Srinagar, Oct 16: The High Court of J&K and Ladakh has ruled that the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 cannot be invoked mechanically against occupants whose possession of the disputed land had commenced long before the migration of those claiming ownership.
A bench comprising Justice Sanjay Parihar noted that where possession of the land had commenced before November 1, 1989, the date linked to the statutory definition of “migrant”, the subsequent migration of the persons claiming ownership would not, by itself, establish that the occupants had encroached upon or taken possession of migrant property within the meaning of the Act of1997.
The Court’s observations came in response to a plea by Abdul Rashid and another who claimed to be in physical possession of land measuring 4 kanals and 1 marla, comprising Khasra No. 218, recorded as Shamilat-e-Deh, situated at Estate KaloosaNathpora, District Bandipora.
The petitioners’ case is that the land in question was never a migrant property and, therefore, could not have been brought within the ambit of the Act of 1997.
They contended that the respondents(authorities), by erroneously invoking the 1997 legislation, initiated proceedings against them that culminated in their being declared unauthorised occupants on the basis of an inquiry conducted “unilaterally” and “without proper appreciation of the revenue record”.
According to the petitioners, the private respondents (migrant claimants) by taking recourse to the Act of 1997, sought to secure their eviction from the land in question, although the dispute was not amenable to adjudication under the said enactment.
The Deputy Commissioner, Bandipora, vide order dated January 28, 2020, declared the petitioners unauthorised occupants of the land. Aggrieved by the order, they preferred an appeal before the Financial Commissioner (Revenue), which came to be dismissed vide order dated December 6, 2021.
The petitioners had assailed the Appellate Authority’s order, among others, on the ground that the finding regarding non-maintainability of the appeal, for want of surrender of actual physical possession of the disputed property, was contrary to the law laid down by the Division Bench of the Court.
In its decision on the plea, the court underscored that the question whether such possession was lawful, permissive, referable to any tenancy or proprietary right, or otherwise unauthorised, may involve consideration of the revenue record and the law governing agricultural holdings and Shamilat-e Deh land. “Such questions cannot be conclusively answered merely by reference to the subsequent migration of the persons claiming ownership or by treating the existence of possession, by itself, as sufficient proof of encroachment under the Act.”
The court held that the 1997 Act defines an “unauthorised occupant” as a person who has encroached upon or taken possession of the immovable property of a migrant without consent and authority of law. This statutory requirement assumes significance where possession had already commenced before the alleged owner acquired migrant status, it said.
“The subsequent migration of the persons claiming ownership of the land could not, by itself, conclusively determine the legal character of possession which had commenced prior thereto.” Whether such possession was permissive at its inception, whether any permission was subsequently withdrawn, whether the petitioners continued in occupation without authority of law, and whether such occupation attracted the provisions of the Act of 1997 were questions requiring independent consideration, the court said.
“A declaration that directs eviction, a person is an unauthorised occupant, followed by an order undoubtedly entails serious civil consequences,” the court said. Such a determination must, therefore, rest upon an enquiry conducted in accordance with law, consideration of the relevant material and a reasoned finding that the statutory requirements for exercise of jurisdiction stand satisfied, it observed.
The Court held that the authorities had failed to undertake the necessary examination before invoking the special machinery of the Migrant Act and quashed the Deputy Commissioner, Bandipora’s order declaring the petitioners unauthorised occupants, as well as the appellate authority the Financial Commissioner (Revenue)’s order.
The Court remanded the matter to the Deputy Commissioner for fresh consideration, including determination of the origin and continuity of possession and, crucially, whether the provisions of the Act of 1997 were attracted at all.
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