Excelsior Correspondent
SRINAGAR, June 10: The High Court has ruled that if any person unauthorizedly occupying migrant property fails to surrender the possession, the authority (District Magistrate) can use force for eviction and dismiss the plea of a person by saying that he has no right over the property in question.
The petition was filed by one Mohammad Saleem Ganie of Chowgam Kulgam against the order dated 29.05.2015, passed by District Magistrate, Kulgam, whereby Tehsildar Devsar, was directed to proceed on spot and evict the illegal occupant and take over the possession of land in question.
His contentions before the court is that he has been in continuous peaceful exclusive possession of land measuring 12 kanals and 5 marlas situated at Chowgam, Tehsil Devsar, prior to the year 1971 as the rights of ex-owner, Sarwanandh Pandith, with respect to the aforementioned land were extinguished under Section 4 of Agrarian Reforms Act and he was declared as prospective owner.
It has further been contended that out of total land, 10 kanals and 17 marlas were jointly numbered as survey no. 672 and the land measuring 2 kanals and 7 marlas to which the migrant is claiming its owner is also in his exclusive and peaceful possession and cultivation.
It was also averred in the petition that recently the migrant, has filed a false and baseless application before District Magistrate Kulgam, wherein it was alleged that land measuring 2 kanals and 17 marlas belongs to his father Shubnath and the District Magistrate, Kulgam, has passed order of eviction from the said land under J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
Justice V C Koul after perusal of the file with regard to land in dispute said the same is a migrant property as provided under the Act of 1997, and Rules and Regulations made thereunder and, therefore, has been rightly and correctly dealt with by the District Magistrate under and in terms of the Act of 1997.
Justice Koul recorded that if a person, unauthorizedly occupying migrant property, fails or refuses to surrender its possessions, force is to be used by competent authority by taking such steps and force, which in its opinion is necessary.
Court said if there is a written complaint by a migrant, competent authority can take or cause to be taken such steps and use or cause to be used such force as may be necessary for eviction from or delivery of possession of migrant property. “The competent authority can also enter upon migrant property and make surveys including measurement and do any other act which may be necessary for carrying out the purposes of the Act of 1997”, Justice Koul added.
Court said the Act has been enacted to provide preservation, protection and restraint on distress sales of immovable property of migrants who have migrated from Kashmir Valley or any other part of Jammu and Kashmir after 1st November, 1989 and is registered as such with the Relief Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office, or having left the Valley or any other part of the State, in pursuit of occupation or vocation or otherwise, and is possessed of immovable property at the place where he has migrated but is unable to ordinarily reside there due to the disturbed conditions.
Underscoring the relevance of the Migrant Act, the court added that the District Magistrate shall take over possession of migrant property within 30 days from commencement of Act of 1997 and even if possession of migrant property is not taken over by District Magistrate within 30 days, the District Magistrate, after expiry of 30 days, shall be deemed to have custody of migrant property.
“District Magistrate is required to take all such steps as may be necessary for preservation and protection of migrant property. Even migrant property shall not be handed over to any person unless there is express consent of the migrant in writing”, read the judgment.
Court with these findings observed that if a person is in occupation of any migrant property without there being a written consent from migrant, such a person is to be treated as an unauthorized occupant and is to be removed there from.
“In the above backdrop, when order impugned is looked into from all angles, it does not warrant or call for any interference inasmuch as it has been passed by competent authority under the Act of 1997 and, therefore, impugned order does not call for any interference as petitioner has no right over the property in question. The instant petition is without any merit and is, accordingly, dismissed. Interim direction, if any, shall stand vacated”, Court concluded.
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