Excelsior Correspondent
Srinagar, Jan 16: The High Court has upheld the eviction on migrant land which is in possession of the owner for the last 25 years with the liberty to him to approach appellate authority under the migrant act.
Justice Rajesh Sekhri upheld the order of Deputy Commissioner Pulwama under which the mutation No. 3369 passed in favour of one Farooq Ahmad Dar came to be set aside with the direction to Tehsildar, Pulwama to takeover possession of the land from Dar and hand it over to the rightful claimants-migrants.
The case of Dar is that he has raised a residential house over the land, with the aid and consent of mother of the private respondents (migrants) who had alienated 25½ marlas of land situated at Dangerpora, Pulwama in his favour by virtue of irrevocable General Power of Attorney, on January, 3, 2000 and in settled possession of property, cannot be evicted except through due process of law. This principle is the cornerstone of property law.
Justice Sekhri said that since petitioner-Dar claims to have raised a residential house over the subject land, the question which falls for consideration is whether he can be forced to surrender the possession of his residential house and thrown on the road.
“…that symbolic delivery of possession amounts to actual delivery, however, the occupant is not physically removed, but the possession in law, is taken by the competent authority from him”, the court answered.
The court added that justice has to be administered as per the mandate of law, and when a Statutory Authority is required to do a thing in a particular manner, the same has to be done in that manner or not at all. ”However, in peculiar facts and circumstances of a case to address an extraordinary situation. Presented in a case, the justice at times is required to be tempered with mercy”, the court recorded.
Advocate Nissar Ahmad Bhat, appearing for the petitioner-Dar, argued that the writ petition was maintainable despite the availability of a statutory appeal under Section 7 of the 1997 migrant Act. He submitted that the appellate remedy was illusory and inefficacious, as the statute mandates surrender of possession as a precondition for filing an appeal.
Opposing the petition, the Government counsel along with the counsel for migrants, raised a preliminary objection to maintainability and argued that the petitioner had bypassed the statutory remedy of appeal provided under the 1997 Act and had approached the High Court directly.
The court also noted that the migrant Act was enacted in the backdrop of the mass exodus of a minority community from the Kashmir Valley in 1989. The requirement of surrendering possession before filing an appeal, the Court observed, was a conscious legislative safeguard to protect migrant properties and could not be diluted as a matter of routine.
Having regard to the facts of the case, the court dismissed the petition with liberty to the petitioner-Dar to avail statutory remedy of appeal, provided under the Act, by surrendering symbolic possession of the property in question to the Competent Authority, within a week’s time.
“Appellate Authority shall, thereafter, proceed to decide the appeal with expedition, preferably within a period of three months, after affording a reasonable opportunity of being heard to both the sides”, the court directed further.
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