Abdul Ahad Shera & Ors vs State Of J&K And Others
2021 Latest Caselaw 1290 j&K/2

                                                                Sr. No.51

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

CJ Court

                          LPAOW No.35/2017
Abdul Ahad Shera & Ors.                        ...Petitioner(s)/Appellants.
Through:   Mr. J. H. Reshi, Advocate.

                                   Vs.
State of J&K and others.                                ....Respondent(s)
Through:   Mr. M. A. Chashoo, AAG, for respondents 1 to 13.
           Mr. S. N. Ratanpuri, Advocate, for respondent No.15.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                              JUDGMENT

12.10.2021

01. Heard Mr. J. H. Reshi, learned counsel for the appellants, Mr. M.

A. Chashoo, learned AAG for respondents 1 to 13 and Mr. S. N.

Ratanpuri, learned counsel for respondent No.15.

02. The Letters Patent Appeal is against the judgment and order

dated 01.03.2017 passed by the Writ Court disposing of OWP

No.610/2012 : Abdul Ahad Shera & Ors. v. State of J&K and others.

03. The petitioners/ appellants filed the above writ petition alleging

that they are bonafide citizens of India and are the subjects of the State

of Jammu & Kashmir. They pleaded that a piece of land on which a

road is to be laid is a Kahcharai Land meant for grazing purpose which

is owned and possessed by the State. The official respondents in

connivance with some private persons have treated the said land as a

proprietary land of the said private persons so as to pay compensation to

them. Accordingly, petitioners/ appellants by means of the aforesaid

writ petition sought direction that no road should be constructed on the

spot; no further amount be released in favour of any private person; and

to hold a judicial enquiry regarding conversion of Kahcharai land as

proprietary land and in payment of compensation in respect thereof to

private respondents.

04. The Writ Court after noticing the pleadings of the parties and

looking into the relief claimed by the petitioners/ appellants held that

since substantial issues raised by the petitioners/ appellants have already

been addressed by the official respondents and as the work of public

importance of connecting two remote villages by a link road cannot be

stalled and as such disposed of the petition with the direction to the

Deputy Commissioner, Ganderbal, to look into the nature of the

complaint of the petitioners/ appellants who were permitted to place all

material in support of their plea that the Kahcharai land has been

converted into a proprietary land to benefit some individuals and to take

a decision on merits.

05. The submission of learned counsel for the petitioners/ appellants

is that once a dispute for adjudication had been brought before the court,

it is always desirable to decide the issues arising therein instead of

leaving the matter open for the subordinate authorities to adjudicate

upon.

06. Before we address the above issue, it would be appropriate for us

to refer to the pleadings made in the writ petition as well as to the reply

of the respondents so as to actually come to the conclusion as to the

issues, if any, arising in the writ petition and whether they stood decided

or not.

07. The petitioners/ appellants in filing the writ petition have simply

stated that they are citizens of India and have common cause and,

therefore, they have the right to file the writ petition. They have not

stated anywhere that they are the residents of the village concerned or

how they are affected if a road as alleged is constructed. They have only

stated that land falling under certain survey numbers which is recorded

as Kahcharai land of the State has been converted into proprietary land

of some of the private respondents and a road of 8 kilometers is being

constructed on it from Thune to Badi Patheri. This has been done to

extend the benefit of payment of compensation to the private persons.

The petitioners/ appellants have made various complaints in this regard

to the concerned authorities but nothing material has been done. The

road is being constructed only to benefit a small group of residents and

it is not for the welfare of the general public. Therefore, the petitioners/

appellants want that the work of construction of the road should be

stopped and a judicial enquiry be conducted regarding the conversion of

the Kahcharai land into proprietary land so as to benefit the private

individuals and to enquire how 80% of the estimated compensation has

been paid to these private persons.

