SRINAGAR: The Jammu 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 nature and origin of their possession and determine whether the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, apply to the disputed land.
Justice Sanjay Parihar, while allowing a writ petition filed by Abdul Rashid and another, set aside the order passed by the Deputy Commissioner, Bandipora, on January 28, 2020, and the subsequent appellate order passed by the Financial Commissioner (Revenue) on December 6, 2021. The court remanded the matter to the Deputy Commissioner for fresh consideration in accordance with law, after providing a reasonable opportunity of hearing to all concerned parties.
In its order dated October 6, 2026, the court observed that the authorities had failed to properly examine the origin, nature and legal status of the petitioners’ possession before invoking the provisions of the 1997 Act. It also held that the Financial Commissioner (Revenue) had erred in dismissing their appeal on the ground that they had not surrendered actual physical possession of the disputed property.
The court made it clear that its decision did not establish the petitioners’ ownership or conclusively declare their possession lawful. Instead, it held that the authorities were required to examine the relevant facts and legal provisions before determining whether the petitioners could be treated as unauthorised occupants under the special legislation governing migrant immovable property.
The dispute concerns land measuring 4 kanals and 1 marla, comprising Khasra No. 218 at Estate Kaloosa-Nathpora in Bandipora district. The land is recorded as Shamilat-e-Deh and lies adjacent to proprietary land comprising Khasra No. 219, which the petitioners’ predecessor-in-interest had purchased.
The petitioners maintained that their predecessor-in-interest had been in cultivating possession of the disputed land since Rabi 1976 and that the possession continued thereafter. They argued that the land had not originally been migrant property and that the authorities could not invoke the 1997 Act to remove them without determining how their possession had commenced and whether it was lawful under the applicable law.
According to the petitioners, the adjoining proprietary land had been purchased from the predecessor-in-interest of the private respondents, and possession of the disputed Shamilat-e-Deh land had also been delivered with the knowledge and consent of the erstwhile proprietors.
They further contended that the revenue records had consistently reflected their predecessor’s cultivating possession and that the authorities had wrongly declared them unauthorised occupants without adequately examining the relevant entries and the circumstances in which possession had originated.
The petitioners also challenged the Financial Commissioner’s decision to dismiss their appeal without examining the merits of the dispute. They argued that the requirement under Section 7 of the 1997 Act concerning surrender of possession could not be interpreted to mean that an aggrieved person must be physically dispossessed before being permitted to challenge an eviction order.
The private respondents opposed the petition, maintaining that neither the petitioners nor their predecessor-in-interest had been in lawful cultivating possession of the land. They argued that, following the enforcement of the Jammu and Kashmir Agrarian Reforms Act, 1976, no fresh tenancy could legally be created and that the possession claimed by the petitioners could not confer any enforceable tenancy or other right upon them.
They also submitted that the revenue entries relied upon by the petitioners had subsequently been set aside by the Deputy Commissioner in 2020 and that the land had thereafter been recorded in their ownership and possession.
The private respondents further argued that the petitioners had not raised the issue of the non-applicability of the 1997 Act before the appellate authority and could not now be permitted to challenge the legislation’s applicability after having invoked its appellate mechanism. They maintained that the Act could also apply where unauthorised occupation had begun before its enactment but continued after it came into force.
Examining the revenue record, the High Court noted that the Tehsildar, Bandipora, in a report dated April 17, 2018, had recorded the disputed land as Shamilat-e-Deh and noted its cultivating possession by Khalil, son of Habib, and the legal heirs of Wali Mohammad and Ghulam Hassan, residents of Watapore. The relevant cultivating-possession entry had been made in Rabi 1976, and the record indicated its continuation thereafter.
The petitioners claimed through Khalil, son of Habibullah, as his successors-in-interest.
The court also noted that the private respondent had approached the Deputy Commissioner on March 15, 2018, alleging unauthorised cultivation of 4 kanals and 1 marla under Khasra No. 218 and 3 kanals and 1 marla under Khasra No. 259. The latter parcel was stated to belong to late Dhanwanti Koul and late Shri Dhar Koul, residents of Kaloosa, Bandipora.
Following the complaint, the Deputy Commissioner directed the Tehsildar to conduct an enquiry. The proceedings culminated in the January 28, 2020, order declaring the petitioners unauthorised occupants of the disputed land.
The petitioners challenged that decision before the Financial Commissioner (Revenue) under Section 7 of the 1997 Act. However, the appellate authority did not examine the merits of their challenge and dismissed the appeal on December 6, 2021, holding that surrender of possession was a prerequisite for maintaining the appeal.
