The jurisdiction of the District Magistrate under the Act of 1997 is limited to protecting and preserving the immovable property belonging to migrants. The court emphasized that the District Magistrate's actions must align with this legal principle.

ORDER :

1. The petitioner has challenged order dated 29.12.2011 passed by the Financial Commissioner (R) in an appeal under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Act of 1997”). A further direction has been sought upon respondents No.15 to 18 to handover possession of the land measuring 3 kanals covered by Khasra Nos.964/884 and 745 Khewat Nos.485 and 496 situated at Damodar Karewa Tehsil and District Budgam.

2. Briefly stated, case of the petitioner is that he had purchased land measuring 03 kanals under Khasra No.2682/2563/885 Khewat No.485 by virtue of two sale deeds executed on 02.09.1988 and registered on 22.11.1988. Vide one sale deed, the petitioner had purchased 01 kanal 10 marlas from Malla Mohammad and vide another sale deed, he had purchased 10 marlas from Malla Ismail and 01 kanal from Malla Mohammad. It is case of the petitioner that Malla Mohammad, Malla Ismail and Malla Samad are sons of one Ahmad Malla who owned huge landed property in common Khewat Nos.485, 495, 550, 493, 490, 494, 502, 506 and 513. According to the petitioner the land under Khewat No.485 was in joint possession and ownership of Samad, Ismail and Mohammad Malla.

3. In short, case of the petitioner is that the whole land in Khewat No.485 under different Khasra Nos. was under the joint possession and ownership of the persons from whom he has purchased the land in question, which is measuring 03 kanals. It is submitted by the petitioner that on account of his migration and due to abnormal situation in the Valley, the mutation in respect of the land that was subject matter of the sale deeds could not be attested in his favour in the revenue record. It is being submitted that after the migration of the petitioner, during enquiry it was found that the land under Khasra No.2682/2563/885 had been re-sold by the erstwhile owners. It is submitted that land measuring 01 kanal 10 marlas under Khasra No.2682/2563/885 was sold by the erstwhile owners to Mohammad Amin and another portion of land measuring 10 marlas was sold by Ismail S/o Mohammad Malla out of the same Khasra Number. Another legal heir of Mohammad Malla namely Abdul Rashid sold 01 kanal 15 marlas of land in the same Khasra number whereas one Mst. Jani sold 01 kanal 15 marlas in the same Khasra number.

4. On a complaint made by the petitioner before the District Magistrate, Budgam, an enquiry was initiated under the Act of 1997 and on the basis of the report of the Patwari and Tehsildar concerned, it was found that the land purchased by the petitioner to the extent of 03 kanals under Khasra No.2682/2563/885 was re-sold to different persons by the erstwhile owners. The District Magistrate, Budgam thereafter proceeded to pass order No.21/SQ dated 05.05.2007, whereby, while exercising powers under Section 4 of the Act of 1997, the Tehsildar, Budgam, was directed to attach 03 kanals of land out of Khasra No.694, 884 and 745 belonging to the re-sellers Abdul Rashid Malla and Mst. Jani in village Karewa Damodhar and take possession of the same.

5. The aforesaid order of the District Magistrate, Budgam, came to be challenged by private respondents No.3 to 11 by way of an appeal before the Financial Commissioner, Kashmir, Srinagar. The Appellate Authority allowed the appeal and passed the impugned order whereby order of the District Magistrate, Budgam, was set aside and he was directed to hold a de novo enquiry into the matter and pass appropriate orders under the provisions of the Act of 1997.

6. The petitioner has challenged the impugned order passed by the Appellate Authority on the grounds that the land that was re-sold by the erstwhile owners was joint and unpartitioned property, as such, the District Magistrate was well within his jurisdiction to attach the land which, though not falling in the same Khasra numbers, was part of the joint khewat. It has been further contended that in terms of the provisions of