S.7 Migrant Immovable Property Act Requiring Surrender Of Property To Prefer Appeal Against Eviction In Tune With Peculiar Conditions Of J&K: High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that the condition to surrender the property for preferring an appeal under Section 7 of the Migrant Immovable Property Act 1997 against eviction order, was necessitated by the peculiar situation prevailing in the Union Territory of Jammu and Kashmir.

The bench comprising Justices Rajnesh Oswal & Mohan Lal observed,

"This provision was incorporated in view of the extraordinary situation prevailing in the then State of Jammu and Kashmir (now Union Territory) because of migration from the then State of Jammu and Kashmir (now Union Territory) and more particularly from the Kashmir Valley".

The court was hearing a writ appeal challenging a Single bench order refusing to exercise writ jurisdiction against the eviction order passed by the concerned authority, finding the possession of the appellant over certain land in Sumbal town to be illegal.

The single-judge had dismissed the writ plea on the ground that Appellant had a remedy of appeal available in terms of the Statute.

In his appeal, the appellant submitted that the approach of the Writ Court was not correct as the appeal could have been filed only after surrendering the possession and the statutory obligation cast upon the Appellant to avail the remedy provided by the Statute was onerous and hence the remedy cannot be termed as efficacious.

Adjudicating upon the matter the bench recorded that as per Section 4 of the Act of 1997, the District Magistrate was required to take over the possession of the immoveable property belonging to the migrant falling within his territorial jurisdiction and, on the expiry of 30 days, the said immoveable migrant property was deemed to be in the custody of District Magistrate concerned.

Likewise, the court said, Section 5 of the Act provides for the eviction of an unauthorized occupant and if the unauthorized occupant refuses or fails to surrender the possession to the competent authority, such authority may use force as is necessary for taking the possession of the said property.

The bench further elaborated that Section 7 of the Act provides for an appeal against the order passed under Section 5 of the Act, but the appeal against an order of eviction cannot be entertained unless and until the possession of the property is surrendered to the competent authority.

"Whether a person is an authorized occupant or not is to be determined by the competent authority under the Act of 1997, which is the District Magistrate concerned," the court said while adding "once the competent authority has determined the possession over the migrant immovable property as unauthorized, then the stipulation of handing over the possession for the purpose of entertaining the appeal cannot be termed as onerous".

Observing that once the person in occupation of migrant immovable property fails to establish that he was in the possession of the immoveable property of a migrant with his written consent and authority of law, the court said that in such cases only the order of eviction can be passed.

Dealing with the other contention of the appellant that the District Magistrate would get the jurisdiction to proceed under the Act of 1997 only when the possession of the occupant over the migrant property is unauthorized, the bench observed that an attempt was made to persuade it that the appellant has been in possession of the property in question before the year 1971 and, more particularly when the migrant pandits had handed over the possession of the property to the appellant by virtue of a ‘Hundi’ executed in the year 1987.

"But we are not convinced with the contention so raised by the appellant as there is no documentary evidence on record to demonstrate the fact that the appellant was, in fact, in possession of the property before 1971," the bench said.

Highlighting the fact that the revenue record, particularly the mutation, belies the contention of the appellant the bench observed that the private respondents have categorically stated that the ‘Hundi’ is a forged and manipulated document.

"Otherwise also, on the basis of a ‘Hundi’ only, the appellant cannot claim possessory rights over the immoveable property in Kashmir in view of Sub-Section 3 of Section 138 of the Jammu and Kashmir Transfer of Property Act as it existed at that point of time, which categorically provides that no person shall take possession of any land in the province of Kashmir which has been transferred or contracted to be transferred to him, unless and until such transfer becomes valid under the provisions of Sub-Section (1) of Section 138, which provides that no immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing, registered and the registration thereof has been completed in accordance with Sub-Section 3 of Section 61 of the Registration Act, 1977," the bench elucidated.

In view of the same the bench found the appeal to be misconceived and accordingly dismissed it.

Case Title: Abdul Khaliq Rather Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 53

Counsel For Petitioner: Mr R. A. Jan, Senior Advocate with M/s Suhail Mehraj and Adnan Naqash, Advocate.

Counsel For Respondent: Mr Mubeen Wani, Dy. AG, Mr Zahoor Jan, Advocate.

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