Lyceum Public School vs Ut Of J&K & Others
2024 Latest Caselaw 351 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Lyceum Public School vs Ut Of J&K & Others on 29 March, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKHAT SRINAGAR
                                               Reserved on: 26.02.2024
                                               Pronounced on:29.03.2024

                         WP(C) No.150/2023

LYCEUM PUBLIC SCHOOL                               ...PETITIONER(S)
       Through: - Mr. Shuja-ul-Haq Tantray, Advocate.

Vs.

UT OF J&K & OTHERS                            ...RESPONDENT(S)
       Through: -   Mr. Faheem Nisar Shah, GA-for R1 to R4
                    Mr. Jahangir Iqbal Ganai, Sr. Adv. with
                    Mr. Vaseem Aslam, Adv.-for R4 to R6.

CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGMENT

1) The petitioner had earlier approached this Court for quashing of

the order dated 15.01.2020 issued by the District Magistrate, Anantnag,

in terms of Section 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 dated 21.07.2022, dismissed the writ petition bearing

CM(M) N.12/2020 and relegated the petitioner to the statutory remedy

as provided under Section 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 dated 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

dated 15.01.2020 and also the order dated 28.12.2022 on the ground

that while dismissing the appeal, the respondent No.2 has failed to

appreciate that while passing order dated 15.01.2020, 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 & Ors. Vs. State &

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 dated 21.07.2022. 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 dated 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 dated 17.01.2019 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 dated 15.01.2020

directed the petitioner to vacate the premises/migrant property. The

aforesaid order dated 15.01.2020 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.

4) Learned counsel for the respondent has raised a preliminary

objection in respect of maintainability of the writ petition, particularly

when the petitioner failed to comply with the directions passed by this

Court and also the statutory provisions while filing the statutory appeal.

5) Mr. Shuja-ul-Haq, learned counsel for the petitioner submitted

that the petitioner was not an authorized occupant of the property being

tenant and the respondent No.2 instead of deciding the claim of the

petitioner on merits has resorted to shortcut to decide the appeal and, as

such, has refused to exercise the jurisdiction vested in him under the

Act (supra).

6)    Heard and perused the record.


7)    In order to appreciate the controversy involved in the present

petition in view of the preliminary objection raised by the private

respondents, for convenience, Section 7 of the Migrant Act is

extracted as under:

"7. Appeal. - (1) Any person aggrieved of an order passed under this Act, may file an appeal before the Financial Commissioner, Revenue:

Provided that no such appeal shall be entertained against-

(a) an interlocutory order;

(b) an order of eviction unless possession of the property is surrendered to the competent authority;

(c) an order of payment of compensation determined under this Act unless the amount of compensation is deposited with the appellate authority.

(2) The period of limitation for filing of an appeal under sub section (1) shall be fifteen days from the date of order appealed against.

8) The perusal of Section 7 (supra), would reveal that surrender of

possession of the property, which is the subject matter of appeal, is

sine quo non for the purpose of entertaining an appeal against an order

of eviction. The perusal of order dated 21.07.2022 passed by this

Court in CM(M) No.12/2020 reveals that this Court had provided that

the possession of the property shall remain in custody of the District

Magistrate but shall not be delivered to respondents No.3 to 5 therein.

Perusal of the order impugned dated 28.12.2022 reveals that the

petitioner did not surrender the possession and the respondent No.2,

the Appellate Authority, granted repeated opportunities to the

petitioner on the dates mentioned in the order impugned to surrender

the possession but the petitioner did not comply the order dated

21.07.2022 passed by this Court and the respondent No.2 taking note

of default on the part of the petitioner to surrender the possession of

the subject property, dismissed the appeal in limini.

9) Learned counsel for the petitioner tried to impress this Court

that this Court had directed that the possession of the subject property

shall not be delivered to the private respondents and, in fact, the Court

protected the possession of the petitioner. The argument appears to be

attractive but deserves to be rejected solely on the ground that it was

provided in the order dated 21.07.2022 that the possession of the

subject property shall remain with the District Magistrate concerned.

Not only this, the surrender of the possession was a pre-requisite for

entertaining any appeal against the order passed under the Migrant

Act. It is settled law that once a statute prescribes a mode for doing a

particular act in a particular manner in order to obtain any benefit, then

that act must be performed in that manner. Once the petitioner did not

satisfy the requirement of Section 7 of the Migrant Act for entertaining

his appeal thereby surrendering possession of the subject property, the

appeal was not maintainable. The petitioner even did not avail the

number of opportunities afforded to it for surrendering the possession

to the District Magistrate concerned and, in fact, every endeavour was

made by the respondent No.2 to ensure the disposal of the appeal on

merits but the petitioner by its own action disabled the respondent

No.2 to decide the appeal on merits as Section 7 of the Migrant Act

has placed an embargo upon the competent authority against

entertaining any appeal by the aggrieved person without surrender of

possession of the subject property.

10) In view of above, the present petition is found to be

misconceived and, accordingly, the same is dismissed.

11)     No order as to costs.

                                                     (Rajnesh Oswal)
                                                          Judge
SRINAGAR
29.03.2024
"Bhat Altaf-Secy"
                Whether the order is reportable:      Yes/No