Jammu & Kashmir High Court
Pintoo Kumar Pahalwan & Anr vs State Th. Distt. Mag. Ganderbal & Or on 11 May, 2009
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 490 OF 2009 Pintoo Kumar Pahalwan & Anr. Petitioners State Th. Distt. Mag. Ganderbal & Or Respondent !Mr. M.K.Raina, Adv. ^None Honb�ble Mr. Justice Muzaffar Hussain Attar, Judge. Date: 11/05/2009 :J U D G M E N T :
Notice.
Mr. A.H.Qazi, Ld. AAG appears and accepts notice on behalf of respondents. He does not want to file reply.
In this petition, following reliefs are sought by the petitioner:-
1.Writ, order or direction in the nature of Mandamus commanding the official respondents to evict the said encroachers from the land of the petitioners falling under survey nos. 1162,1163,1164,1165and 1167 situated at Kulpora, safapora Tehsil Lar District Ganderbal Kashmir from their unauthorized and illegal occupation.
2.Writ, order or direction commanding the respondents to recover the compensation from the above said encroachers on account of use and occupation of the said property of the petitioners from the date of their occupation till the date of eviction and release the same in favour of the petitioners.
3.Any other writ, direction or order which the Honb�ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents.
With the consent of the learned counsel for the parties, this petition is taken up for final disposal.
Case of the petitioners is that they are migrants who have landed property situated at Kulpora Safapora District Ganderbal. The grievance of the petitioner is that Gh. Ahmad Rather S/o Mohammad Akbar Rather (2) Imtiyaz Ahmad Rather S/o Ghulam Ahmad Rather residents of Kulpora Safapora Tehsil Lar Ganderal Kashmir have without consent of the petitioners encroached upon the land of the petitioner and other co-sharers and have caused immense damages to their property. It is further pleaded that the state government in order to protect the rights and interests of the migrants qua their properties enacted law called Jammu and Kashmir Migrants Immovable Property (Preservation, protection and Restraint on Distress Sales) Act 1997 for short of Act 1997. It is pleaded in the writ petition that though the petitioner has made a representation to the Deputy Commissioner Baramulla who earlier had jurisdiction about the subject matter, but no action was taken.
Heard learned counsel for the parties. Considered the matter. The Act of 1997 is a temporary legislation which has been enacted for the solomen purpose of protecting the rights and interests of migrants qua their properties. The day when migrants will return to their homeland, this act will loose its efficacy, however, till such time that legal rights and interests of the migrants are to be protected.
The District Magistrate under Act of 1997 is an authorized officer who in terms of section 4 of the Act 1997, within 30 days from the commencement of the said act is under the mandate of the statute to take possession of the immovable property belonging to migrants, falling within his territorial jurisdiction. It is further provided by section 4 that after the expiry of the said 30 days, he shall be deemed to have the custody of such immovable property. Sub- section 2 of section 4 further mandates that District Magistrate shall take all such steps as may be necessary for preserving and protection of such property. It is further provided that possession of such property shall not be handed over to any one save with the express consent of the migrants. The section 4 thus casts statutory obligation on the District Magistrate of the area to take steps for preservation and protection of such property.
Learned counsel for the petitioner submits that despite having approached the statutory authority, no action has been taken which has compelled the petitioners to approach the court by filing of this petition.
Right to hold the property continues to be a fundamental right in the state of J&K under Article 19 of the Constitution of India. A person can be deprived of his property only in accordance with procedure established by law. The Article 300-A of constitution of India provides that no person can be deprived of his property save by authority of law. The Article 300-A has the attributes and flavour of those of the provisions of constitution which falls in part III of the constitution.
Under the act of 1997, the statutory authorities are duty bound to protect the rights and interests of the owners in accordance with the provisions of law.
View thus, this petition is accordingly disposed of with direction to District Magistrate Ganderbal to take action in the matter in accordance with the provisions of J&K Migrants immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997 and ensure that the property is preserved and protected against all kinds of unlawful encroachments.
The District Magistrate shall ensure that only unauthorized occupant is evicted from the land. The District Magistrate, however, to further ensure that if any person is in occupation of the such property, he shall be given proper hearing and thereafter appropriate orders be passed in accordance with law.
Disposed of.
Jammu (Muzaffar Hussain Attar) 11.5.2009 Judge Altaf