HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPA No. 314/2025 in WP (C) No. 1260/2025

Reserved On: 5

th

of February, 2026.

Pronounced On: 20

th

of February, 2026.

Uploaded On: 20

th

of February, 2026.

Whether the operative part or

full Judgment is pronounced: Full.

Noor Illahi Fakhtoo, Age: 50 Years

S/O Late Bashir Ahmad Fakhtoo

R/O House 18, Sector-B, Umerabad,

Peerbagh, Srinagar.

… Appellant(s)

Through: -

Mr G. A. Lone, Senior Advocate with

Mr Mujeeb Andrabi, Advocate.

V/s

1. UT of Jammu & Kashmir through Commissioner/ Secretary

to Government, Revenue Department, Civil Secretariat,

Srinagar-190001.

2. Financial Commissioner (Revenue), J&K, Srinagar.

3. Dy. Commissioner, Srinagar.

4. District Magistrate, Srinagar.

5. Addl. Dy. Commissioner, Srinagar.

6. Tehsildar, Chanapora/ Natipora, Srinagar.

… Official Respondents

7. Sh. Ashok Kumar Koul

S/O Sh. Som Nath Koul

R/O Talab Tilloo, Jammu.

… Private Respondent

Through: -

Mr Salih Pirzada, Advocate with

M/S Ahmad Basaud & Bhat Shafi, Advocates for R-7.

CORAM:

HON’BLE MS JUSTICE SINDHU SHARMA , JUDGE

HON’BLE MR JUSTICE SHAHZAD AZEEM , JUDGE

(JUDGMENT)

SHAHZAD AZEEM -J:

01. This intra Court appeal is directed against the Order dated

December 10, 2025, passed by the learned Single Judge [“the Writ Court]

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in CM No. 3354/2025 filed in WP (C) No. 1260/2025 titled ‘Noor Illahi

Fakhtoo v. Union Territory of J&K and Ors.’, whereby the application

for ad-interim relief came to be dismissed as having been rendered

infructuous, by holding that the eviction has already been carried out by the

Naib Tehsildar, Sanat Nagar and also that estoppel by judgment is

applicable to the Writ Petition.

02. The present case has a chequered history and also having been

infested with multiple rounds of litigation, nonetheless, the appeal on hand

is directed against an Order whereby the Writ Court has denied the ad-

interim relief, therefore, we deem it proper to restrict the facts as are

relevant to the controversy on hand.

03. Succinctly stated, the Appellant-Petitioner is stated to have

purchased a piece of land situate at Revenue Estate Hyderpora, measuring

17 Marlas, falling in Survey No. 764 (old) in the year 1996 and,

consequently, a sale deed came to be executed on September 20, 1996,

whereupon he has constructed a house after obtaining requisite permission

from the Srinagar Municipal Corporation that was issued on May 01, 2004.

For more than two decades, the Appellant has been residing in the house

along with his family, including his two school-going children ever since.

04. The entire estate of Hyderpora stated to have come under

settlement operation in the year 2010 and, thus, was declared as ‘Abadideh’

area and, as such, the operation of SO 34 dated January 25, 2022, i.e., the

Jammu & Kashmir Abadideh Survey and Record Operations Regulations,

2022 [“Regulations of 2022”], has been extended to the entire revenue

estate of Hyderpora, including the plot of the Appellant.

05. The miseries of the Appellant alleged to have popped up when

he received a notice dated November 05, 2019 of Tehsildar, Chanapora/

Natipora, in compliance to the Order dated January 12, 2018 issued by

District Magistrate, Srinagar, requiring the Appellant to vacate the plot in

question. It is noteworthy that this action of the Respondents No. 4 and 6

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was taken in compliance to the Order dated April 28, 2017 passed by the

High Court in OWP No. 1232/2009, titled ‘Ashok Koul v. State of J&K

and Ors.’, which was filed by Respondent No. 7 herein, though the

Appellant was not party in that Writ Petition.

