Excelsior Correspondent
Srinagar, Mar 6: The High Court has dismissed the plea seeking direction for not interfering in the possession of migrant land in Shopian by granting liberty to the petitioners to approach the Appellate Authority within 15 days.
The petitioners Mushtaq Ahmad Ganai and others have challenged the order dated 26.12.2020, passed by District Magistrate, Shopian, , whereby an order of eviction in terms of Section 5 of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 has been passed against the petitioners.
They sought a further direction restraining the revenue authorities from acting upon eviction order of District Magistrate and from interfering into the possession over the land measuring four kanals situated at Bongam, Shopian.
Their case is that their predecessors-in-interest were cultivating land measuring 4 kanals situated at Bongam, Shopian, as tenants from the times immemorial including in Kharif, 1971.
The private respondent No.7 to 9 are stated to be the owner/landlord of the aforesaid land. It is averred by them that the land measuring four kanals, mutation in terms of the provision of Agrarian Reforms Act in favour of predecessor-in-interest of the petitioners or in favour of the petitioners was never attested though they were in cultivating possession as tenants in Kharif, 1971 when the owner of the land in question started making claims over the said land, the petitioners made an application before Financial Commissioner (Revenue), who vide order dated 19.02.2020 directed authorities below to examine the matter and submit the report.
Accordingly, an enquiry was conducted and report submitted in which it was clearly stated that four kanals of land in question had been under the possession of petitioners and their ancestors prior to 1971 and that they were paying land revenue and rent to the owners.
The counsel for the owner has raised a preliminary objection with regard to maintainability of the petition on the ground that the impugned order of eviction passed by District Magistrate under Section 5 of the Migrant Act of 1997 is appealable under Section 7 of the Act.
Justice Sanjay Dhar after perusal of the impugned order passed by District Magistrate said, it shows that he has taken note of the documents placed on record by the petitioners to show their possession of the land in question as tenants.
“It has been further noted that the land in question has been mutated in the name of private respondents as “Khud Kasht” (personal cultivation) and the District Magistrate has come to the conclusion that the petitioners are not in possession of the land in question as tenants but as unauthorized occupants which has resulted in passing of the impugned order.
“Having held that the District Magistrate while passing the impugned order has neither acted beyond jurisdiction nor has he acted in disregard of the provisions of the Act of 1997, the bar of alternative remedy of appeal as provided under Section 7 of the said Act would come into play for maintainability of the instant writ petition”, Justice Dhar added and held that instant writ petition is not maintainable and dismissed the same accordingly.
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