Bashir A. Kirmani, J.@mdashRespondent No. 5 through his attorney appears to have represented before Dy. Commissioner Srinagar and alleging
: construction of temporary shed, etc. by present petitioner in the disputed land sought action against him petitioner under Jammu and Kashmir
Migrants Immovable Property (Preservation, Protection and Restraint on Distress sales) Act 1997, who vide order No. 1863-66/SQ/Misc. dated
10.08.2000, directed Tehsildar settlement to remove barbed wire/fencing from around the land measuring 1 kanal under survey No.
2102/1589/630 situate in Batmaloo Srinagar, alongwith the shed constructed therein and report after evicting the unauthorized occupants if any
there from, if necessary, with assistance of police/demolition squad.
2. Meanwhile the petitioner appears to have agitated the matter also through a civil suit wherein he obtained an interim injunctive direction of status
quo from trial court of Additional District Judge Srinagar, which was appealed against by said respondent's-attorney before this Court whereupon
vide judgment dated 23rd august 1999 the interim injunction order, passed by trial court was vacated leaving the Dy. Commissioner Srinagar free
to exercise his power of keeping the property under reference in his possession. Against aforesaid appellate order of this Court passed in C1MA
65/99, a LPA being No. 147/99 appears to have been instituted by present petitioner which was disposed of by the appeal Bench on 6.3.2000 by
directing expeditious disposal of the civil suit and maintenance of status quo regarding land under reference as existing on the date of order. On
asking of appellant's counsel however, the bench while clarifying the order further observed as under:
If the Dy. Commissioner has already taken possession of the identified property pursuant to the impugned order of Id. Single Judge that position
will be maintained till trial court decides the stay matter pending before it, we clarify our above order accordingly."" With said direction of the DB in
tact, the petitioner challenges District Magistrate's above said order of 10.08.2000 through this writ petition on the ground that he passed it without
application of mind and on basis of distorted facts, even while the land was under possession of petitioner as admitted by 5 respondent also during
different proceedings in various revenue courts ansd was, protected by appellate order of the Division Bench in the above mentioned LPA. During
course of submissions while reiterating contents of writ petition petitioner's counsel also contended that a competent civil court being seized of the
matter, the Dy. Commissioner could not assume jurisdiction and should leave it to be decided by the civil court where the matter is admittedly
pending.
In reply respondent No. 5 through his above said attorney has pleaded that land under reference was purchased by him vide sale deed executed
on 10th august 1981 and after demarcation in consultation with purchasers of other parcels of land from same survey number the site plan was
drawn and attested by Tehsildar Srinagar identifying his land which was later encroached upon by petitioner after said respondent's migration from
Kashmir and on whose request the concerned Dy. Commissioner the land was further identified through Tehsildar Agrarian Reforms and handed
over to his attorney on 18th July 1998. Where after present petitioner challenged demarcation proceedings and claiming proprietorship of the land
under reference instituted a civil suit which 'was however withdrawn by him after challenging the demarcation through a revision petition before
Financial Commissioner who directed Assistant Settlement. Officer to conduct a survey of the area for identifying the one kanal of land under
reference which was done pursuant whereto Financial Commissioner dismissed petitioner's revision petition on 28th July 1999. The dismissal was
challenged by petitioner through a writ petition being owp No. 396/99, and simultaneously he instituted another suit before Additional District
Judge Srinagar, who granted an ex-parte interim injunction in his favour which was challenged in the CIMA, and LPA decided as already noticed
hereinabove. During course of submissions while petitioner's counsel has reiterated the contents of writ petition, the counsel appearing vice
respondents counsel has contended that in the circumstantial back drop cataloged above coupled with other features of the case the Dy.
Commissioner's impugned order was not liable to be interfered with. One of the official respondent has also filed reply on whose behalf Mr. N.H.
Shah, DY. AG, appearing for other respondents also has adopted the objections taken by private respondent. Since the matter stands already
admitted as far back as on 2nd Nov. 2006 and the detailed replies of contesting respondents are already on record, the matter was heard with
agreement of counsel for final disposal and comes up accordingly. I have heard learned Counsel and considered the matter. Before anything else it
requires to be noticed that the matter has extensively been litigated upon by parties in various civil and revenue courts, and this Court. The basic
conflict of interest between them pertains to one kanal of land under survey number aforesaid which while claimed to have been purchased by
respondent No. 5 way back in 1981 under registered sale deed from its. lawful owner; appears to be part of a larger parcel of land perhaps
owned/possessed by petitioner, who denies the same on basis of his claimed possession over said land. In that view of the matter ordinarily it
could better be left to civil court for being decided in accordance with law but for the provisions of Jammu and Kashmir Migrants Immovable
Property (Preservation, Protection and Restraint on Distress sales) Act 1997, whereunder concerned Dy. Commissioner stands vested with power
to dispossess the unauthorized occupants of migrant land which by force of said Act vests in him for its preservation etc, and jurisdiction of civil
courts to entertain actions in the matter stands barred u/s 8 thereof. Ordinarily therefore, the District Magistrate/Dy. Commissioner concerned had
all power to pass the impugned order, which would not be amenable to jurisdiction of a civil court, after the Jammu and Kashmir Migrants
Immovable Property (Preservation, Protection and Restraint on Distress sales) Act 1997 came into force. Despite that however the appeal bench
of this Court while disposing of the LPA No. 147/99 as aforesaid was pleased to direct the civil court trying the matter to speed up disposal
thereof, which is being relied upon by petitioner's to claim ouster of District Magistrate's jurisdiction and persuade this Court -to show indulgence
under the migrants Act aforesaid. Accordingly and on a joint reading of the aforesaid direction of appeal bench and provisions of different laws
applicable to the matter the petition is disposed of by providing as follows:
(a) The Id. trial court (4th Additional District Judge) Srinagar shall immediately take up the matter for consideration in terms of the DB order
aforesaid and proceed a head only after framing an issue regarding his jurisdiction to try the suit in view of the provisions of Jammu and Kashmir
Migrants Immovable Property (Preservation, Protection and Restraint on Distress sales) Act 1997, and pass orders thereupon after hearing the
parties.
(b) Should Id. trial Judge find that he did not have the jurisdiction to try the suit in view of aforesaid Act he would pass appropriate orders
thereupon to leave the matter to be dealt with by the competent authority under aforesaid Act, otherwise he would deal with the matter speedily.
(c) The whole proceeding on the question of jurisdiction as such be positively concluded within four weeks from now. Till then the order of
Division Bench clarified as quoted above shall prevail on spot..:
(d) Parties through their counsel directed to appears before the trial court on 12.3.2008.
Disposed of.
