- (1.) IMPUGNED in this petition are the District Magistrates order dated 23.05.2005 directing petitioners eviction from the alleged migrant property and financial Commissioners appellate order of 21.06.2005 confirming the same. Grounds pleaded are that the property in question on belongs to Nursing Ji Temple and as such is not migrant property; and respondents 5 to 7 who are in part possession thereof even though not owners despite their claim, have never migrated. Thus, neither the property in question was migrant property nor could the petitioners who are occupying part thereof and paying rent regularly be categorized as unauthorised occupants, much less evicted therefrom. In their objections official respondents 1 to 4 while questioning maintainability of the petition as being based on questions of fact have also pleaded that concerned District Magistrate assumed jurisdiction in the matter on after satisfying himself about the property belonging to migrants its and petitioners in unauthorized occupation thereof, and acting in exercise of his power under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales Act 1997 ordered eviction of petitioners therefrom. In hi separate set of objections private respondent No.5 has in addition to what has been put forth by official side pleaded that while in possession of the property he migrated to Jammu in 1990 where she is putting up presently and it was only in her absence that petitioners forcibly took possession of property without any lawful sanction, whereafter she approached the concerned Magistrate who acted in the matter etc.
(2.) DURING course of arguments petitioners counsel has further elaborated the contents of petition to contend that District Magistrate has passed the order without conducting any enquiry in the matter and has only acted on dictations 'from above which is apparent from the nature of proceedings also; while as counsel for respondents while objecting to petitioners locus standi to maintain the writ petition has further explained his pleadings to maintain that the property in question belonged to deceased husband of respondent No. 5 and petitioners have never been in possession thereof, much less as tenants, and that the fact of respondents being migrants and the petitioners in unlawful occupation of the property was fully established during enquiry duly conducted by District Magistrate only whereafter he exercised jurisdiction an ordered eviction of petitioners therefrom.
(3.) I have heard learned counsel and considered the matter. It appears that landed properly in question is situate in estate Maisuma under Survey Nos. 45 -45/1, 125/2, 46/1 and 50 of Khewat No.10 with two old "inklings existing thereupon, one double storeyed and the other single. While petitioners claim to be tenants thereof to the extent of their respective holding the respondent claim it to be her property forcibly occupied by petitioners after they migrated away from Srinagar. With that factual conflict the District Magistrate, Srinagar acting in exercise of his power under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 directed Tehsildar, Srinagar to proceed on spot and evict the petitioner therefrom under impugned order which was confirmed by Financial Commissioner in his appellate order of 21.06.2005 and hence the writ petition. Proceedings before the District Magistrate appear to have taken off after receipt of respondents application for eviction of petitioners, with an endorsement from Deputy Chief Minister in following manner: - "Please look into it personally and vacate the migrant property from mischievous urgently under intimation to this office." The application appears to have been marked by him to Additional District Magistrate for necessary action vide his letter No. MR/RD/DM/656/RD/450 dated 30.12.2004 who further marked it as "most important" and asked concerned Tehsildar to go through the contents thereof and "report in view of J&K Migrant Act." Tehsildar marked the same to Naib Tehsildar who further endorsed it to one Patwari "Lone" for report, who in turn reported that on spot verification he found some Sikhs in possession of property and on asking they could not furnish anything to suggest that they were tenants, despite their claim as such. This report was submitted by concerned Naib to Tehsildar with the remark that some Sikh families are residing in the house in question who have failed to produce any documents to justify their possession of the properly. Acting on this report the District Magistrate while observing that the matter was got verified through Tehsildar, Srinagar as per whose report the petitioners herein failed to produce any document in support of their claim of being in authorized possession, passed the impugned order. Aggrieved thereby the petitioners appear to have appealed against the same before Financial Commissioner who even while observing that the manner in which District Magistrate has conducted the proceedings was unsatisfactory as he had not even bothered to maintain an order sheet in the file, dismissed the appeal on the ground that occupants had preferred the same without surrendering possession as was required to be done under appeal provision of the Act and without which it could not be entertained.;