By M Ahmad
Srinagar- The High Court of J&K and Ladakh on Friday said that if a person, unauthorizedly occupying migrant property, fails or refuses to surrender its possessions, force is to be used by competent authority.
A bench of Justice Vinod Chatterji Koul also reiterated immovable properties belonging to migrants shall be deemed to be in possession of District Magistrate irrespective of the nature of possession of any person other than the migrant himself.
The court made the observations while dismissing a petition filed against an order dated 29 May 2015 by District Magistrate, Kulgam, whereby Tehsildar Devsar, was directed to proceed on spot and evict the illegal occupant and take over the possession of land measuring two kanals 17 marlas at Chowgam Tehsil of the south Kashmir district.
The petitioner had stated he has been in continuous peaceful exclusive possession of land prior to the year 1971. He had stated that the rights of ex-owner S Pandith regarding the land were extinguished under Section 4 of Agrarian Reforms Act and the petitioner was declared as prospective owner.
He had submitted that the land was later on mutated in his favour under Section 12 of the Agrarian Reforms Act and he came to be in absolute possession of the said land.
On the other hand, counsel representing migrants argued that the petition was not maintainable in view of provisions contained in Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, therefore, the same was liable to be dismissed.
“…if a person, unauthorizedly occupying migrant property, fails or refuses to surrender its possessions, force is to be used by competent authority as is so envisaged in Section 5 of the Act of 1997,” the court said, adding, “For implementation of the Act of 1997, competent authority, as is mentioned in Section 6, can take such steps and force, which in its opinion is necessary.”
If there is a written complaint by a migrant, the court said, the competent authority can take or cause to be taken such steps and use or cause to be used such force as may be necessary for eviction from or delivery of possession of migrant property.
“The competent authority can also enter upon migrant property and make survey including measurement and do any other act which may be necessary for carrying out the purposes of the Act of 1997.”
Not only this, the court referred to its Division Bench observation in a case in which it has been held that that it is not necessary that a person in possession of the immovable property of migrant ought to be in illegal or unauthorized possession as neither Section 3 nor Section 4 contemplates about the nature of possession of immovable property belonging to migrants, “meaning thereby that immovable properties belonging to migrants shall be deemed to be in possession of District Magistrate irrespective of the nature of possession of any person other than the migrant himself.”
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