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J&K High Court · body

2009 DIGILAW 598 (JK)

Mushtaq Ahmad Ganai v. State

2009-12-01

MOHAMMAD YAQOOB MIR

body2009
1. In view of the peculiar facts conclusions of hectic litigative process in between the petitioner and respondent No.5 before the Revenue authorities did not satisfy the petitioner, as a result thereof writ jurisdiction is invoked. 2. Petitioner allegedly has not only stopped and encroached the pathway leading to the house of the respondent No.5 but at the same time in contravention of the provisions of law has been found in occupation of land under Survey No.593 which admittedly is Shamilat i.e. land reserved for grazing purpose. The petitioner having been in possession of kahcharai land, on request of the respondent No.5 had left three feet along side Koul (irrigation channel) leading to the house of the respondent N.5. In lieu thereof respondent No.5 has given his own land to the petitioner. 3. Respondent No.5 feeling the width of the pathway too narrow and finally closed by the petitioner, moved an application before the Revenue authorities. Tehsildar initiated the proceedings which culminated in passing the order dated 14.6.2004. In the order it is noticed that survey No.593 is Shamilat land situated on the bank of irrigation channel, the pathway leading to the house of respondent No.5 has been closed but when three feet of land were given in exchange by the respondent No.5 to the petitioner, the pathway was opened which was narrow. Finally the Tehsildar has observed that land covered under survey No.593 being kahcharai land has been illegally occupied by the petitioner, same being encroachment shall be removed, one time fine of Rs.5000/ and Rs.500 per day has been imposed till the encroachment is removed. 4. Appeal preferred against the said order by the petitioner before the Collector failed as the Collector after visiting the spot has found that the petitioner has constructed the house as well as cow shed on the kahcharai land, as a result thereof right of user of the respondent No.5 has been closed. Since encroachment was found by the Collector on spot, therefore, order of Tehsildar was up-held. 5. Petitioner aggrieved thereof filed revision petition before the Settlement Commissioner but without success. Then again as against the order of Settlement Commissioner revision has been preferred by the petitioner before the Financial Commissioner who also opined that there is no justification to interfere with the order. 6. 5. Petitioner aggrieved thereof filed revision petition before the Settlement Commissioner but without success. Then again as against the order of Settlement Commissioner revision has been preferred by the petitioner before the Financial Commissioner who also opined that there is no justification to interfere with the order. 6. After raising various contentions, learned counsel finally restricted his grievance vis-a-vis imposition of one time fine of Rs.5000 and imposition of daily fine of Rs.500, secondly contended that as per the finding of the Collector (appellate authority), house as well as cow shed of the petitioner exist on the kahcharai land, when it is so the petitioner was entitled to be given chance of giving some other land in exchange as is permissible in terms of proviso to sub-section 2 of Section 133 Land Revenue Act. 7. The concern of the respondent No.5 as against the aforesaid two contentions of the petitioner is that the pathway leading to his house along side "kull" shall be maintained as the petitioner during the pendence of revision before the Financial Commissioner has raised a concrete wall leaving small space along side the kull as path leading to his house, that should also be removed so that respondent No.5 can freely go to his house. 8. The contention of the respondents 1 to 4 is that the petitioner being a contravener has encroached upon the grazing land and has un-necessarily involved the respondent No.5 into a protracted litigation, has no right to invoke writ jurisdiction of this Court, therefore, petition deserves dismissal. Considered. 9. The most important legal aspect of the case has not been noticed by the revenue authorities while dealing with the matter. When the appellate court (Collector) in his order dated 19.1.2005 has recorded that the appellant (petitioner herein) has encroached upon the land by constructing house and cow shed, then he should have taken note of the proviso to subsection 2 of Section 133 of Land Revenue Act which provides that when any structure stands raised, the person encroaching upon the land (grazing land) shall be ejected therefrom forthwith leaving an area of 10 marlas under and adjacent to the structure in respect of which the owner has to be given an opportunity either to dismantle the structure or to offer suitable equivalent area of land in exchange from out of his proprietary land. A fine of Rs.500 per day till the removal of encroachment has to be imposed. 10. The proviso to Section 133(2) reads as under:- "Provided that where on any land mentioned in clause (a) any structure raised, the person encroaching upon the land shall be ejected there from forth-with 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-- (i) dismantle the structure standing on such land and to remove the material from the site; or (ii) 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. 11. The person so ejected shall be liable under the order of Revenue officer not below the rank of a Collector or officer in charge of the Settlement or an Assistant Collector 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 rate. 12. What emerges from the reading of the said proviso is that in case petitioner is found in possession of kahcharai land, he has to be ejected except for 10 marlas of land under and adjacent to the structure. It is not recorded as to what is the area of land occupied by the petitioner. In case he shall be in occupation of more than 10 marlas, he has to be ejected straightway from that land. So far as 10 marlas are concerned, as may exist under and adjacent to the structure, for that he has to be given a chance either to dismantle or to offer suitable proprietary land in exchange thereof. In case he shall be in occupation of more than 10 marlas, he has to be ejected straightway from that land. So far as 10 marlas are concerned, as may exist under and adjacent to the structure, for that he has to be given a chance either to dismantle or to offer suitable proprietary land in exchange thereof. Same has not been done but at the same time he has not to be given a chance to stop the pathway leading to the house of respondent No.5 as exist along side the kull. 13. Non-adherence to the proviso to sub-section 2 of Section 133 of Land Revenue Act renders the orders passed by the Revenue authorities as unsustainable, so are set aside. 14. Cumulative effect of the afore-stated position of facts and law is that the matter has to be re-considered by the revenue authorities. 15. In the peculiar facts and features it shall be quite appropriate to issue following directions: 1) The Collector (Additional Deputy Commissioner), Pulwama shall inspect the spot and ascertain how much kahcharai land covered by survey No. 539 is occupied by the petitioner; 2) In case petitioner is found in possession of more than 10 marlas of kahcharai land, to that extent encroachment shall be removed on spot. 3) Vis-a-vis land to the extent of 10 marlas under and adjacent to the structure i.e. house and cow shed, the petitioner shall be asked to dismantle the structures and remove the encroachment or to offer suitable proprietary land in exchange thereof. 4) Pathway leading to the house of respondent shall not in any case be stopped and encroachment whatever thereon shall be removed. 5) Collector shall complete the whole exercise within a period of forty-five (45) days from the dated i.e. 07.12.2009 fixed before him for the appearance of the parties. Copy of the order be sent to the Collector well before the date fixed. Petition disposed of as above.