Abdul Majeed Dar & Anr vs Union Territory Of Jk & Ors
2021 Latest Caselaw 770 j&K/2

         IN THE HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR


                          WP(C) No. 982/2020
                        Along with connected CMs


                                                Reserved On: 13th of July, 2021
                                             Pronounced On: 15th of July, 2021.


Abdul Majeed Dar & Anr.
                                                           ..... Petitioner(s)
                               Through: -
                         Mr M. Y. Lone, Advocate.

                                     V/s

Union Territory of JK & Ors.
                                                        ..... Respondent(s)

Through: -

Mr B. A. Dar, Sr. AAG for R-1, 3, 4 & 6;

Mr Hakim Aman Ali, Dy. AG for R-2 & 5; and Mr Altaf Haqani, Senior Advocate with Mr Shaqir Haqani, Advocate for R-7.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

01. Impugned in this Petition is Order dated 25 th of June, 2020

issued by the Sub Divisional Magistrate, Chadoora/ Respondent No.4 herein,

in terms whereof mutation Nos. 110 and 111 have been set aside and land

measuring 18 Marlas covered under Survey No. 1071 Min restored back as

Kahcharie land and the land under Survey Nos. 745 and 334 provided in

exchange restored back to the Petitioners.

02. The Petitioners claim to be the residents of Village Ranger,

Budgam and, upon facing shortage of land for purpose of construction of

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residential houses, applied before the concerned revenue authorities for

exchange of their proprietary land with Kahcharie land situated at Village

Ranger. This application of the Petitioners, as stated, was accepted by the

Respondents subject to exchange of double proprietary land from the

Petitioners and, resultantly, the Petitioners were given 09 Marlas of

Kahcharie land in exchange of 19 Marlas of their proprietary land falling

under Survey Nos. 745 and 334. It is stated that accordingly the concerned

authorities in the Revenue Department attested mutation Nos. 110 and 111

in the revenue records. However, the Sub-Divisional Magistrate, Chadoora/

Respondent No.4 herein, on the appeal filed by the Tehsildar Chadoora and

Respondent No.7 herein, vide the Order impugned, has set aside the

aforesaid two mutations and has restored back land measuring 18 Marlas

falling under Survey no.1071 Min as Kahcharie land and the land under

Survey Nos. 745 and 334 restored back to the Petitioners.

03. Mr M. Y. Lone, the learned counsel for the Petitioners,

submitted that the Order impugned is bad in law inasmuch as the same has

been issued by the Respondent No.4 at the back of the Petitioners. It is

further submitted that there is proper exchange of land between the

Petitioners and the Revenue Department, wherein the Petitioners gave

double proprietary land for the Kahcharie land provided to them by the

Revenue Department. The learned counsel contended that the impugned

Order has been issued in violation of the rules governing the field as no

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inquiry was conducted in the matter before arriving at the conclusion arrived

at in the said Order.

04. Objections stand filed on behalf of the Respondents.

05. The Respondents 1, 3, 4 & 6, in their Objections, have

submitted that the Petitioners have no cause of action as they have given

nothing in exchange of the Kahcharie land occupied by them in lieu of a

simple communication rather through a proper transfer Order from

Collector, Budgam, besides they have kept the land too which they claim to

have exchanged with themselves. It is submitted that the applications of the

Petitioners were forwarded to Tehsildar concerned and no explicit orders

were issued for any exchange of land. The Petitioners, as stated, have

illegally managed to get mutation Orders bearing Nos. 110 and 111 effected

for exchange of land whereunder 09 Marlas each of Kahcharie land bearing

Survey No.1071 was given to them in exchange of proprietary land of the

Petitioners from Survey Nos. 745 and 334, however, despite managing the

illegal exchange on the basis of simple communication, the Petitioners chose

to retain both Kahcharie land as well as the land claimed to have been

provided by them in exchange with themselves parting nothing in real but

grabbing both by cheating the Government exchequer. The contention of the

Petitioners that they were not provided any opportunity of being heard

before issuance of the Order impugned has been vehemently denied by

stating that the Petitioners were called/ summoned twice for the purpose

before setting aside the mutations.

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06. The Respondents 2 and 5 have submitted that the land in

question falls under Khasra No. 1071 measuring 04 Kanals and 05 Marlas

and, out of the said land, the Respondent Department has occupied 02

Kanals of land for purpose of construction of Receiving Station for which

the indent stands placed by the Department. It is further submitted that the

area of Ranger as well as adjoining areas are facing tremendous electricity

shortage issue due to overload on Chadoora Receiving Station and, in case,

the receiving station is not allowed to be constructed, the problem is likely to

increase that will cause a lot of difficulty to the general public.

