Jammu & Kashmir and Ladakh High Court: In a writ petition involving competing claims of ownership, the petitioners asserted proprietary rights on the basis of registered sale deeds and revenue records whereas the Cantonment Board claimed ownership solely based on the entries in the General Land Register (GLR), which classified the land as B-4 defence land. A Single Judge Bench of M.A. Chowdhary, J., held that GLR entries cannot supersede revenue records maintained under the J&K Land Revenue Act, 1996 (12 of 1996) (Land Revenue Act) and are not conclusive proof of title. The Court further observed that the Government cannot take a unilateral decision in its own favour and take recourse to the summary remedy provided by the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (1971 Act), for evicting the person who is in possession thereof under a bona fide title. Accordingly, the Court set aside the eviction order issued by the respondents while granting them the liberty to establish title before a competent civil court.
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Background
The respondents alleged that the land which was claimed by the petitioners was classified as B-4 defence land. In May 2022, they had issued a show-cause notice to the petitioners under Section 4(2), 1971 Act, alleging that the petitioners were encroachers of the cantonment land. In response, the petitioners submitted all the relevant documents to show that it was their proprietary land. Instead of considering the reply, the respondents on 8 August 2022 issued the impugned order under Section 5-A(2), 1971 Act, directing the petitioners to remove the structures/fixtures on the said premises within 15 days. However, the petitioners claimed to be in continued possession of a land measuring 6 Marlas and 6 Sirsai since prior to 1950, but in 2003, the Cantonment Board started causing interference in their peaceful possession.
The petitioners filed a suit which was decreed in their favour restraining the Cantonment Board from causing any interference in the possession, with a further direction that the decree, however, would not affect the action under the Cantonments Act, 2006.
The petitioners then filed the present petition challenging the order issued under Section 5-A(2), 1971 Act and sought a direction to the respondents to desist them from invoking 1971 Act in order to dispossess the petitioners from their proprietary land in future and not to remove the existing structures of the petitioners.
Parties’ Contentions
The petitioners asserted ownership over the land based on registered sale deeds, revenue documents like Jamabandi and Khasra Girdawari, inheritance and a civil court decree. They submitted that instead of challenging the aforesaid ex parte decree against the Cantonment Board, the respondents issued the impugned order, asking the petitioners to vacate from the land which was illegal given that the petitioners were the owners and could not be divested of their human or constitutional right of holding the property without following due course of law.
However, the Deputy Solicitor General of India contended that the petitioners’ reliance on the ex parte decree against the Cantonment Board was not binding on the Defence Department as the land was under the ownership of the Defence and the Cantonment Board was merely an agency to administer its affairs. It was highlighted that the land was notified as B-4 under the GLR maintained under Cantonment Land Administration Rules which had precedence over any other official record and was the conclusive proof of title. It was also submitted that disputed questions of fact were raised in this petition which could not be determined under writ jurisdiction by this Court.
The Cantonment Board submitted that the decree passed by the civil court would not clothe the petitioners to be encroachers and restrain the respondents from taking resource to law for evicting them. It was argued that the land was a vacant defence land and that the GLR was a record of transfer of land from the earlier State Cantonment Board during the Maharaja’s time which was later transferred to the Union of India for setting up of the Cantonment Board at Badami Bagh.
Issue
Whether the Cantonment Board was entitled to initiate proceedings against the petitioners herein under the 1971 Act, being summary in nature.
Analysis
The Court noted that both sides laid separate claims on the same land particularly regarding description of land because the petitioners relied on the revenue records maintained by the State while the respondents stated that the land was a vacant defence land based on the GLR. The Court opined that the dispute involved question as to the title of the land.
The Court observed that the law is that the summary remedy for eviction, as provided under 1971 Act, can be resorted to by the authority concerned only against the persons who are in unauthorised occupation of any land which is the property of the Government and, if there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and, on the basis of such decision, take recourse to the summary remedy provided by the 1971 Act for evicting the person who is in possession of the property under a bona fide claim or title.
The Court emphasised that the duration of occupation in such circumstances is also relevant in the sense that a person, who is in occupation of a property openly for an appreciable length of time, can be, prima facie, taken to have a bona fide claim with respect to the property requiring an impartial adjudication according to the established procedure of law.
The Court relied on Govt. of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134, wherein the Supreme Court had held that based on disputed questions of fact regarding title of a property, the summary proceedings are not the due process of law for evicting the occupants of such property. The Court also placed reliance on State of Rajasthan v. Padmavati Devi, 1995 Supp (2) SCC 290, wherein it was held that summary procedures for eviction of unauthorised occupants of Government land cannot be invoked where a person in occupation raises bona fide dispute involving complicated questions of title and his right to remain in possession of the land and that, in such a case, the proper course is to have the matter adjudicated by the ordinary courts of law.
The Court observed that since there were contrary claims raised by the parties, unless the respondents established their title through competent civil court, they were not entitled to initiate and pass the eviction order exercising the powers conferred under the 1971 Act, which was summary in nature, thereby rendering the same without jurisdiction. The Court also noted that the petitioners claimed that the land in question was purchased by their predecessor-in-interest in terms of a registered sale deed 3 June 1971. The Court relied on Hemalatha v. Tukaram , 2026 SCC OnLine SC 106, and emphasised that a registered sale deed carries a formidable presumption of validity and genuineness and that the burden of proof to displace this presumption rests heavily upon the challenger, requiring material particulars and cogent evidence to demonstrate that the deed was never intended to operate as a bona fide transfer of title.
Addressing reliance placed on the GLR, the Court observed that the GLR is not prepared after issuing notification calling for the objections from the interested persons, as in a case relating to the provisions of the Land Revenue Act and the record-of-rights in Land Regulations. The Court opined that when a record is prepared by a public servant affecting persons who have no opportunity to object, such record carries no probative value. The principles of natural justice must be complied with in the preparation of documents that may adversely affect the rights of private citizens, and only documents prepared after due notice and hearing shall be deemed to be made in the discharge of official duty under Section 35, Evidence Act, 1872.
The Court concluded that the GLR is not prepared and maintained in respect of the rights in or over the land and can only be equated to a land record relating to survey for revenue purposes and record-of-rights. The entries made therein cannot have any effect of superseding the entries in the Survey and Settlement Register and the record-of-rights prepared and maintained under the provisions of the Land Revenue Act.
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Decision
Accordingly, the Court allowed the writ petition and set aside the eviction order dated 8 August 2022. However, the Court clarified that the respondents would be at liberty to approach the competent civil court to establish their title over the subject property and, after obtaining such a declaration, to initiate proceedings under the 1971 Act for unauthorised occupation of the property.
[Ghulam Nabi Bhat v. Union of India, WP (C) No. 1760 of 2022, decided on 22-4-2026]
Advocates who appeared in this case:
For the Petitioner: Bhat Fayaz Ahmad with Nighat Amin, Advocates.
For the Respondents: Tahir Majid Shamsi, DSGI with M/S Faizan Ahmad Ganie, CGC & Beenish, Advocate, Bikramdeep Singh, CGC/ Dy. AG.