MASOODA AKHTAR Vs. STATE
LAWS(J&K)-2006-3-40
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 22,2006

Masooda Akhtar Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) BY the medium of this writ petition, petitioners have prayed for issuance of writ of certiorari, quashing the order dated 11th June, 2005, passed by respondent No.2, hereinafter for short impugned order on the grounds taken in the writ petition.
(2.) RESPONDENTS have filed reply. Learned counsel for petitioner argued that the property in question is not migrant property, thus Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, hereinafter for short the "Act" was not applicable. While developing the arguments, argued that the impugned order has been passed without jurisdiction and power. The respondent No.2 arbitrarily and erroneously held that property in question is migrant property.
(3.) LEARNED counsel for respondent argued that property in question is a migrant property and provisions of the Act are applicable. Heard. Admit. It appears that petitioner had already filed OWP 211/03 which came to be disposed of vide order dated 03.03.2005. It is profitable to reproduce the said order herein, which read as under: - "Heard. Admit. By consent of the parties, this matter is taken up for final disposal. Writ petition questions the order passed by the Deputy Commissioner Srinagar empowering the Tehsildar Settlement Srinagar to resort to eviction and put the rightful owner into possession. Contention of Mr. N.A.Beigh is that protection provided to the migrants in respect of their property by dint of statute has to be implemented. Responding to the contention, learned counsel for the petitioners submits that the power of attorney has ceased to be in force. In so far as power of the Deputy Commissioner in terms of relevant provisions of Act goes, no restriction can be placed on him for exercising such power. As regards objection of the learned counsel about the power of attorney, nothing prevents him to urge it. Since direction for eviction and delivery of possession has been passed in a very mechanical manner, the communication is not sustainable, it has to go. Nonetheless, the petitioners cannot have a license to maintain the encroachment upon migrants property and if at all it is a fact, such aspect has to be taken care of by the authority competent. In the aforementioned backdrop, this writ petition is disposed of along with CMPs in the following terms: "The Deputy Commissioner Srinagar shall deal with the matter on the touch stone of the law governing the field and shall decide the matter as expeditiously as possible." ;


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