06. It is seen that the District Magistrate, Srinagar, appears to have

constituted a committee of Revenue officers and the said team has further

constituted a sub-committee of officers for on spot demarcation of land

falling in Survey No. 524, and, accordingly, the Tehsildar, Chanapora

submitted a report dated November 11, 2017, by holding that out of 19

Marlas of land falling in Survey No. 524, owned by Ashok Koul, 02 Marlas

each is in the possession of Masjid Sharif and thoroughfare respectively,

whereas, remaining 15 Marlas of land is in the possession of Noor Illahi

Fakhtoo-Appellant herein. Therefore, on the basis of the report of the sub-

committee, the District Magistrate, after holding that 19 Marlas of land of

Ashok Koul being under the illegal occupation, vide Order dated January

12, 2018, directed Tehsildar, Chanapora to take over the possession of the

land of Ashok Koul under the provisions of the Jammu & Kashmir Migrant

Immovable Property (Preservation, Protection and Restraint on Distress

Sales) Act, 1997 [hereinafter referred to as “Act of 1997”] on behalf of the

District Magistrate, till further orders.

07. At this stage, a short reference to OWP No. 1232/ 2009 titled

‘Ashok Koul v. State of J&K and Ors.’ is necessitated. The said Petition

was filed by Respondent No.7 herein-Ashok Koul, precisely seeking a

‘Writ of Mandamus’ commanding the Respondents to remove the

unauthorized occupation/ encroachment from his immovable property, i.e.,

land measuring 19 Marlas, falling under Khasra No. 524 Min, Khewat No.

138, situated at Hyderpora (Peerbagh), Airport Road, Srinagar, while taking

resort to Section 5 of the Act of 1997, and also sought direction unto the

Respondents to preserve the said property of the Petitioner.

08. The Writ Court, vide Order dated April 28, 2017, directed the

Deputy Commissioner, Srinagar to take action in terms of Section 5 of the

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Act of 1997 and to remove the unauthorized occupation from the land,

measuring 19 Marlas within a period of three months. Accordingly, it is this

Order dated January 12, 2018 (reference whereof made hereinbefore) came

to be passed by the District Magistrate, Srinagar. Aggrieved of the Order

dated April 28, 2017 passed in OWP No. 1232/2009 and the consequent

Order dated January 12, 2018 of District Magistrate, Srinagar, whereby

possession of the land of the Appellant was ordered to be taken over, a Writ

Petition-WP (C) No. 3379/2019, titled ‘Noor Illahi Fakhtoo v. UT of J&K

and Ors.’, came to be filed by the Appellant herein, inter alia, questioning

the legality of the Order passed by the Writ Court and also the consequent

action of the District Magistrate taken vide Order dated January 12, 2018.

09. To be brief, the grievance of the Petitioner in WP (C) No.

3379/2019 (Appellant herein) was with regard to violation of rules of

natural justice and fairness enshrined under Article 14 of the Constitution,

qua the enquiry held regarding possession and ownership in respect of land

in question; secondly; that the Order passed by the Writ Court dated April

28, 2017 has been obtained by suppression and concealment of facts, as the

Appellant being necessary party was not impleaded as party Respondent;

and, thirdly; that the District Magistrate, Srinagar did not conduct the

enquiry as per law himself, but relied upon the report of the sub-committee

that is not permissible under law. Apart from these contentions, the

Appellant also delineated the factual narration including that he is a

bonafide purchaser of the land in question and further that a house has been

constructed pursuant to the permission duly granted by the competent

authority. Though other factual pleas were also raised, but note whereof

shall be taken at appropriate stage, if need is felt.

10. Accordingly, in the said Petition, the Writ Court framed three

issues for consideration: the first issue was with regard to non-impleadment

of the Appellant as party respectively OWP No. 1232/2009 titled ‘Ashok

Koul v. State of J&K and Ors.’; secondly; by constituting sub-committee

of Revenue officers the Deputy Commissioner, Srinagar, i.e., the designated

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Authority has delegated his statutory functions; and thirdly; as to whether

the Order passed by the Deputy Commissioner, Srinagar dated January 12,

2018 is violative of rules of natural justice.

