"Surrender of possession" under Section 7 of the 1997 Act includes symbolic possession to ensure the right of appeal.

The petitioner, aged 60, challenged the constitutionality of Proviso (b) to Section 7 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 ("the Act").

This proviso mandates the surrender of possession of property as a condition precedent for entertaining an appeal against an eviction order.

The District Magistrate, Ramban, had issued an eviction order on 25.08.2022 regarding migrant property occupied by the petitioner following an application by private respondents under Section 5 of the Act.

The respondents raised a preliminary objection regarding the maintainability of the writ petition, citing the availability of an alternative statutory remedy of appeal under Section 7.

1. Whether Proviso (b) of Section 7 of the Act of 1997, which requires surrender of possession before an appeal is entertained, is unconstitutional and violative of Articles 14, 19, and 21 of the Constitution.

2. Whether the expression "surrender of possession" in Section 7 must be interpreted strictly as physical possession or can include symbolic/constructive possession.

The Court applied the principle that the right of appeal is a statutory right, not a fundamental one, and the legislature may impose reasonable conditions on its exercise.

However, such conditions must not be arbitrary, excessive, or render the remedy illusory under Article 14.

The Court relied on the doctrine of "Reading Down" to harmonize statutory provisions with constitutional mandates.

It further referenced *Shabir Ahmad Rufai v. UT of J&K* (LPA No. 243/2023), which recognized symbolic possession as sufficient compliance for filing an appeal under the Act.

The Court analyzed the objects of the Act, noting it was designed to protect properties of migrants who fled the Kashmir Valley in 1989.

While Section 4 creates a legal fiction of "deemed custody" with the District Magistrate, the Court reasoned that requiring a person to vacate their home (actual physical surrender) just to *apply* for an appeal is "harsh, arbitrary, and totally unworkable".

The Court observed that if the property is a residential house, depriving a person of shelter before the legality of their occupation is conclusively determined renders the remedy of appeal nugatory.

To save the provision from being struck down as unconstitutional, the Court "read down" the term "surrender of possession" to include constructive or symbolic possession.

This ensures the property is technically in the custody of the state (*de jure* possession) while the appellant maintains *de facto* possession pending the appeal’s outcome.

The writ petition was dismissed as not maintainable due to the availability of this effective alternative remedy.

The Court directed the petitioner to approach the Financial Commissioner, Revenue (Appellate Authority) within four weeks, excluded the time spent in writ litigation for limitation purposes, and granted a status quo order for four weeks to facilitate the filing of the appeal.