‘Can’t act as rubber stamp’: Jammu and Kashmir and Ladakh High Court pulls up DM for locking family out of home

The order added that the final decision must reflect the authority’s own mind, and the order must ordinarily disclose reasons in reference to the material considered by it to withstand judicial scrutiny.

Slamming the district authorities, the bench said that this shocks the conscience of the court when, indisputably, the authorities have locked the house along with all household items, including study books belonging to schoolchildren, during the eviction process, especially when the high court was hearing the case on the same day.

Background

• The petitioner, Noor Illahi Fakhtoo, now aged 50, purchased 17 marlas of land in Hyderpora, Srinagar, in 1996 and constructed a house after obtaining the requisite permission from the Srinagar Municipal Corporation on May 1, 2004.
• For more than two decades, the petitioner has been residing in the house along with his family, including his two school-going children.
• The dispute began when a migrant, Ashok Kumar Koul, sought the removal of an alleged encroachment from his 19 marlas of land in the same area.
• Based on the sub-committee report, the Srinagar district magistrate in 2018 ordered the petitioner was in illegal possession of a migrant’s property and ordered the tehsildar to take over the land.
• After several rounds of litigation, a fresh eviction order was issued on May 22, 2025, leading to the petitioner’s house being locked and his family’s belongings, including schoolbooks for his children, being trapped inside.
• The single judge had previously dismissed the petitioner’s plea for ad interim relief, holding that the eviction was already complete and that estoppel by judgment applied to the case.
• Estoppel by judgment is a legal doctrine which prevents parties from re-litigating specific facts or issues that a competent court has already decided in a final, binding judgment.

‘DM relied on vague report’

• For the grant of ad interim relief/injunction, the globally acknowledged principles are collectively known as “triple test” or “three golden principles”, which are: ‘prima facie case’, ‘balance of convenience’, and ‘irreparable injury’.
• The petitioner is entitled to interim protection because denial of the same has resulted in loss of shelter and severe disruption of his family, which flies in the face of the Right to Life, guaranteed under Article 21 of the Constitution.
• We have taken into consideration only those observations of the Srinagar DM which he weighed while dismissing the application filed by the petitioner.
• There is no dispute that the DM can take the assistance of subordinate officers or field staff under Section 6 of the 1997 Act for conducting the survey, including measurements.
• But whether the property is migrant property and whether the possession of the occupant is unauthorised are questions that are to be assessed by the DM subjectively as a designated statutory authority.

• The said power certainly is not capable of being delegated to any other authority or officer under him, which means that the enquiry is to be conducted by him as “persona designata” and not through any other agency whatsoever.
• Such an agency may, however, be employed by him for rendering necessary assistance for the collection of materials.
• A statutory duty cast on a statutory authority cannot be fully done through a subordinate in the sense of delegating the core decision-making power, and full reliance cannot be placed on a subordinate officer’s report without independent application of mind by the authority.
• The Srinagar DM still banked upon this half-baked report of the field staff by taking it as the gospel truth and went on to dismiss the application of the petitioner.
• If one were to read the order dated May 22, 2025, passed by the DM, with the naked eye, it would lead to the irresistible conclusion that the DM relied upon a vague and cryptic report of field officials.

‘Erroneous assumption’

• The DM’s May 2025 order is silent on the location, size, and shape of the plot of land owned by the petitioner, as well as the migrant.
• This is significant since the petitioner, all along, has been claiming that there is no similarity between the plot owned and possessed by him and that of the migrant.
• The primary object and purpose of the J&K Abadideh Survey and Record Operations Regulations, 2022, is to systematically survey, identify, map, and record rights in Abadideh areas (inhabited village sites) to achieve verifiable records of rights, including ownership, possession, etc for structures which historically often lack formal revenue documentation.
• Ex facie, DM, Srinagar, proceeded on an erroneous assumption and also in a mechanical manner, oblivious of the very object of the Regulations of 2022 and sans any independent application of mind, as enjoined under the Act of 1997.