'Surrender Of Possession' Under J&K Migrant Property Act Includes Constructive & Symbolic Possession: High Court

The Court observed that such an interpretation preserves the constitutionality of the provision and ensures that the statutory remedy of appeal does not become illusory.

The Court was hearing a writ petition challenging the constitutional validity of proviso (b) to Section 7 of the Act of 1997 and seeking quashing of an order passed by the District Magistrate, Ramban directing eviction from the property in question.

A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that a restrictive interpretation requiring only physical surrender of possession would render the statutory right of appeal ineffective and arbitrary. The Bench observed,

“We have done nothing more than reading down 'surrender of possession of the property to the competent authority' to mean not only actual surrender of possession but also constructive and symbolic possession. Such interpretation shall also save the provision from the vice of arbitrariness as also from rendering the remedy of appeal meaningless and nugatory.”

Background:

The petitioner approached the High Court under Article 226 of the Constitution seeking declaration that proviso (b) of Section 7 of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 was unconstitutional for allegedly violating Articles 14, 19 and 21 of the Constitution of India.

The petitioner also challenged an order dated 25.08.2022 passed by the District Magistrate, Ramban on an application filed by private respondents under Section 5 of the Act of 1997 directing eviction from the property.

During the hearing, the respondents raised a preliminary objection regarding maintainability of the writ petition, contending that the Act itself provides an alternative and efficacious remedy of appeal under Section 7 before the Financial Commissioner, Revenue.

However, the petitioner argued that the appeal remedy was illusory because proviso (b) to Section 7 required surrender of possession of the property as a condition precedent for entertaining the appeal.

Court's Observations:

The Court first examined the scope of Section 7 of the Act of 1997, which provides a statutory right of appeal against orders passed under the Act. The provision stipulates that an appeal against an order of eviction shall not be entertained unless possession of the property is surrendered to the competent authority.

The Bench observed that although the right of appeal is a statutory right and the legislature is competent to impose conditions for availing such a remedy, those conditions must satisfy the test of reasonableness. A condition that renders the right of appeal oppressive, arbitrary, or practically unworkable may be struck down as violative of Article 14, the Court said.

To examine the validity of the provision, the Court considered the legislative objective of the Act of 1997, which was enacted to preserve and protect immovable properties left behind by migrants from the Kashmir Valley and to prevent distress sales of such properties.

The Court referred to Section 4 of the Act, which requires the District Magistrate to take possession of migrant properties and also recognizes the concept of “deemed custody” where actual physical possession may not have been taken over. From the scheme of the legislation, the Court observed that the Act itself contemplates both actual and deemed custody of properties by the competent authority.

While analyzing proviso (b) to Section 7, the Bench noted that a strict interpretation requiring surrender of physical possession before filing an appeal could produce harsh consequences. For instance, an occupant directed to be evicted from a residential house would be compelled to vacate the premises before even being able to challenge the eviction order in appeal, the Court reasoned.

The Court observed that such an interpretation could deprive a person of shelter before his claim is adjudicated by the appellate authority and would render the statutory remedy illusory.

The Bench further noted that in law, possession may take different forms, including actual, constructive, and symbolic possession. Whether a statute refers only to physical possession or also includes other forms depends on the purpose and context of the legislation, the court underscored.

After examining the object of the Act and the language of Sections 4 and 7, the Court concluded that surrender of possession under Section 7 must be understood in a broader sense. The Court held that the requirement would be satisfied if the aggrieved person surrenders symbolic possession and the property is deemed to be in the custody of the competent authority during the pendency of the appeal.

Such an interpretation, the Court said, would ensure that the property remains under the legal control of the competent authority while also preserving the right of the aggrieved party to pursue the statutory remedy of appeal.

Applying the doctrine of “reading down,” the Court held that the expression “surrender of possession” in proviso (b) must be interpreted to include constructive and symbolic possession in order to keep the provision constitutionally valid.

The High Court concluded that if proviso (b) to Section 7 of the Act of 1997 were interpreted to require only actual physical surrender of possession, the provision would become arbitrary and would render the statutory remedy of appeal meaningless.

Accordingly, the Court read down the provision and held that surrender of possession for the purpose of filing an appeal would include constructive and symbolic possession, with the property being deemed to be in the custody of the competent authority during the pendency of the appeal.

In view of the availability of the statutory remedy of appeal under Section 7 of the Act of 1997, the Court held that the writ petition was not maintainable and dismissed it, relegating the petitioner to the appellate remedy.

Appearances:

Mr. Koshal Parihar, Advocate for the Petitioner.

Ms. Priyanka Bhat, Advocate vice Ms. Monika Kohli, Senior AAG for Respondents 1–3.

Mr. Swarn Kishore Singh, Advocate for Respondents 4–6.

Case Title: Rehmatullah Naik v. UT of J&K & Ors.

Citation: 2026 LiveLaw (JKL) 106

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