11. Accordingly, the Writ Court has considered the matter and

finally held that the Respondent No.5-Ashok Koul (Respondent No.7

herein) can neither said to have made any misrepresentation nor

concealment of facts, while obtaining the Judgment/ Order dated April 28,

2017 passed in OWP No. 1232/2009 and further went onto hold that in

terms of Section 6 of the Act of 1997, the District Magistrate has also got

demarcation done through the field staff, which indisputably is not

forbidden in terms of Section 6 of the Act of 1997. Likewise, on the third

issue of non-adherence of the rules of natural justice, the Writ Court held

that the Petitioner (Appellant herein) did not show anything either in the

Writ Petition or from the material annexed therewith that the result of such

demarcation would have been different, had he been associated in the said

process.

12. It is important to note that after returning findings on the

aforesaid three issues, what the Writ Court has observed assumes

importance and, for reference, reads as follows:

“Be that as it may, this Court refrains from

expressing any opinion as to the merits of the claim

lodged by the Petitioner qua the land in question as also

by the Respondent No.5 herein, as merits are not for this

Court to be decided, but for the designated authority

under the Act of 1997 to consider.”

13. Accordingly, the Writ Petition was disposed of by directing the

Deputy Commissioner, Srinagar to provide adequate opportunity of hearing

to the Petitioner (Appellant herein) as post-decisional hearing in the matter

and further that the Petitioner (Appellant herein) shall be at liberty to avail

such hearing either in person or through his Counsel and also shall be free

to produce all/ any documents/ material in support of his case. The Writ

Court also directed that till the conclusion of the aforesaid hearing, the

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operation of impugned Order dated January 12, 2018 read with notice dated

November 05, 2019 shall remain in abeyance.

14. Thereafter, the District Magistrate, Srinagar, in compliance to

the Judgment dated June 07, 2023, passed in WP (C) No. 3379/2019, issued

Order dated May 22, 2025, whereby the District Magistrate, Srinagar, on

the basis of enquiry report, found no reason to reverse or modify the earlier

Order dated January 12, 2018 and, accordingly, the application of the

Appellant was dismissed and further, Tehsildar, Chanapora/ Natipora was

directed to proceed in the matter as per the directions already issued vide

Order dated January 12, 2018.

15. It was this Order dated May 22, 2025 which came to be

assailed by the Appellant by way of WP (C) No. 1260/2025, titled ‘Noor

Illahi Fakhtoo v. UT of Jammu & Kashmir and Ors.’, and further sought

direction for declaring the Petitioner (Appellant herein) to be the owner in

possession of the land falling under Survey No. 379 (new) along with

residential house and also to issue certificate of ownership in terms of

Regulation 36 of the Regulations of 2022, etc. An application for grant of

ad-interim relief, being CM No. 3354/2025, also came to be filed, seeking

stay of the operation of impugned Order dated May 22, 2025. The Writ

Court, vide Order dated December 10, 2025, subject matter of challenge in

the instant appeal, has dismissed the application, mainly on the ground that

the issue raised in the Petition regarding alleged non-recording of subjective

satisfaction by the Deputy Commissioner, Srinagar and as to whether

Deputy Commissioner, Srinagar can delegate his power to the subordinate

or rely on the report of his subordinate has already been examined and

conclusively determined by a learned Single Judge in WP (C) No.

3379/2019 and that the Petitioner (Appellant herein) has accepted those

findings, therefore, he is estopped under law from reopening or re-agitating

the same question before another Bench exercising concurrent jurisdiction.

The Writ Court further held that in compliance to the directions passed by

the learned Single Judge, the opportunity of hearing to the Petitioner, as a

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post-decisional hearing in the matter, was provided, but the Petitioner failed

to produce any such material which could have enabled the Deputy

Commissioner, Srinagar to take a view different from the earlier view taken

vide Order dated January 12, 2018. The further reasoning prevailed with the

Writ Court that the Appellant did not lay a proper motion challenging the

eviction notice, therefore, held that the Court is not in a position to record

any finding or to protect the lis, as prayed for by the Counsel for the

Petitioner. And, most importantly, the Writ Court, while dismissing the

application, observed that since the prayer for interim protection no longer

survives as eviction of the Petitioner has already been carried out, therefore,

interim protection no longer survives.

