Dr. Ab. Samad vs Financial Commissioner and Others

Bashir A. Kirmani, J.—Objections have already been filed. With agreement of learned Counsel petition is admitted to hearing and in view of

the nature thereof taken up for final disposal.

Impugned in this petition are orders purporting to have been passed by respondent-District Magistrate and Financial Commissioner respectively

on 02.07.02 and 15.04.2004, whereunder the District Magistrate assumed jurisdiction under Migrant Immovable Property (Preservation

Protection and Restraint on Distress Sales) Act, 1997 and declaring petitioner's alleged encroachment of a common 'pathway' as illegal directed

the Tehsildar Chadura to evict him therefrom forthwith, and Financial Commissioner confirmed the order on appeal.

It appears that private respondents namely Kanta Ganjoo and Veena Ganjoo along with some inhabitants of the locality approached District

Magistrate Budgam with a complaint against the petitioner that he had blocked the common pathway which among others led to their residential

plots, who after seeking reports from Tehsildar and Additional Deputy Commissioner assumed jurisdiction under Migrant Immovable Property

(Preservation Protection and Restraint on Distress Sales) Act, 1997 and treating the pathway to be a migrant property encroached upon by the

petitioner directed his eviction therefrom. On appeal the Financial Commissioner did not find favour with petitioner's contention against District

Magistrate's order and while observing that appellant had not surrendered the possession of migrant property involved, the appeal could not be

entertained. It is these two orders those are impugned in this writ petition on the ground that since the pathway in question was in exclusive

ownership and use of petitioner, it was not covered by Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales) Act,

1997 and as such both the respondents in their official capacity acted illegally. During course of his submissions the petitioner's counsel, while

reiterating contents of petition with reference to materials appended therewith including, the sale deed and revenue record contended that in view

of the records the petitioner was the exclusive owner/user of the pathway in question.

In their objections, private respondents 3 and 4 have among other things pleaded that the pathway in question was in their use commonly along

with the petitioner, and provides access to their residential plots also along with that of Gh. Nabi and could not be exclusively claimed by petitioner

under the pretext of its being recorded as ""Rasta Khas"", albeit wrongly. During course of his submissions their counsel has stood by that position.

I have heard learned Counsel and considered the matter. In view of pleadings, particularly the above mentioned plea taken by respondents 3

and 4, even if one does not agree, for specific purpose of assessing the legal impact of impugned orders, with petitioner's claim of exclusive

ownership/user over the pathway in question still then it has to be taken to have been in common use of the parties alongwith aforesaid Gh. Nabi.

Taking that admitted position as the base line for appreciation of the impugned actions I feel the order as they have been passed are not justifiable

u/s 4 of the J&K Migrant Immovable Property (Preservation Protection and Restraint on Distress Sales ) Act, 1997, District Magistrates have

been authorized to take over possession of immovable property belonging to migrants falling within their jurisdiction within 30 days of

commencement of the Act and take all steps necessary for preservation and protection thereof, and not hand over possession of such property to

any one, otherwise than with express consent of the migrant concerned in writing. For the sake of ready reference the section may be quoted

herein below:

Custody of immovable property. - (1) Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession

of immovable property, belonging to Migrants, falling within his territorial jurisdiction and shall, on the expiry of said period of 30 days, be deemed

to have the custody of such immovable property.

(2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property.:

Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing.

Thus for a District Magistrate to assume jurisdiction, three conditions must necessarily exists before he acts. First, that the property in respect

whereof jurisdiction is required to exercise must be immovable property; secondly, it should be located with his territorial jurisdiction, and thirdly, it

should belong to a Migrants as defined in Section 2(e) of the Act. Now instantly in so far as the location and description of property is concerned,

it is admittedly immovable property situated within jurisdiction of the District Magistrate, and the fact that private respondents 3 and 4 are Migrants

has not been disputed at any level. But the question whether the property in question admittedly the ""pathway"" common between the parties, can

be said to be ""Migrant's property"" requires debate. In that behalf the import of the expression ""Immovable Property"" as defined in the Act is

relevant u/s 2(d) this expression is to be deemed to include tenancy rights, or other interests created under any law for the time being in force,

which convey migrant's proprietorship of the immovable property or tenancy thereof including any other interest vesting in him under any law.

Taken in that context the interest of private respondents 3 and 4 in the property under reference as per their own stand appears to be the right

of user over the above said pathway along with petitioner. As such they share whatever interest they have with the petitioner and do not have it to

his exclusion. Thus, neither they nor petitioner can be ousted from the right to use the pathway, and viewed thus, what could attract the application

of Section 4 and justify assumption of jurisdiction by competent authority thereunder was an invasion on the private respondent right of user over

the said pathway, which in any case could not mean extinction of petitioner's right to use it. Accordingly, petitioner's eviction there from as ordered

by the District Magistrate in exercise of power to protect migrant's interests therein, appears to be mis-placed and perhaps based on a faulty

understanding of the nature of controversy and the manner in which Section 4 could apply in the right perspective. In simple terms if respondents 3

and 4 cannot be debarred from common use of the pathway in question for access to their respective plots, the petitioner and other person

etforementioned having same and similar rights to use the pathway can also not be ousted from use thereof, and thus the question of eviction does

perhaps not arise at all, neither practically nor in legal sense. Conversely thereby it, follows that none of the parties can use the pathway or act with

reference thereto in a manner which overshadows other right of user thereto, and that position equally binds them all. In that back ground,

therefore, in strict technical sense the right of user of private respondents over the said pathway as an approach to their respective plots, being

integral to their ownership over the said plots would be deemed to have vested in the District Magistrate along with petitioner for the reason that

the plots to which the pathway leads are under the Act deemed to have come within possession of concerned District Magistrate, any transfer

whereof would have to be done in accordance with the provisions of the Act and not otherwise.

For what has been said above, the conclusion is that the writ petition succeeds partially and is allowed to the extent of modifying the impugned

orders to the effect that anything done by any body including petitioner to obstruct or limit the right of user of private respondents 3 and 4 over the

said pathway would be undone keeping petitioner's right of user over it intact. Anything contrary thereto therein stands over set.

Before parting, it may be clarified that this order has been passed purely on basis of the position as admitted by respondent migrant as being

relevant with reference to the impugned orders of District Magistrate and the Financial Commissioner; and does not have any reflections upon any

exclusive rights - vesting in the parties or any of them with reference to the subject matter, which they shall be at liberty to agitate before the

competent civil court. Such rights if any have not been addressed in this order and nothing herein shall be deemed to limit or extinguish them or

right of parties to seek redressal.

The matter stands accordingly disposed of along with all connected CMP(s).