Building permission may be refused for land recorded as “Gair Mumkin Khad” absent proof it lies outside a watercourse.

The petitioner claimed ownership and possession of land measuring 2 kanals 11 marlas comprised in Khasra No. 260-min at Village Narwal Bala, Tehsil Bahu, District Jammu. The land was recorded in the revenue records as “Gair Mumkin Khad.” The petitioner asserted that the nearest dry nallah was more than 200 metres away and that the area was fully developed. The Executive Engineer, Flood Control Division, Jammu, had issued a no-objection for residential construction, and the Tehsildar, Jammu Development Authority (JDA), had reported that the land did not belong to the JDA.

The petitioner applied for building permission. The JDA rejected the application by communication dated 3 December 2020, relying on two grounds: first, the land was recorded as “Gair Mumkin Khad”; and second, land comprised in Khasra No. 260-min had allegedly been acquired by the JDA.

The petitioner also challenged communication dated 22 October 2020, contending that it relied on the Big Landed Estates Abolition Act, which had subsequently been repealed.

During the proceedings, the JDA filed a fresh reply clarifying that the petitioner’s land had neither been acquired nor transferred to the JDA and lay outside the acquired/transferred portion of Khasra No. 260.

Separately, the Government constituted committees under Government Order No. 18-JK(Rev) of 2022 dated 4 February 2022 to identify land recorded as “Gair Mumkin Khad,” “Gair Mumkin Darya,” or “Gair Mumkin Nallah” that did not actually form part of a watercourse or water source.

A subsequent public notice listed 394 kanals 8 marlas in Khasra No. 260, Village Narwal Bala, as lying outside the water channel.

The Court applied the Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010. Section 3 vests every water source in the Government, irrespective of prior private ownership. Sections 2(zzc) and 2(zze) respectively include a “khad” within the meaning of a watercourse and a watercourse within the meaning of a water source; consequently, land recorded as “Gair Mumkin Khad” is treated as a Government water source/course, on which construction is impermissible.

The Court also considered the policy framework arising from the Division Bench judgment in WPPIL Nos. 19/2014 and 20/2013 dated 12 February 2016, SRO 456, and Government Order No. 18-JK(Rev) of 2022, which established a committee-based process for delineating land incorrectly recorded as “Gair Mumkin Khad” or similar categories but not forming part of an actual water source or course.

The Court held that the acquisition-related ground could no longer support the rejection because the JDA’s fresh affidavit expressly admitted that the petitioner’s land had neither been acquired nor transferred to it.

However, at the time the building-permission application was rejected, the land was officially recorded as “Gair Mumkin Khad.” Applying Sections 3, 2(zzc), and 2(zze) of the 2010 Act, the Court treated such recorded land as falling within the statutory concept of a Government-owned water source or watercourse, where construction could not lawfully be permitted.

The later Government policy and public notice created a mechanism for distinguishing land that was merely recorded as “Gair Mumkin Khad” from land that actually formed part of a water channel.

Since the public notice showed substantial land in Khasra No. 260 as outside the water channel, the petitioner was permitted to submit a fresh application supported by proof of the land’s actual status.

Nevertheless, the original refusal was upheld because the delineation policy came into force only after the impugned decision.

The separate acquisition-related ground did not survive in view of the JDA’s subsequent admission that the land had not been acquired or transferred.

The petitioner was granted liberty to apply afresh for building permission before the competent authority, along with documents demonstrating that his land lies outside the actual water channel.

The competent authority was directed to reconsider such application in accordance with law.