Excelsior Correspondent
JAMMU, Mar 18: High Court of Jammu & Kashmir and Ladakh has upheld the eviction order passed by the Financial Commissioner against illegal occupant of a migrant property and said that petitioner could not have taken over the possession of the land in question except with the express consent of the migrant in writing to be handed over by the District Magistrate alone.
Justice Javed Iqbal Wani observed, “although there was an agreement to sell the property by which the land was possessed, the Migrant Act 1997 prohibits the alienation of migrant property without prior Government permission”.
The High Court held that since the possession was taken without written consent and official permission, the petitioner was deemed an unauthorized occupant under Section 2(i) of the Migrant Act. “Under Sections 54 and 138 of the J&K Transfer of Property Act, 1977, a sale of immovable property is valid only if executed by a registered sale deed. An agreement to sell does not create ownership rights, meaning the petitioner’s claim was legally unsustainable”, High Court added.
The petitioner challenged the order passed by the Financial Commissioner, which upheld an eviction order issued by the District Magistrate, Pulwama. Respondent Kamla Devi filed an application under the J&K Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act, 1997, seeking eviction of the petitioner from 11 kanals and 3.5 marlas of land. She claimed she was a migrant and that the petitioner had illegally encroached upon her land.
A portion of this land (5 kanals and 8.5 marlas) had already been sold with prior permission from the Divisional Commissioner to respondents through a sale deed. The District Magistrate ordered eviction, directing the Tehsildar to remove the petitioner and hand over the alienated land to the purchasers.
The petitioner first challenged the eviction order, which was disposed off with liberty to avail appeal remedies. The subsequent appeal was dismissed by the Financial Commissioner on May 28, 2019. Further challenges, including an LPA and an SLP before the Supreme Court, also failed. The Supreme Court, however, granted liberty to the petitioner to file an appeal under Section 7 of the 1997 Act after complying with the required legal formalities. After surrendering possession as per the Supreme Court’s order, the petitioner filed an appeal, which was dismissed by the Financial Commissioner on October 3, 2023, leading to the present writ petition.
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