AB SAMAD Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) 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.

(2.) 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 petitioners 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.

(3.) 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 petitioners contention against District Magistrates 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 petitioners 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.