16. Though, in the memo of appeal, detailed factual narration is

given, but we do not deem it proper to delineate all those details, however,

note whereof shall be taken hereinafter, as and when deemed necessary. Mr

G. A. Lone, the learned Senior Counsel appearing for the Appellant, also

has made submissions on the same lines, however, while summing up he

has, canvassed at Bar that the Writ Petition was filed much before the

eviction notice dated December 06, 2025, which was sent on the WhatsApp

number of the Appellant and, while hearing of the appeal was in progress

on December 10, 2025, the eviction Order came to be passed by the

Respondents, thereby they have clandestinely locked the house of the

Appellant and, consequently, passed Order dated December 10, 2025,

whereby Naib Tehsildar, Sanat Nagar has submitted compliance that he

carried out the eviction of the occupants from the property (a double-storied

residential house), constructed on landed property measuring 15 Marlas

under Survey No. 379 at estate Hyderpora belonging to Ashok Koul S/O

Shri Soom Nath Koul R/O Talab Tillu, Jammu. Therefore, the learned

Counsel submits that there was no occasion for the Appellant to take

appropriate steps challenging these eviction notices, nonetheless, he has

filed application, being CM No. 8219/2025, placing on record the eviction

notice dated December 06, 2025 and also apprised the Writ Court about the

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said fact, but same has not been taken into consideration while dismissing

the application for ad-interim relief.

17. Per contra, the learned Counsel appearing for the contesting

Respondent No.7 had mainly laid stress on the issue of constitution of sub-

committee by the Deputy Commissioner, Srinagar for demarcation of the

land in question and that same has already been decided by the Writ Court

in the earlier round of litigation, therefore, the Appellant is estopped from

raising the same point again. The learned Counsel vehemently argued that

the Appellant was provided with adequate opportunity of being heard, but

he failed to produce the relevant documents, so as to prove that he is the

owner in possession of the land in dispute. Therefore, on these issues, the

findings already returned by the Writ Court in WP (C) No. 3379/2019 have

assumed finality and, thus, the Appellant is precluded from re-agitating the

same.

18. Heard. Considered.

19. It is beaten law of the land that for the grant of ad-interim

relief/ injunction, the globally acknowledged principles are collectively

known as “triple test” or “three golden principles” and these three

cardinal factors that are deeply embedded in Indian jurisprudence as well

are: ‘prima facie case’; ‘balance of convenience’ and ‘irreparable injury’. In

this regard, a reference can be made to the Judgment of Hon’ble Supreme

Court in ‘State of Kerala v. Union of India, (2024) 7 SCC 183’.

20. In the wake of the law governing the ad-interim relief, inter

alia, the point that falls for our consideration is that as to whether the Writ

Court, while dismissing the interim application, has rightly taken into

consideration the question of estoppel by judgment and further that the

District Magistrate has duly performed his statutory duties, while relying

on the report of the field officers/ staff having regard to the findings

returned by the Writ Court in the earlier round of litigation in WP (C) No.

3379/2019, wherein the Writ Court held that the Deputy Commissioner,

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Srinagar has not delegated his quasi-judicial function while issuing the

impugned Order dated January 12, 2018, but has only got demarcation done

through the field staff which indisputably is not forbidden in terms of

Section 6 of the Act of 1997.

21. Keeping in view the broader principles of law governing the

ad-interim relief, when we have waded through the Order dated May 22,

2025, passed by the District Magistrate Srinagar, i.e., impugned Order

before the Writ Court, it appears that, while dismissing the application of

the Appellant-Noor Illah Fakhtoo, the Magistrate has relied upon the report

submitted by the Tehsildar, Chanapora based on the demarcation done by

the team of officers constituted by the Tehsildar. So, there was delegation

and sub-delegation of power in constituting the team of Officers also.

