Single Bench of Justice Rajnesh Oswal while dealing with a petition under article 226 of the Constitution of India wherein the petitioners had challenged the order passed by District Magistrate Anantnag under J &K  Migrant Immovable Property (Protection, Preservation and Restoration of Distress Sales) Act, 1997 held that “the surrender of the possession was a pre-requisite for entertaining any appeal against the order passed under the Migrant Act. It is settled law that once a statute prescribes a mode for doing a particular act in a particular manner in order to obtain any benefit, then that act must be performed in that manner. Once the petitioner did not satisfy the requirement of Section 7 of the Migrant Act for entertaining his appeal thereby surrendering possession of the subject property, the appeal was not maintainable”.

The case of the petitioner was that the District Magistrate, Anantnag, had not rightly appreciated the fact that the petitioner was not an unauthorized occupant of the migrant property but had been in its occupation since 1982, which on time scale is much before eruption of militancy/turmoil in the State of J&K and District Magistrate had taken a view contrary to the judgment passed by a Division Bench of this Court in Rajeev Verma & Ors. Vs. State & Ors., 2010 (2) JKJ HC 859. The petitioner further argued that District Magistarte, while exercising the power of Appellate Authority, was under an obligation to return a finding on the merits of the case but instead of deciding the appeal on merits and rendering the judgment with reference to the factual matrix of the case of the petitioner, he dismissed the appeal on a ground of non surrendering the possession. 

The respondent raised a preliminary objection in respect of maintainability of the writ petition, particularly when the petitioner failed to comply with the directions passed by High Court in earlier round of litigation and also the statutory provisions while filing the statutory appeal. 

The court after considering the submissions made by the parties observed that “perusal of Section 7 would reveal that surrender of possession of the property, which is the subject matter of appeal, is sine quo non for the purpose of entertaining an appeal against an order of eviction”. The court as such dismissed the petition.