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2006 DIGILAW 106 (JK)

Ab. Ahad Bhat v. State Of J. &K.

2006-05-03

BASHIR AHMAD KIRMANI

body2006
1. Vide orders No. DCP-Sq/100 dated 02.05.1995, DCP-SQ-004 dated 31.05.1995, 278/ACP dated 11.08.1992,426/ACP dated 9.12.1991, 40/ACP dated 27.6.1991 and 260/ACP dated 3.8.1992 purporting to have been passed by concerned Assistant Commissioner, petitioners 1. 2, 3, 10 and 11 were given two kanals of khacharai land each, and petitioners 4 to 6 and 7 to 9, three kanals of each group, from Survey No. 1240 Min, in exchange of their proprietary land, regarding which the follow up mutations No. 2805,2806,2771,2772,2572/1,2908 and 2533 were attested by concerned Revenue Officials. 2. The aforesaid exchange along with mutations reflective thereof were all overset by concerned Deputy Commissioner under order No. DCP-Sq/45 of 2003 dated 25.01.2003 without any notice to petitioners whatsoever, allegedly on the grounds that petitioners had not parted with their proprietary land claimed to have been given in exchange of aforesaid State land and that some of them offered land, kilometers away from the main village site and thus not suitable for grazing purposes. Besides cancellation of exchange, concerned Deputy Commissioner also ordered recovery of more than Rs. 2 Crores from petitioners as cost of earth excavated from aforesaid State land. This order has been challenged by petitioners herein before concerned Financial Commissioner through a revision petition which is stated to be pending till date, with however, the interim stay order earlier passed in petitioners favour, vacated albeit without hearing them. 3. Aggrieved thereby the petitioners seek to have both, the order of Deputy Commissioner as also that of Financial Commissioner quashed on the ground that after valid exchange as aforesaid they had duly become owners of the State land and as such the Deputy Commissioner was not competent to undo the same the way it has been done. In his reply as adopted by other respondents the concerned Deputy Commissioner has, among other things stated that the exchange relied upon by petitioners was ordered by Assistant Commissioner without competence and hence bad, particularly because the petitioners had not been in possession of the respective parcels of State land given to them in exchange wherefrom they excavated earth and sold the same against consideration of more than Rs.2 Crores, and thereby put the State exchequer to great loss. During course of their submissions counsel for rival sides have reiterated their respective pleadings with reference to annexures on record. 4. I have heard learned counsel and considered the matter. During course of their submissions counsel for rival sides have reiterated their respective pleadings with reference to annexures on record. 4. I have heard learned counsel and considered the matter. Perusal of annexures reveals that mutations Nos. 2805, 2806, 2771, 2772,2572/1,2908 and 2533 have been attested in favour of petitioners regarding State land given to them in exchange of their proprietary land, to the extent of 22 kanals and 19 marlas. Vide order No. DCP-sq/45 of 2003 dated 25.01.2003 the concerned Deputy Commissioner while directing resumption of whole grazing land measuring 327 kanals under Survey No. 1240 Min, recorded as `Mehfooz Khahcharai in village Calender of Tehsil Pampore revoked the orders of exchange purporting to have been made as aforesaid by concerned Assistant Commissioner and directed them to stop earth excavation there from etc. within 24 hours. The Deputy Commissioner also ordered recovery of Rs. 2,05,52,600/-reportedly earned by them by sale of earth excavated there from, from petitioners, as arrears of land revenue. This order was impugned before Financial Commissioner through the medium of a revision petition which is reportedly still pending in that court wherein vide interim order dated 10.02.2003 operation of Deputy Commissioners order aforesaid was stayed that thereafter by another order dated 25.03.2003 the stay order was vacated and the concerned Settlement Officer directed to conduct an inquiry in the matter and submit a report. With that circumstantial backdrop arises the question of the vires of proceedings conducted throughout, with petitioners challenging Deputy Commissioners competence to pass the impugned order and respondents the power of concerned Assistant Commissioner to order the exchange as aforesaid. 