Migrant's Property Cannot Be Alienated Without Revenue Minister's Permission, Not Even By Court Decree: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has made it clear that the J&K Migrant Immovable Property 1997 prohibits alienation of immovable property of a migrant not only by act of parties but also by a decree or order of a Court or a revenue officer, without previous permission of Revenue and Relief Minister.

"A perusal of Section 4 of the Act of 1997 would reveal that the District Magistrate becomes custodia legis of any property belonging to a migrant and the same cannot be alienated without the permission of Revenue and Relief Minister and any alienation in violation of the same or without such permission is null and void", Justice Sanjay Dhar observed.

The observations were made while addressing two writ petitions that challenged the orders issued by the District Magistrate, Shopian, directing the possession of certain lands, including those in dispute, to be taken over. The case revolved around complex issues of property ownership, tenancy claims, and the legality of such actions under the Act.

The first petition challenged an order directing the possession of specific lands to be taken over under the Act, while the second petition was filed in response to the dismissal of an appeal by the Appellate Authority, Financial Commissioner, Revenue, J&K Srinagar.

The primary contention raised by the petitioners was that the land in question was not migrant property, as it had been under the cultivation or tenancy of their ancestors even before 1971. They argued that this fact was supported by revenue entries and that the District Magistrate had acted without jurisdiction, ignoring these entries.

Furthermore, they claimed that the District Magistrate had not conducted an adequate inquiry to determine the legality of their possession or whether the private respondents were indeed migrants. Additionally, they argued that the principles of natural justice had been violated.

Counsel for the private respondents, Adv Farhat Zia in his reply, asserted that a detailed inquiry had been conducted by the District Magistrate and that there was no illegality in the orders issued. He also claimed that proper notice had been served to the petitioners during the inquiry. The private respondents provided documents to support their contention that they were indeed migrants and disputed the petitioners' status as tenants.

After a careful examination of the provisions of the Act of 1997, the bench noted that Section 3 prohibits alienation of migrant property without prior permission and the Section 4 empowers the District Magistrate to take possession of such property.

"Thus, as per the scheme of the Act of 1997, the District Magistrate, who is the competent authority in terms of Section 4 of the Act, is authorized to take such steps as may be necessary for preservation and protection of such property which includes eviction of an unauthorized occupant", the bench maintained.

The Court further noted that the petitioners' claims of tenancy were not supported by revenue entries, and the private respondents denied their status as tenants. The Court also found that the District Magistrate had considered the petitioners' claims and had based the impugned order on credible evidence, including the report of the Tehsildar. It added,

"The possession of the petitioners over the land in question, in the absence of any document evidencing conferment of title in their favour with the previous permission of Revenue and Relief Minister, is clearly unauthorized in nature and even a decree or order of Civil Court, which is contrary to the provisions contained in Section 3 of the Act of 1997,would not legalize the possession of the petitioners over the land in question."

Regarding the appeal dismissed by the Financial Commissioner, the Court highlighted that the petitioners had not surrendered possession of the land as required by Section 7 of the Act, rendering the appeal not maintainable.

"As per Section 7 of the Act, it was obligatory upon the petitioners to surrender the possession of the land in question so that their appeal could have been considered by the Appellate Authority butt he petitioners, without complying with this condition, filed the appeal before the Financial Commissioner. The same could not have been entertained and, therefore, the Financial Commissioner has rightly held it to be not maintainable", the bench justified.

Ultimately the bench dismissed the writ petitions, upholding the impugned orders.

Case Title: BILLO KASANA & OTHERS Vs STATE OF J&K & ORS.

Citation: 2023 LiveLaw (JKL) 240

Counsel For Petitioner: Mr. Lone Altaf, Advocate, with Mr. Wani Parvaiz, Advocate.

Counsel For Respondents: Mr. Ilyas Laway, GA-for official respondents.Mr. S. H. Thakur, Advocate, withMr. Farhat Sohrawardy, Advocate, for private respondents.

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