LYCEUM PUBLIC SCHOOL Vs. UT OF J&K

JUDGEMENT

(1.) The petitioner had earlier approached this Court for quashing of the order dtd. 15/1/2020 issued by the District Magistrate, Anantnag, in terms of Sec. 5 of the J&K Migrant Immovable Property (Protection, Preservation and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as 'the Migrant Act'), whereby the District Magistrate had directed the petitioner to vacate the migrant property which is subject matter of the present petition, within a period of three months and surrender the same to the District Magistrate, Anantnag, for its further handing over to the respondents No.3 to 5 therein. This Court vide order dtd. 21/7/2022, dismissed the writ petition bearing CM(M) N.12/2020 and relegated the petitioner to the statutory remedy as provided under Sec. 7 of the Migrant Act. It was further provided by the Court that in the event any appeal is preferred, the subject property shall not be delivered to the private respondents therein and the same shall remain in the custody of the District Magistrate. The petitioner filed the statutory appeal before the respondent No.2 but the same was dismissed vide order dtd. 28/12/2022 as not maintainable on the ground that the petitioner had not surrendered the possession of the property to the District Magistrate.

(2.) The petitioner has filed the present petition for quashing the order dtd. 15/1/2020 and also the order dtd. 28/12/2022 on the ground that while dismissing the appeal, the respondent No.2 has failed to appreciate that while passing order dtd. 15/1/2020, the District Magistrate, Anantnag, had not rightly appreciated the fact that the petitioner was not an unauthorized occupant of the migrant property but had been in its occupation since 1982, which on time scale is much before eruption of militancy/turmoil in the State of J&K. The District Magistrate, in fact, has taken a view contrary to the judgment passed by a Division Bench of this Court in Rajeev Verma and Ors. Vs. State and Ors., 2010 (2) JKJ HC 859. The respondent No.2, while exercising the power of Appellate Authority, was under an obligation to return a finding on the merits of the case but instead of deciding the appeal on merits and rendering the judgment with reference to the factual matrix of the case of the petitioner, the respondent No.2 dismissed the appeal on a ground which was not available to him in view of the direction contained in the order dtd. 21/7/2022. Besides above, the petitioner has also raised certain factual aspects of the case which may not be relevant for the purposes of adjudicating the short controversy involved in the present petition.

(3.) The private respondents have filed the response stating therein that the District Magistrate conducted an enquiry under Migrant Act and after conducting the enquiry, vide order dtd. 22/11/2018, directed the removal of encroachment made by the petitioner. The said order was impugned by the petitioner through the medium of a writ petition bearingNo.33/2019 titled 'Lyceum Public School vs. State of J&K and others' for two reasons that the migrant had died and was not represented by any of his legal representatives and that the petitioner was the authorized occupant of the premises. The said writ petition was disposed of by the Court vide order dtd. 17/1/2019 by providing that these two questions shall be considered and decided by the District Magistrate concerned before proceeding further in the matter. The District Magistrate considered the claim of the petitioner and held that the petitioner was an unauthorized occupant in occupation of immovable property of the migrant without his consent and, accordingly, the District Magistrate vide order dtd. 15/1/2020 directed the petitioner to vacate the premises/migrant property. The aforesaid order dtd. 15/1/2020 was assailed by the petitioner through the medium of CM(M) No.12/2020 as mentioned above. It is stated by the private respondents that only an owner under law can create a legal authority and in the instant case, there is absence of written consent from the owner to the occupant to possess the migrant property and in absence of written consent to occupy the premises, the possession of the petitioner is unauthorized. The petitioner has miserably failed to present any relevant document which could substantiate his claim that he was a legal/authorised tenant and was rightly declared as unauthorized occupant by the District Magistrate.