Srinagar: The High Court of Jammu & Kashmir and Ladakh has dismissed a writ petition filed by Mohammad Iqbal Wani and others, upholding orders directing their eviction from land in Verinag, Anantnag, held to be a protected migrant property under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
Justice Moksha Khajuria Kazmi held that an unregistered mortgage-cum-conditional sale agreement dated September 25, 1986, did not create any enforceable legal right or ownership in favour of the petitioners.
The Court observed that “immovable property can be legally and lawfully transferred only by a registered deed of conveyance,” adding that a notarised agreement “neither confers any legal right nor entitles the petitioners to claim lawful possession.”
The Court ruled that the disputed land is a migrant property, noting that the petitioners had themselves admitted this position in earlier litigation. It held that the District Magistrate, being custodia legis of migrant property under the 1997 Act, was fully empowered to order eviction of unauthorised occupants.
Rejecting reliance on a 1988 decree passed by the Assistant Collector, Agrarian Reforms, the Court declared it coram non judice, holding that the authority lacked jurisdiction to grant such a declaration.
The Court observed that “an order passed without jurisdiction is a nullity and void ab initio” and “has no legal existence and does not require a formal challenge.”
The Court also criticised the petitioners’ conduct, observing that “an action at law is not a game of chess” and reiterating the Supreme Court’s caution in Amar Singh v. Union of India that a litigant invoking writ jurisdiction “must come with clean hands” and cannot take inconsistent positions.
Relying on Chiranjilal Shrilal Goenka v. Jasjit Singh (1993) 2 SCC 507, the Court reiterated that consent cannot confer jurisdiction and that a decree passed without inherent jurisdiction is a nullity. It also referred to Ajudh Raj v. Moti(AIR 1991 SC 1600) and Chandrabhai K. Bhoir v. Krishna Arjun Bhoir (2009) 2 SCC 315 to hold that orders passed without jurisdiction are non est and can be ignored in law.
The Court further relied on Manzoor Ahmad Mir v. UT of J&K (2021(5) JKJ 315) and Ghulam Rasool Bhat v. State of J&K (2021(6) JKJ 188) to reaffirm that alienation of migrant property without statutory permission is void and that the District Magistrate is competent to restore possession.
Finding no perversity in the orders of the District Magistrate and the Financial Commissioner, the High Court dismissed the petition.
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