The entitlement to proprietary rights under the J&K Migrant Immovable Property Act, 1997 and the issuance of a writ of mandamus to enforce such rights.

JUDGMENT :

1. Petitioner through the medium of this Writ Petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir prayed following reliefs:

I) Mandamus commanding the respondents to immediately remove the unauthorized occupation of the property viz land measuring 6 kanals 8 marlas and 212 sft. covered by survey Nos. 46 and 213/min situate at Bund, in estate Kothibagh, Srinagar and take over the possession of the property from the unauthorized occupants and thereafter hand over the same to the petitioner.

II) Mandamus commanding the respondent not to allow any person or persons to raise any kind of construction, temporary or otherwise upon the aforesaid property, in any manner whatsoever.

III) Mandamus, commanding the respondents to make entries into the revenue records as per Government Order dated 08.07.2009.

IV) Mandamus commanding the respondents to make transfer of lease holding rights of the share of the petitioner’s brother Manjit Singh, in case there is any legal impediment of making transfer in favour of the legal heirs of the petitioner’s brother because of they being citizens of USA.

V) Mandamus commanding the respondents to give the vacant possession of the property of the petitioner to him as per the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sale) Act, 1997 and thereafter the petitioner be allowed to make use of the aforesaid property by allowing him to raise the construction upon the aforesaid land, in accordance with law.

2. Petitioner has pleaded that after entering into protracted litigation, the Government of Jammu & Kashmir, finally issued an order bearing No. 74-Rev/NDK of 2009 dated 08.07.2009 by virtue of which proprietary rights of the Nazool land measuring 06 kanals 8 marlas and 212 Sft. Comprising of khasra No. 146 and 213/min situated at Bund, Srinagar initially leased out in favour of the petitioner’s father vide Govt. Order No. 2365 dated 02.09.1937 for a period of 40 years which was renewed from time to time. Petitioner claims to have become migrant because of disturbed conditions in the Kashmir Valley and he under J&K Migrant Immovable Property ( Preservation, Protection and Restraint on Distress Sales) Act, 1997 is entitled to his property. Since the petitioner was involved in the litigation for purpose of getting the proprietary rights of the property, it appears that during this period certain persons had illegally and unauthorizedly entered into the property and had taken possession of certain portion thereof.

3. It has been further pleaded that in the meantime the petitioner obtained the judgment for grant of proprietary rights of the petitioner and he requested District Magistrate Srinagar and Divisional Commissioner Kashmir in this behalf, however despite depositing the amount before official respondents, he was not given proprietary rights, as such, he moved this petition.

4. Pursuant to notice respondents 7 to 9 have filed reply to this petition, wherein, it has been stated that the land has vested in equal shares between the petitioner and the legal heirs of his brother Inderjeet Singh. It is also stated that they were settled in United States of America and have obtained nationality and citizenship of that country and they are permanent resident of the J&K State (now UT of J&K). It is further stated that in terms of order dated 08.07.2009 proprietary rights in respect of land measuring 06 kanals, 08 marlas and 212 sqfts. Covered by survey Nos. 146 and 213/min situated in Estate Kothibagh, Srinagar have been granted in favour of the petitioner and answering respondents including Amarjeet Singh, another son of Inderjeet Singh in equal shares on payment of price equivalent to half of the market price of Rs. 18,00,000/- per kanals as was prevalent in the year 2000, when the judgment was passed by this Court. After issuance of order dated 08-07-2009, respondent No. 2 addresse