Excelsior Correspondent
SRINAGAR, Aug 17: The High Court today observed that any alienation of immovable migrant property in contravention to the Migrant Act shall be null and void and dismissed an appeal claiming the owners of the migrant property.
The Division Bench of Chief Justice Pankaj Mithal and Justice Sanjay Dhar dismissed the appeal filed by one Manzoor Ahmad Mir claiming to be owner of land measuring 5 Kanals and 2 Marlas situated at Hang Rajpora, Kawarhama, Tangmarg.
Mir claimed that one Shrimati Deviki was the owner/ co-sharer of the said land. She executed a power of attorney on 11.09.1997 and her power of attorney holder vide agreement dated 23.10.2003 agreed to transfer the said land in favour of the appellants and delivered possession to the appellants.
One of the respondents Pushpati Nath Koul, filed a petition alleging that the appellant-Mir is in illegal possession of the land belonging to a migrant which was disposed of vide order dated 20.08.2014 directing the State respondents to take desired action in the matter in accordance with law.
In pursuance of the High Court direction, the District Magistrate, Baramulla, passed an order dated 31.10.2014 holding that the possession of the appellants over the said land is not legal and the provisions of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 and rules there-under have not been followed in acquiring the said land or its possession and accordingly directed the Tehsildar to take over the possession of the said land.
The Advocate General, submitted that the Migrant Act was assented to by the Governor on 30.05.1997 and was published in the Government Gazette on 02.06.1997 and came into force with immediate effect. Therefore, in view of Section 3 of the Act, no alienation of any immovable property of a migrant could have been validly made thereafter and if made in contravention thereof shall be null and void.
The DB said the Government in exercise of powers under Section 14 of the said Act has also framed a set of Rules which provides for the manner in which application for grant of permission to alienate the property has to be moved and dealt with and that in case any property is transferred in contravention thereof, the District Magistrate of the area may suo moto or on the basis of the information received or otherwise hold an enquiry himself or through revenue officer not below the rank of Tehsildar so that, if necessary, he may take possession of the property after evicting the person in possession so as to preserve and protect the property of the migrant.
The object of the Act, Court added, is primarily to preserve and protect the property of a migrant and it is with the aforesaid purpose in mind that the Legislature vide Section 4 of the Act provides that the District Magistrate within 30 days of the commencement of the Act, shall take over the possession of the property belonging to the migrants and on the expiry of the said period of thirty days shall be deemed to have the custody of said immovable property.
“A conjoint reading of Sections 3 and 4 of the Act would reveal that once the District Magistrate becomes custodia legis of any property belonging to a migrant, no one is free to alienate the same without the previous permission of the Revenue and Relief Minister and that any alienation, if made, without such permission or in contravention of the Act shall be null and void”, DB recorded.
DB said admittedly the procedure prescribed under the Act or the Rules was never followed and no permission of the Revenue and Relief Minister was sought before transferring the land i.e., by way of an agreement.
“Since the agreement dated 23.10.2003 on the basis of which the appellants are claiming possession was executed after the enforcement of the Act, it is null and void abinitio. No rights flow in favour of the appellants on the basis of the aforesaid agreement being contrary to the provisions of the Act and the Rules and being unregistered”, the court recorded.
Court said, that it is not necessary that a person in possession of the immovable property of migrant ought to be in illegal or unauthorized possession as neither Section 3 nor Section 4 contemplates about the nature of the possession rather provides that the District Magistrate shall take over the possession of immovable property belonging to the migrants meaning thereby that immovable properties belonging to the migrants shall be deemed to be in possession of the District Magistrate irrespective of the nature of possession of any person other than the migrant himself.
“In the case at hand, the District Magistrate has taken the action on the basis of the directions of the High Court. It was well within its competence to take the action suo moto or on the basis of the information received. He has also followed the procedure for making a proper enquiry through the Tehsildar as contemplated by Rule 6 of the Rules”, court said.
Court said, the District Magistrate has not committed any error of law in passing the order dated 31.10.2014 on the basis of the report of the Tehsildar. The opportunity of hearing though not necessary would not have in any way changed the result inasmuch as the agreement which forms the basis of the claim of the appellants is null and void so also the nature of their possession.
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