1. The petitioners, through the medium of present petition, have, primarily called in question order No.1876-DIVK of 2012 dated 07.05.2012 issued by respondent No.2, whereby permission bearing No.1828 DIVK of 2012 dated 28.01.2012 granted by the said respondent for alienation of land measuring 6 kanals and 14 marlas under Survey No. 499 along with a single storied house situated at Magarmal Bagh Nursingh Garh, Srinagar, in terms of Section 3 of J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales) Act 1997 (hereinafter referred to as “the Act of 1997”) has been kept in abeyance and it has been further provided that any transaction made by the seller/attorney holder in respect of aforesaid property pursuant to the permission dated 28.01.2012 (supra) established deemed as null and void.

2. The facts emanating from the pleadings of the parties are that respondent No.5, who is a migrant as defined under the Act of 1997, executed an Irrevocable General Power of Attorney dated 25.06.2010 thereby empowering petitioner No.2 to do all acts and things in respect of immovable property comprising single storied residential house together with land measuring 6 kanals and 14 marlas under Khasra No.499 situated at Magarmal Bagh, Nursing Garh Srinagar. Petitioner No.2, the Attorney, was further authorized to obtain permission for alienation of the aforesaid land in terms of the provisions contained in Act of 1997. It appears that the petitioners approached respondent No.2 for accord of permission for alienation of the aforesaid land and during the enquiry, respondent No.3- District Magistrate, Srinagar, recommended the case for accord of requisite permission under the Act of 1997 for alienation of the aforesaid immovable property. On the recommendations of respondent No.3, respondent No.2, in exercise of his powers under Section 3 of the Act of 1997, issued order No. 1828-DIVK of 2012 dated 28.01.2012, thereby according permission to respondent No.5 to alienate the aforesaid immovable property.

3. Pursuant to accord of permission in terms of order dated 28.01.2012 (supra) a registered sale deed was executed by respondent No.5 through his attorney holder in favour of petitioner No.1 on 2nd March 2012 in respect of land measuring 3 kanals 14 marlas out of the land which is subject matter of permission dated 28.01.2012(supra).

4. It seems that respondent No.6 approached respondent No.3 with a claim that the land in respect of which permission dated 28.01.2012 (supra) has been granted is defence land and they made a request for removal of encroachment on the said land. On the basis of the said claim of respondent No.6, respondent No.3 addressed a communication dated 07.04.2012 to respondent No.2 whereby a request was made that in order to sort out the issue, the sale permission, if not granted so far, may be put on hold till clear picture emerges as the mutations attested and upheld by various authorities are required to be looked into again. On the basis of the said recommendation of respondent No.3, respondent No.2 issued the impugned order dated 07.05.2012 whereby permission granted for alienation of the property in question in terms of order dated 28.01.2012 (supra) has been kept in abeyance and it has been provided that any transactions made in respect of the property in question consequent upon aforesaid permission shall be deemed as null and void. It has been further provided in the order that detailed investigation shall be carried out by Deputy Commissioner, Srinagar, before the matter is processed further.

5. The petitioner has challenged the impugned action of the official respondents on the grounds that the impugned order has been passed at the back of the petitioners without hearing them. It has been contended that respondent No.2 does not have any jurisdiction and power to keep the permission granted for alienation of the property in question in abeyance or to revoke the same. It has been further contended that the order granting permission for alienation has already been implemented inasmuch as sale deed pursuant thereto has been executed by respondent No.5 in favour of petitioner No.1, as such, keeping the said order in abeyance by respondent No.2 is of no consequence. It has been also contended that respondent No.2 had no jurisdiction to declare the transaction entered into pursuant to the permission dated 28.01.2012 as null and void.

6. Respondent No.6, the main contesting respondent, has filed its reply to the writ petition in which it has been submitted that the property in question is defence property. According to respondent No.6, the land and the assets at Haftchinar belong to erstwhile J&K State Forces and at the time of the partition, the same were under the occupation of J&K Cavalry of Maharaja Hari Singh. The land along with the assets existing thereon at Lakhmanpora and Nursing Garh were handed over to J&K Militia in 1948. It has been submitted that on 14.01.1956, an agreement was entered into by the President of India and the State of J&K and as per Para (2) of the said agreement, it has been laid down that all the properties and assets of J&K State Forces shall vest in the Union of India, which implies that these assets being ex-State Forces property stand vested with Ministry of Defence, Government of India. Respondent No.6 has placed on record extract of proceedings of Survey Board, 1954 and a copy of agreement dated 14.01.1956 executed between the President of India and the State of J&K as also the extract of Military Land Register (MLR) to support its contentions.

7. Respondent No.6 has further contended that Bungalow Nos.57 and 58 at Magarmal Bagh, Srinagar, were under the occupation of J&K Militia till 1972. Subsequently, J&K Militia became JAKLI Centre and the occupation of the property continued with JAKLI Regiment Centre. These buildings were occupied by the officers of JAKLI Regiment Centre. It has been submitted that in the year 1990-91, due to militancy in the State, these buildings were vacated and were lying unoccupied since then. Thereafter Bungalow No.57 was occupied by 11th Security Battalion, J&K Armed Police and Bungalow No.58 was occupied by Food and Supplies Department of J&K Government as also by J&K Armed Forces. It has been further submitted that the J&K Projects Construction Corporation tried to construct office building for Financial Commissioner and a Patwar Khana in the compound but the same was stopped.