5. Under Section 133 of Land Revenue Act in suitable cases, exchange of State land against proprietary land of a person is provided for under prescribed circumstances but power to order the same is vested in Collector of the District, who in terms of Section 6(ii) of the Act means the "Deputy Commissioner" concerned, while "Assistant Commissioner" or "Tehsildar" is only an Assistant Collector, and as such not competent to order exchange under Section 133. Viewed thus, the basic exchange of land admittedly ordered by Assistant Commissioner appears to be defective. Viewed thus, the basic exchange of land admittedly ordered by Assistant Commissioner appears to be defective. At the same time, however, the power of revision against the order of Assistant commissioner aforesaid vests in "Divisional Commissioner" and "Financial Commissioner" only, and not the Deputy Commissioner, who no doubt has the appellate power regarding orders/mutations passed by Assistant Collector i,e. the Assistant Commissioner or a Tehsildar that could be invoked by an aggrieved party while acting both as appellant and judge himself only. That being so, it would have been proper for the concerned Deputy Commissioner to refer the matter to Divisional Commissioner or Financial Commissioner for proceedings in exercise of revisional power instead of passing the impugned order. Thus his order also like Assistant Commissioners order appears to be bad for want of jurisdiction particularly because he has also slapped a liability of more than Rs. 2 Crores upon petitioners on account of alleged excavation of earth apparently without hearing them or having assessed the quantum of earth allegedly excavated and resultant loss to State exchequer. 6. In the result therefore, it appears that the Assistant Commissioners order of exchange as also that of Deputy Commissioners order aforesaid are both defective and cannot stand. In given circumstances therefore, the petition is disposed of in following terms:-- a) The orders of the exchange of State had against proprietary land of petitioners passed by Assistant Commissioner vide orders No. DCP-Sq/1000 dated 02.05.1995, DCP-SQ-004 dated 31.05.1995, 278/ACP dated 11.08.1992,426/ACP dated 9.12.1991,40/ACP dated 27.06.1991 and 260/ACP dated 03.08.1992, are quashed as having been passed without jurisdiction, along with subsequent mutations bearing Nos. No. 2805, 2806, 2771, 2772, 2572/1, 2908 and 2533 purporting to have been attested as result thereof. b) The impugned order of Deputy Commissioner No. DCP-Sq/45 of 2003 dated 25.01.2003 is also quashed as having been passed without jurisdiction. In consequence the revision petition presently pending before Financial Commissioner becomes infructuous, and the matter relegates back to the position obtaining before exchange of State land in question. b) The impugned order of Deputy Commissioner No. DCP-Sq/45 of 2003 dated 25.01.2003 is also quashed as having been passed without jurisdiction. In consequence the revision petition presently pending before Financial Commissioner becomes infructuous, and the matter relegates back to the position obtaining before exchange of State land in question. c) Accordingly, it shall be lawful for the concerned Revenue Officers to enter upon possession of the concerned State land and the petitioners upon the lands reportedly received in exchange thereof, subject to execution of undertakings by them to satisfaction of concerned Deputy Commissioner that they would discharge their liability, if any, that may be fastened upon them in lieu of excavation of earth from the State land in question. d) Regarding alleged excavation of earth by petitioners from the State land in question the Divisional Commissioner, Kashmir shall conduct an enquiry in the matter with notice to petitioners, and after hearing them pass appropriate orders in light of such enquiry, under the enabling provisions of law. e) The Revenue Secretary of the State shall conduct a departmental enquiry in the matter within three months to find out the circumstances which lead the concerned Assistant Commissioner to order aforesaid exchange of State land, and file a copy of enquiry report before Registrar Judicial of this Court before 31st of August 2006, who shall list the same in first week of September, 2006, along with the index to be maintained with a copy of this order herewith. 7. The matter stands accordingly disposed of. Copies of this order be communicated to the Revenue Secretary, Divisional Commissioner, Law Secretary and Deputy Commissioner concerned for compliance in terms thereof.