Kashi Nath Tikoo vs State Th.Home & Ors.

Notice.

Mr. A.H. Qazi Ld. AAG appears and accepts notice on behalf of respondents.

With the consent of the learned counsel for the parties, this petition is taken up for final disposal.

Case of the petitioner is that he is migrant and has left behind the land measuring more than 8 kanals situated at Kharman Ganesh Raina, Tehsil

and District Anantnag. Case of the petitioner is that this land has been illegally and unauthorisedly encroached upon by some unscrupulous persons.

Petitioner furtherplead that respondent no. 2 was requested to remove the encroachments from the land in question and reference in this behalf is

made to communication dated 1st August 2007, 27th January 2009. Petitioner further pleads that no action has being taken by respondents.

Heard learned counsel for the parties. Considered the matter.

Jammu and Kashmir Migrants Immovable Property (Preservation, protection and Restraint on Distress Sales) Act 1997 for short of Act 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 300A of constitution of India provides that no person can be deprived of his property save by authority of law. The Article 300A

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 Anantnag 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.