SRINAGAR: The High Court has ruled that to possess migrant immovable property, a person must have written consent from the migrant and the authority of law. If they fail to establish this consent, then the authority has the right to evict and take over possession of the property. This decision was upheld in the case of Abdul Khaliq Rather, who had challenged the District Magistrate Baramulla order to evict him from 04 Kanals and 5 ½ Marlas of migrant land in Awrenbal, Sonawari, Sumbal. The land was subsequently placed under the possession of the Deputy Commissioner, Bandipora.
On September 18, 2018, the Writ Court rejected Rather’s petition because he had not provided any evidence to prove his lawful possession of the migrant immovable property and because he had the option to appeal under the relevant statute. The Division Bench of Justice Rajnesh Oswal and Justice Mohan Lal further stated that a person occupying the migrant immovable property must show written consent and lawful authority, and if they cannot, then an eviction order can be passed. Additionally, if the competent authority has determined the possession to be unauthorized, then handing over possession for an appeal is not considered a burden.
The Court accused Rather of fabricating a story about an undertaking between him and the migrant owner to evade the time limit for filing an appeal under Section 7 of the 1997 Act. The Division Bench was not convinced by Rather’s claim that he had owned the property since before 1971, and that the owners had given him possession through a ‘Hundi’ in 1987, as there was no documentary evidence to support this. The appellant-counsel’s arguments were dismissed by the Division Bench.
The writ court’s judgment was challenged on the grounds that it disregarded the fact that Rather was and still is occupying the land with the consent of the actual owner. It was argued that if the possession was with consent, then the concerned authority would not have the jurisdiction to pass an eviction order, as their jurisdiction under Section 5 of the Jammu and Kashmir Migrant Immovable Property Act, 1997 only applies to cases of unauthorized occupation of migrant immovable property. The writ petition was originally filed by the migrants, and on October 13, 2005, the court directed the District Magistrate Deputy Commissioner, Baramulla to promptly hear all parties involved in the dispute and decide on the complaint of the actual property owners in accordance with the law.