JUDGMENT :

Sanjeev Kumar, J.

1. In this petition, filed by the petitioner under Article 226 of the Constitution of India, the petitioner prays for declaring proviso (b) of Section 7 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 [“the Act of 1997”] as unconstitutional being violative of Article 14, 19 and 21 of the Constitution of India. The petitioner also prays for a writ of certiorari quashing order dated 25.08.2022 passed by the District Magistrate, Ramban, on an application filed by respondent Nos. 4 to 6 (private respondents) under Section 5 of the Act of 1997 titled Sham Singh and others v. Rehmatullah Naik.

2. Learned counsel appearing for the respondents have taken a preliminary objections to the maintainability of this petition to challenge order of the District Magistrate, Ramban on the ground that in the face of alternative and equally efficacious remedy of appeal provided under Section 7 of the Act of 1997, writ petition under Article 226 may not be maintainable.

3. Learned counsel for the petitioner does not seriously dispute the proposition that ordinarily writ would not lie to throw challenge to an order for which a statutory appeal is provided under a particular Act of legislation. However, it is argued by Mr. Koshal Parihar, learned counsel appearing for the petitioner that the remedy of appeal provided under Section 7 of the Act of 1997, which makes the condition of surrendering of possession of the property a condition precedent for entertaining appeal is totally unconstitutional and renders the remedy cumbersome and unworkable.

4. Having heard learned counsel for the parties and perused the material on record, we are of the opinion that Section 7 of the Act of 1997, in particular, proviso (b) thereof cannot be held to be ultra vires the Constitution.

5. Right of appeal is a statutory right and not a vested or fundamental right, therefore, the legislature, which provides such statutory right of appeal, is well within its competence to impose reasonable conditions for availing such right. Care, however, is required to be taken that such conditions are not arbitrary, excessive or confiscatory. Any condition attached to the right of appeal, which practically defeats the right of appeal may be struck down as unreasonable and hit by Article 14 of the Constitution of India. In that view of the matter, it can very well be said that the legislature is competent to impose surrender of possession as a condition precedent for entertaining an appeal. However, such condition needs to be tested on the touch stone of reasonableness and if it renders the appeal illusory or oppressive, it may be struck down. Otherwise, such remedy, with reasonable conditions, is to be treated as an efficacious and alternative remedy barring filing of writ petition under Article 226 of the Constitution of India as a matter of course.

6. Before we proceed further, it would be apt to set out Section 7 of the Act of 1997 herein below, which reads thus:-

“7. Appeal. ––(1) Any person aggrieved of an order passed under this Act, may file an appeal before the Financial Commissioner, Revenue :

Provided that no such appeal shall be entertained against––

(a) an interlocutory order;

(b) an order of eviction unless possession of the property is surrendered to the competent authority ;

(c) an order of payment of compensation determined under this Act unless the amount of compensation is deposited with the appellate authority.

(2) The period of limitation for filing of an appeal under sub-section (1) shall be fifteen days from the date of order appealed against.”

7. From a reading of Section 7 reproduced herein above, it is evident that the right of appeal given to a person aggrieved of an order passed under the Act is subject to certain conditions like, an interlocutory order would not be appealable; where the order impugned is an order of eviction, unless possession of the property is surrender