Migrant Property Cannot Be Transferred Without Written Consent of the Owner

Published On: March 19, 2025

The High Court of Jammu & Kashmir and Ladakh has upheld an eviction order issued by the Financial Commissioner against an illegal occupant of a migrant property. The court ruled that the petitioner had no legal right to take possession of the disputed land without the explicit written consent of the migrant, which must be formally processed and handed over by the District Magistrate.

Legal Restrictions on Migrant Property Under the 1997 Act

Justice Javed Iqbal Wani stated that although an agreement to sell the property existed, the J&K Migrant Immovable Property (Preservation, Protection, and Restraint on Distress Sales) Act, 1997, strictly prohibits any transfer of migrant property without prior government approval.

The High Court ruled that since the petitioner had taken possession without formal written consent and official sanction, they were classified as an unauthorized occupant under Section 2(i) of the Migrant Act.

Additionally, under Sections 54 and 138 of the J&K Transfer of Property Act, 1977, the sale of immovable property is considered valid only if executed through a registered sale deed. An agreement to sell does not establish ownership rights, rendering the petitioner’s claim legally invalid.

Background of the Eviction Case

The petitioner had challenged an eviction order that was originally issued by the District Magistrate, Pulwama and later upheld by the Financial Commissioner. The case was initiated by Kamla Devi, a migrant, who filed an application under the 1997 Act, seeking the removal of the petitioner from 11 kanals and 3.5 marlas of land, which she claimed had been illegally encroached upon.

As per legal records, a portion of this land (5 kanals and 8.5 marlas) had already been legally sold with prior approval from the Divisional Commissioner through a registered sale deed. Following due process, the District Magistrate issued an eviction order, directing the Tehsildar to remove the petitioner and return the alienated land to its rightful purchasers.

Legal Proceedings and Court Decisions

The petitioner initially challenged the eviction order, but the case was disposed of, granting the right to appeal. The subsequent appeal was dismissed by the Financial Commissioner on May 28, 2019. Further legal challenges, including a Letters Patent Appeal (LPA) and a Special Leave Petition (SLP) before the Supreme Court, were also rejected.

The Supreme Court, however, granted the petitioner the liberty to file an appeal under Section 7 of the 1997 Act after fulfilling the necessary legal requirements. Upon complying with the court’s directives and surrendering possession, the petitioner filed an appeal, which was ultimately dismissed by the Financial Commissioner on October 3, 2023. This led to the filing of the present writ petition before the High Court of Jammu & Kashmir and Ladakh.

Final Ruling by the High Court

The High Court upheld the Financial Commissioner’s decision, reaffirming that the petitioner had no legal standing to occupy the property without proper documentation and governmental authorization. The ruling reinforces the legal safeguards protecting migrant properties, ensuring that unauthorized occupants cannot exploit legal loopholes to encroach upon such lands.

The verdict serves as a significant precedent, emphasizing the importance of adhering to legal protocols in property transactions and reinforcing the government’s commitment to protecting migrant assets. With the dismissal of the petition, the rightful owners of the disputed land have been granted justice, setting a clear example for future property disputes.

For more legal updates and insights, stay connected with our platform