Div Com lacks jurisdiction to entertain complaints under J&K Migrant Immovable Property Act: HC
District Magistrate competent authority in this regard
Srinagar: J&K High Court on Thursday held that the Divisional Commissioner lacks jurisdiction to entertain a complaint of a migrant alleging alienation of his immoveable property in contravention of the provisions of the J&K Migrant Immovable Property Act.
Hearing a case of two opposing Pandit (brothers) migrants, Justice Sanjeev Kumar held that the Divisional Commissioner lacks jurisdiction to entertain a complaint of a migrant or any other person alleging the alienation of the immoveable property in contravention of the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
“The person aggrieved is required to approach and file an appropriate application or complaint before the District Magistrate who is the authority designated under Rule 6 of the Rules to hold enquiry into the validity or otherwise of alienation of the properties of the migrants,” Justice Kumar said.
He made it clear “it is the District Magistrate alone who shall, after it is established in the enquiry conducted by him or through Revenue officer not below the rank of Tehsildar that the alienation of the immoveable property of the migrant has taken place in contravention of the provisions of the Act, take over the possession of the alienated property after evicting the alienee. He shall also take further necessary steps for preservation and protection of such property.”
The case related to one Parvesh Bahri aggrieved of a Divisional Commissioner’s order passed in May this year on a complaint by his own brother Harish Bahri in a case Harish Bahri v. Abdul Rehman Mantoo and others.
The order by Div Com declared Parvesh a ‘migrant’ within the meaning of the Act. The order declared the alienation of some immovable properties at Humhama in contravention of the Act.
The Tehsildar Budgam, was then directed to take over the possession of the properties and handover it to Harish.
With a view to conduct their business smoothly, both the Pandit brothers for proper management of the properties had conferred two powers of attorneys in favor of each other in 2000.
On the strength of power of attorney executed by Harish in favor of Parvesh, which also envisaged the appointment of sub-attorney/further attorney him, issued a power of attorney in favor of one Mohammad Akram Dar of Humhama. He gave him the power and authority to sell the land which was standing in the name of respondent Harish.
On the basis of the power of attorney executed by Parvesh in his favor, Mohammad Akram Dar executed two sale-deeds in favor of two different persons for consideration. The sale-deeds so executed were also registered and mutations on the basis thereof were also attested in favor of the Vendees of these deeds.
It is alleged by Harish in his complaint filed before the Divisional Commissioner Kashmir that his brother Parvesh misused the power of attorney executed in his favor. Without any authority or seeking prior permission of the prescribed authority, he alienated his landed property, the complainant said.
Harish in his complaint claimed that he was a migrant and, therefore, entitled to the protection of his immovable property under the Act.
The Divisional Commissioner entertained his complaint. He concluded that Harish was a migrant and therefore, alienation of his properties at Humhama, Srinagar were “distressed sales” and without requisite permission of the competent authority.
Hearing Parvesh’s petition, the court held that the Divisional Commissioner is only a “prescribed authority” empowered to grant permission under Section 3 of the Act.
The court also said “it is the District Magistrate who is competent and authorized to hold an enquiry into the alienation of immovable property made in contravention of the provisions of the Act. He only can take over the possession of the alienated property after evicting the alienee from such property. But the enquiry should establish that the alienation has taken place in contravention of the provisions of the Act.”