07. The Respondent No.7 has submitted that the land in question is

part of Kahcharie land measuring 04 Kanals and 05 Marlas under Survey

No. 1071 situate at village Ranger, Tehsil Chadoora. The said plot of land,

being Kahcharie land, has been reserved for common purpose of all the

villagers/ residents of the village Ranger and is surrounded by village

graveyard. The said Kahcharie land on spot has remained vacant and is

being used by all co-sharers of the village for common purpose. A part of the

said land measuring 02 Kanals having remained vacant, was identified by

Respondent No.5 with the consent of all villagers, represented by the

Intizamia Committee, Jamia Masjid Sharief (Auqaf) Ranger, to be utilized

for construction of a Receiving Station at the said village for public purpose.

The said public purpose, however, has been sought to be defeated by the

Petitioners by abuse of process of Court with the institution of the Writ

Petition on factually and legally misconceived grounds, that too when the

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construction of the Receiving Station has already commenced. It is denied

that the Petitioners ever were in possession of the said Kahcharie land and

that the said Kahcharie land was never ordered to be exchanged with the

proprietary land of the Petitioners by the competent authority. The mutations

referred to by the Petitioners are stated to be devoid of any sanctity

inasmuch as the same have been passed clandestinely and illegally by the

Naib Tehsildar on the assumption of an exchange deed which never existed.

The mutations have not been passed within the knowledge and notice of the

local residents/ villagers nor such mutations were affected on spot. The

mutations are in violation of the mandate of standing Orders 23-A of the

Land Revenue Act and, therefore, are completely bereft of any legal

sanctity.

08. Heard learned counsel for the parties, perused the pleadings on

record and considered the matter.

09. Section 133 of the Jammu and Kashmir Land Revenue Act, Svt.

1996 (hereinafter referred to as the Act of 1996), running under the caption

'Prevention of encroachment on Common Land', reads as under:

"133. Prevention of encroachment on common land. - (1) When land which has been reserved for the common purposes of the co-sharers therein has been encroached on by any co-sharer, a Revenue officer not below the rank of an Assistant Collector of the first class or the officer in-charge of the Settlement or an Assistant Collector of the first class subordinate to him may, on the application of any other co- sharer, eject the encroaching co-sharer from the land, and, by order duly proclaimed, forbid repetition of the encroachment.

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(2) Prevention of encroachments on or cultivation of common land, or land reserved for public purposes or of which cultivation has been prohibited or is objectionable, or by person not entitled to bring it under cultivation. -

(a) When land which has been reserved for grazing ground or any other public purpose or of which the cultivation has been prohibited by a Revenue officer duly empowered in that behalf has been encroached upon or brought under cultivation, or

(b) when land has been brought under cultivation by any person not entitled under any law or rules having the force of law to bring it under cultivation, or

(c) when any person, without due authority, has taken possession of land belonging to the Government, a Revenue officer [empowered in this behalf by the Government] of his own motion or on the application of any person interested, may eject the person so encroaching upon or cultivating such land and take possession of such land without paying any compensation for crops or improvements, and may also, by order duly proclaimed, forbid repetition of the encroachment:

[Provided that where on any land mentioned in clause (a) any structure stands raised, the person encroaching upon the land shall be ejected therefrom forthwith leaving an area of 10 marlas under and adjacent to the structure in respect of which the owner thereof shall be given a notice in writing affording him an opportunity to-

(1) dismantle the structure standing on such land and to remove the material from the site; or

(2) offer suitable equivalent area in exchange from out of his proprietary land or from out of the land which he may acquire or purchase for the purpose, in the same village, within a period of one month from the date of issue of the notice failing which the Revenue officer aforementioned may eject the owner or occupier of the structure and may dismantle or cause to be dismantled the structure and remove or cause to be removed the material from the site and in doing so the Revenue officer may use such force, as may be necessary.]

The person so ejected shall be liable under the order of a Revenue officer not below the rank of a [Collector] or officer in charge of the Settlement or an Assistant Collector

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of the first class subordinate to him to a fine [not less than Rs 500 per day till the contravention on the land mentioned in section 133 is removed] in addition to revenue payable on the land for the period of possession reckoned at village revenue rates

[(d) the Collector shall be competent to accept or reject the offer made under sub-clause (ii) of the proviso to clause (c) by an order in writing.

