The Jammu and Kashmir and Ladakh High Court recently ruled that the Union Territory’s unique situation required the property to be surrendered to appeal an eviction order under Section 7 of the Migrant Immovable Property Act 1997. The court was hearing a writ appeal challenging a Single bench order refusing to exercise writ jurisdiction against the concerned authority’s eviction order, which found the appellant’s possession of land in Sumbal town illegal. The appellant argued that the Writ Court’s approach was incorrect because the appeal could have been filed only after surrendering possession and the Appellant’s statutory obligation to avail the remedy provided by the Statute was onerous, making the remedy ineffective. Section 5 of the Act allows the competent authority to use force to evict an unauthorized occupant if they refuse to surrender possession. The Karnataka High Court noted that Section 7 of the Act allows an appeal against the order passed under Section 5, but an appeal against an order of eviction cannot be entertained until the property is surrendered to the competent authority.
The court also stated that only an order of eviction can be issued if the person in occupation of migrant immovable property cannot prove that he was in possession with the migrant’s written consent and legal authority. Finally, the court noted that the revenue record, particularly the mutation, contradicts the appellant’s claim and that the private respondents have stated that the “Hundi” is forged and manipulated. Sub-Section 3 of Section 138 of the Jammu and Kashmir Transfer of Property Act, as it existed at that time, states that no person shall take possession of any land in Kashmir unless and until such transfer becomes valid under Sub-Section (1). The bench rejected the appeal as misguided.
