Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(J&K) 69

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Bashir Ahmad Kirmani, J.
Jagar Nath Bhan & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
OWP No. 271/2005
Decided On : 03 April, 2006

Advocates Appeared:
Advocate For Appellant: G.A. Lone
Advocate For Respondent: M.A. Beigh
Advocate For Appellant: Z.A. Qureshi

The main legal point established in the judgment is the quasi-judicial function of the District Magistrate under the Jammu and Kashmir Migrant Immovable Property Act, the reasonableness of the appeal condition, and the Act's purpose of preserving and protecting migrant property.

Headnote:
Migrant Property - Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997 - Sections 2, 4, 5, 7, 3 - The court discussed the relevant provisions of the Jammu and Kashmir Migrant Immovable Property Act, which defines 'migrant' and 'unauthorized occupant' and empowers the District Magistrate to take possession of migrant properties and evict unauthorized occupants. The Act bars the jurisdiction of civil courts and provides for a strict appeal process. The court highlighted the quasi-judicial function of the District Magistrate and the requirement for subjective satisfaction before exercising power under the Act. It also addressed the reasonableness of the appeal condition of surrendering possession before filing an appeal and emphasized the Act's purpose of preserving and protecting migrant property.
Fact of the Case:

The case involved a dispute over a property claimed to be migrant property under the Jammu and Kashmir Migrant Immovable Property Act. The District Magistrate ordered the eviction of the petitioners, which was confirmed by the Financial Commissioner. The petitioners challenged the orders, arguing that the property did not belong to migrants and they were not unauthorized occupants. The court analyzed the factual conflict and the procedural irregularities in the District Magistrate's proceedings.
Finding of the Court:

The court found that the District Magistrate's procedure was wanting and the impugned orders were quashed. It directed the District Magistrate to conduct a fresh enquiry and pass fresh orders after thorough enquiry and hearing to the parties.
Issues: The issues involved the determination of migrant property, unauthorized occupation, and the reasonableness of the appeal condition of surrendering possession before filing an appeal.
Ratio Decidendi: The court emphasized the quasi-judicial function of the District Magistrate, the reasonableness of the appeal condition, and the Act's purpose of preserving and protecting migrant property. It also highlighted the procedural irregularities in the District Magistrate's proceedings.
Final Decision: The petition was allowed, and both the orders impugned were quashed. The District Magistrate was directed to conduct a fresh enquiry and pass fresh orders after thorough enquiry and hearing to the parties.

1. Impugned in this petition are the District Magistrates order dated 23.05.2005 directing petitioners eviction from the alleged migrant property and financial Commissioners appellate order of 21.06.2005 confirming the same. Grounds pleaded are that the property in question on belongs to Nursing Ji Temple and as such is not migrant property; and respondents 5 to 7 who are in part possession thereof even though not owners despite their claim, have never migrated. Thus, neither the property in question was migrant property nor could the petitioners who are occupying part thereof and paying rent regularly be categorized as unauthorised occupants, much less evicted therefrom. In their objections official respondents 1 to 4 while questioning maintainability of the petition as being based on questions of fact have also pleaded that concerned District Magistrate assumed jurisdiction in the matter on after satisfying himself about the property belonging to migrants its and petitioners in unauthorized occupation thereof, and acting in exercise of his power under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales Act 1997 ordered eviction of petitioners therefrom. In hi separate set of objections private respondent No.5 has in addition to what has been put forth by official side pleaded that while in possession of the property he migrated to Jammu in 1990 where she is putting up presently and it was only in her absence that petitioners forcibly took possession of property without any lawful sanction, whereafter she approached the concerned Magistrate who acted in the matter etc.

2. During course of arguments petitioners counsel has further elaborated the contents of petition to contend that District Magistrate has passed the order without conducting any enquiry in the matter and has only acted on dictations `from above which is apparent from the nature of proceedings also; while as counsel for respondents while objecting to petitioners locus standi to maintain the writ petition has further explained his pleadings to maintain that the property in question belonged to deceased husband of respondent No. 5 and petitioners have never been in possession thereof, much less as tenants, and that the fact of respondents being migrants and the petitioners in unlawful occupation of the property was fully established during enquiry duly conducted by District Magistrate only whereafter he exercised jurisdiction an ordered eviction of petitioners therefrom.

3. I have heard learned counsel and considered the matter. It appears that landed properly in question is situate in estate Maisuma under Survey Nos. 45-45/1, 125/2, 46/1 and 50 of Khewat No.10 with two old "inklings existing thereupon, one double storeyed and the other single. While petitioners claim to be tenants thereof to the extent of their respective holding the respondent claim it to be her property forcibly occupied by petitioners after they migrated away from Srinagar. With that factual conflict the District Magistrate, Srinagar acting in exercise of his power under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 directed Tehsildar, Srinagar to proceed on spot and evict the petitioner therefrom under impugned order which was confirmed by Financial Commissioner in his appellate order of 21.06.2005 and hence the writ petition.

4. Proceedings before the District Magistrate appear to have taken off after receipt of respondents application for eviction of petitioners, with an endorsement from Deputy Chief Minister in following manner:-

"Please look into it personally and vacate the migrant property from mischievous urgently under intimation to this office."

The application appears to have been marked by him to Additional District Magistrate for necessary action vide his letter No. MR/RD/DM/656/RD/450 dated 30.12.2004 who further marked it as "most important" and asked concerned Tehsildar to go through the conte

Click Here to Read the rest of this document

Judicial Analysis

2006 Supreme(J&K) 69

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGARBashir Ahmad Kirmani, J.Jagar Nath Bhan & Ors. - AppellantVersusState Of J&K & Ors. - RespondentOWP No. 271/2005Decided On : 03 April, 2006

The main legal point established in the judgment is the quasi-judicial function of the District Magistrate under the Jammu and Kashmir Migrant Immovable Property Act, the reasonableness of the appeal condition, and the Act's purpose of preserving and protecting migrant property.

Judicial Analysis

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Bashir Ahmad Kirmani, J.
Jagar Nath Bhan & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
OWP No. 271/2005
Decided On : 03 April, 2006