(e) an exchange between the land, of which an offer is accepted under clause (d), and the land encroached upon shall be made by means of a mutation and the orders on such mutation shall be construed as having validly conferred title in the exchanged lands, notwithstanding anything contained in the Jammu and Kashmir Transfer of Property Act, 1977 and the Jammu and Kashmir Registration Act, 1977.]

(3) When land has been brought under cultivation by a person entitled under the rules or orders in force to bring it under cultivation, but a Revenue officer not below the rank of Tehsildar in any enquiry made under section 24 of this Act finds that, for reasons to be recorded by him, the cultivation of such land should be prohibited, he may eject the person cultivating it and may, by order duly proclaimed, forbid its further cultivation

[(4) No compensation shall be claimed by any person for any damage which he may sustain in consequence of the dismantling of any structure or removal of any material from the site under this section.]

(4-a) Where any land becoming available under this section is an orchard or growing vegetables, the Government may by order transfer it to the Panchayat of the area for proper management on such terms and conditions as it may specify.

[(4-b) Whoever, -

(a) makes default in complying with any of the provisions of, or

(b) disobeys an order made and proclaimed under sub-sections (1), (2) and (3), shall, without prejudice to his liability for ejectment thereunder, be punishable by an order of the Assistant Collector of the first class or a Settlement officer or an Assistant Collector of the first class subordinate to him, with a fine which shall not be less than twenty-five rupees and which may extend to fifty rupees which may be reported for

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every day during which the default or disobedience continues, in addition to any punishment to which the offender may be liable under any other law for the time being in force.]

(5) The proceedings of the Revenue officer under the foregoing subsections shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.

Perusal of the aforesaid provision of law makes it axiomatic

that it is the Collector concerned who is competent to accept or reject an

offer of exchange of proprietary land with common land by issuing an Order

in writing. It is further forthcoming that an exchange between the land of

which an offer is accepted and the land encroached upon has to be made by

means of a mutation and orders on such mutation have to be construed as

having validly conferred title in the exchanged lands, notwithstanding

anything contained in the Jammu and Kashmir Transfer of Property Act,

1977 and the Jammu and Kashmir Registration Act, 1977.

10. The above procedure is the only mechanism provided in law for

validly effecting an exchange of proprietary land with common Government

land. In the present case, the Petitioners claim that they made application

before the concerned revenue authorities for seeking exchange of their

proprietary land with the Kahcharie land and that same was accepted by the

Respondents, resulting in attestation of mutation Nos. 110 and 111 by the

revenue authorities. However, there is no pleading on record which would

show that the aforesaid procedure, as provided in law, has been followed

while attesting the mutations for exchange of land between the parties

inasmuch as no order of the competent authority, i.e., Collector concerned, is

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on record. In absence of any such order from the competent authority qua

acceptance of offer made for seeking exchange of land, the attestation of

mutations, on this count alone, cannot be countenanced by law and same has

to be treated as non-est in the eyes of law.

11. Apart from the above perspective, the Respondents have also

claimed that the Petitioners have actually not parted away from their

proprietary land which they claim to have exchanged in lieu of the

Kahcharie land they got in the process of exchange of land between the

parties and have thus grabbed both lands illegally. This is a disputed issue

which cannot be adjudicated upon by this Court in Writ proceedings by

going into a fact-finding mission. Be that as it may, when the mode and

method provided in law for validly conferring title in the exchanged lands

has not been followed in the instant case, as discussed hereinabove, there is

no requirement to go into the said aspect, more so when the mutations in

question stand already set aside.

12. The Respondent No.4 has based the Order impugned on the

factum of absence of any order having been issued on the subject by the

competent authority, i.e., the Collector concerned, and, therefore, same

cannot be said to be an erroneous order in any manner whatsoever. The

Petitioners have not been able to show before the Court that the mutations

have been attested after following the procedure prescribed in Section 133 of

the Act of 1996. In such circumstances, the Petitioners cannot be allowed to

invoke the extraordinary Writ jurisdiction of this Court with regard to the

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land in question which land, in law, is meant to be used as common land by

the community as a whole.

13. Viewed in the above context, I do not find any merit in this

Writ Petition. It entails dismissal and is hereby dismissed. Interim directions,

if any subsisting as on date, shall stand vacated.

14. This shall also dispose of all pending miscellaneous

applications, accordingly.

(Ali Mohammad Magrey) Judge SRINAGAR July 15th, 2021 "TAHIR"

i. Whether the Judgment is reportable? Yes/ No. ii. Whether the Judgment is speaking? Yes/ No.

TAHIR MANZOOR BHAT 2021.07.15 17:04 I attest to the accuracy and integrity of this document