* HC is free to hear case despite pendency of SLP
Excelsior Correspondent
SRINAGAR, June 17: The Supreme Court has directed for not handing over the possession of alleged migrant property land to the authorities and left it free for the High Court to decide the appeal on the issue on merits and in accordance with law.
The bench of Justice Hemant Gupta and Justice V Subramanian while hearing a Special Leave Petition (SLP) filed against the order of the Division Bench of High Court whereby the order of District Magistrate Shopian was kept intact.
It has been stated before the Supreme Court that the District Magistrate Shopian while issuing the impugned order on April 29 under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997 has held that the occupants/owners of the land are in illegal possession with the further direction to vacate the land.
The aggrieved party challenged the order of District Magistrate Shopian before the single bench of High Court which order as per their version is without following due procedure and is in contravention of the facts and circumstances of the case.
The single bench had ordered that the operation of the order of District Magistrate Shopian shall remain stayed. The stay order came to be challenged by the other side by way of an appeal and the Division Bench kept the order of writ court in abeyance with the observation that the writ court to decide the matter on merits.
The order of Division Bench as such has kept the order of District Magistrate intact and in force compelling the aggrieved party (occupants) to approach the apex court to challenge the DB order.
They claim that they are owners in possession of 12 kanals and 3 marlas of land and in possession of other piece of land measuring 2 kanals and6 ½ marlas situated in estate Ramnagri district Shopian and some private persons being influential have managed to record their entries in Revenue records in league with the Revenue officials and have started harassing the peaceful possession of the land in question resulting into the present litigation.
The apex court has issued notice to Commissioner/Secretary Revenue Department, District Magistrate Shopian, Tehsildar, Shopian, Station House Officer, Heerpora, Shopian and the private persons for filing their reply to the plea.
The apex court as interim measure directed the possession of the land shall not be delivered to the respondents. “The pendency of the present SLP will not bar the high court in deciding the matter on merits in accordance with law”, SC said.
One of the private persons had earlier moved an application under Migrants Act and had sought eviction of the occupants from the said land, the District Magistrate without holding any inquiry into the matter had passed an eviction order prior to the order of April 29.
The District Magistrate Shopian as per the occupants of the land has failed to ascertain as they have been in possession of their proprietary land and not conducted any enquiry to ascertain as to whether such possession can be termed to be unauthorized in the backdrop of provisions of Migrants Act.
District Magistrate has written that persons who have approached him qua the land in question are migrants and the occupants are unauthorizedly holding the possession of the land.
District Magistrate Shopian in his order passed under J&K Migrants Act 1997 directs the Tehsildar Shopian to proceed on spot and take the custody of the land in question which is recorded as ‘Shamilat Deh’ in revenue records by dispossessing and evicting the occupants at present from the migrant land within 7 days.
“Open a bank account wherein he shall deposit the sale cost of the produce if any. SHO Heerpora shall provide police assistance to the Tehsildar concerned, if needed”, order of Magistrate further reads.
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