Excelsior Correspondent
SRINAGAR, Sept 4: The High Court today said that he petitioners were duty bound to surrender the migrant property to the Tehsildar after the eviction order of District Magistrate and thereafter their appeal against the eviction order could have been considered by the Financial Commissioner (FC) Kashmir.
The petitioners had challenged the order of eviction before the FC and the same was dismissed. The petitioners challenged the order of eviction passed by District Magistrate and order of dismissing their appeal by FC before the High Court in two separate writ petitions.
Justice Sanjay Dhar while dismissing both the petitions in a common judgment said that 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 impugned order passed by the Financial Commissioner, therefore, calls for no interference. I do not find any merit in these writ petitions. The same are accordingly dismissed. The interim order, if any, shall stand vacated”, Justice Dhar concluded.
The DM Shopian while exercising his powers under Section 5 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 had directed the Naib Tehsildar, Kanjiullar to take possession of the land in question, which includes the land measuring 25 kanals 17 marlas and land measuring 8 kanals situated at Ramnagri, Shopian.
According to the petitioners, Billo, Kasana and others, the land in question is not a migrant property as the same was under the cultivation/tenancy of ancestors of the petitioners even before Kharief 1971 and that presently the land is under their cultivation and as such, the eviction order passed by the District Magistrate is without jurisdiction.
Their contention before the court was that the District Magistrate has not conducted any enquiry to ascertain as to whether the possession of the petitioners over the land in question can be termed as unauthorized nor made any enquiry as to whether the private respondents are migrants as according to them, the private respondents had left the Valley even prior to 1st November, 1989 as such are not migrants.
The authorities, however, in rebuttal submitted that a detailed enquiry was conducted by the District Magistrate, Shopian before passing the impugned order and there is no illegality in the order passed by the District Magistrate or in the order passed by the Financial Commissioner.
“It has been submitted that a detailed enquiry was conducted, during the course of which a report was called from the Tehsildar, Shopian, who vide his report dated 25.08.2014 has clearly stated that the land in question is recorded in the name of Deena Nath and Shamboo Nath. It has also been submitted that the petitioners have unauthorizedly occupied the land in question”, read the objections.
Court on passing of order of eviction said the District Magistrate is authorized to take such steps as may be necessary for preservation and protection of such property which includes eviction of an unauthorized occupant. “It is further indicated in the impugned order that the petitioners claim that they have paid rent in respect of the said land to the private respondents but as per the report of the Tehsildar, the possession of the land in question was taken over by the petitioners after the migration of the land owners”, read the judgment.
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