Possession of migrant property without express consent and proper authorization is deemed unauthorized under the J&K Migrant Immovable Property Act.

ORDER :

1. Petitioner in the instant petition, filed under Article 226 of the Constitution, has prayed for the following reliefs: -

Writ of Certiorari, thereby quashing the impugned Order dated 03.10.2023 passed by respondent No.2 in File No. 175 of FC-AP titled Mohammad Shafi Naikoo Versus Smt Kamla Devi & Others and appropriate writ order directing the acceptance of the appeal filed by writ petitioner before learned Financial Commissioner and thereby setting aside the order passed by District Magistrate Pulwama dated 15.05.2018 and the application submitted by respondent No.5 Mst. Kamla Devi through Javid Ahmad Lone dated 24.05.2012 be rejected in the interests of justice and the possession of the writ petitioner over the property mentioned in the writ petition be protected in the interest of justice.

2. Facts under the shade and cover of which the aforesaid reliefs have been prayed by the petitioner and as are stated in the petition are that an application under and in terms of the provisions of J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997 (for short ‘the Act of 1997’) came to be filed by respondent 5 herein before respondent 4 herein through her attorney seeking eviction of the petitioner herein from the land measuring 11 kanals 3.5 marlas situated at Lalpora, Tehsil Tral, alleging therein the said application that she the applicant is a migrant and her land has been encroached upon by the petitioner without any right although out of the said land 5 kanals and 8.5 marlas stand sold by her father after obtaining the permission from the Divisional Commissioner in favour of respondents 6 and 7 herein in terms of the sale deed dated 3^rd of February, 2012.

3. It is stated that the said application of respondent 5 herein came to be accepted by respondent 4 and in terms of order dated 15^th of May 2018 and the Tehsildar accordingly, concerned came to be directed to move on spot and evict the encroacher and handover the possession of alienated land measuring 5 kanals 8.5 marlas to the purchasers/respondents 6 and 7 herein.

4. It is next stated that feeling aggrieved of the said order dated 15^th of May 2018, the petitioner herein challenged the same before this Court in OWP No. 956/2018, which petition came to be disposed of on 1^st of June 2018, providing a liberty to the petitioner herein to avail the remedy of appeal under the Act of 1997 whereafter and an appeal bearing LPA No.80/2019 is stated to have been preferred by the petitioner herein against the order dated 1^st of June 2018, which LPA came to be dismissed by the Division Bench, upholding the liberty of availing of an appeal under the Act by the petitioner herein.

5. It is further stated that pursuant to the said liberty granted to the petitioner, an appeal came to be filed against the order of District Magistrate/respondent 4, dated 15^th of May 2018, before respondent 2, which appeal came to be dismissed on 28^th of May 2019, aggrieved whereof the petitioner filed writ petition being OWP No.1922/2019 before this Court, which writ petition as well, came to be dismissed on 4^th of July 2019, whereafter the petitioner herein challenged the said order of dismissal in LPA No.199/2019, which LPA as well came to be dismissed on 17^th of December 2021, whereafter the petitioner herein preferred a SLP against the said order dated 17^th of December 2021, which SLP, however, came to be disposed of on 29^th of July 2022, upon the statement made by counsel for the petitioner herein that the petitioner be permitted to prefer an appeal under Section 7 of the Act of 1997 after making necessary compliance of pre-condition as contemplated and that if the petitioner makes necessary compliance of the provisions of Section 7 of the Act of 1997 within a period of 6 weeks from today, appeal of the petitioner be registered and decided by the appellate authority on its own merits in accordance with law.

6. It is being further stated that pursuant to the