Migrant property can’t be alienated without proper permission

Srinagar, Sep 2: The High Court of J&K and Ladakh has held that the law prohibits alienation of immovable property of a migrant by act of parties, a decree or order of a Court or a revenue officer without previous proper permission.

In a Judgment delivered in a related case, a bench of Justice Sanjay Dhar observed that under Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, District Magistrate becomes ‘custodia legis’ of migrant property and the same cannot be alienated without the permission of Revenue and Relief Minister.

Citing the Act, the Court noted that its Section 4 would reveal that any alienation in violation or without such permission is “null and void”.

The Court said the Act authorizes the competent authority to evict an unauthorized occupant from a migrant property and use such force as may be necessary for taking possession of the property if the unauthorized occupant refuses to surrender the possession.

“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 court said.

The Court noted this while dismissing two writ petitions.

In one petition, the petitioners had challenged order passed by District Magistrate, Shopian who while exercising powers under Section 5 of the Act of 1997 had directed the Naib Tehsildar, Kanjiullar to take possession of the land measuring 25 kanals 17 marlas in Khasra No.2914/294 and land measuring 8 kanals in Khasra No.3969/287 situated at Ramnagri Shopian.

In other petition, the petitioners had challenged dismissal of the appeal by the Appellate Authority that is Financial Commissioner, Revenue,J&K against the District Magistrate’s order.

According to the petitioners, the land in question was not a migrant property as the same was under the cultivation/tenancy of their ancestors even before Kharief 1971 and that presently the land was under their cultivation.

The petitioners contended that the District Magistrate without jurisdiction ignored the entries in the revenue record and he did not hear them and thereby principles of natural justice were violated.

While the petitioners contended the Financial Commissioner, Revenue, passed the order mechanically without appreciating their contentions, they said the District Magistrate while passing his order, ignored a civil suit filed by them against the private respondents in which a status quo order had been passed.

In its response, the authorities submitted that a detailed enquiry was conducted by the District Magistrate before passing the order and there was no illegality in the order passed by the District Magistrate or in the order passed by the Financial Commissioner.

The Court underscored that “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”.

Even a decree or order of the Civil Court, which is contrary to the provisions contained in Section 3 of the Act of 1997, the court said, would not legalize the possession of the petitioners over the land in question.

“……..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 but the 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 Court said.

“The impugned order dated 23.06.2016 passed by the Financial Commissioner, therefore, calls for no interference”, it said.