22. In the Order dated, May 22, 2025, the District Magistrate,

Srinagar observed that the Tehsildar, Chanapora has constituted a team for

demarcation, which clearly reported that the Applicant-Noor Illahi Fakhtoo

is residing in Survey No. 379 (Abadideh) since 1996 and, as per sale deed,

the Applicant has land measuring 17 Marlas falling in Survey No. 764

(old), which has been assigned new Survey No. 387 and Survey No. 524

(old) has been assigned new Survey No. 379, respectively. It has been

further observed by the District Magistrate, Srinagar that the constituted

team has further reported that Noor Illahi might have been provided with

the documents of old Survey No. 764 (new 387) but he has been in

possession of Survey No. 524 min old (379 new). He further went onto

observe that the Applicant, despite having been given adequate opportunity

of hearing, could not provide sufficient material that the piece of land he

has occupied is recorded in his name and not in the name of Ashok Koul,

therefore, finally dismissed the application.

23. We have taken into consideration only those observations of

the District Magistrate, Srinagar which weighed with him while dismissing

the application filed by Appellant herein. There is no dispute to the fact that

the District Magistrate can take the assistance of the subordinate Officers or

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field staff in terms of Section 6 of the Act of 1997 for conducting the

survey, including measurements, but the questions that property is migrant

property and the possession of the occupant is unauthorized are the

questions which are to be assessed by the District Magistrate subjectively as

a designate Statutory Authority and the said power certainly is not capable

of being delegated to any other Authority or officer under him, which

necessarily means that the enquiry culminating into his subjective

satisfaction to enable him to exercise the power vested in him is to be

conducted by him as “persona designata” and not through any other

agency whatsoever, even though such an agency may be employed by him

for rendering necessary assistance for collection of materials to arrive at a

conclusion.

24. Practical assistance from subordinates is allowed and is also

necessary in large administrations, but the Statutory Authority cannot

abdicate its duty or act as a rubber stamp. 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. A

statutory duty cast on a Statutory Authority cannot be fully got 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.

25. However, prima facie, it appears that even if one were to read

the Order dated May 22, 2025 passed by the District Magistrate, Srinagar

with naked eye, it would lead to the irresistible conclusion that the District

Magistrate relied upon a vague and cryptic report of field officials wherein

it was reported that Noor Illahi might have been provided with documents

of old Survey No. 764 (new 387) and has been in possession of Survey No.

524 Min old (379 new). However, the District Magistrate, Srinagar still

banked upon this half-baked report of the field staff by taking it as a gospel

truth and went onto dismiss the application of the Appellant. We also find

that the Appellant has produced before the competent authority the requisite

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documents to substantiate his bonafide claim over the land in question,

including, site plan along with registered sale deed, so as to show that there

is complete dissimilarity between the shape and the site of both of the plots,

and also produced the building permission, so much so, a detailed

application also came to be filed with the request for demarcation of

Abadideh land (State land) in accordance with the provisions of the

Regulations of 2022, but it appears that same have not been taken into

consideration, rather, by a one-liner, gave short shrift to the material and

also to the request of the Appellant for demarcation of the land in terms of

the Regulations of 2022, by holding that SO 34 dated January 25, 2022 is

with regard to survey and record operations of the Village Abadideh and not

for the demarcation of proprietary land, as pleaded by the Counsel for the

Applicant.

26. The primary object and purpose of the Regulations of 2022 is

to systematically survey, identify, map and record rights in Abadideh areas

to achieve, inter alia, verifiable records of rights, including ownership,

possession and structures for properties in rural inhabited areas, which

historically often lack formal revenue documentation or have outdated/

incomplete records. The further underlying object of these Regulations is to

identify and demarcate Abadideh plots, structures, Government/ semi-

Government lands, etc., which is discernible from Regulations 22 and 23

respectively, that deal with determination of unique code of Abadideh plots

and recording of category and sub-category of Abadideh area. Therefore,

ex-facie, District Magistrate, Srinagar proceeded on an erroneous

assumption and also in a mechanical manner, oblivion of the very object of

the Regulations of 2022 and sans any independent application of mind, as

enjoined under the Act of 1997.