On this issue, Justice Parihar referred to the High Court’s Division Bench judgment in Rahmatullah Naik v. Union Territory of Jammu and Kashmir through Chief Secretary and Others, decided on March 11, 2026, in WP(C) No. 1794/2022.
The Division Bench had held that the requirement of surrendering possession under Section 7 could be satisfied through constructive or symbolic possession, rather than invariably requiring actual physical dispossession before an appeal could be entertained.
The judgment explained that an interpretation requiring physical surrender in every case could render the appellate remedy ineffective and arbitrary, particularly where a person faced eviction from a residential property before the legality of the order could be examined.
Applying that legal position, the court held that the Financial Commissioner had erred in dismissing the petitioners’ appeal without considering the merits of the case. The appellate authority was required to examine the matter in accordance with the interpretation laid down by the Division Bench.
The High Court also examined whether the 1997 Act could be invoked against possession that had allegedly commenced before the migration of the persons claiming ownership and before the legislation came into force on June 2, 1997.
Referring to the statutory definition of an “unauthorised occupant”, the court observed that the Act covers a person who has encroached upon or taken possession of a migrant’s immovable property without consent and without authority of law. It noted that the definition of a migrant is linked to migration after November 1, 1989, subject to the other statutory requirements.
The court said that where possession had commenced much earlier, particularly before November 1, 1989, and had continued under entries in the revenue record, the subsequent migration of the person claiming ownership would not, by itself, establish that the person already in possession had encroached upon migrant property within the meaning of the Act.
It emphasised that the origin and legal character of possession had to be examined before the special statutory machinery could be invoked.
The court also distinguished between the retrospective operation of a statute and its application to a continuing state of affairs. While legislation may regulate a situation that began before its enactment but continued afterwards, the conditions necessary to exercise statutory powers against an alleged unauthorised occupant must still be established.
Referring to earlier judicial precedents, including Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, and Gurunath Manohar Pavaskar and Others v. Nagesh Siddappa Navalgund and Others, (2007) 13 SCC 565, the court reiterated that possession is a legally recognised interest, although it does not automatically confer ownership.
It also referred to the Supreme Court’s judgment in Yerikala Sunk Lamma and Another v. State of Andhra Pradesh, Department of Revenue and Others, 2025 INSC 383, concerning the evidentiary significance of possession and revenue records.
The court observed that revenue entries are not documents of title and do not, by themselves, establish proprietary rights. However, they carry evidentiary value concerning possession and cannot be disregarded without proper examination.
In the present case, the court said the entry recording cultivating possession since Rabi 1976 was material evidence that required consideration. The authorities had to determine whether the possession was permissive, arose from a legally recognised arrangement or was otherwise unauthorised.
The court also observed that the purchase of the adjoining proprietary land under Khasra No. 219 did not automatically establish proprietary or possessory rights over the adjoining Shamilat-e-Deh land under Khasra No. 218. Nevertheless, the transaction, along with the longstanding revenue entry recording cultivating possession, constituted relevant circumstances that should have been examined by the competent authority.
Justice Parihar held that the Deputy Commissioner could not declare the petitioners unauthorised occupants merely because they had failed to establish a lawful tenancy or proprietary title. The authority was required to examine the circumstances in which possession had originated, whether it had initially been delivered with consent and whether its subsequent continuation attracted the provisions of the 1997 Act.
The court clarified that this finding did not amount to a declaration that the petitioners had lawful title or an indefeasible right to remain in possession. It meant only that the statutory power of eviction could not be exercised without determining the foundational facts necessary to invoke the legislation.
Accordingly, the High Court quashed both the Deputy Commissioner’s order dated January 28, 2020, and the Financial Commissioner (Revenue)’s appellate order dated December 6, 2021.
The matter has been remanded to the Deputy Commissioner, Bandipora, for an independent enquiry into the relevant revenue records, the nature and classification of the land, the origin and continuity of the petitioners’ possession, the effect of the transaction involving Khasra No. 219 and the applicability of the 1997 Act.
The authority has been directed to afford a reasonable opportunity of hearing to all concerned parties, record specific findings on these issues and pass a fresh, reasoned order strictly in accordance with law.
The court further directed that any consequential revenue entries made solely on the basis of the quashed orders would remain subject to appropriate reconsideration and correction in accordance with law.
It left all questions concerning the proprietary rights of the parties and the ultimate legality of the petitioners’ possession open for determination by the competent forum.
