J&K Migrant Immovable Property Act 1997 | Possession Must Be Surrendered Before Appealing Eviction Order: High Court

Citing Sec 7 of the Act Justice Rajnesh Oswal emphasised,

“The perusal of Section 7 (supra), would reveal that surrender of possession of the property, which is the subject matter of appeal, is sine quo non for the purpose of entertaining an appeal against an order of eviction”.

The case involved Lyceum Public School, which was occupying a property belonging to a Kashmiri migrant who had left the valley due to militancy. The District Magistrate, under the provisions of the Migrant Act, directed the school to vacate the property.

The petitioner, represented by Mr. Shuja-ul-Haq Tantray, contended that they were not unauthorised occupants but longstanding tenants since 1982, preceding the region's turmoil. They challenged the eviction order and subsequent dismissal of their appeal, asserting that statutory provisions weren't duly considered.

Justice Oswal, while acknowledging the school's argument, pointed out that Section 7 of the Act clearly states that surrendering possession is a precondition for filing an appeal against an eviction order. The Court observed that this provision is mandatory and cannot be bypassed.

“..once a statute prescribes a mode for doing a particular act in a particular manner in order to obtain any benefit, then that act must be performed in that manner. Once the petitioner did not satisfy the requirement of Section 7 of the Migrant Act for entertaining his appeal thereby surrendering possession of the subject property, the appeal was not maintainable”, the bench recorded.

The Court also noted that the earlier High Court order had specifically directed that the property would remain in the custody of the District Magistrate and not be handed over to the private respondents (migrant owners). The Court clarified that this order did not entitle the school to continue occupying the property.

In light of these observations, the court dismissed the writ petition filed by Lyceum Public School and upheld the appellate authority's order.

Case Title: LYCEUM PUBLIC SCHOOL Vs UT OF J&K

Citation: 2024 LiveLaw (JKL) 72

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