08. In response to the pleadings of the writ petition, objections have

been filed by the respondents stating that an indent was received from

the Executive Engineer, Prime Ministers Gram Sadak Yojana

(PMGSY), by the Collector for acquiring the land for construction of

road from Thune to Badi Patheri. After necessary exercise, a notification

under Section 4(1) of the Land Acquisition Act was issued on

16.11.2010 proposing to acquire land measuring 69 kanals 13 marlas

which comprised of 25 kanals 6 marlas of proprietary land, 26 kanals

and 1 marla of shamilat land and 18 kanals and 6 marlas of Kahcharai

land. Subsequently, under the chairmanship of the District Collector, a

meeting for settling compensation by private negotiation (PNC) was

convened and the rate of compensation was settled wherein the total

cost of the land sought to be acquired was worked out to

Rs.3,40,83,000/- which was payable to the rightful owners.

09. Since certain complaints were received, the Divisional

Commissioner referred the matter to the Deputy Commissioner,

Ganderbal. The complaint was basically that once Bashir Ahmad Khan

(one of the private respondents) in league with revenue officials had

managed to receive excess compensation. The Deputy Commissioner,

Ganderbal, after examining the records reported that the aforesaid

Bashir Ahmad Khan and others were entitled to compensation as owner

of only 2 kanals, 14 marlas and 7 sirsai of shamilat land but they have

been paid compensation in excess for the land measuring 15 kanals, 03

marlas and 4 ½ Sirsai. They have been paid compensation of Rs.

45,18,000/- whereas they were entitled to receive Rs.7,01,155/- and,

therefore, the excess amount of Rs.38,16,845/- is to be recovered from

them to be deposited in the District Treasury. It is also stated that to

recover the said amount, notices have already been issued and a sum of

Rs. 03 lakhs and a further sum of Rs.02 lakhs have been deposited by

Bashir Ahmad Khan on 24.03.2011 and 30.04.2011 respectively. He has

filed OWP No.350/2011 against the aforesaid recovery and has obtained

a stay.

10. Another set of objection has been filed on behalf of respondents

6, 7 and 8 i.e., the Executive Engineer, PMGSY and others stating that

the construction of the road under the Prime Ministers Gram Sadak

Yojana has the approval of the Ministry of Rural Development,

Government of India. The proposed road will prove as a lifeline to the

inhabitants of Badi Pathri. Its construction is strictly as per priority of

core network setup by Ministry of Rural Development, Government of

India.

11. On consideration of the averments made in the writ petition and

the replies filed on behalf of the respondents, it is evident that 69 kanals

13 marlas of land has been acquired for the purpose of construction of 8

Kilometers of road from Thune to Badi Patheri under the Prime

Ministers Gram Sadak Yojana Scheme. The said acquisition included

within its ambit 18 kanals 6 marlas of Kahcharai land owned by the

Government. The compensation in respect of said land have been paid

to the Village Panchayat and that no part of it has been paid to any

private person. There is no material on record to establish that any

Kahcharai land has been converted into a proprietary land so as to

benefit any private person except the fact that private respondent, Bashir

Ahmad Khan, has been paid excess compensation for 15 kanals 4 marlas

4 ½ sirsai of land as against 2 kanals 14 marlas and 7 sirsai of his

shamilat land. Accordingly, recovery proceedings have been initiated

against him so as to recover a sum of Rs.38,16,845/- out of which Rs. 5

lakhs have already been deposited by him.

12. In view of the above, we do not find that any legal issue had

cropped up before the Writ Court for adjudication and the matter was

totally dependent upon the facts and circumstances of the case as to

whether compensation in respect of any Kahcharai land has been paid to

the private persons by treating it to be proprietary land.

13. The facts have clearly revealed that no right of the petitioners/

appellants had been infringed and that the construction of the road is

proposed as per the policy decision of the Government. The land has

been acquired in accordance with law and that there is no challenge to

the acquisition proceedings. Thus, for the purposes of redressal of the

grievances of the petitioners/ appellants that certain private persons have

been benefited, the Deputy Commissioner, Ganderbal, was rightly

directed to look into the matter and take a decision thereon on the basis

of the record and material that may be placed before him by the parties.

14. Learned counsel for the petitioners/ appellants argued that the

Kahcharai land cannot be acquired and that the construction of the road

is not in public interest.

15. The construction of the road as previously mentioned is under

the Prime Ministers Gram Sadak Yojana and has the approval of the

Ministry of Rural Development, Government of India, that has taken a

conscious decision that it would benefit the inhabitants of Badi Pathri.

