Srinagar: The High Court of Jammu and Kashmir and Ladakh has ruled that the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, cannot be invoked mechanically to declare occupants of land unauthorised when their possession began before the alleged owners acquired migrant status.
A bench headed by Justice Sanjay Parihar observed that where possession commenced before November 1, 1989, the date associated with the statutory definition of a “migrant”, the subsequent migration of those claiming ownership could not, by itself, establish that the occupants had encroached upon migrant property.
The court clarified that the legality of such possession must be independently examined in light of the relevant revenue records and applicable laws governing agricultural holdings and Shamilat-e-Deh land.
“The subsequent migration of the persons claiming ownership of the land could not, by itself, conclusively determine the legal character of possession which had commenced prior thereto,” the court observed.
The ruling came in a case involving 4 kanals and 1 marla of land in Bandipora district.
According to the petitioners, their predecessor had been recorded in cultivating possession of the land since Rabi 1976. The land was classified as Shamilat-e-Deh.
Under the 1997 Act, an “unauthorised occupant” is a person who has encroached upon or taken possession of a migrant’s immovable property without consent or lawful authority.
The High Court noted that this statutory requirement assumes particular significance when possession predates the alleged owner’s migration.
The court said the authorities were required to examine whether the possession was lawful or permissive at its inception, whether any permission had subsequently been withdrawn, and whether the occupants had continued in possession without authority of law.
These questions, it held, could not be settled merely by relying on the subsequent migration of the persons claiming ownership.
Emphasising the serious civil consequences of an eviction order, the court observed that a declaration of unauthorised occupation must follow a lawful inquiry, consideration of relevant material and a reasoned finding that the statutory conditions for invoking the Act had been fulfilled.
The High Court found that the authorities had failed to undertake the necessary examination before invoking the special provisions of the Migrant Act.
Consequently, it quashed the concerned Deputy Commissioner’s (Bandipora), order declaring the petitioners unauthorised occupants, along with the appellate order passed by the Financial Commissioner (Revenue).
The court further clarified that the absence of a formal title document, or a dispute over the creation of a tenancy after the enforcement of the Agrarian Reforms Act, could not, without further examination, provide a sufficient basis for declaring the petitioners unauthorised occupants under the 1997 Act.
The competent authority, it said, must first determine the origin, continuity and legal status of the possession before deciding whether the provisions of the Migrant Act apply.
Holding that the failure to conduct such an inquiry had materially affected the legality of the Deputy Commissioner’s order, the court remanded the matter to the Deputy Commissioner for fresh consideration.
The authority has been directed to examine the circumstances in which possession began, whether it continued lawfully, and whether the statutory requirements for invoking the 1997 Act are satisfied in the case.
