RAHMATULLAH NAIK vs U T OF J AND K TH CHIEF SECRETARY AND OTHERS

2026:JKLHC-JMU:773-
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU


WP(C) No.1794/2022



Reserved on: 19.02.2026
Pronounced on:11.03.2026
Uploaded on: 12 .03.2026



Rehmatullah Naik, Age 60 years
S/o Sh. Haji Mohd. Shafi Naik,
R/o village Chapnari, Gundlaqkote,
Tehsil Banihal, District Ramban.
...Petitioners(s)

Through:-
Mr. Koshal Parihar, Advocate.

Versus

1. U.T of J&K through Chief Secretary, Govt. of J&K,
Civil Secretariat, Srinagar/Jammu,
2. District Magistrate, Ramban.
3. Tehsildar Banihal.
4. Sham Singh S/o Goga Singh
5. Renu Devi W/o Lt. Krishan Singh
6. Ravinder Singh S/o Lt. Krishan Singh
No.4 to 6 residents of Village Chapnari, Gundlakote,
Tehsil Banihal, District Ramban.
...Respondent(s)

Through:- Ms. Priyanka Bhat, Advocate vice
Ms. Monika Kohli, S. AAG for R-1-3
Mr. Swarn Kishore Singh, Advocate
for R-4 to 6

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE



JUDGMENT
Sanjeev Kumar “J”

1. In this petition, filed by the petitioner under Article 226 of the
Constitution of India, the petitioner prays for declaring proviso

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(b) of Section 7 of the Jammu and Kashmir Migrant Immovable
Property (Preservation, Protection and Restraint on Distress
Sales) Act, 1997 [“the Act of 1997”] as unconstitutional being
violative of Article 14, 19 and 21 of the Constitution of India.
The petitioner also prays for a writ of certiorari quashing order
dated 25.08.2022 passed by the District Magistrate, Ramban, on
an application filed by respondent Nos. 4 to 6 (private
respondents) under Section 5 of the Act of 1997 titled Sham
Singh and others v. Rehmatullah Naik .
2. Learned counsel appearing for the respondents have taken a
preliminary objections to the maintainability of this petition to
challenge order of the District Magistrate, Ramban on the
ground that in the face of alternative and equally efficacious
remedy of appeal provided under Section 7 of the Act of 1997,
writ petition under Article 226 may not be maintainable.
3. Learned counsel for the petitioner does not seriously dispute the
proposition that ordinarily writ would not lie to throw challenge
to an order for which a statutory appeal is provided under a
particular Act of legislation. However, it is argued by Mr.
Koshal Parihar, learned counsel appearing for the petitioner that
the remedy of appeal provided under Section 7 of the Act of
1997, which makes the condition of surrendering of possession
of the property a condition precedent for entertaining appeal is

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totally unconstitutional and renders the remedy cumbersome and
unworkable.
4. Having heard learned counsel for the parties and perused the
material on record, we are of the opinion that Section 7 of the
Act of 1997, in particular, proviso (b) thereof cannot be held to
be ultra vires the Constitution.
5. Right of appeal is a statutory right and not a vested or
fundamental right, therefore, the legislature, which provides such
statutory right of appeal, is well within its competence to impose
reasonable conditions for availing such right. Care, however, is
required to be taken that such conditions are not arbitrary,
excessive or confiscatory. Any condition attached to the right of
appeal, which practically defeats the right of appeal may be
struck down as unreasonable and hit by Article 14 of the
Constitution of India. In that view of the matter, it can very well
be said that the legislature is competent to impose surrender of
possession as a condition precedent for entertaining an appeal.
However, such condition needs to be tested on the touch stone of
reasonableness and if it renders the appeal illusory or oppressive,
it may be struck down. Otherwise, such remedy, with reasonable
conditions, is to be treated as an efficacious and alternative
remedy barring filing of writ petition under Article 226 of the
Constitution of India as a matter of course.

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6. Before we proceed further, it would be apt to set out Section 7 of
the Act of 1997 herein below, which reads thus:-
“7. Appeal. ––(1) Any person aggrieved of an order passed
under this Act, may file an appeal before the Financial
Commissioner, Revenue :
Provided that no such appeal shall be entertained against––
(a) an interlocutory order;
(b) an order of eviction unless possession of the property is
surrendered to the competent authority ;
(c) an order of payment of compensation determined under
this Act unless the amount of compensation is deposited
with the appellate authority.
(2) The period of limitation for filing of an appeal under
sub-section (1) shall be fifteen days from the date of order
appealed against.”
7. From a reading of Section 7 reproduced herein above, it is
evident that the right of appeal given to a person aggrieved of an
order passed under the Act is subject to certain conditions like,
an interlocutory order would not be appealable; where the order
impugned is an order of eviction, unless possession of the
property is surrendered to the competent authority; and where
the order impugned is an order of payment of compensation,
unless the amount of compensation is deposited with the
appellate authority.
8. Before us, condition (b), which requires surrendering of
possession of the property from where the aggrieved person is
directed to be evicted, is sine qua non for availing the remedy of
appeal under Section 7 of the Act of 1997. With a view to

