Possession Of Migrant Property Cannot Be Handed Over To Anyone Without Written Consent Of Migrant Owner: J&K High Court

The Jammu and Kashmir High Court upheld the eviction order passed by the Financial Commissioner in evicting the illegal occupant of a migrant property. The court held that the occupant-petitioner herein could not have taken over the possession of the land in question except with the express consent of the migrant in writing, to be handed over by the District Magistrate alone.

The court said that even if the agreement existed, it did not confer legal ownership or valid possession. The petitioner relied on an agreement to sell allegedly executed by the contesting respondents.

Justice Javed Iqbal Wani added that although there was an agreement to sell the property by which the said land was possessed, the court held that the Migrant Act, 1997, prohibits the alienation of migrant property without prior government permission.

The court held that since the possession was taken without written consent and official permission, the petitioner was deemed an unauthorized occupant under Section 2(i) of the Migrant Act.

The court added that under Sections 54 and 138 of the J&K Transfer of Property Act, 1977, a sale of immovable property is valid only if executed by a registered sale deed. The court also held that an agreement to sell does not create ownership rights, meaning the petitioner's claim was legally unsustainable.

BACKGROUND:

The petitioner challenged the order passed by the Financial Commissioner, which upheld an eviction order issued by the District Magistrate, Pulwama. Respondent No. 5, Kamla Devi, filed an application under the J&K Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act, 1997, seeking eviction of the petitioner from 11 kanals and 3.5 marlas of land. She claimed she was a migrant and that the petitioner had illegally encroached upon her land.

A portion of this land (5 kanals and 8.5 marlas) had already been sold with prior permission from the Divisional Commissioner to Respondents 6 and 7 through a sale deed. The District Magistrate ordered eviction, directing the Tehsildar to remove the petitioner and hand over the alienated land to the purchasers.

The petitioner first challenged the eviction order, which was disposed of with liberty to avail appeal remedies. The subsequent appeal was dismissed by the Financial Commissioner on May 28, 2019. Further challenges, including an LPA and an SLP before the Supreme Court, also failed. The Supreme Court, however, granted liberty to the petitioner to file an appeal under Section 7 of the 1997 Act after complying with the required legal formalities. After surrendering possession as per the Supreme Court's order, the petitioner filed an appeal, which was dismissed by the Financial Commissioner on October 3, 2023, leading to the present writ petition.

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Case Title: Mohammad Shafi Naikoo Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 98