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Case Title – Lyceum Public School vs. UT of J&K & Ors.

Case No. – WP(C) No. 150/2023

Dated on – 29^th March, 2024

Quorum – Hon’ble Mr. Justice Rajnesh Oswal

 

Facts of the Case –

The petitioner initially approached the Court to quash the order dated 15.01.2020 issued by the District Magistrate, Anantnag, under Section 5 of the J&K Migrant Immovable Property (Protection, Preservation, and Restraint on Distress Sales) Act, 1997 (“Migrant Act”), directing the petitioner to vacate the migrant property within three months and surrender it to the District Magistrate for further handing over to respondents No.3 to 5. The Court dismissed the writ petition CM(M) No.12/2020 on 21.07.2022, advising the petitioner to seek a statutory remedy under Section 7 of the Migrant Act. The petitioner’s statutory appeal was dismissed on 28.12.2022 as not maintainable because the petitioner had not surrendered the possession of the property to the District Magistrate.

 

Legal Provisions –

• Section 5 of the J&K Migrant Immovable Property (Protection, Preservation, and Restraint on Distress Sales) Act, 1997.
• Section 7 of the J&K Migrant Immovable Property (Protection, Preservation, and Restraint on Distress Sales) Act, 1997.

 

Contentions of the Appellant –

The petitioner argued that the District Magistrate failed to recognize that the petitioner had occupied the property since 1982, well before the onset of militancy in J&K, and was thus not an unauthorized occupant. The petitioner cited a Division Bench judgment in Rajeev Verma & Ors. vs. State & Ors., 2010 (2) JKJ HC 859, arguing that the District Magistrate’s decision contradicted this precedent. The petitioner also contended that the appellate authority did not address the merits of the case but instead dismissed the appeal on procedural grounds not supported by the Court’s order dated 21.07.2022.

 

Contentions of the Respondent –

The private respondents argued that the District Magistrate, after an inquiry, declared the petitioner an unauthorized occupant and ordered the removal of encroachment on 22.11.2018. The petitioner’s earlier writ petition, challenging this order on grounds of the migrant’s death and lack of legal representation, was disposed of on 17.01.2019, directing the District Magistrate to consider these points. The respondents asserted that the petitioner could not provide any legal documents proving authorized occupancy and thus was correctly deemed an unauthorized occupant by the District Magistrate.

 

Court Analysis and Judgement –

The Court examined Section 7 of the Migrant Act, which requires surrendering possession of the property as a prerequisite for entertaining an appeal against an eviction order. The Court noted that its order dated 21.07.2022 stipulated that the property would remain with the District Magistrate and not be delivered to the private respondents, yet the petitioner failed to surrender the possession as required. The Court emphasized that statutory procedures must be followed as prescribed, and the petitioner’s non-compliance rendered the appeal non-maintainable. The Court found that despite multiple opportunities, the petitioner did not surrender the property, thus preventing the appellate authority from deciding the appeal on its merits. Consequently, the Court dismissed the petition, affirming the need to adhere strictly to statutory requirements.

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Judgement Reviewed By- Anurag Das

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