HC overturns eviction order over Sonwar land dispute

Srinagar, Apr 22: Underscoring that the disputed questions of land title cannot be decided through summary proceedings under the Public Premises Act, the High Court of J&K and Ladakh Wednesday quashed an eviction order issued by the Cantonment authorities against some residents of Sonawar here.

Allowing the four aggrieved persons’ plea, a Bench of Justice M AChowdhary, set aside the order dated August 8, 2022, passed by the Estates Officer, Cantonment Board, BadamiBagh Srinagar.

In their plea, the petitioners had assailed the eviction proceedings initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, asserting ownership and long-standing possession of land at Bonamsar, Sonawar Srinagar.

They relied on revenue records, mutations, and a civil court decree to claim the land as proprietary.

Opposing the plea, the Union of India and Cantonment authorities argued that the land formed part of Defence property recorded as B-4 land in the General Land Register (GLR).

The petitioners, they alleged, were unauthorised occupants.

In its decision, the court held that both sides had raised competing claims over the land, identified differently in revenue and defence records, thereby involving complex and bona fide disputes of title.

“Summary eviction proceedings cannot be used where title is seriously disputed,” the court said.

With regard to the petitioners claim that the land in question was purchased by their predecessor-in-interest in terms of a registered sale deed June 3, 1971, the court said: “In respect of a registered sale deed, the well settled proposition of law lays down 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.”

The petitioners were claiming title and possession over the subject property through their predecessors-in-interest from the year 1950, whereas, the respondents claimed the subject land is dovernment/ defense land which had been encroached upon by the Petitioners.

“In such a situation, having regard to the referred legal position, unless they establish their title through competent civil court, the respondents are not entitled to initiate and pass the eviction order exercising the powers conferred under the Act of 1971, which is summary in nature, thereby rendering the same without jurisdiction,” the court said.   

The question raised before the court was whether the Cantonment Board was entitled to initiate proceedings against the Petitioners under the Act of 1971, being summary in nature.

“The law is that the summary remedy for eviction, as is provided under the Act of 1971, can be resorted to by the concerned authority only against the persons who are in unauthorised occupation of any land which is the property of the government,” the court said.

However, the court said: “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 Act of 1971 for evicting the person who is in possession of the property under a bona fide claim or title.”

With regard to reliance on the General Land Register (GLR), the court said the same is not prepared after issuing any 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.

“There is no wide publicity given and none is heard before making such entries in GLR. Where a record is prepared by a public servant and such record affects the persons who have no opportunity to object to the same, such record does not carry any probative value,” it said.

The court said that the principles of natural justice, are required to be complied with by the public servants in the matter of preparation of any documents, which may have a tendency of adversely affecting the rights of the private citizens. 

“Only such documents prepared after due notice and hearing of all the concerned shall be deemed to be made by a public servant in the discharge of his official duty within the meaning of Section 35 of the Indian Evidence Act,” it said.

The GLR, as such, cannot be said to be prepared and maintained in respect of the rights in or over the land, the court said.