Excelsior Correspondent
Srinagar, Mar 11: The High Court has held that if a person fails to establish to have the migrant immovable property in his possession with the consent of the migrant with written consent and authority of law, the order of eviction by the authority can be passed and upheld the decision of taking over the possession of the property in question by the concerned authority.
One Abdul Khaliq Rather had assailed the order dated 23rd of December, 2008 passed by the District Magistrate Baramulla through the medium of a Writ Petition whereby his possession over migrant land measuring 04 Kanals and 5 ½ Marlas situated at Awrenbal, Sonawari, Sumbal was found to be illegal and the land was ordered to be kept in the possession of Deputy Commissioner, Bandipora.
The Writ Court, vide judgment dated 18th of September, 2018 had dismissed the petition of Rather on the ground that he has a remedy of appeal available in terms of the Statute and that he has not placed any document on record to substantiate his possession was lawful at any point of time.
“Once the person in occupation of migrant immovable property fails to establish that he was in the possession of the immoveable property of a migrant with his written consent and authority of law, then only the order of eviction can be passed. Moreover, once the competent authority has determined the possession over the migrant immovable property as unauthorized, then the stipulation of handing over the possession for the purpose of entertaining the appeal cannot be termed as onerous”, Division Bench of Justice Rajnesh Oswal and Justice Mohan Lal recorded.
Court said that Rather has concocted the story of execution of undertaking between him and migrant-owner fraudulently only to wriggle out of the limitation provided for filing the appeal under Section 7 of the Act of 1997.
“An attempt was made to persuade us that the Appellant has been in possession of the property in question before the year 1971 and, more particularly when the owners of the land herein had handed over the possession of the property to the Appellant-Rather by virtue of a ‘Hundi’ executed in the year 1987, but we are not convinced with the contention so raised by the Appellant as there is no documentary evidence on record to demonstrate the fact that the Appellant was, in fact, in possession of the property before 1971”, DB said to the contentions of the arguments advanced by the appellant-counsel.
The writ court judgment was assailed that the same has been passed by in utter disregard of the fact that Rather was/ is in occupation of the land in question with the consent of actual owner and once the possession was with consent, the concerned authority had no jurisdiction to pass the Order of eviction as he would get the jurisdiction under Section 5 of the Jammu and Kashmir Migrant Immovable Property Act, 1997 only in case of unauthorized occupation of the migrant immovable property.
The writ petition was filed by the migrants before the court and the court on October 13, 2005, directed the District Magistrate Deputy Commissioner, Baramulla to decide the complaint of the actual owners of the property in accordance with the law expeditiously after hearing all the parties concerned in the dispute.
Follow our WhatsApp channel