The said policy decision is not a matter of judicial review.

16. As far as the acquisition of Kahcharai land is concerned, there is

absolutely no prohibition in law especially the Land Acquisition Act

that such a land meant for grazing purposes cannot be acquired. It may

be important to note that Kahcharai land is a land for grazing purposes

and is the property of the Government which is utilized for the benefit

of the villagers. The Jammu & Kashmir Kahcharai Act defines

Kahcharai to mean 'revenue derived or derivable from any duty, fee, tax

fine or penalty imposed in relation to levy of grazing'. The said Act

provides for the collection of revenue of grazing, for registration of

nomads as grazers and the various offences in relation thereto but it

nowhere provides that the land kept or earmarked for grazing purpose in

a village is not open for acquisition.

17. Learned counsel for the petitioners/ appellants relied upon

Government order dated 28.09.1979 issued by the Revenue Department

of Jammu & Kashmir in context with grant of compensation for

Kahcharai land. The said Government order provides that for marginal

requirements like building of school or a dispensary, Kahcharai lands

may be acquired if no other land is available. The submission is that as

the aforesaid Government order does not permit acquisition of

Kahcharai land for the purposes of construction of the road, it cannot be

acquired.

18. The very object of the aforesaid Government order i.e., to grant

compensation for Kahcharai land indicates that such a land can be

acquired. The Government order only provides that Kahcharai land can

only be acquired for a very limited purpose if no other land is available.

The purposes for which Kahcharai land can be acquired have not been

exhaustively mentioned so as to exclude acquisition of Kahcharai land

for construction of road.

19. The submission that Kahcharai land cannot be acquired for

construction of road is irrelevant otherwise also as the petitioners/

appellants have not challenged the acquisition proceedings on the above

ground. The acquisition proceedings stand concluded and, therefore, the

submission to the above effect is completely misconceived and cannot

be accepted.

20. A Division Bench of the Jammu & Kashmir High Court in

Ghulam Mohamad Bhat & Ors. v. State and anr.: SLJ 1981 J&K 254

observed that the compensation for the Kahcharai land is payable to the

Panchayat concerned meaning thereby that Kahcharai land is acquirable

and the compensation in respect thereof is payable to the concerned

Panchayat.

21. In Habibullah Sheikh & Ors. v. State of J&K and others :

2009(I) SLJ 150, a single Judge of this court held that Kahcharai land is

the property of the Government and no individual has any personal

interest over it. The Kahcharai land can be acquired for public purpose

and the compensation is to be paid to the concerned Panchayat.

22. In Villagers of Anzwalla v. State of J&K and others : 2012 (3)

JKJ[HC] 213, in a writ petition by villagers seeking quashing of the

transfer of Kahcharai land to Health Department for construction of

Primary Health Centre it was held that acquisition is not illegal as the

said land is the property of the Government and the Government has

power to acquire it for public purpose. However, the compensation in

respect of the said land is to be utilized by the Village Panchayat. The

villagers have no individual right or interest in Kahcharai land.

23. Similar view was expressed in Villagers of Beehama Ganderbal

& Ors. v. State and others : 2012 (4) JKJ [HC] 297.

24. Thus, in the overall facts and circumstances of the case as well as

the legal position as narrated above, we are of the opinion that

Kahcharai land can be acquired for public ppurpose and that the

compensation in respect of it is payable to the concerned Panchayat only

and since the matter regarding conversion of any Kahcharai land into

proprietary land and payment of compensation thereof to private

persons is concerned, it is a factual dispute which has rightly been left to

be decided by the appropriate administrative authority.

25. In view of the above, we find no merit in any of the submissions

advanced on behalf of the petitioners/ appellants and the appeal is

dismissed as devoid of merit with no order as to costs.

                         (VINOD CHATTERJI KOUL)                         (PANKAJ MITHAL)
                                        JUDGE                            CHIEF JUSTICE
                   Srinagar
                   12.10.2021
                   Abdul Qayoom, PS



                                   Whether the order is speaking?              Yes.

                                   Whether the order is reportable?            Yes.





ABDUL QAYOOM LONE
2021.10.21 14:03
I attest to the accuracy and
integrity of this document