Any person who comes in occupation of property of which an authority is custodia legis as per the provisions of a special legislation, except in accordance with the procedure prescribed by law; would become an unauthorized occupant thereto; as observed by the IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR, before Hon’ble Justice Mr. Sanjay Dhar, in the matter of Ghulam Rasool Bhat vs. State of Jammu & Kashmir and Ors. [OWP No.1597/2015], on 04.12.21.
The facts of the case were that the petitioner purchased a parcel of land measuring 7 kanals 5 marlas situated at Village Ropora Namthal Tehsil Chadoora District Budgam from the respondents, who were migrants and owners of the land; in the year 1989; and obtained possession of the said land from them. It was averred that a proper sale deed could not be executed. A receipt for the consideration and a Power of Attorney were executed, on the basis of which the petitioner claims possession. Subsequently, the respondent filed applications before the Divisional Commissioner, and the Financial Commissioner, alleging unauthorized occupation of the aforesaid land. Post an enquiry conducted by officers of the Revenue Department and other proceedings on the basis of the applications, the Tehsildar, Chadoora, ultimately attached the land. The Tehsildar’s order was set aside by the High Court upon a writ petition filed by the aggrieved petitioner; and directions were issued to the Deputy Commissioner to decide the matter with reference to taking over possession of the property. In accordance with Section 4(1) of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, the Deputy Commissioner directed the Tehsildar to take possession. Aggrieved by this order, the petitioner had approached the High Court.
The Learned Counsel for the petitioners, Mr. N. A. Kuchai, primarily contended that the petitioner is in possession of the land in question on the basis of agreement to sell, Power of Attorney and receipt of money executed by owners of the land in his favour, which means that his possession over the land in question is permissive and not unauthorized.
The Learned Counsel for the respondents, Mr. Shuja-ul-Haq, argued that the petitioner has not obtained any permission in terms of the provisions of the Act of 1997 for transfer of the land in question in his favour, as such, he cannot claim any right or title over the said property. It was contended that the Act of 1997 is a special legislation, and it overrides all other laws. Therefore, petitioner cannot claim possession over the land belonging to a migrant except in accordance with the procedure prescribed in the Act of 1997, which has not been followed by the petitioner.
The High Court of Jammu & Kashmir and Ladakh at Srinagar, after considering the facts, evidence and contentions, as well as the background of the legislation, observed in light of precedents, that Section 3 of the Act prohibits alienation of immovable property of a migrant not only by the act of the parties but also by a decree or order of the Court without the previous permission of the Revenue and Relief Minister. It further provides that any alienation of immovable property in contravention to the provisions of the Act shall be null and void. Additionally, a conjoint reading of Sections 3 and 4 of the Act revealed that once the District Magistrate becomes custodia legis of any property belonging to a migrant, no one is free to alienate the same without the previous permission of the Revenue and Relief Minister and that any alienation, if made, without such permission or in contravention of the Act shall be null and void. Thus, dismissing the contentions of the petitioner, the High Court held the petitioner to be an unauthorized occupant, since the very inception. Finding no infirmity or illegality in the impugned order, the High Court dismissed the petition.