Nobody Permitted Under Law To Pursue Two Remedies Simultaneously: Jammu & Kashmir High Court Rebukes Petitioner

Justice Sanjeev Kumar observed:

"This Court is at loss to understand as to how the petitioner could dare to challenge the same order before this court. Nobody is permitted under law to pursue two remedies simultaneously. The writ petition of the petitioner, in so far as it throws challenge to the order dated 06.10.2018, is grossly misconceived and deserves to be dismissed."

The petitioner was challenging three orders dated 8 March 2021 and an order dated 06 October 2018 passed by District Magistrate/ Addl. District Commissioner. The petitioner had also challenged an order dated 06 December, 2001 passed by Divisional Commissioner, Kashmir, to the extent of declining the permission for alienation in respect of the land measuring 6 kanals and 17 marlas under survey.

The challenge to the order dated 06 December 2001 was rejected as the petitioner did not array the concerned Divisional Commissioner as a party in the petition. Further, the petitioner did not explain a delay of 20 years in approaching this court to challenge the aforesaid order of the Divisional Commissioner and even otherwise, he lacks a locus in the present matter.

With regard to the challenge to order dated 06 October, 2018 passed by District Magistrate, the petitioner himself admitted that the matter was pending before the Financial Commissioner.

In the challenge to the orders dated 8 March 2021, the magistrate had directed Tehsildar to release the auctioned amount of the apple fruits in favour of the attorney of the migrant i.e respondent no.4. It was pointed out that the subject land measuring 12 kanals and 13 marlas falling under different survey numbers at village Ram Nagri was the subject matter of the proceedings under Sections 4 and 5 of the J&K Migrant immovable Property( Preservation, Protection and Restraint on Distress Sales) Act, 1997 before the District Magistrate.

The Court noted that the District Magistrate had further directed the Tehsildar to pluck the apple fruits from the trees standing on the subject land and open a bank account to deposit the sale costs of the produce. 

"True, it is, this order of District Magistrate, Shopian dated 06.10.2018, is subject matter of challenge before the Financial Commissioner. There is status-quo order with regard to the subject land except measuring 6 kanals and 17 marlas under survey no.2903/1056. it means status of the subject land other than 6 kanals and 17 marlas aforesaid shall be governed by order of District Magistrate, Shopian dated 06.102018 and same shall be deemed to be in the custody of District Magistrate, Shopian.The District Magistrate, Shopian,is under obligation to ensure that the Tehsildar concerned plucks apple fruits and other usufructs and deposit the sale proceeds of the same produce in the account maintained by the Tehsildar, Shopian." court said.

The court said that since the matter is sub-judice before the appellate authority as such it is not competent for the District Magistrate to modify its own order and direct the Tehsildar to release the auctioned amount in favour of the attorney holder of the migrant.

The court noted that the impugned order of 8 March 2021 challenged in the petition deserves to be modified to provide that the subject land shall remain in the possession and custody of the District Magistrate in terms of the order dated 6 October 2018 except the land measuring 6 kanal and 17 marla and the usufructs arising out of the subject land would be deposited in the account opened and maintained by Tehsildar, in terms of District Magistrate's order dated 08.03.2021.

Accordingly, the court ordered the amount to be disbursed to the party entitled thereto after the dispute pending before the Financial Commissioner is finally decided.

"Neither the petitioner nor the private respondent shall be allowed to enter into and use the subject land in any manner. The Tehsildar, Shopian, shall be under obligation to maintain the subject property and put the same to beneficial use by raising crop or fruits thereon. It is, however, clarified that Tehsildar shopian shall be entitled to utilize the amount for the maintenance and upkeep of the subject property from out of the money deposited in the account realised as cost of the usufructs/fruits etc arising out of the subject property."

In the above terms, the petition was disposed of.

Petitioner was represented by advocate Muzaffar Ahmad Dar and respondent was represented by advocates Tariq M.Shah and Usman Gani

Case Title: Muzaffar Ahmad Dar v Commissioner Secretary and Ors.

Citation: 2022 LiveLaw (JKL) 28

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