Surrender Migrant Property Before Pursuing Appeals: High Court


SRINAGAR: The High Court, on Monday has delivered a ruling emphasising the legal obligations of the petitioners in a property dispute involving migrants.

The High Court stated that the petitioners had a duty to surrender the migrant property to the Tehsildar following an eviction order issued by the District Magistrate. Only after complying with this requirement could their appeal against the eviction order be considered by the Financial Commissioner (FC) Kashmir.

The petitioners had initially contested the eviction order before the FC, but their appeal was dismissed. Subsequently, they challenged both the District Magistrate’s eviction order and the FC’s dismissal of their appeal in separate writ petitions brought before the High Court.

Justice Sanjay Dhar, in a judgment, clarified the importance of the petitioners surrendering possession of the disputed land as a prerequisite for their appeal to be eligible for consideration by the Appellate Authority.

He noted, “The same could not have been entertained, and, therefore, the Financial Commissioner has rightly held it to be not maintainable. The impugned order passed by the Financial Commissioner, therefore, calls for no interference. I do not find any merit in these writ petitions. The same are accordingly dismissed. The interim order, if any, shall stand vacated.”

The District Magistrate of Shopian, exercising authority under Section 5 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, had directed the Naib Tehsildar, Kanjiullar, to take possession of the disputed land. This land consisted of two parcels, one measuring 25 kanals 17 marlas and the other measuring 8 kanals, located in Ramnagri, Shopian.

The petitioners, namely Billo, Kasana, and others, contended that the disputed land did not qualify as migrant property since it had been cultivated or held under tenancy by their ancestors even prior to Kharief 1971. They argued that they currently cultivated the land, and therefore, the District Magistrate’s eviction order lacked jurisdiction.

Their argument before the court centered on the District Magistrate’s alleged failure to conduct an inquiry into whether the petitioners’ possession of the land could be deemed unauthorized. Moreover, they claimed that the private respondents were not migrants, as they had left the Valley before November 1, 1989.

In response, the authorities rebutted these claims by stating that a comprehensive inquiry had indeed been carried out by the District Magistrate before issuing the contested eviction order. They asserted that there was no irregularity in the District Magistrate’s order or in the FC’s decision.

The court, while justifying the eviction order, emphasised that the District Magistrate possessed the authority to take necessary steps, including the eviction of unauthorised occupants, to preserve and protect such properties. The judgment further noted, “It is further indicated in the impugned order that the petitioners claim that they have paid rent in respect of the said land to the private respondents, but as per the report of the Tehsildar, the possession of the land in question was taken over by the petitioners after the migration of the landowners.”


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