Third Party Using Land With Owner's Consent Cannot Be Prosecuted For Encroachment: J&K&L High Court

The Jammu & Kashmir High Court has held that coercive action cannot be taken against a third party who merely used land with the permission of its recorded owner, especially when the statute invoked is inapplicable.

The petitioner had challenged an order directing seizure of his building material and registration of an FIR for alleged encroachment of common land under the J&K Common Lands (Regulation) Act, 1956, relying on the Supreme Court's ruling in Jagpal Singh v. State of Punjab.

A bench of Justice Moksha Khajuria Kazmi observed that the petitioner was not claiming ownership or title over the land and had acted on the authority of the recorded owner, whose ownership was reflected in the revenue records and admitted by him.

The material had been stored on land recorded as 'Gair Mumkin Talai', with the consent of the recorded owner (respondent No. 6).

The court noted that it was an admitted position that the Common Lands Act did not apply to the land in question, as it fell within the limits of Municipal Council, Udhampur.

It further observed Holding that any action, if required, ought to have been taken against the recorded owner and not the petitioner, the Court found the impugned order legally unsustainable.

The High Court also rejected the argument that the land vested in the Government under the J&K Water Resources (Regulation and Management) Act, 2010, noting absence of any corresponding revenue entry or action under the Act.

Accordingly, the Court set aside the impugned order insofar as it related to the petitioner.

Case-Title: Shafiq Anjum vs State of J&K & Ors, 2025

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