IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKHAT SRINAGAR
Reserved on: 26.02.2024
Pronounced on:29.03.2024
WP(C) No.150/2023
LYCEUM PUBLIC SCHOOL ...PETITIONER(S)
Through: - Mr. Shuja-ul-Haq Tantray, Advocate.
Vs.
UT OF J&K & OTHERS
…RESPONDENT(S)
Through: - Mr. Faheem Nisar Shah, GA-for R1 to R4
Mr. Jahangir Iqbal Ganai, Sr. Adv. with
Mr. Vaseem Aslam, Adv.-for R4 to R6.
CORAM: RAJNESH OSWAL, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
1) The petitioner had earlier approached this Court for quashing of
the order dated 15.01.2020 issued by the District Magistrate, Anantnag,
in terms of Section 5 of the J&K Migrant Immovable Property
(Protection, Preservation and Restraint on Distress Sales) Act, 1997
(hereinafter referred to as “the Migrant Act”), whereby the District
Magistrate had directed the petitioner to vacate the migrant property
which is subject matter of the present petition, within a period of three
months and surrender the same to the District Magistrate, Anantnag, for
its further handing over to the respondents No.3 to 5 therein. This Court
vide order dated 21.07.2022, dismissed the writ petition bearing
CM(M) N.12/2020 and relegated the petitioner to the statutory remedy
as provided under Section 7 of the Migrant Act. It was further provided
by the Court that in the event any appeal is preferred, the subject
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property shall not be delivered to the private respondents therein and
the same shall remain in the custody of the District Magistrate. The
petitioner filed the statutory appeal before the respondent No.2 but the
same was dismissed vide order dated 28.12.2022 as not maintainable
on the ground that the petitioner had not surrendered the possession of
the property to the District Magistrate.
2) The petitioner has filed the present petition for quashing the order
dated 15.01.2020 and also the order dated 28.12.2022 on the ground
that while dismissing the appeal, the respondent No.2 has failed to
appreciate that while passing order dated 15.01.2020, the District
Magistrate, Anantnag, had not rightly appreciated the fact that the
petitioner was not an unauthorized occupant of the migrant property but
had been in its occupation since 1982, which on time scale is much
before eruption of militancy/turmoil in the State of J&K. The District
Magistrate, in fact, has taken a view contrary to the judgment passed by
a Division Bench of this Court in Rajeev Verma & Ors. Vs. State &
Ors., 2010 (2) JKJ HC 859. The respondent No.2, while exercising the
power of Appellate Authority, was under an obligation to return a
finding on the merits of the case but instead of deciding the appeal on
merits and rendering the judgment with reference to the factual matrix
of the case of the petitioner, the respondent No.2 dismissed the appeal
on a ground which was not available to him in view of the direction
contained in the order dated 21.07.2022. Besides above, the petitioner
has also raised certain factual aspects of the case which may not be
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relevant for the purposes of adjudicating the short controversy involved
in the present petition.
3) The private respondents have filed the response stating therein
that the District Magistrate conducted an enquiry under Migrant Act
and after conducting the enquiry, vide order dated 22.11.2018, directed
the removal of encroachment made by the petitioner. The said order
was impugned by the petitioner through the medium of a writ petition
ublic School vs. State of J&K and
bearingNo.33/2019 titled “Lyceum P
others” for two reasons that the migrant had died and was not
represented by any of his legal representatives and that the petitioner
was the authorized occupant of the premises. The said writ petition was
disposed of by the Court vide order dated 17.01.2019 by providing that
these two questions shall be considered and decided by the District
Magistrate concerned before proceeding further in the matter. The
District Magistrate considered the claim of the petitioner and held that
the petitioner was an unauthorized occupant in occupation of
immovable property of the migrant without his consent and,
accordingly, the District Magistrate vide order dated 15.01.2020
directed the petitioner to vacate the premises/migrant property. The
aforesaid order dated 15.01.2020 was assailed by the petitioner through
the medium of CM(M) No.12/2020 as mentioned above. It is stated by
the private respondents that only an owner under law can create a legal
authority and in the instant case, there is absence of written consent
from the owner to the occupant to possess the migrant property and in
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absence of written consent to occupy the premises, the possession of
the petitioner is unauthorized. The petitioner has miserably failed to
present any relevant document which could substantiate his claim that
he was a legal/authorised tenant and was rightly declared as
unauthorized occupant by the District Magistrate.
4) Learned counsel for the respondent has raised a preliminary
objection in respect of maintainability of the writ petition, particularly
when the petitioner failed to comply with the directions passed by this
Court and also the statutory provisions while filing the statutory appeal.
5) Mr. Shuja-ul-Haq, learned counsel for the petitioner submitted
that the petitioner was not an authorized occupant of the property being
tenant and the respondent No.2 instead of deciding the claim of the
petitioner on merits has resorted to shortcut to decide the appeal and, as
such, has refused to exercise the jurisdiction vested in him under the
Act (supra).
6) Heard and perused the record.
7) In order to appreciate the controversy involved in the present
petition in view of the preliminary objection raised by the private
respondents, for convenience, Section 7 of the Migrant Act is
extracted as under:
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;
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(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.
8) The perusal of Section 7 (supra), would reveal that surrender of
possession of the property, which is the subject matter of appeal, is
sine quo non for the purpose of entertaining an appeal against an order
of eviction. The perusal of order dated 21.07.2022 passed by this
Court in CM(M) No.12/2020 reveals that this Court had provided that
the possession of the property shall remain in custody of the District
Magistrate but shall not be delivered to respondents No.3 to 5 therein.
Perusal of the order impugned dated 28.12.2022 reveals that the
petitioner did not surrender the possession and the respondent No.2,
the Appellate Authority, granted repeated opportunities to the
petitioner on the dates mentioned in the order impugned to surrender
the possession but the petitioner did not comply the order dated
21.07.2022 passed by this Court and the respondent No.2 taking note
of default on the part of the petitioner to surrender the possession of
the subject property, dismissed the appeal in limini.
9) Learned counsel for the petitioner tried to impress this Court
that this Court had directed that the possession of the subject property
shall not be delivered to the private respondents and, in fact, the Court
protected the possession of the petitioner. The argument appears to be
attractive but deserves to be rejected solely on the ground that it was
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provided in the order dated 21.07.2022 that the possession of the
subject property shall remain with the District Magistrate concerned.
Not only this, the surrender of the possession was a pre-requisite for
entertaining any appeal against the order passed under the Migrant
Act. It is settled law that once a statute prescribes a mode for doing a
particular act in a particular manner in order to obtain any benefit, then
that act must be performed in that manner. Once the petitioner did not
satisfy the requirement of Section 7 of the Migrant Act for entertaining
his appeal thereby surrendering possession of the subject property, the
appeal was not maintainable. The petitioner even did not avail the
number of opportunities afforded to it for surrendering the possession
to the District Magistrate concerned and, in fact, every endeavour was
made by the respondent No.2 to ensure the disposal of the appeal on
merits but the petitioner by its own action disabled the respondent
No.2 to decide the appeal on merits as Section 7 of the Migrant Act
has placed an embargo upon the competent authority against
entertaining any appeal by the aggrieved person without surrender of
possession of the subject property.
10) In view of above, the present petition is found to be
misconceived and, accordingly, the same is dismissed.
11) No order as to costs.
(Rajnesh Oswal)
Judge
SRINAGAR
29.03.2024
-Secy
“Bhat Altaf ”
Whether the order is reportable: Yes/No
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