Excelsior Correspondent
SRINAGAR, Sept 15: High Court refused to entertain a petition against the eviction order passed by the District Magistrate (DM) for unauthorized occupation of migrant land in south Kashmir’s Anantnag District and directed the occupants to approach the Magistrate concerned on the issue.
Justice Rahul Bharti dismissed the plea of legal heirs of one Ghulam Hassan Mir challenging the order of eviction from 18 kanals and 19 marlas of land belonging to migrants by the District Magistrate Anantnag.
The eviction order is the outcome of a complaint filed by the migrants before the District Magistrate stating therein that their land measuring 18 kanals and 19 marlas situated at Sallar area of District Anantnag has been encroached upon by the petitioners as they have left the valley in early 1990s.
Justice Bharti while dismissing their plea set liberty for them to approach the appellate authority (District Magistrate) itself within the period of 30 days to make out their case.
“The petitioners could not bypass the remedy available under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997”, reads the judgment.
The court said that there is no doubt to the fact that the period of limitation prescribed for assailing the order of eviction under the Migrants Act 1997 has expired, for which this court can lend its equitable jurisdiction in favour of the petitioners. “But surely the petitioners cannot be heard to say that the statutory remedy of appeal is not an efficacious remedy at their disposal”.
The petitioners argued that their father had entered into an “agreement to sell” with the migrant owners, backed by partial payments, but the district administration nevertheless declared them in “unauthorized occupation” following a complaint filed by the landowner-migrants.
The court said the proper course for the petitioners was to file an appeal before the competent authority under Section 7 of the Migrants Act. “If the statutory remedy of appeal is skipped by an aggrieved party, then under the judicial review jurisdiction, this Court may not have the advantage of knowing the appellate authority’s point of view,” the order read.
The court recorded that the petitioners seems to have become a judge in their own cause by holding that the statutory remedy of appeal provided under section 7 of the Migrants Act 1997, is not an efficacious remedy, and therefore, they are coming forward with the present writ petition to assail the order of eviction.
“…petitioners to avail statutory remedy of appeal within a period of thirty days from the date of passing of this order and in case of the said appeal being preferred within the time hereby given then the limitation shall not come in the way of the petitioners in maintaining their appeal and the appellate authority shall hear the appeal on merits”, the court concluded.
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