SRINAGAR, October 20: The Jammu and Kashmir and Ladakh High Court has quashed orders declaring two petitioners unauthorised occupants of 4 kanals and 1 marla of land in Bandipora, directing the Deputy Commissioner to conduct a fresh enquiry into the origin and legality of their possession.
Justice Sanjay Parihar set aside the Deputy Commissioner, Bandipora’s order dated January 28, 2020, and the Financial Commissioner (Revenue)’s appellate order dated December 6, 2021. The court directed the Deputy Commissioner to determine whether the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, applies to the disputed land.
In its October 6 order, the court observed that the authorities had failed to adequately examine how the petitioners’ possession began and whether it fell within the definition of unauthorised occupation under the Act.
The dispute concerns land measuring 4 kanals and 1 marla under Khasra No. 218 at Kaloosa-Nathpora in Bandipora. The land is recorded as Shamilat-e-Deh and lies adjacent to proprietary land under Khasra No. 219, which the petitioners’ predecessor-in-interest had purchased.
The petitioners claimed that their predecessor had been in cultivating possession of the disputed land since Rabi 1976 and that the possession continued thereafter. They maintained that the authorities could not invoke the special legislation without examining the circumstances in which possession had originated.
The High Court noted that a report submitted by the Tehsildar, Bandipora, on April 17, 2018, recorded cultivating possession of the land in the names of Khalil, son of Habib, and the legal heirs of Wali Mohammad and Ghulam Hassan. The court said the revenue entry recording possession since Rabi 1976 was material evidence that required proper examination.
The private respondents, however, disputed the claim of lawful possession, arguing that the petitioners had no enforceable tenancy or other right over the land. They also maintained that the revenue entries relied upon by the petitioners had subsequently been set aside.
The court clarified that revenue entries do not establish ownership by themselves, but their evidentiary value concerning possession cannot be ignored without proper scrutiny. It also observed that purchasing the adjoining proprietary land did not automatically confer rights over the separate Shamilat-e-Deh parcel.
The court further held that the Financial Commissioner had erred in dismissing the petitioners’ appeal on the ground that they had not surrendered actual physical possession before challenging the eviction order.
Referring to the Division Bench judgment in Rahmatullah Naik v. Union Territory of Jammu and Kashmir, decided on March 11, 2026, the court noted that the requirement under Section 7 of the 1997 Act could be satisfied through constructive or symbolic possession and did not invariably require actual physical dispossession before an appeal could be entertained.
On the applicability of the Act, the court said the authorities must establish the foundational facts necessary to treat the petitioners as unauthorised occupants of migrant property. The subsequent migration of a person claiming ownership, by itself, would not establish that possession which allegedly began much earlier constituted encroachment within the meaning of the legislation.
The Deputy Commissioner has been directed to independently examine the revenue records, classification of the land, origin and continuity of possession, the transaction involving Khasra No. 219 and the applicability of the 1997 Act. The authority must hear all concerned parties and pass a fresh, reasoned order in accordance with law.
The court made it clear that it had not declared the petitioners owners of the disputed land or conclusively ruled their possession lawful. All questions concerning proprietary rights and the ultimate legality of possession have been left open for determination by the competent authority. (KL)
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