Non-state subjects claim property in Srinagar, HC quashes DC’s order

Non-state subjects claim property in Srinagar, HC quashes DC’s order

Srinagar: Taking judicial notice of what it termed as a “very serious” matter, the J&K High Court has quashed an order by Deputy Commissioner Srinagar regarding alienation of immovable property of a Kashmiri migrant to non-state subjects.
On June 30 last year, the Deputy Commissioner Srinagar had directed one Trilok Singh, a non-state subject, to vacate three storied house of Avtar Krishan Khar, a Kashmir Pandit, at Nursinghar Jawaharnagar here by invoking the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
“This is a novel case of its kind in sense that non-permanent residents of the State are claiming the immovable property in Srinagar on the basis of an agreement to sell. Equally novel is the impugned order passed by (Deputy Commissioner Srinagar),” a bench of Justice Ali Mohammad Magrey observed while hearing petition filed by the Trilok Singh and his son Anoop Singh.
“(Deputy Commissioner Srinagar) seems to have been wholly oblivious of the legal position that the petitioners, being non-permanent residents of the State, could not have acquired the immovable property within the State, therefore, the question of alienation of the migrant property in favour of the petitioner or anyone of them having taken place before or after provisions of the Act coming into force would not arise,” the bench said while hearing a petition filed by Trilok Singh and his son Anoop Singh.
“This speaks by itself that (Deputy Commissioner Srinagar) has passed the impugned order in a mechanical manner and without applying his mind to the facts of the case. Though this is not a ground of challenge taken by the petitioners in the writ petition, yet the Court can take a judicial notice of this glaring aspect of the matter which, in fact, is of very serious nature,” the court said and quashed the Deputy Commissioner’s order.
As per the father-son duo, Khar rented out ground floor of his house comprising four rooms, one kitchen and a bath room, to them in terms of rent deed executed on March 11, 1991 for a period of one year.
However, they said, Khar permitted them to occupy entire house as he was not in a position to return back to Valley and they continued to pay the rent. In the year 1997, they said, Khar approached them and offered to sell the house for a consideration of Rs.10.50 lacs.
They said that they agreed to the proposal and paid an amount of Rs 1.00 lakh in cash to Khar whereas the remaining amount of Rs 9.50 lakhs was paid ultimately through bank drafts.
The duo also said that since they were not in possession of a state subject certificate, they could not get the documents of sale deed executed.
The duo said that while they were in process of finding out some person in whose name they could purchase the property, Khar approached them in the year 2001and asked them to settle the transaction afresh. The transaction was finalized at an amount of Rs. 12.84 lacs and was paid through cheques to Khar, they said. However, they said, Khar did not turn up to execute the sale deed.
In his reply, Khar admitted that he had rented out the house to Singhs for one year, but, according to him, they paid rent only for a period of 9 months and did not pay it from January, 1992 to the end of 1997.
The Singhs, Khar said, have encroached upon the other floors of the house after breaking the locks of the rooms and usurped his belongings including Pashmina Shawls, Jewellery, other valuable items and house hold articles.
This, he said, was admitted by Singhs before him when they met him at his residence at Jammu.
Khar said that on being told by him he would file a criminal complaint against them, Singhs persuaded him not to proceed and offered to compensate the same.
Khar also denied having approached the duo for selling the house or having received any money, cheque, bank draft from them. He said that there was no occasion for him to enter into a transaction with them since he was aware they were non-state subjects and, therefore, could not acquire or purchase any property in the State. He said that petitioners approached him in the year 2001 and agreed to pay the pending rent and also the amount determined on account of use of his belongings.
Finally, Khar approached Deputy Commissioner (Relief), Relief Organization Jammu, for getting his house vacated. The DC (Relief) addressed a communication to the Deputy Commissioner Srinagar who after an inquiry passed the order directing Trilok Singh to vacate the house.
The deputy commissioner, court said, has to return a finding whether, in the facts and circumstances of the case, the property falls within the ambit of the Act and whether the petitioners can be said to be unauthorised occupants of the house, especially so when they claim its possession on the basis of the alleged sale in their favour by Khar.
“I need not go to the other aspects of the matter, as pleaded by the parties and argued by the counsel for them. The District Magistrate is required to consider the case in accordance with the mandate of the provisions of the Act, especially Sections 4 and 5 thereof and pass a reasoned order.”
Section 3 provides restriction on alienation of immovable property while as per Section 4 the Deputy Commissioner was required to take over the possession of immovable properties, belonging to migrants, within 30 days after the passing of the Act.
The deputy commissioner, court said, has to return a finding whether, in the facts and circumstances of the case, the property falls within the ambit of the Act and whether the petitioners can be said to be unauthorised occupants of the house, especially so when they claim its possession on the basis of the alleged sale in their favour by Khar.
He has been directed to consider the case afresh and pass orders in accordance with law within a month.

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