HC quashes orders declaring two persons unauthorised occupants of land in Bandipora

17/10/2026

JAMMU, Oct 16: The High Court of Jammu and Kashmir and Ladakh has quashed orders declaring two persons unauthorised occupants of land in Bandipora district, holding that longstanding possession reflected in revenue records cannot be disregarded without examining its origin, nature and legal status.
Justice Sanjay Parihar allowed a writ petition filed by Abdul Rashid and another, setting aside orders passed by the Deputy Commissioner, Bandipora, and the Financial Commissioner (Revenue) in a dispute concerning the applicability of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
The dispute relates to land measuring four kanals and one marla under Khasra No. 218, classified as Shamilat-e-Deh, at Kaloosa Nathpora in Bandipora district. The petitioners claimed that their predecessor-in-interest had been in cultivating possession of the land since the 1970s, with revenue entries recording possession dating back to Rabi 1976.
The Deputy Commissioner, Bandipora, had declared the petitioners unauthorised occupants through an order dated January 28, 2020. Their appeal was subsequently dismissed by the Financial Commissioner (Revenue) on December 6, 2021, on the ground that they had failed to surrender physical possession of the disputed property.
Advocate Bhat Fayaz, assisted by Advocate Nighat, appeared for the petitioners, while Shailla Shameem, assisting counsel, represented the respondents.
The petitioners argued that the land had never constituted migrant property within the meaning of the 1997 Act and that their possession predated both the migration of the persons claiming ownership and the enactment of the legislation.
The private respondents, however, maintained that the petitioners had not acquired lawful tenancy or proprietary rights over the land and that their occupation was unauthorised.
Examining the rival submissions, the High Court observed that the absence of a formal title document or legally established tenancy could not, by itself, justify invoking the special eviction mechanism under the Migrant Property Act.
The court noted that possession, although not equivalent to ownership, is a legally recognised interest and that a person in settled possession cannot ordinarily be dispossessed except in accordance with due process of law.
Referring to the revenue entries dating back to Rabi 1976, Justice Parihar held that the authorities were required to determine whether the original possession was permissive, whether it subsequently became unauthorised and whether the statutory conditions for invoking the 1997 Act had been fulfilled.
The court further clarified that the subsequent migration of persons claiming ownership could not, by itself, conclusively determine the legal character of possession that originated before such migration.
On the maintainability of the appeal, the court referred to the Division Bench judgment in Rahmatullah Naik versus UT of J&K, which held that surrender of possession under Section 7 of the 1997 Act could include constructive or symbolic possession.
It observed that insisting on actual physical dispossession before entertaining an appeal would substantially impair the statutory appellate remedy.
Holding that both authorities had committed material errors of law, the High Court quashed the Deputy Commissioner's order dated January 28, 2020, and the Financial Commissioner's order dated December 6, 2021.
The matter was remanded to the Deputy Commissioner, Bandipora, for fresh consideration after providing a reasonable opportunity of hearing to all concerned parties.
The competent authority has been directed to independently examine the relevant revenue records, classification of the land, origin and continuity of possession, the effect of the transaction concerning adjoining Khasra No. 219 and the applicability of the Migrant Property Act.
The High Court clarified that it had expressed no final opinion on the ownership rights of either party or the ultimate legality of the petitioners' possession, leaving these issues open for determination in accordance with law.

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