SRINAGAR: In a sharply worded judgment questioning the manner in which revenue powers were exercised, the Srinagar Bench of the High Court of Jammu and Kashmir and Ladakh has set aside the District Magistrate’s order sealing a residential house in Hyderpora in a migrant property dispute and directed restoration of possession to the occupant.
A Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem allowed a Letters Patent Appeal filed by Noor Illahi Fakhtoo, 50, a resident of Umerabad, Peerbagh, Srinagar, and ordered that the keys of the house be handed over to him after preparation of an inventory of household articles.
The appeal arose out of interim proceedings in a writ petition challenging action taken under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. Fakhtoo stated that he had purchased 17 marlas of land at Revenue Estate Hyderpora in September 1996 through a registered sale deed and constructed a double-storeyed residential house after obtaining building permission from the Srinagar Municipal Corporation in May 2004. He and his family, including two school-going children, had been residing there for more than two decades.
The dispute has its origins in a 2009 writ petition filed by Ashok Kumar Koul, who sought the removal of alleged encroachment from 19 marlas of land under Khasra No. 524 at Hyderpora. In 2017, the High Court directed the Deputy Commissioner, Srinagar, to take action under Section 5 of the 1997 Act. Following a demarcation exercise, the District Magistrate passed an order on January 12, 2018, directing that possession be taken over. Fakhtoo challenged that action and was later granted a post-decisional hearing, but on May 22, 2025, the District Magistrate reaffirmed the earlier decision.
When Fakhtoo approached the High Court again in WP (C) No. 1260/2025 seeking interim protection, the writ court declined relief, noting that eviction had already been carried out. During the pendency of the proceedings, the authorities locked the house. Submissions before the Division Bench recorded that household items, clothing, utensils, bedding and even school books of the children remained inside the locked premises.
Examining the legality of the May 22, 2025, order, the Division Bench made pointed observations about the manner in which statutory powers were exercised. While acknowledging that practical assistance from subordinate revenue officials is permissible, the court stressed that the statutory authority “cannot abdicate its duty or act as a rubber stamp.” It underlined that the satisfaction required under the Act must be that of the District Magistrate as persona designata and cannot be substituted by wholesale reliance on subordinate reports.
The Bench found prima facie that the impugned order rested heavily on what it described as a “vague and cryptic report” of field officials, which stated that Fakhtoo “might have been provided” documents of one survey number while having another. Despite this tentative formulation, the District Magistrate “banked upon this half-baked report… by taking it as a gospel truth,” the court observed, adding that such reliance reflected non-application of mind.
It also noted apparent inconsistencies in the assignment of new survey numbers after settlement operations and remarked that these discrepancies “prima facie speak of non-application of mind.” The order, the Bench said, was silent on crucial aspects such as the location, size and shape of the respective plots, particularly when the appellant consistently asserted that the two parcels of land were situated on opposite sides of the road.
The writ court had declined interim relief partly on the ground that the issues raised were barred by estoppel in view of earlier proceedings. The Division Bench disagreed, holding that whether estoppel applied and whether adequate material had been produced during the post-decisional hearing were arguable questions that could not be conclusively determined at the stage of interim relief. At that stage, the court said, the inquiry is limited to whether a prima facie case exists, not to adjudicate title.
Relying on the principles governing interim protection and the wide powers of judicial review under Article 226, the Bench emphasised that courts must ensure that proceedings do not become illusory by permitting irreversible consequences during the pendency of litigation.
In one of the strongest passages of the 18-page judgment, the Bench recorded: “Here is a case which shocks the conscience of the Court when indisputably it is shown to the Court that the authorities have locked the house along with all household items, including study books belonging to the school-going children, during the eviction process, especially when the High Court was hearing the case on the same very day.”
The court held that denial of interim protection had resulted in “loss of shelter and severe disruption of his family, which flies in the face of ‘Right to Life’, guaranteed under Article 21 of the Constitution of India.”
Concluding that Fakhtoo had made out a prima facie case and that the balance of convenience lay in his favour, the Bench set aside the writ court’s order. It directed that the District Magistrate’s May 22, 2025, order and the December 6, 2025, eviction notice shall remain in abeyance, granted status quo ante, and ordered the Deputy Commissioner and District Magistrate, Srinagar, to hand over the keys of the house after preparing an inventory.
The court clarified that its observations are confined to the disposal of the appeal and will not influence the final adjudication of the pending writ petition, which will determine the rights of the parties on the merits.
