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The plea of the petitioner that by virtue of an agreement and an affidavit, the immovable property cannot be transferred is a plea, which can be examined by a competent court of civil jurisdiction provided the petitioner approaches it by way of appropriate proceeding as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Justice Sanjeev Kumar in the case of Raj Kumar Vs Union Territory of J&K and others [WP(C) No.1940/2021 CM No.6456/2021].

The case set up by the petitioner was that mother of the petitioner was owner in possession of subject land and that the petitioner was a migrant registered with the Relief Commissioner, Jammu. Inhabitants of village Gaberpora Hawl, on the strength of an agreement and an affidavit executed by the mother of the petitioner, got a fraudulent mutation attested in the year 1985. The petitioner claimed that he is a migrant and the property left by him in the valley is protected by Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 and the District Magistrate being custodia legis of the property of the migrants is bound in law to take over the possession of such land from the encroachers and hand it over to the petitioner. The petitioner claimed that the agreement and affidavit shown to have been made and sworn by the petitioner’s mother cannot result in transfer of the immovable property as the same is in violation of Section 138 of the Transfer of Property Act. The petitioner claimed to have approached the District Magistrate with an application to retrieve the land from encroachers but no action has been initiated by the District Magistrate (Deputy Commissioner), Pulwama, hence this petition was filed.

After hearing the learned counsel for the petitioner, Mr. Aijaz Chisti, the Hon’ble High Court found no merit in the petition by observing that in the absence of challenge to the mutation attested as far as back on 24th June, 1985, the plea of the petitioner that the aforesaid mutation was not in consonance with law cannot be examined by this Court in its extraordinary writ jurisdiction. The Hon’ble court while observing the same stated that “The plea of the petitioner that by virtue of an agreement and an affidavit, the immovable property cannot be transferred is a plea, which can be examined by a competent court of civil jurisdiction provided the petitioner approaches it by way of appropriate proceeding. Bypassing the aforesaid remedies, the petitioner being a registered migrant appears to have invoked jurisdiction of Divisional Commissioner, Jammu for retrieving his land by proceeding under the Act and on the directions of the Divisional Commissioner, Kashmir the reports have been prepared by the revenue officers indicating the recorded position and submitted to the Divisional Commissioner, Kashmir.”

In conclusion, while observing that the petitioner had made an application to the District Magistrate, Pulwama also on 27.07.2021. However, without allowing the District Magistrate to proceed in the matter and take the proceedings to logical end, the petitioner has once again found out shortcut and has approached this Court as if this Court is vested with the powers of the District Magistrate under the Act, the court stated that “The course adopted by the petitioner is, therefore, not permissible in law and for all these reasons this Court is not inclined to entertain this petition.”

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Judgment Reviewed by – Aryan Bajaj