27. The Order impugned before the Writ Court came to be passed

in compliance to the directions passed, in WP (C) No. 3379 of 2019,

therefore, as to whether it was barred by estoppel by conduct or judgment,

or that as to whether or not the Appellant had submitted any satisfactory

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material during the post-decisional hearing, these are the arguable points,

therefore, merits of the case could not have been gone into at the stage of

considering the application for ad-interim relief. What was expected at the

stage is to see as to whether there is a prima facie case, which should not be

confused with the prima facie title, as it focuses on the need for further

adjudication, rather than establishing ownership or rights at the outset.

28. The case set up by of the Appellant is that he has purchased the

land that falls in Survey No. 764 (old) and the land purchased by the

Respondent No.7 falls in Survey No. 524 (old), whereas, after settlement,

the old Survey No. 524 came to be divided into new Survey Nos. viz. 377,

377/1 and 378 and same is also observed in para 5 by the Writ Court in its

Order dated June 07, 2023. According to the Appellant, the old Survey No.

764 is given new Survey No. 379, but surprisingly, at the last moment in the

Order dated May 22, 2025 and contrary to the earlier reports of the Deputy

Commissioner and also without any basis, Survey No.764 (old), shown to

have been assigned Survey No. 387 (new), instead of 379 (new).

29. Again, another very important aspect, perhaps missed the

attention of the Writ Court is that in WP (C) No. 3379/2019, the Writ Court,

while concluding, specifically held that it refrains from expressing any

opinion as to the merits of the claim lodged by the Petitioner (Appellant

herein) qua the land in question as also by the Respondent No.5

(Respondent No.7 herein), as merits are not for this Court to be decided, but

for the designated Authority under the Act of 1997 to consider. In this view

of the matter, the observations of the Writ Court regarding estoppel by

conduct and further that the Appellant had failed to produce material before

the District Magistrate in support of his claim are the observations having

been made too early in the day, particularly while considering the

application for ad-interim relief, therefore, same are not sustainable.

30. After going through the memo of appeal and hearing the

learned Counsel for the parties, we are of the opinion that the Appellant has

an arguable case, prima facie on the point of applicability of estoppel;

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alteration and change of Survey numbers, which, on the face of it, are based

on conflicting findings of the revenue authorities; nature, scope and extent

of power of the competent authority under the Act of 1997 and extent of its

delegation; the legality of dismissal of the application of the Appellant for

demarcation of Abadideh land by modern technology like geo-reference in

accordance with the Regulations of 2022. The Order dated 22, 2025, passed

by the District Magistrate, Srinagar is silent on the point as to the location,

size, shape, of the plot of land owned by the Appellant as well as

Respondent No.7, particularly when the Appellant, all along, is crying that

there is no similarity between the plot owned and possessed by him and that

of Respondent No.7, as one is situate at the northern side of the road and the

other is at the southern side. There is no whisper worth the name on all

these important issues.

31. At least, before us, the learned Counsel appearing for the

Appellant as well as Respondent No.7 are at ad idem on the point that the

Appellant as well as Respondent No.7 are the bonafide purchasers, but only

it has to be seen whether the Appellant is occupying the same plot regarding

which sale deed was executed or to the contrary he is in physical possession

of plot purchased by Respondent No.7. However, all these questions only

could have been considered at the time of hearing of the case on merits,

after hearing and taking into consideration the pleadings of the parties, but

findings returned by the Writ Court while considering application for

interim relief falls beyond the scope of interim relief, which is only meant

to preserve the lis till its final adjudication.