8. Respondent No.6, in its reply, has further contended that on 27th February, 2003, the J&K Government requested for transfer of aforesaid land along with the assets to the State Government for police headquarters but the same was refused on the ground that in terms of agreement dated 14.01.1956, the land in question had vested with Defence Forces. Respondent No.6 has gone one to contend that on 04.04.2011, when an inspection of the area was conducted, it was found that land measuring 06 kanals 08 marlas along with two buildings is under illegal occupation of petitioner No.2 and upon enquiry from him, the said petitioner provided a copy of Jamabandi and a copy of Power of Attorney executed by respondent No.5 in his favour. Respondent No.6 has denied the ownership of respondent No.5 qua the property in question at any point in time.

9. Respondent No.2 in his reply has, after narrating the sequence of events which lead to the passing of impugned order dated 07.05.2012, submitted that pursuant to the said order, the Deputy Commissioner, Srinagar, has, vide his letter dated 26.06.2014, submitted a detailed report in which it has been stated that the land in question was State land and that mutation has been attested in favour of respondent No.5 which is without jurisdiction, as the same has been done without going into the fact whether ‘Sahib Bahadur’ was an individual and whether the claimants had any right over the State land. In the report it has been further mentioned that the mutation needs to be got set aside through a revision order by Financial Commissioner (Revenue) to save the government property.

10. I have heard learned counsel for the parties and perused record of the case.

11. As is clear from the facts narrated hereinbefore, there is a serious dispute as regards the ownership of the property, which is subject matter of permission dated 28.01.2012 and sale deed 22nd March, 2012. While the petitioners claim that the land in question belonged to respondent No.5 who is a migrant as defined under the Act of 1997, respondent No.6 claims that the property in question has vested with Union of India. It is the contention of learned Senior Counsel appearing for the petitioners that the Divisional Commissioner, while considering an application for grant of permission for alienation of property belonging to a migrant, is not expected to make an enquiry with regard to ownership of the property. On the other hand, learned counsels appearing for the respondents, have vehemently argued that unless the property is shown to be a property belonging to a migrant, the Divisional Commissioner would not get jurisdiction to grant permission for alienation of the said property in terms of Section 3 of the Act of 1997.

12. In order to determine the merits of the rival submissions, it is necessary to have a look at the provisions contained in Section 3 of the Act of 1997, which reads as under:

“3. Restriction on alienation of immovable property. – Notwithstanding anything to the contrary contained in any other law for the time being in force–

(a) alienation of immovable property of a migrant by act of parties or a decree or order of a court or of a revenue officer except under such conditions as may be prescribed and with previous permission of Revenue and Relief Minister, or such officer as may be authorised by him in this behalf, is forbidden:

Provided that no such permission shall be necessary in case of a mortgage without possession of such immovable property in favour of an institution mentioned in section 4- A of the Jammu and Kashmir Alienation of Land Act, Samvat 1995 and transfer of the said immovable property in favour of Government of Jammu and Kashmir:

Provided further that the permission to alienate shall be deemed to have been granted, if an application seeking permission for alienation of such property is not decided by the prescribed authority within fifteen days from the date of receipt of such application:

Provided also that the enquiry for the purposes of the grant of permission by the prescribed authority shall be limited to the question of sale being not distress;

(b) any alienation of immovable property on or after the commencement of this Act, in contravention to the provisions thereof, shall be null and void and immovable property so alienated shall, after such enquiry as may be prescribed, vest in its owner; and

(c) no document purporting to alienate such immovable property in contravention of the provisions of this section shall be admitted to registration.

13. It would also be relevant to notice the provisions contained in Rule 5 of the Rules framed under the Act of 1997. It reads as under:

"5. Grant of permission to the alienation of the property. The Prescribed Authority, after taking into consideration all the facts mentioned in the application and reports made in this behalf as also after making such enquiry as it considers necessary, may grant permission in Form-3 subject to the following conditions; namely:

(a) that the alienation shall be in favour of permanent resident of the State;

(b) that the property which matter of alienation is owned by intending aliener free from all encumbrances;

(c) the prevalent market rate in respect of the property to be alienated will be determined by a revenue officer not below the rank of an Assistant Commissioner in consultation with Executive Engineer of the Public Works Department having jurisdiction in the area; and

(d) the possession of the property shall be handed over to the alienee(s) after it is released by the District Magistrate concerned."

