J&K Migrant Immovable Property Act | Only District Magistrate Has Authority To Hold Enquiry Into Alienation Made In Contravention Of Act: High Court

The bench comprising Justice Sanjeev Kumar was hearing a plea wherein the petitioners were aggrieved of and had challenged order passed by the Divisional Commissioner Kashmir at Srinagar in terms of which he had held that the respondent No.5 a "migrant‟ within the meaning of the term defined under Section 2 (e) of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 and declared the alienation of the properties in contravention of the Act and the Rules framed there under.

Brief Facts of the Case:

Petitioner No.1 and respondent No.5 were brothers who were having their Pharmaceutical business in Kashmir and accordingly two power of attorneys were executed by and between them, i.e. one by the petitioner No.1 in favour of respondent No.5 and another by respondent No.5 in favour of petitioner No. On the strength of power of attorney executed by respondent No.5 in favour of petitioner No.1, which also envisaged the appointment of sub-attorney/further attorney by the petitioner No.1, the petitioner No.1 issued a power of attorney in favour of one Mohd Akram Dar R/O Humhama, giving him the power and authority to sell the land which was standing in the name of respondent No.5. On the basis of the power of attorney executed by the petitioner No.1 in his favour, Mohd Akram Dar executed two sale deeds in favour of two different persons for consideration. The sale deeds so executed were also registered and mutations on the basis thereof were also attested in favour of the Vendees of these deeds.

It was later alleged by the respondent No.5 in his complaint filed before the Divisional Commissioner Kashmir, Srinagar, that petitioner No.1 misused the power of attorney executed in his favour and unauthorizedly and without seeking prior permission of the prescribed authority, alienated his landed property. The respondent No.5 in his complaint claimed that he was a migrant and, therefore, entitled to the protection of his immovable property under the Act. The Divisional Commissioner entertained the complaint of respondent No.5 and after holding an enquiry and relying upon some reports of the field agencies of the Revenue Department, concluded that respondent No.5, the complainant before him, was a migrant and, therefore, alienation of his properties were "distressed sales‟ and without requisite permission of the competent authority.

Holding that the alienations were null and void, the Divisional Commissioner directed the Tehsildar, Budgam to take over the possession of the properties subject matter of impugned sales with a further direction to subsequently handover the same to respondent No.5. It was this order of the Divisional Commissioner dated 21.05.2022 which was impugned in the instant petition.

Issue Involved:

After hearing the counsel for the parties and perusing the material on record the question that fell for adjudication was whether the Divisional Commissioner, the prescribed authority under the Act, is competent to hold an enquiry into alienation of immovable property of a migrant made on or after the commencement of the Act, in contravention of the provisions thereof and declare the alienations null and void with a consequence of reverting such alienated properties to its owner (the migrant)."

Court Observations:

Describing the need and the legislative intent behind the Act the bench observed that in the wake of spurt of militancy in the Valley in the year 1989-90, the minority community living in the Valley was forced to leave their home and hearth. Taking advantage of the situation, the land brokers also stepped in and persuaded the members of the minority community to sell their properties at throw away prices.

The bench further stated that the State woke-up to the plight of these migrants and promulgated the Act as per which the alienation of the immoveable property of a migrant by act of parties or a decree or order of a Court or of a Revenue Officer, except with the previous permission of Revenue and Relief Minister or such officer as may be authorized by him in this behalf is totally forbidden and any alienation made on or after the date of commencement of the Act in contravention to the provisions thereof is declared null and void and the immoveable properties provided to be reverted to its owner.

Expounding on the details of the Act the bench observed that from the reading of Section 3 (b) along with Rule 6, it is crystal clear that it is the District Magistrate, having jurisdiction in the area in which the property is situated, who can either suo moto or on the basis of information he may receive or on the request of any migrant, hold an enquiry to find out as to whether the property belonging to the migrant has been alienated without obtaining proper permission from the Prescribed Authority. The District Magistrate can entrust this enquiry to a Revenue Officer not below the rank of Tehsildar. If in the enquiry it is established that the sale of the immoveable property of the migrant has taken place in contravention of the provisions of the Act, the District Magistrate shall take possession of the property after evicting the alienee from such property, the bench underscored.

"Plain reading of Section 3 along with Rule 6 makes abundantly clear that the "Prescribed Authority‟ i.e. the Divisional Commissioner is only the authority competent to grant permission for alienation under Section 3 whereas it is the District Magistrate having jurisdiction in the area where the property is situated, who is given authority to hold an enquiry into the alienation allegedly made in contravention of the provisions of the Act and if, in the enquiry, it is established that the alienation has in fact been made in contravention of the provisions of the Act, to take necessary steps to take over the possession of such property after evicting the alienee" the court remarked

Answering the moot issue involved the petition the court recorded,

"The Divisional Commissioner is only a "Prescribed Authority" empowered to grant permission under Section 3 of the Act while as it is the District Magistrate who is competent and authorized to hold an enquiry into the alienation of immovable property made in contravention of the provisions of the Act and take over the possession of the alienated property after evicting the alienee from such property, provided in the enquiry it is established that the alienation has taken place in contravention of the provisions of the Act."

Finding substance in the argument of the petitioners that the Divisional Commissioner Kashmir usurped the powers of District Magistrate conferred upon him by Section 3 (b) read with Rule 6 and un-authorizedly conducted the enquiry and passed the order impugned the bench allowed the writ petition and the order impugned was set aside.

Case Title : Parvesh Bahri & Ors Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 156

Click Here To Read/Download Judgment