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determine as to whether this condition of surrendering
possession is arbitrary, harsh, excessive or confiscatory, we need
to understand the aims and objects of the Act of 1997. As is
evident from reading of statement of objects and reasons, an
urgent need was felt to take requisite steps for preservation and
protection of immovable properties left behind by the persons,
owing to their migration from Kashmir Valley in the year 1989,
and thereafter also to put a halt on distress sale of immovable
properties by the migrants.
9. Incidence of unlawful encroachments on the migrant properties,
left unattended on account of migration coupled with the
instances of distress sales by the migrants, was the immediate
provocation for bringing the legislation i.e. the Act of 1997. It
was enacted with an aim to preserve and protect the immovable
properties left behind by the migrants and also to put a restraint
on distress sales of such properties. Section 4 of the Act of 1997,
which provides for custody of immovable properties, reads as
under:-
“4. Custody of Immovable property.
(1) Within 30 days from the commencement of this Act, the
District Magistrate shall take over the possession of
immovable property, belonging to Migrants, falling within
his territorial jurisdiction and shall, on the expiry of said
period of 30 days, be deemed to have the custody of such
immovable property.

(2) The District Magistrate shall take all such steps as may
be necessary for preservation and protection of such property
:

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Provided that possession of such property shall not be
handed over to one save with the express consent of the
migrant in writing.”

10. It is, thus, evident that in terms of Section 4 of the Act of 1997,
District Magistrate of the District concerned was put under a
statutory obligation to take over the possession of immovable
properties belonging to the migrants within thirty days from the
nd
commencement of the Act i.e. 2 June, 1997. The Section
further provides that on expiry of thirty days from the
commencement of the Act, all immovable properties belonging
to the migrants shall be deemed to be in the custody of District
Magistrate concerned. From a reading of Section 4 of the Act of
1997 in its entirety, it clearly comes out that the Section
recognizes both, actual custody and the deemed custody.
Although, it is a statutory obligation of the District Magistrate to
take over the possession of immovable properties belonging to
migrants falling within his territorial jurisdiction within a period
of thirty days, yet the Section also speaks of deemed custody of
such immovable properties on expiry of thirty days of the
commencement of the Act of 1997.
11. It seems that the legislature was well aware and fully realized
that it may not be possible for the District Magistrate to take
over the possession of entire immovable properties belonging to
the migrants falling within the District, as such, provision was
made with regard to the deemed custody of the District

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Magistrate concerned of such immovable properties. The Section
essentially recognizes custody, where physical possession is
taken over by the District Magistrate and also deemed custody
where the possession of the property was not to be taken over by
the District Magistrate but shall be deemed to be in his custody
by fiction of law.
12. Section 5, of course, provides for eviction of unauthorized
occupants and for doing so the competent authority is authorized
to use such force as may be necessary for taking possession of
such property. Obviously, taking over of possession of such
property by the competent authority cannot be construed to
include symbolic possession. The order passed by the competent
authority under Section 5 directing eviction of unauthorized
occupant is challengeable by way of an appeal before the
Financial Commissioner, Revenue under Section 7 of the Act of
1997, which we have reproduced herein above.
13. As discussed above, appeal against an order of eviction shall be
entertained by the Financial Commissioner, Revenue only if the
possession of the property is surrendered to the competent
authority. What is apparently required under Section 7 is
surrender of physical possession by the adjudged unauthorized
occupant to the competent authority and the requirement of
Section 7 would not be met by surrendering symbolic
possession.

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14. Adjudged unauthorized occupant, who has been ordered to be
evicted, is entitled to claim before the Appellate Authority that
he is not an unauthorized occupant or that he was not provided
an adequate opportunity of being heard by the competent
authority to prove his claim. May be such aggrieved person has a
good case to plead before the appellate Court but his appeal will
not be entertained or considered by the appellate authority until
he surrenders the possession of the property as provided in the
impugned proviso. Take an example of a house from where the
aggrieved person has been directed to be evicted by the
competent authority, the only remedy he has is to file an appeal
under section 7 of the Act of 1997. Such appeal, however, shall
not be entertained by the appellate authority unless he surrenders
possession of the house to the competent authority. We could
understand, if there is a provision for surrendering of possession
in favour of the migrant.
15. The property with regard to which the eviction order has been
passed is required to be surrendered to the competent authority
so that the same is preserved and protected by the competent
authority during pendency of the appeal. In other words, the
subject property shall remain in the custody of the competent
authority, to be disposed of, as per the directions that may be
issued by the appellate authority. When such custody of the
competent authority is seen with the obligation of the aggrieved

