Excelsior Correspondent
Srinagar, Sept 15: The High Court today held that the Divisional Commissioner cannot hold enquiry with regard to alienation of migrant property as District Magistrate concerned is competent and authorized to hold an enquiry into the alienation of such immoveable property.
Setting aside the order of Divisional Commissioner Kashmir whereby enquiry was ordered on the complaint with regard to the alienation of migrant property situated at Humhama in Srinagar, Justice Sanjeev Kumar said the Divisional Commissioner Kashmir has usurped the powers of District Magistrate and passed the order under challenge.
Court has allowed the petitioner whereunder order of Divisional Commissioner Kashmir was challenged and set aside its order with the liberty to the complainant-migrant to approach the District Magistrate with his grievance if the same is still subsisting and he is aggrieved.
“Needless to say that in case the complainant approaches the competent authority, his application/complaint shall be dealt with strictly as per the provisions of the Migrant Act and the Rules framed there under”, read the judgment.
Court while referring to the provision of law said the Divisional Commissioner is the authority empowered to grant permission under Section 3 of the Migrant Act while as it is the District Magistrate who is competent and authorized to hold an enquiry into the alienation of immovable property made in contravention of the provisions of the Act.
Court added that the District Magistrate is empowered to take over the possession of the alienated migrant 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 added that the Divisional Commissioner, who is the prescribed authority to grant permission for alienation of the immoveable property of a migrant, lacks jurisdiction to entertain a complaint of a migrant or any other person, alleging the alienation of the immoveable property in contravention of the provisions of the Act.
“It is the District Magistrate alone who shall, after it is established in the enquiry conducted by him or through Revenue Officer not below the rank of Tehsildar that the alienation of the immoveable 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. He shall also take further necessary steps for preservation and protection of such property”, Justice Kumar added.
The order of the Divisional Commissioner has held and declared the alienation of the properties in question in contravention of the Act and the Rules and directed the Tehsildar Budgam, to take over the possession of the properties in question and handover the same to complainant-Migrant which came to be challenged on the ground that he is not competent to hold enquiry and direct for taking over the possession of migrant property.
The complainant-migrant had executed a power of attorney in favour of petitioner, which also envisaged the appointment of sub-attorney attorney by the attorney holder in favour of one Mohammad Akram Dar of Humhama, giving him the power and authority to sell the land which was standing in the name of migrant and Dar executed two sale deeds in favour of two different persons for consideration.
The sale deeds so executed were also registered and mutations on the basis thereof were also attested in favour of the Vendees of these deeds. It is alleged by the actual owner-migrant in his complaint that the attorney-holder misused the power of attorney executed in his favour and unauthorizedly and without seeking prior permission of the prescribed authority, alienated his landed property and being a migrant is therefore, entitled to the protection of his immovable property under the Act.
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