JUDGMENT :

Pankaj Mithal, J.-The judgment and order dated 31.12.2020 dismissing OWP No.739/2017 is impugned herein this appeal.

2. The controversy in the appeal is regarding possession and eviction of the appellants from 5 Kanals and 2 Marlas of land covered by Survey No.92 situate at Hang Rajpora, Kawarhama, Tangmarg.

3. The appellants claim that one Shrimati Deviki was the owner/ co-sharer of the said land. She executed a power of attorney on 11.09.1997 and her power of attorney holder vide agreement dated 23.10.2003 agreed to transfer the said land in favour of the appellants and delivered possession to the appellants.

4. The seventh respondent, Pushpati Nath Koul, filed OWP No.1308/2014 alleging that the appellants are in illegal possession of the land belonging to a migrant which was disposed of vide order dated 20.08.2014 directing the State respondents to take desired action in the matter in accordance with law.

5. In pursuance of the above order, the District Magistrate, Baramulla, passed an order dated 31.10.2014 holding that the possession of the appellants over the said land is not legal and the provisions of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter for short the Act) and rules thereunder have not been followed in acquiring the said land or its possession and accordingly directed the Tehsildar to take over the possession of the said land.

6. The aforesaid order was directly challenged by the appellants by filing OWP No.1590/2014 without exhausting the remedy of appeal provided under the Act. The said writ petition was disposed of vide order dated 12.03.2015 as the counsel for the appellants stated that the appellants shall feel satisfied if the writ petition is disposed of providing liberty to them to challenge the order of the District Magistrate, Baramulla, by means of an appeal under Section 7 of the Act before the Financial Commissioner (Revenue). The Court in disposing of the writ petition granted the liberty as prayed for on behalf of the appellants provided the appeal is preferred within one week which was directed to be decided on merits notwithstanding the delay in filing the same.

7. The appeal so filed by the appellants before the Financial Commissioner (Revenue) was dismissed vide order dated 24.05.2017 as Section 7 of the Act clearly provides no appeal shall be entertained if the possession of the property is not surrendered to the competent authority. Admittedly, the appellants have not surrendered the possession.

8. The above two orders passed by the District Magistrate, Baramulla, and the Financial Commissioner (Revenue) were challenged by filing OWP No.739/2017 which came to be dismissed by the impugned judgment and order dated 31.12.2020.

9. We have heard Mr. Mohammad Ayoub Bhat, learned counsel for the appellants, Mr. D. C. Raina, learned Advocate General assisted by Mr. Sajad Asrhaf, GA, and Mr. A. Chesti, Advocate, for the respondents.

10. On behalf of the appellants, it has been contended that the order passed by the district Magistrate, Baramulla, is violative of principles of natural justice. He has not applied his independent mind in passing the said order rather has simply relied upon the reports of the Tehsildar. The appellants are not unauthorized occupants of the land. They have come in its possession on the basis of a valid agreement to sell and as such, their possession is not liable to be disturbed by taking shelter of the Act. The appeal of the appellants before the Financial Commissioner (Revenue) was not liable to be dismissed as not maintainable unless they were afforded an opportunity to surrender possession.

11. Mr. Chesti, learned counsel for the seventh respondent, submits that with the enforcement of the Act, the District Magistrate was ipso facto custodia legis of the said land rendering the possession of the appellants as illegal. The agreement on the basis of which the appellants are cl