"‘Unauthorized Occupant Under Law’: J&K High Court Dismisses Plea Against Eviction, Highlights Lack of Migrant Consent and District Magistrate’s Approval"
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh at Srinagar has dismissed a petition challenging the order of the Financial Commissioner and the preceding eviction order passed by the District Magistrate, Pulwama, under the provisions of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (the Act of 1997). The Single Bench, of Justice Javed Iqbal Wani, held that the petitioner could not be considered a lawful occupant of the land in question as the statutory conditions under the Act were not satisfied.
The Court recorded that “the petitioner herein cannot but said to be an unauthorized occupant of the land in question as defined under Section 2(i)” of the Act, further observing that “the petitioner herein could not have taken over the possession of the land in question except with the express consent of the migrant in writing to be handed over by the District Magistrate.”
The petitioner, a resident of Lalpora, Tehsil Tral, had approached the High Court under Article 226 of the Constitution seeking a writ of certiorari to quash the order dated 03.10.2023 passed by the Financial Commissioner. The petitioner also sought directions for acceptance of his appeal challenging the earlier eviction order dated 15.05.2018 issued by the District Magistrate, Pulwama, under the Act of 1997. The petitioner requested the Court to reject an application filed by respondent no. 5, who had claimed to be a migrant and sought eviction of the petitioner from land measuring 11 kanals and 3.5 marlas.
The dispute pertains to an application filed under the Act of 1997 by respondent no. 5 through her attorney, alleging that the petitioner had encroached upon her land without lawful authority. It was submitted that the land in question was migrant property and part of it, measuring 5 kanals and 8.5 marlas, had been legally sold to respondents no. 6 and 7 after obtaining permission from the Divisional Commissioner through a sale deed executed on 03.02.2012.
The District Magistrate, after considering the matter, directed eviction of the petitioner from the alienated land and directed handing over possession to the purchasers. The petitioner challenged this decision before the High Court in OWP No. 956/2018, which was disposed of on 01.06.2018, granting the petitioner liberty to pursue an appeal under the Act.
Following this, the petitioner filed an appeal under Section 7 of the Act before the Financial Commissioner, which was dismissed on 28.05.2019. The petitioner again approached the High Court through OWP No. 1922/2019, which was dismissed on 04.07.2019. Subsequently, LPA No. 199/2019 was also dismissed on 17.12.2021. The petitioner thereafter approached the Supreme Court by filing an SLP. The Supreme Court, on 29.07.2022, permitted the petitioner to file a fresh appeal under Section 7 of the Act upon surrendering possession as required under the statute.
The petitioner subsequently surrendered possession in compliance with Section 7 of the Act and filed a fresh appeal before the Financial Commissioner. The appeal was dismissed on 03.10.2023, which led to the filing of the present writ petition.
In support of his case, the petitioner submitted that he was in lawful possession of the land based on an agreement to sell executed on 27.03.1998 by the father of respondent no. 5, who was allegedly acting as the Karta of the family. It was submitted that the full sale consideration was paid and possession was handed over to the petitioner. The petitioner relied on documents including affidavits and an application submitted to the Divisional Commissioner seeking permission for alienation as required under the Act.
It was further submitted that the petitioner had spent substantial amounts on improving the land, including planting walnut trees between 1989 and 1999. The petitioner argued that the eviction order and subsequent dismissal of his appeal by the Financial Commissioner were passed without considering the relevant documents and facts.
The respondents opposed the petition, stating that the petitioner had been declared an unauthorized occupant under the District Magistrate’s order dated 15.05.2018 and that the petitioner’s successive appeals before the appellate authority under the Act of 1997 had failed. The respondents submitted that the petitioner was guilty of abusing the process of law, having earlier approached the civil court at Tral and then this Court multiple times.
It was also stated that the order of the Financial Commissioner dated 03.10.2023 was passed after hearing both parties and upholding the validity of the eviction order passed by the District Magistrate.
The Court recorded that the petitioner, in response to the application filed by respondent no. 5, had asserted that he had taken possession of the land based on the agreement to sell and that possession was handed over by the owners. The petitioner also claimed that the application for obtaining permission for sale under the Act was duly submitted, but no decision was rendered within the stipulated time.
Examining the agreement to sell dated 27.03.1998, the Court recorded, “the agreement to sell relied upon by the petitioner does not suggest so inasmuch as the possession of the land has not been taken over by the petitioner herein under the authority of law, meaning thereby with the permission of the District Magistrate.”
The Court then referred to the statutory scheme of the Act of 1997, noting that Section 3 prohibits alienation of migrant property without prior permission from the competent authority. The Court also referenced Section 4, which mandates that the District Magistrate shall take custody of such properties, stating, “the District Magistrate shall take all such steps as may be necessary for preservation and protection of such property: Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing.”
In light of this, the Court noted that the petitioner’s possession was unauthorized as it lacked both the express consent of the migrant and the requisite permission from the District Magistrate as stipulated by Section 4. The Court recorded, “the petitioner herein could not have taken over the possession of the land in question except with the express consent of the migrant in writing to be handed over by the District Magistrate.”
The Court then proceeded to define unauthorized occupation with reference to Section 2(i) of the Act, observing that “unauthorized occupant means any person who has encroached upon or taken possession of any immovable property of a migrant without his written consent and authority of law.”
The Court further noted that even assuming the petitioner had obtained consent from the migrant through the agreement to sell, such possession was still invalid under the Act because it was not accompanied by statutory compliance. The Court recorded, “the possession of the petitioner over the land in question cannot said to be legal or authorized merely on the basis of the filing of an application for seeking permission from the competent authority under the Act.”
The Court also referred to the provisions of Sections 54 and 138 of the J&K Transfer of Property Act, SVT, 1977. It observed that under Section 54, “no transfer of tangible immovable property can be made except by a registered instrument,” and under Section 138(3), “no person shall take possession of, or commence to build or build on, any land in the Province of Kashmir which has been transferred or has been contracted to be transferred to him unless and until such transfer becomes valid under the provision of sub-section (1).”
Based on this, the Court found that the petitioner’s occupation was unauthorized under both the Act of 1997 and the Transfer of Property Act.
The Court dismissed the writ petition, holding, “the instant petition is found without any merit and is accordingly dismissed.” The Court further directed that, “in view of dismissal of the writ petition as above, contempt notices issued are recalled and proceedings closed.”
Advocates Representing the Parties
For the Petitioner: Mr. M. Ayoub Bhat, Advocate
Case Title: Mohammad Shafi Naikoo versus UT of J&K and Ors.
Case Number: WP(C) No. 3475/2023 c/w CCP(S) 14/2024
Bench: Justice Javed Iqbal Wani
[Read/Download order]
