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Case title:-LYCEUM PUBLIC SCHOOL VERSUS UT OF J&K & OTHERS

Case No:-WP© No.150/2023

Decided on:-29.03.2024

Quorum:-HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

Facts of the case

The petitioner filed the current petition to quash the orders dated 15.01.2020 and 28.12.2022 on the grounds that respondent No. 2 failed to provide sufficient justification for dismissing the appeal. Recognize that the District Magistrate, Anantnag, did not appropriately consider the fact that the petitioner had been occupying the migrant property since 1982, well before the escalation of militancy and unrest in the State of J&K, when issuing the order dated January 15, 2020. In actuality, the District Magistrate has adopted a viewpoint that is at odds with the ruling rendered by this Court’s Division Bench in Rajeev Verma & Ors. Vs. State & Ors., 2010 (2) JKJ HC 859. Respondent No. 2 utilized their authority for Appellate Authority, was required to provide a finding on the case’s merits; however, respondent No. 2 dismissed the appeal on a ground that was not available to him in light of the directive contained in the order dated July 21, 2022, rather than deciding the appeal on its merits and rendering the judgment with reference to the petitioner’s factual matrix. In addition to the points mentioned above, the petitioner has brought up a few factual issues that might not be pertinent to the decision-making process regarding the brief dispute at hand. The private respondents have submitted a response in which they state that the District Magistrate investigated under the Migrant Act and, following that investigation, issued an order on November 22, 2018. The petitioner’s encroachment being removed. the petitioner challenged the aforementioned order of January 15, 2020. The private respondents assert that only an owner has the legal ability to establish a legal authority. In the present instance, the owner’s written consent to the occupant’s possession of the migrant property is missing, making the petitioner’s possession of the property unlawful. The petitioner has terribly failed to provide any pertinent documentation to support his assertion that he was an authorized renter and that the District Magistrate correctly determined him to be an unlawful inhabitant.

Legal Provisions

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”)

Appellant Contentions

Mr. Shuja-ul-Haq, the petitioner’s learned counsel, argued that the petitioner was not the property’s authorized occupant as tenant and that respondent No. 2 had chosen a shortcut to decide the appeal rather than considering the petitioner’s claim on its merits. As a result, the respondent refused to exercise the jurisdiction granted to him by the Act (supra).The petitioner’s knowledgeable attorney attempted to persuade the court that the court had protected the petitioner’s ownership and had ordered that the relevant property not be turned over to the private respondents. Although the argument seems appealing, it should be dismissed based only on the fact that the ruling dated July 21, 2022 stipulated that the possession of the Subject property will stay in the possession of the relevant District Magistrate. Not only that, but giving up possession was a requirement in order to consider an appeal against a Migrant Act order. It is well-established law that an act must be carried out in a certain way if a statute specifies how it must be done in order to reap any benefits. The appeal was not maintainable after the petitioner gave up ownership of the relevant property by failing to comply with Section 7 of the Migrant Act’s requirements for appealing. The petitioner failed to take advantage of the numerous opportunities provided to relinquish possession. To the relevant District Magistrate and, in actuality, Respondent No. 2 made every effort to ensure that the appeal was decided on the merits, but the petitioner’s actions prevented the respondent No. 2 from making a merit-based decision because Section 7 of the Migrant Act forbade the competent authority from considering any appeal filed by an affected party unless they gave up possession of the property in question.

Respondent Contentions

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

Judgement

The petitioner challenged the aforementioned order on two grounds: first, that the migrant had passed away and was not represented by any legal counsel; and second, that the petitioner was the property’s authorized occupant. The Court dismissed the aforementioned writ petition with an order dated January 17, 2019, stating that the District Magistrate in question would have to review and rule on these two issues before moving forward in the situation. After reviewing the petitioner’s claim, the District Magistrate determined that the petitioner was an unauthorized occupant occupying the migrant’s immovable property without the migrant’s consent. As a result, the District Magistrate ordered the petitioner to leave the premises and migrant property by order dated January 15, 2020. Through the aforementioned CM(M) No.12/2020, 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

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Judgement Analysis Written by – K.Immey Grace