Surrender of possession is a statutory requirement for filing an appeal under the J&K Migrants Immovable Property Act, and possession claimed must comply with the provisions of the J&K Transfer of Property Act.

Judgment

Vinod Chatterji Koul, J.—Petitioners claim that they are in possession of land measuring 05 kanals and 02 marlas, covered by Survey No. 92, situate at Hang Rajpora, Kawarhama, Tangmarg (for short “property in question”) since long. They claim to be in possession of aforesaid land on the basis of an Agreement to Sell, executed by attorney holder of Shrimati Deviki, namely, Tej Krishan Bhat son of Raj Nath Bhat resident Kawarhama, Tangmarg, in their favour on 23rd October 2003, which was attested by the Public Notary at Jammu. It is the case of petitioners that the abovenamed Tej Krishan Bhat, was a duly appointed attorney holder of Shrimati Deviki in respect of the property in question and in this regard power of attorney was executed and got registered from Sub-Registrar Tangmarg on 11th September 1997. The case of petitioners is that a writ petition bearing, OWP No. 1308/2014, filed by one Pushpati Koul titled Pushpati Koul and others vs. State and others, was disposed of vide order dated 20.08.2014, directing District Magistrate, (Deputy Commissioner) Baramulla, to take action on the application of said writ petitioner. Deputy Commissioner is said to have exercised powers under Section 4 of J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short “The Act”) and vide order No.DMB/ ARA/ LC/129/TANG/2014/ 659-61 dated 31.10.2014, directed eviction of petitioners. The order, it is stated, was challenged by petitioners in a writ petition before this Court, which was disposed of on 12th March 2015, giving liberty to petitioners to file an appeal under Section 7 of the Act within one week. The petitioners filed Appeal before Financial Commissioner (Revenue) J&K, Srinagar, on 23rd March 2015. The appeal was dismissed on 29th May 2017 by Financial Commissioner (Revenue), J&K, Srinagar, on the ground that as possession of the property in question was not surrendered, the appeal could not be entertained. The petitioners have challenged this order of the Financial Commissioner, Revenue J&K, Srinagar on the grounds that:

i) The order of District Magistrate (Dy. Commissioner), Baramulla dated 31.10.2014, passing eviction order against petitioners is on the fact of it illegal and is also unconstitutional. Firstly, petitioners have not been heard and right of hearing has been denied to them, as such, the order is violativie of rules and natural justice and thereby contrary to constitutional guarantee of Article 14.

ii) Impugned order is, on the face of it, illegal because order of eviction passed by District Magistrate is de hors law and rules. In this behalf authority to act under the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, the District Magistrate (Dy. Commissioner), Baramulla, has an authority only on the ground if a person is unauthorized occupant; the said person fails or refuses to surrender the possession, then steps necessary for taking possession of the property are authorized to be taken. Secondly, the question who is unauthorized occupant is to be decided and a decision without hearing cannot be taken in this effect. The petitioners have not been heard in this behalf and the question who is unauthorized occupant is to be determined and decided as per the fact situation and also as per the provisions of the law in this behalf.

iii) Petitioners have not encroached upon the property and have not taken possession of the property without any authority or consent and as submitted hereinabove, the petitioners are in possession of the property and the possession has been accepted to be handed over to the petitioners by a lawful attorney of the owner, as such, the order of the District Magistrate (Deputy Commissioner), Baramulla, suffers from inherent defect., the order of the District Magistrate ( Deputy Commissioner), Baramulla dated 31.10.2014 and the order of Ld. Financial Commissioner dated 24.05.2017, in this b