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person availing the remedy of appeal to surrender, it would
necessarily follow that the surrender of possession of the subject
property could be symbolic as well and such property shall be
deemed to be in the custody of the competent authority during
pendency of the appeal, to be dealt with as per the direction of
the appellate authority.
16. The concept of deemed custody of the competent authority
would necessarily encompass the concept of surrender of
symbolic possession to the competent authority. In these
circumstances, it would be meeting the requirement of Section 7
of the Act of 1997, if aggrieved person surrenders symbolic
possession of the subject property and it remains in the deemed
custody of the competent authority. We are saying so, as reading
the proviso to mean „surrendering of physical possession of the
subject property‟ would render the remedy of appeal harsh,
arbitrary and totally unworkable, more particularly, when such
property is a house in which the aggrieved person is living with
or without family. Unless, it is conclusively determined that he is
unauthorized occupant, depriving him of the shelter would be
rendering him incapacitated to avail the remedy of appeal.
17. It may not be equally true in cases of landed properties, yet we
cannot lose sight of the fact that surrendering of possession to
the District Magistrate and thereafter District Magistrate/
Competent Authority placing it on the spurdari of some stranger

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would waste the property and would not serve any purpose.
Instead of placing the surrendered property on the spurdari of a
stranger, it would be worthwhile if the subject property remains
with the aggrieved person, who shall be bound in law to
surrender its physical possession, if appeal filed under Section 7
of the Act of 1997 goes against him.
18. It is beyond pale of any discussion that possession in law
includes actual, constructive and symbolic possession. It,
however, depends upon the nature of legislation and the purpose
and object sought to be achieved by a particular provision in the
legislation. Language of the statute, object of legislation and
nature of right involved are some of the factors, which would
determine whether the possession spoken of in a particular
statute is only actual physical possession or would also include
constructive and symbolic possession.
19. We have adverted to the aims and objects of the Act of 1997 and
the language used in Sections 4 and 7 and are of the opinion that
for the purposes of availing the right of appeal under Section 7, it
would be sufficient if the aggrieved person surrenders symbolic
possession and the subject property is deemed to be in the
custody of the competent authority during pendency of the
appeal.

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20. 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.
21. This issue has already been dealt with by a Division Bench of
this Court in a judgment dated 19.12.2023 passed in LPA
No.243/2023 ( Shabir Ahmad Rufai and another v. UT of J&K
and others ) where taking over of the subject property by way of
symbolic possession has been recognized as the compliance of
the condition precedent for availing the remedy of appeal under
Section 7 of the Act of 1997.
22. For the foregoing reasons, we do not find any substance in the
submission of learned counsel for the petitioner that proviso (b)
of Section 7 of the Act of 1997 is ultra vires the Constitution.
We, however, are in agreement with the learned counsel for the
petitioner that the proviso (b), if construed to mean and include
only surrendering of actual possession, would be hit by Article
14 of the Constitution of India, as it would render the remedy of
appeal nugatory, meaningless, totally unworkable and would be
suffering from the vice of arbitrariness.

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23. Having regard to the facts and circumstances of the case and for
the discussion we have made above, we have resorted to the
doctrine of reading down and held that surrendering of
possession as stipulated in proviso (b) of Section 7 of the Act of
1997 shall mean and include constructive/symbolic possession
and by doing so the provision is saved of being condemned as
arbitrary rendering the remedy of appeal ineffective, inefficient
and unworkable.
24. The expression „surrender of possession‟ as used in proviso (b)
of Section 7 of the Act of 1997, if construed constrictively would
definitely infringe upon the right of the aggrieved party to file
appeal against an order of eviction passed by the competent
authority against him, as such, we are left with no option but to
read the expression “unless possession of the property is
surrendered to the competent authority” to mean and include
surrendering of constructive/symbolic possession. The
competent authority shall be de jure possession where is person
ordered to be evicted will continue to have defacto possession of
property in dispute till his appeal is decided.
25. Needless to say that reading down is a judicial interpretative tool
used to limit or restrict or sometime broaden the scope of a
statutory provision making it constitutional and workable
without invalidating the entire law. The reading down is applied
by the Courts to harmonize the legislation with constitutional

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mandates preserving the validity of law wherever possible. This
is exactly what we have attempted to do in this case.
26. In the premises and with the observations made above, we do not
find this petition maintainable before us in the face of
availability of alternate and equally efficacious remedy of appeal
available to the petitioner under Section 7 of the Act, 1997. This
petition is, accordingly, dismissed relegating the petitioner to the
remedy of appeal under Section 7 of the Act of 1997. Needless
to say that in case the petitioner avails the remedy of appeal, as
aforesaid, within a period of four weeks from today, the time
spent in this litigation shall be eschewed from the period of
limitation provided for such appeal. There shall be an order of
status quo with respect to the subject property for a period of
four weeks.


(Sanjay Parihar) ( Sanjeev Kumar)
Judge Judge
JAMMU
11.03.2026
Vinod Whether the order is speaking : Yes

Whether the order is reportable: Yes