The Supreme Court on Tuesday has issued notice on a petition by the Union Territory of Jammu and Kashmir challenging the order of the Jammu and Kashmir High Court which had issued contempt notice against the Divisional Commissioner. The Apex Court has stayed the operation of the impugned order and directed parties to maintain the status quo till next date of hearing. The Court would hear the matter on July 7, 2021.
A two-judge judges Bench presided by Justice Vineet Saran and Justice Dinesh Maheshwari while allowing the appeal in case of Union Territory of Jammu and Kashmir vs. Poonam Mehra, thereby inclined to issue notice dated 11.05.2021 to respondent 1 and 2 and extended the stay of contempt proceedings initiated against Divisional Commissioner, passed by Division Bench of High Court of Jammu and Kashmir on 21.04.2021, thus directed both parties to maintain status quo till next date of hearing. Ardhendumauli Kumar Prasad, counsel for Union Territory of Jammu and Kashmir made submission that status quo to be maintained, while asking for stay of operation of contempt proceedings initiated against Divisional Commissioner, Kashmir
Paramjit Patwalia, Senior Advocate, who in fact appeared on behalf of Poonam Mehra and Amla Sahani (herein after referred as “Respondent no.1 and 2”) made his submissions at length. Vide order dated 5.5.2021, the Bench stayed the contempt proceedings.
Jammu and Kashmir Migrant Immovable Property(Preservation, Protection and Restraint on Distress Sales Act, 1997) was enforce and enacted for the sole purpose to preserve, protect restraint on distress sales of the immovable property of the migrants.
The High Court observed that notwithstanding the fact that Divisional Commissioner was directed to issue permission for alienation with regard to property in question , in consonance with the reports/No Objection Certificates, Divisional Commissioner failed to pay any heed to directions of the High Court, thus committed contempt and issued show cause notice to Divisional Commissioner as to why he shall not be punished for such contempt. The Petitioner submitted its reply to the showcause notice.
Another impugned order dated 31.12.2009 which has been challenged by Union of Jammu and Kashmir ,wherein the division bench construed the second proviso of Section 3 of Jammu and Kashmir Migrant Immovable Property(Preservation, Protection and Restraint on Distress Sales Act, 1997), states that if an application is filed seeking consent for alienation of such property , and if such application is not decided/adjudicated by prescribed authority ( Divisional Commissioner ,here in) within 15 days from date of receiving of such application, then it shall be deemed that permission to alienate have been granted.
The Bench of Justice Ali Mohammad and Justice Vinod Chatterji Koul of Jammu and Kashmir High court while setting aside the order of Single Judge, Jammu and Kashmir High Court , based on the pleadings and as on record, it observed that both Poonam and Amla Sahani wanted to sell their migrant property in dispute/in question approached Divisional Commissioner, Kashmir under the said Act 1997.
The documents gathered by both respondents in their favour were provided to Divisional Commissioner, however, instead of disposing the application within 15 days time period as given in statute , initiated other independent equiries which were not required in accordance of provisions of Act,1997. Subsequently, a direciton was issued to the Divisional Commissioner , approving permission for alienation regard to property in question.
The counsel of Union of Jammu and Kashmir, has taken affirm stand in their writ petition that to avoid distress sale from hands of Poonam and Amla, powers conferred u/s 3 of Jammu and Kashmir Migrant Immovable Property(Preservation, Protection and Restraint on Distress Sales Act, 1997) to issue permission for alienation of migrant property has to be exercised sparingly by prescribed authority, after evaluation of facts and evidences , reports being made by field functionaries in this behalf , and making necessary enquiry , unless the prescribed authority gets fully satisfied akin to confirmation of titles of respondents subject to property in question, permission cannot be granted.