High Court Quashes Kupwara Magistrate’s Land Attachment Order for Breach of Legal Procedure

SRINAGAR: The High Court of Jammu and Kashmir and Ladakh at Srinagar has set aside an order issued by the Additional District Magistrate (ADM), Kupwara, involving the attachment of disputed land in Trehgam, ruling that the action did not comply with mandatory legal procedures under the Code of Criminal Procedure (CrPC).

The judgment, delivered on December 30 2024 by Justice Vinod Chatterji Koul, came in response to a petition filed by Mohammad Akbar Sheikh. The petitioner had challenged the ADM’s order dated October 20 2022, which directed the attachment of land and its transfer to local community figures, the Lumberdar and Sarpanch, based on a recommendation by the Tehsildar, Trehgam.

The ADM had acted upon a report suggesting that the nature of the land dispute between Sheikh and the respondents might give rise to a law and order situation. Consequently, invoking Section 145(1) of the CrPC, the ADM directed the Executive Magistrate First Class (Tehsildar, Trehgam) to take possession of the property and hand it over to respectable persons of the locality until further orders.

However, the High Court observed that the ADM failed to adhere to the due process required under Section 145(1). This section mandates that a Magistrate must, after being satisfied from a police report or other information that a breach of peace is likely, issue a written order stating the grounds of satisfaction and summon the parties to present their claims regarding possession.

Justice Koul noted that the ADM did not follow this protocol. Instead, the land had already been handed over to the Lumberdar and Sarpanch by the Tehsildar before the ADM confirmed the action. The ADM’s order, according to the Court, simply ratified the Tehsildar’s action without following the legal sequence required for such cases.

The judgment further clarified that an order of attachment in such cases should be issued under Section 146(1) of the CrPC, which applies when the Magistrate considers the case to be an emergency or is unable to determine actual possession. That section allows for attachment and appointment of a receiver until a competent civil court determines rightful possession.

“It appears from the reading of the impugned order while taking into notice the provisions contained in Sections 145(1) and 146(1) CrPC that it has been passed in breach of both provisions of law,” the Court said, holding the ADM’s decision as unsustainable.

The High Court set aside the order and remanded the matter back to the ADM, Kupwara, directing him to proceed afresh strictly in accordance with Sections 145 and 146 of the CrPC.

Both parties were directed to appear before the ADM on 18 March 2025.