The District Magistrate has the authority to take possession of migrant property and evict unauthorized occupants under the Act of 1997.

JUDGMENT :

1. By this common judgment, two writ petitions, one bearing OWP No.1938/2015 and another bearing OWP No.1086/2016 are proposed to be disposed of.

2. Vide OWP No.1938/2015, the petitioners have challenged the order passed by respondent No.3-District Magistrate, Shopian, whereby, while exercising powers under Section 5 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Act of 1997”), the District Magistrate has directed the Naib Tehsildar, Kanjiullar to take possession of the land mentioned in the said order, which includes the land measuring 25 kanals 17 marlas in Khasra No.2914/294 and land measuring 8 kanals in Khasra No.3969/287 situated at Ramnagri Shopian, which is subject matter of the instant writ petitions.

3. It seems that the petitioners filed an appeal against the aforesaid order in terms of Section 7 of the Act of 1997 and the same has been dismissed by the Appellate Authority i.e., Financial Commissioner, Revenue, J&K Srinagar, in terms of order dated 23.06.2016. The same has been challenged by the petitioners by virtue of OWP No.1086/2016.

4. According to the petitioners, the land in question is not a migrant property as the same was under the cultivation/tenancy of ancestors of the petitioners even before Kharief 1971 and that presently the said land is under the cultivation of the petitioners. It has been contended that this fact is supported by the revenue entries and even in the impugned order, it is indicated that the petitioners are in possession of the land in question as tenants. It has been contended that the impugned order passed by the District Magistrate is without jurisdiction, inasmuch as the said Authority has ignored the entries in the revenue record. It has been further contended that the District Magistrate has not conducted any enquiry to ascertain as to whether the possession of the petitioners over the land in question can be termed as unauthorized nor the said Authority made any enquiry as to whether the private respondents are migrants as according to the petitioners, the private respondents had left the Valley even prior to 1st November, 1989. It has been also contended that the District Magistrate has not heard the petitioners and thereby principles natural justice stand violated.

5. Regarding impugned order dated 23.06.2016 passed by the Financial Commissioner, Revenue, it has been contended that the same has been passed mechanically without appreciating the contentions of the petitioners. It has also been contended that the petitioners have filed a civil suit against the private respondents in which a status quo order has been passed but this aspect of the matter has been ignored by the District Magistrate while passing the impugned order.

6. The private respondents in their reply to the writ petitions have submitted that a detailed enquiry was conducted by the District Magistrate, Shopian before passing the impugned order and there is no illegality in the order passed by the District Magistrate or in the order passed by the Financial Commissioner. It has been further submitted that the notice was duly served upon the petitioners during the process of enquiry, as is evident from order dated 29.08.2014. It has been submitted that a detailed enquiry was conducted, during the course of which a report was called from the Tehsildar, Shopian, who vide his report dated 25.08.2014 has clearly stated that the land in question is recorded in the name of Deena Nath and Shamboo Nath. It has also been submitted that the petitioners have unauthorizedly occupied the land which is subject matter of the instant writ petitions and the District Magistrate, Shopian, has rightly passed the eviction order against the petitioners which order has been upheld by the Appellate Authority. Regarding suit filed by the petitioners before the Civil Court at Shopian, it has been submitted that the same is not mai