J&K High Court Quashes Possession Order | Revenue Officer Lacked Jurisdiction Under Land Revenue Act | Must Follow Title Determination Procedure U/S 111-A If Objections Are Raised
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Javed Iqbal Wani has quashed the orders passed by the District Magistrate, Srinagar and the Tehsildar South, Srinagar, holding that the authority acted beyond its jurisdiction under the Land Revenue Act, Svt. 1996. The Court concluded that the impugned proceedings related to property located in an urban area, which fell outside the definition of “land” under Section 3(2) of the Act. The petition was allowed, and the impugned orders were set aside. The Court granted liberty to the parties to seek appropriate legal remedies available under the law.
The petitioner challenged the legality and jurisdiction of two orders—one issued on 30.09.2022 by the District Magistrate, Srinagar (respondent 2), and a subsequent consequential order dated 28.02.2023 passed by the Tehsildar South, Srinagar (respondent 3). The petitioner also questioned the constitutionality of Section 7(1)(b) of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (Migrant Act).
The dispute pertained to a residential property situated at Raj Bagh, Srinagar, comprising 4.5 Kanals of land and three buildings, alleged to be jointly inherited by the petitioner and the private respondent (respondent 4), Basanti Toshkhani, along with other family members. Respondent 4 submitted that due to her migration from the Kashmir Valley, she was unable to claim her share, which was allegedly encroached upon by the petitioner. On this basis, she sought demarcation and possession of her share under the Migrant Act.
The District Magistrate sought a report from the Tehsildar, which indicated that 2 Kanals and 12 Marlas of the property were recorded in the tenancy column in the name of Laxmi Devi, wife of Kashi Nath Toshkhani, and that the property stood in the possession of the petitioner. The report also noted that the property was not in the name of the deceased mother of respondent 4 and was recorded as the proprietary land of Mandir Shivji.
In response, the petitioner contested the claim on multiple grounds, including maintainability, jurisdiction, and existence of a registered Will executed by their deceased mother in his favour in 1986. Respondent 2 dismissed the original application under the Migrant Act, stating that it pertained to a co-sharer dispute, which fell outside the Act’s purview.
Respondent 4 subsequently filed a supplementary application under the Hindu Succession (Amendment) Act, 2005, seeking attestation of inheritance mutation. The District Magistrate, vide order dated 30.09.2022, directed the Tehsildar to demarcate the land and put respondent 4 in possession of her entitled share. In execution of this order, the Tehsildar issued the consequential order on 28.02.2023.
The petitioner filed the present writ petition challenging the validity of both orders. The petitioner contended that the District Magistrate lacked jurisdiction under the Land Revenue Act to order possession or partition for urban residential property and further that the alleged Will was never considered.
The official respondents justified the impugned order, asserting it was passed under the Hindu Succession Act and not the Migrant Act. Respondent 4 denied the existence of any Will and supported the legality of the impugned order, claiming her right under Section 6 of the Hindu Succession Act.
Justice Javed Iqbal Wani examined the key legal issue as: “whether the respondent 2 herein had competence and jurisdiction to pass order dated 30.09.2022.” Referring to Section 3(2) and Section 105 of the Land Revenue Act, Svt. 1996, the Court noted:
“Section 105 empowers a revenue officer for partition of land, which land for the purposes of the application of the Act of 1996 as per the aforesaid definition contained in Section 3(2), means the land used for agriculture or related purpose… while excluding sites of buildings in a town or village abadi or land appurtenant thereto.”
On the applicability of the statute, the Court recorded: “In the instant case, the property indisputably is land and a residential house situated at Raj Bagh, Srinagar, an urban area and, thus, manifestly excluded from the purview of the definition of ‘land’ under Section 3(2) of the Act of 1996.”
Addressing the procedural lapses, the Court stated: “Even if it is assumed that such a relief is implicit and the property qualifies as ‘land’, yet Section 105 cannot be read in isolation… the revenue officer is bound to notify all the interested parties, consider objections thereof and decide the preliminary issues.”
On the specific omission concerning the alleged Will, the Court recorded: “The respondent 2 herein has not even adverted to the aforesaid crucial aspect of the alleged Will and has, in fact, acted in a perfunctory manner, in complete disregard of the pleadings of the parties.”
The Court held: “The respondent 2 herein has acted in the matter without any competence and jurisdiction and proceeded to pass the order dated 30.09.2022.”
With regard to the challenge to Section 7(1)(b) of the Migrant Act, the Court cited precedent in Jagar Nath Bhari v. State and stated: “The requirement of surrendering possession under the said Section… is not unreasonable… the Act stands enacted to ensure the preservation and protection of migrant property.”
The Court declined to rule on the constitutional challenge since the impugned order was not passed under the Migrant Act.
The Court allowed the petition and, as a result, quashed the order dated 30.09.2022 issued by respondent 2, along with the consequential order dated 28.02.2023 passed by respondent 3.
It clarified that the parties remain at liberty to pursue any legal remedy available to them under the law. The matter was accordingly disposed of along with all connected applications.
Advocates Representing the Parties
For the Petitioners: Mr. G.A. Lone, Advocate; Mr. Mujeeb Andrabi, Advocate
For the Respondents: Mr. Mohsin Qadri, Senior Additional Advocate General; Mr. R.A. Jan, Senior Advocate; Ms. Humaria Sajad, Advocate
Case Title: Ashok Toshkhani v. Union Territory of J&K and Others
Case Number: WP(C) No. 543/2023
Bench: Justice Javed Iqbal Wani
[Read/Download order]