32. While going through the case file, we had come across the

Response filed by official Respondents in WP (C) 3379/ 2019 titled ‘Noor

Illahi Fakhtoo v. UT of Jammu & Kashmir and Ors.’, duly signed by

Deputy Commissioner, Srinagar, wherein, inter alia, it has been submitted

that as per the pre-settlement records of Revenue Estate, Hyderpora,

Srinagar, the Respondent No.5 (Respondent No.7 herein) has purchased

land measuring 19 Marlas under Survey No. 524 (old) in the said estate by

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virtue of instrument of sale from Jay Kishori wife of Pandit Brij Nath and

duly mutated vide mutation Order No. 2914. In the said Response, it is

further stated that the settlement operation of the Revenue Estate Hyderpora

was initiated and concluded thereof and, by virtue of which, Survey No.

524 (pre-settlement) has got merged/ divided into new Survey Nos. 377,

377/1 and 378, which fact also finds its mention in the Order passed by the

Writ Court in WP (C) 3379/2019. Therefore, it is now required to be seen

as to how come the District Magistrate, Srinagar, in the impugned Order

dated May 22, 2025 before the Writ Court, mentioned that old Survey No.

764 has been assigned a new Survey No. 387 and old Survey No. 524

(pertaining to Respondent No.7) has been assigned new Survey No. 379,

which prima facie speaks of non-application of mind and, as such, on such

perfunctory report, the Appellant cannot be deprived of his shelter, wherein

he has been residing along with his family, including school-going children,

for the last more than 20 years on the basis of duly executed sale deed and

after obtaining proper permission from the competent authority.

33. The learned Counsel for the Appellant, during the course of

arguments and which fact is also borne out from the pleadings, submitted

that the eviction process has been carried out by locking the premises and,

in this process, even the household items of the Appellant, including

clothing of his family members, cooking utensils, beddings, etc., have also

been locked inside the house. It has been further stated that the school-

going children have been deprived from studying because their books are

also lying in one of the rooms of the locked house.

34. In the case on hand, on the basis of the pleadings of the parties

and documents available on record, we are of the opinion that there is a

strong prima facie evidence in favor of the Appellant as a bonafide

purchaser of the land in question, who has raised the construction on the

basis of valid permission and also balance of convenience tilts in his favor

as the Appellant has invested in construction and, by now, for a pretty long

time, his family, including school-going children, have been residing there,

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therefore, any displacement till the Court finally decides the matter on

merits is surely going to cause irreparable injury. Since, the Appellant has

made out and raised an arguable case, therefore, a case for intervention by

way of ad-interim relief is found to have exist convincingly.

35. Admittedly, the Respondent No.7 has staked his claim over

open plot of land, whereas, the Appellant has by now constructed house

after following due process of law and is residing there for last 20 years.

Therefore, once he approached the Writ Court calling in question the action

of the statutory authority on various grounds, thereby raising arguable

points, in that event, the action of the District Magistrate to take away the

shelter of the family of the Appellant was required to be interdicted in

exercise of judicial review.

36. The Hon’ble Supreme Court, in ‘Benedict Denis Kinny v.

Tulip Brian Miranda & Ors., Smt. Prachi Prasad Parab v. State of

Maharashtra & Ors., AIR 2020 Supreme Court 3050’, while dealing in

extenso with the powers of the judicial review of the High Court under

Article 226 of the Constitution of India, inter alia, held as follows:

“xxxxx

(i) The power of judicial review vested in the

High Courts under Article 226 and this Court under

Article 32 of the Constitution is an integral and essential

feature of the Constitution and is basic structure of our

Constitution. The jurisdiction under Article 226 is

original, extraordinary and discretionary. The look out

of the High Court is to see whether injustice has resulted

on account of any decision of a constitutional authority,

a tribunal, a statutory authority or an authority within

meaning of Article 12 of the Constitution.

(ii) The Courts are guardians of the rights and

liberties of the citizen and they shall fail in their

responsibility if they abdicate their solemn duty towards

the citizens. The scope of Article 226 is very wide and

can be used to remedy injustice wherever it is found.

(iii) The power under Article 226 of the

Constitution overrides any contrary provision in a

LPA No. 314/2025 in

WP (C) No. 1260/2025

Page 16 of 18

Statute and the power of the High Court under Article

226 cannot be taken away or abridged by any contrary

provision in a Statute.

