Srinagar, July 20: The High Court of Jammu & Kashmir and Ladakh Wednesday upheld the order of District Magistrate, Anantnag wherein a power of attorney holder was directed to vacate the possession of land measuring 01 kanal and 04 marlas situated at village Utterasoo Shangus of Anantnag district.
The court passed the directions in two petitions one filed by Hilal Ahmad Wani and Javed Ahmed Wani, who claim to be the owners of the said land which was under cultivating possession of the father of Sharika Pandita and co-sharers, Tej Nath Matoo and Raj Nath Matoo, who later executed a power of attorney in favour of Nazir Ahmed Teli, who are the petitioners of another plea.
With a view to abort the attempt of Power of Attorney to take over the possession of said land, the petitioners have sought a direction to the District Magistrate, Anantnag to implement his own order passed on March, 05, 2021 and restrain Power of Attorney holder from raising any sort of construction over the subject land.
In this connection, the court had directed the District Magistrate, Anantnag to adhere to and implement his own order and ensure that no construction by either of the parties is undertaken on the subject land.
The court upheld the order of District Magistrate Anatnag issued on March, 05, 2021 with the direction that the same shall subsist and remain in operation till the mutation under Section 4 of J&K Agrarian Reforms Act, (JKARA) 1976 attains finality and a consequent mutation under Section 8 of the Act is attested in favour of the migrants.
Even after the attestation of mutation under Section 8 of JKARA conferring ownership rights on the migrants, the court directed that the subject land would remain under the custody of District Magistrate, Anantnag till the same is claimed by the migrants and is disposed of in accordance with law.
Justice Sanjeev Kumar directed the District Magistrate, Anantnag to ensure that all the encroachments on the subject land made by any of the parties to this litigation or somebody else, are removed in a time bound manner.
"The subject property free from all encumbrances and encroachments is taken possession of by or on behalf of the District Magistrate, Anantnag," the bench said.
The District Magistrate, Anantnag was also directed to put the subject land to some fruitful use so that the profits, if any, arising out of the subject land are utilized for its upkeep.
The court held that the power of attorney, if any, issued by the migrants qua their rights in the subject land is clearly in violation of the provisions of the Act of 1976 which clearly prohibit the transfer of tenancy rights in any manner.
The tenant, who is conferred the ownership rights under Section 8 of JKARA must cultivate the subject land personally, the bench said.
"Any alienation of the property or creation of tenancy by such tenant, who is conferred the ownership rights under Section 4 and Section 8 of the Act of 1976 rendered such land liable to be escheated to the State," the bench recorded.
On April, 28, 2022, the District Magistrate, Anantnag through Tehsildar Shangus, issued notice on June, 17, 2022 directing the Power of Attorney holder of the migrants to vacate the possession of the subject land.
Aggrieved of the order, the migrants, Sharika Pandita and power of attorney holder filed a petition challenging the notice issued by Tehsildar Shangus on June 17, which was clubbed with a plea of Wani.
Perusing the material before the court, Justice Kumar recorded that neither the erstwhile owners nor the migrants have any right over the subject property which by virtue of mutation attested under Section 4 of the Act of 1976, has vested in the State.
"That being the clear position, one would wonder as to how and on what basis, the petitioners in these petitions are litigating with respect to the subject land," the bench pointed out.
The court said that with the attestation of mutation under Section 4 of the Act of 1976, the migrants have become only the prospective owners and may have interest in the subject land, however, this interest is only limited to the extent of seeking conferment of ownership rights under section 8 of the aforesaid Act.
But certainly, the bench added, neither the erstwhile owners i.e petitioners of one plea, nor the petitioner of another plea, Nazir Ahmad Teli have any right, title or interest to enter the land.
"I have, therefore, no hesitation to hold that the power of attorney executed by some of the migrants in favour of Nazir Ahmed Teli is of no effect," Justice Kumar said.
The court held that neither Nazir Ahmad Teli, nor the migrants can deal with the subject land, in any manner, till the mutation under Section 4 of the Act of 1976 attains finality and a consequent mutation under Section 8 of the said Act is attested in favour of the prospective owners i.e the migrants.
"Admittedly, the migrants are not in a position to put the subject land to personal cultivation at this point of time," the court said while disposing of the pleas.