that the land in question had been donated to the private
Respondent by the grandfather of the Petitioners some 75 years back and
also the question that the Petitioners or their father had not been resident of
the Jammu & Kashmir for a pretty long time is belied from the fact that the
father of the Petitioner was resident of Lal Mandi, Srinagar and then Brain,
Nishat, where their house was occupied by central forces after eruption of
militancy. They have also submitted that the father of the Petitioners and so
the Petitioners are also issued permanent resident certificates by the Deputy
Commissioner, Srinagar and that the contention of the private Respondent
that the Petitioners do not fall within the definition of "migrant" is also
belied from the fact that with regard to their property in District Srinagar,
they had been treated as "migrants" and granted permission for sale of their
immoveable property by the Divisional Commissioner, Kashmir.
08. Heard learned Counsel for the parties, perused the pleadings on
record and considered the matter.
09. Pursuant to Order dated 9th of June, 2023, the official
Respondents have filed a Compliance/ Status Report, wherein it has been
stated that the Order dated 4th of March, 2023 passed by this Court had been
implemented in letter and spirit, inasmuch as, vide communication No.
DCA/Lit/023/4691 dated 17th of July, 2023, the Tehsildar, Anantnag was
directed to implement the Order and file Compliance Report and, in
compliance thereto, the Tehsildar filed a report on 7 th of August, 2023,
stating therein that the land in question had been evicted from the
unauthorized occupation and has been put under the superdari of
Numbardar Deh by the Naib Tehsildar, Achabal, awaiting further orders.
10. The position that, thus, emerges is that the Petitioners, through
the medium of this Petition, had challenged the proceedings initiated on the
applications moved by the Respondent No.7 herein, which are stated to
have been dismissed and the Respondent-District Magistrate, Anantnag is
also stated to have acted upon the application moved by the Petitioners for
eviction of the private Respondent from their land in terms of the Act of
1997. Thereafter, pursuant to eviction of the Respondent No.7 from the
subject matter of this Petition, the possession thereof has been already taken
over by the District Magistrate and the property has been kept under the
superdari of the local Headman, as admitted by the official Respondents.
That being so, the grievance projected by the Petitioners in this Petition has
already been redressed, as such, no orders are required to be passed by this
Court in this Petition. The Respondent No.7 shall be entitled to work out the
remedy as may be available to it under law after passing of the order of
eviction, while as, the Petitioners shall also be at liberty to have recourse to
appropriate proceedings for seeking restoration of possession in their favour
before the District Magistrate concerned.
11. Writ Petition is, thus, disposed of on the above terms, along
with the connected CM(s).
(M. A. CHOWDHARY)
JUDGE
SRINAGAR
August 23rd, 2024
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes.