(iv) When a citizen has right to judicial review

against any decision of statutory authority, the High

Court in exercise of judicial review had every

jurisdiction to maintain the status quo so as to by lapse

of time, the petition may not be infructuous. The interim

order can always be passed by a High Court in exercise

of writ jurisdiction to maintain the status quo in aid of

the relief claimed so that at the time of final decision of

the Writ Petition, the relief may not become infructuous.

xxxxx”

37. Interim relief is intended to preserve the subject matter of

litigation and to prevent irreparable injury during the pendency of the

proceedings. Denial of such protection, particularly in cases involving

deprivation of residential premises, must be exercised with utmost

circumspection. Courts are duty-bound to ensure that judicial proceedings

do not become illusory by permitting irreversible situations to arise pending

adjudication.

38. At this stage, while looking to the facts and circumstances of

the case on hand, what has been observed by the Hon’ble Supreme Court in

‘Deoraj v. State of Maharashtra & Ors., AIR 2004 SC 1975’, also

assumes relevance and reads, thus:

“12. Situations emerge where the granting of an

interim relief would tantamount to granting the final

relief itself. And, then there may be converse cases

where withholding of an interim relief would tantamount

to dismissal of main Petition itself; for, by the time the

matter comes up for hearing there would be nothing left

to be allowed as relief to the petitioner though all the

findings may be in his favour.

xxxxx”

39. Here is a case which shocks the conscience of the Court when

indisputably it is shown to the Court that the authorities have locked the

house along with all household items, including study books belonging to

the school- going children, during the eviction process, especially when the

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WP (C) No. 1260/2025

Page 17 of 18

High Court was hearing the case on the same very day. Therefore, we are of

the considered opinion that the Appellant is entitled to the interim

protection because denial thereof has resulted in loss of shelter and severe

disruption of his family, which fly in the face of ‘Right to Life’, guaranteed

under Article 21 of the Constitution of India.

40. Notwithstanding the point regarding legality of the sale deed of

the piece of land over which ownership right has been claimed by the

Respondent No.7-Shri Ashok Koul, being in contravention of Section 31

(pre-amended) of the Agrarian Reforms Act, 1976, is raised, but we leave

all these questions to be decided by the Writ Court while adjudicating the

matter finally on merits.

41. All along, the claim of the Respondent No. 7 is that he is a

‘Migrant’, as described under the Act of 1997, as such, is entitled to

protection of his immoveable property from encroachment in terms of

Section 5 of the Act of 1997, nonetheless, the competent authority is firstly

required to adjudicate the status of the Respondent No.7 as a ‘Migrant’ and

only then, the applicability of the Act of 1997 would come into play. But

this point also needs consideration, which, in our opinion, forms the

fulcrum of the controversy in question.

42. In view of the preceding analysis, the present appeal is

allowed and the impugned Order dated December 12, 2025 passed by the

learned Writ Court is set aside. The Order No. DMS/RD-732/Mig/114

dated May 22, 2025 passed by District Magistrate, Srinagar as well as

eviction notice No. 1841-44/OQ/TCH/25 dated December 06, 2025 issued

by Tehsildar Chanapora/ Natipora shall remain in abeyance. Resultantly,

status quo ante is granted in favor of the Appellant and the Respondents

No. 3 and 4 are directed to hand over the keys of the house to the Appellant,

after preparing an inventory of the household items. We make it clear that

the observations made in this Judgment shall not be construed as expression

of opinion with regard to the merits of the case and that same shall be

confined to disposal of this appeal only. We further direct that this Order

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WP (C) No. 1260/2025

Page 18 of 18

shall remain in force till the final disposal of the Writ Petition before the

Writ Court, being WP (C) No.1260/2025, and that the claims of the

respective parties shall be governed by the final decision of the Writ Court.

43. Letters Patent Appeal is, thus, disposed of, along with the

connected CM.

(SHAHZAD AZEEM) (SINDHU SHARMA)

JUDGE JUDGE

SRINAGAR

February 20

th

, 2026

“TAHIR”

i. Whether the Judgment is approved for reporting? Yes.