14. From a conjoint reading of third Proviso to clause (a) of Section 3 of the Act of 1997 and Rule 5 of the Rules quoted above, it comes to the fore that for the purpose of grant of permission for alienation, the enquiry of the Prescribed Authority has to be limited to the extent of sale being not distress, meaning thereby that the question of title has not to be gone into in detail by the Prescribed Authority. Rule 5 only provides that permission for alienation has to be granted subject to certain conditions, one of which provides that the property, which is subject matter of alienation, is owned by intending aliener and is free from all encumbrances, meaning thereby that the permission for alienation is conditional upon the ownership of the property in favour of the alienor. Thus, if it turns out that the permission for alienation has been granted in respect of a property which is not owned by the intending alienor and is not free from all encumbrances, the said permission would become void. Similarly, if the alienation is not made in favour of a permanent resident of the State, the same would render the permission invalid. However, Rule 5(supra) nowhere mandates that the Divisional Commissioner/Prescribed Authority has to make a detailed enquiry as to whether the property in question belongs to the alienor. Third proviso to clause (a) of Section 3 of the Act lays down the limits of the enquiry that is to be undertaken by the Prescribed Authority and the same is limited to the extent of sale being not distress.

15. In the instant case, at the time of considering the grant of permission under Section 3 of the Act of 1997, report/recommendation dated 26.11.2011 of Deputy Commissioner, Srinagar, was there before the Prescribed Authority in which it was clearly stated that respondent No.5 had proved that he is owner of the land in question and that vide mutation No.3865 of 2008 attested by Tehsildar South, Srinagar, the property in question has been mutated in favour of respondent No.5. It has been noted in the said report that the said mutation was challenged by other claimants before the Additional Commissioner, Kashmir, as well as before the Settlement Commissioner, J&K, but both these authorities have upheld the mutation order passed in favour of respondent No.5. There is also a copy of order dated 18.08.2011 passed by the Settlement Commissioner, J&K, Srinagar, on record which confirms the aforesaid fact. Even the copies of Jamabandi also support the fact that the property in question has been mutated in favour of respondent No.5 and that the same was under the occupation of his predecessor-in-interest, namely, General Sahib Bahadur. In the face of these documents, there was, prima facie, evidence before respondent No.2 to come to a conclusion that the property in question belonged to respondent No.5 who is, admittedly, a migrant. Therefore, it cannot be stated that there was no material before respondent No.2 to show that the property in question was a migrant property. The contention of the official respondents that the order of permission for alienation granted by respondent No.2 in favour of respondent No.5 was without jurisdiction, cannot be accepted.

16. The next question that comes up for consideration is whether respondent No.2 is vested with jurisdiction to revoke/review the order regarding grant of permission for alienation of the property in question. It is a settled law that a statutory authority does not have power to review/revoke its orders unless the statute which has created the said authority vests such power with it. The authority competent to grant permission for alienation in terms of Section 3 of the Act of 1997, is not vested with power to revise or review its order. There is no provision made in the said Act to confer power of review or recall upon the said authority. Therefore, it was not open to respondent No.2 to initiate proceedings for revocation of order for grant of permission issued by it on 28.01.2012. The proceedings initiated by respondent No.2 in this regard are, therefore, without jurisdiction.

17. The only course open to any person aggrieved of grant or refusal of permission in terms of Section 3 of the Act of 1997 is to file an appeal in terms of Section 7 of the said Act before the Financial Commissioner. Therefore, it was not open to respondent No.6 to simply file an application before respondent No.2 for revocation of the permission granted in favour of respondent No.5 or to make an application to respondent No.3 to evict petitioner No.1, who had occupied the property in question pursuant to execution of sale deed by respondent No.5 on the basis of permission dated 28.01.2012.

18. It has been contended by learned counsel for the respondents that the present writ petition is not maintainable because even the petitioners had the remedy of filing an appeal against the impugned order in terms of Section 7 of the Act of 1997. The aforesaid contention is without any merit for the reason that the impugned order is an interlocutory order, inasmuch as respondent No.2 has not passed a final order as yet. Vide the impugned order, only an enquiry has been initiated into the matter. Clause (a) of proviso to Section 7 of the Act of 1997 clearly lays down that no appeal shall be entertained against an interlocutory order. Therefore, the impugned order is not appealable in nature. The petitioners, therefore, had no alternative remedy against the impugned order and they have rightly invoked the writ jurisdiction of this Court for impugning the said order.

19. So far as dispute with regard to title of the property, which is subject matter of the present petition, is concerned, the same has to be determined by a competent forum in appropriate proceedings. The said dispute cannot be determined in these proceedings. Respondent No.6 would do well to initiate appropriate proceedings for determining the question of title regarding the property in question by challenging the mutation entries in favour of respondent No.5 or by challenging the sale deed executed in favour of petitioner No.1 before the appropriate forum. If and when respondent No.6 succeeds in proving that the property in question actually belongs to the Defence Forces, the permission dated 28.01.2012 would automatically become void as one of the conditions attached to the said permission is that the alienor has to be the owner of the property in question. Without resorting to such proceedings, respondent No.6 cannot ask respondent Nos.2 and 3 to revoke the permission granted for alienation or to declare the sale deed executed by respondent No.5 in favour of petitioner No.1 as null and void.

20. For what has been discussed hereinabove, the writ petition deserves to be allowed and, accordingly, the same is allowed. The impugned order dated 07.05.2012 passed by respondent No.2 is set aside, leaving it open to respondent No.6 to take resort to appropriate proceedings for determination of its rights over the property in question.