Maharaj Krishan Pandita And OthersVs State And Others

1 The short grievance projected by the petitioners in this petition is that they are migrants who were forced to flee from the valley in the year 1990 in the wake of law and order situation then prevailing and left their movable and immovable properties there. The petitioners claim that they are owner in cultivating possession of the land measuring 15 marlas under khasra No.287/35, land measuring 1 kanal 9 marlas under khasra No.404/160, land measuring 1 kanal 9 marlas under khasra No.218/162 and land measuring 18 marla recorded as 'shamlat deh' under khasra No. 196/23 situated at Rampura Ramhal Tehsil and District Anantnag (Kashmir).

2 Learned counsel for the petitioners submits that because of law and order conditions in the valley, the petitioners could not protect their properties and the same remained unattended. He further submits that taking the benefit of absence of the petitioners, some villagers, namely, Bashir Ganai, Hamid Mir and Ama Mir have encroached upon the properties of the petitioners. The petitioners claim to have moved the office of District Magistrate, Anantnag in this regard by way of several applications, but no decision in the matter is being taken by him.

3 Being aggrieved of the inaction on the part of District Magistrate to redress their grievance, the petitioners filed the instant petition seeking, inter alia, a direction to respondent No.3 to take possession of immovable properties of the petitioners in exercise of powers vested in him under Section 4 of Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales), Act 1997 ( hereinafter referred to as the 'Act of 1997') .

4 It appears that this Court, while issuing notice on 10.05.2010, directed respondent No.3 i.e. the District Magistrate, Anantnag to look in the matter and pass appropriate orders in terms of the provisions of Act of 1997. Respondent No.3 has filed the compliance report and has indicated the steps taken by him with a view to preserve and protect the immovable properties of the petitioners. The petitioners, however, are not satisfied with the report filed by respondent No.3 and submits that some of the properties belonging to the petitioners which are under the encroachment of the aforesaid persons have not been freed and taken possession of by the District Magistrate, Anantnag.

5 Be that as it may, the dispute which is now raised before this Court is purely a dispute of facts and cannot be adjudicated upon in the writ jurisdiction of this Court. However, with a view to do complete justice and set the controversy at rest, this petition is disposed of by providing as under:

(i). The petitioners shall move a fresh application before the District Magistrate, Anantnag indicating the survey numbers/khasra numbers and the extent of the land owned and possessed by them in the District of Anantnag;

ii. The petitioners shall also indicate as to who are the illegal encroachers on the aforesaid land; and

iii. The District Magistrate, Anantnag shall conduct an enquiry into the matter in terms of the provisions of the Act of 1997 and shall pass appropriate orders with a view to preserve and protect the immovable properties of the petitioners. However, no order adverse to any person including the encroachers shall be passed without affording him/them an opportunity of being heard.

6 Let District Magistrate, Anantnag proceed in the matter immediately on receipt of the detailed application in this regard from the petitioners. It would be appreciated if the proceedings in the matter are conducted within a period of eight weeks from the date the District Magistrate receives such application from the petitioners. The proceedings shall be determined by the District Magistrate, Anantnag by passing a speaking order so that the aggrieved party can avail of the remedy of appeal/revision as may be provided under the Act of 1997.

Disposed of as above.