J&K MIGRANT IMMOVABLE PROPERTY ACT | Div Com lacks jurisdiction to entertain migrant’s complaint: HC

 J&K High Court, Srinagar
J&K High Court, SrinagarMubashir Khan/GK File

Srinagar, Sep 15: The High Court of J&K and Ladakh Thursday held that Divisional Commissioner lacks jurisdiction to entertain a complaint of a migrant or any other person alleging alienation of the immoveable property in contravention of the provisions of Jammu and Kashmir Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act, 1997.

Deciding on a related plea, a bench of Justice Sanjeev Kumar said that the person aggrieved was required to approach and file an appropriate application or complaint before the District Magistrate who is the authority designated under Rule 6 of the rules framed under the act to hold an inquiry into the validity or otherwise of alienation of the properties of the migrants.

“It is the District Magistrate alone who shall, after it is established in the inquiry conducted by him or through Revenue Officer not below the rank of Tehsildar that the alienation of the immovable property of the migrant has taken place in contravention of the provisions of the act, take over the possession of the alienated property after evicting the alienee,” the court said. “He should also take further necessary steps for preservation and protection of such property.”

The court was hearing a petition filed by one Parvesh Bahri and another through Advocate G A Lone along with Advocate Mujeeb Andrabi against the order passed by Divisional Commissioner Kashmir on May 21, 2022, by which application of Parvesh’s brother, Harish Bahri, against alienation of property at Humhama, Budgam through an attorney was allowed.

The Divisional Commissioner had also asked Tehsildar Budgam to take over possession of the property and hand it over to Harish Bahri.

In its decision, the court said that the Divisional Commissioner was only a ‘Prescribed Authority’ empowered to grant permission under Section 3 of the act.

“It is the District Magistrate who is competent and authorised to hold an inquiry 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 inquiry it is established that the alienation has taken place in contravention of the provisions of the act,” the court said.

It underscored that if a statute confers certain power on a particular authority, it was that authority alone and no other authority “howsoever high shall exercise such power”.

“I find substance in the argument of G A Lone, learned counsel for 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 unauthorisedly conducted the inquiry and passed the order impugned,” Justice Kumar said setting aside Divisional Commissioner’s order.

However, the court left it open to Harish Bahri to approach the competent authority that is District Magistrate concerned with his grievance if the same was still subsisting and he was aggrieved.

“Needless to say that in case Respondent No 5 (Harish Bahri) approaches the competent authority, his application and complaint should be dealt with strictly as per the provisions of the act and the rules framed there under,” the court said.

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