Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 94 (JK)

Villager of Rangil v. Dean Faculty Of Fisheries

2010-02-26

Mansoor Ahmad Mir, MUZAFFAR HUSSAIN ATTAR

body2010
Muzaffar Hussain Attar, J. 1. Note for submission to the Cabinet was prepared by authorities in the revenue department which is reproduced as under: - "The Deputy Commissioner Srinagar mooted a proposal vide his letter No. 243/SQ/Misc dated 04.06.2005 along with Shajra Khasra and other Revenue extracts of land measuring 229 kanals 02 marals recorded as "Shamilat" in the revenue records under Khasra Nos. 147/1, 148, 2151 and 251/1 situated in estate Ranil, Tehsil Ganderbal District Srinagar for transfer of the said land in favour of SKUAST Kashmir for establishment of Fisheries College Srinagar. The locals of the area have furnished a written consent for transfer of the proposed land to the SKUAST Kashmir. The Hon'ble Minister for PHE, I&FC who is the MLA of this constituency has also recommended the transfer of the land to SKUAST Kashmir for the same purpose. The Divisional Commissioner Kashmir and Financial Commissioner Revenue have recommended the instant case vide their letter Nos. Divcom/IAS-EFF/)750)/05 dated 11.07.2005 and Fc-Ls/Trs-868/05 dated 11.08.2005 respectively. Accordingly, the Special Secretary to Government, Revenue Department (in absence of Commr/Secy to Govt who is on tour outside country) with the approval of the Hon'ble Minister for Revenue submits that following draft resolution to the State cabinet for consideration and approval: - "Sanction is accorded to the transfer of "Shamilat" land measuring 229 kanals, 02 marlas under Khasra Nos. 147/1, 148, 2151 and 251/1 situated in estate Ranil Tehsil Ganderbal Distt. Srinagar in favour of SKUAST, Kashmir for establishment of Fisheries College Srinagar." 2. Consequent there upon Government Order No. 262-Rev/S of 2005 dated 29.09.2005 was passed according sanction to the transfer of `Shamilat' land measuring 229 kanals, 02 marlas under survey Nos.147/1, 148, 2151 and 251/1 in favour of Sheri Kashmir University of Agriculture Science and Technology (SKUAST), Kashmir for establishment of Fisheries College Srinagar. The order is reproduced as under: - "Sanction is accorded to the transfer of "Shamilat" land measuring 229 kanals, 02 marals under Khasra Nos. 147/1, 148, 2151 and 251/1 situated in estate Ranil Tehsil Ganderbal District Srinagar in favour of SKUAST, Kashmir for established of Fisheries College Sriangar." The land has been transferred to the SKUAST for establishment of Fisheries College which is a laudable public purpose. 3. The writ petition in representative capacity was filed by the villagers of Rangil through Ab. Aziz Reshi and Bashir Ahmed Bhat against SKUAST and State Government. 3. The writ petition in representative capacity was filed by the villagers of Rangil through Ab. Aziz Reshi and Bashir Ahmed Bhat against SKUAST and State Government. In the writ petition, petitioners sought following reliefs:- "a) Mandamus: -- Commanding the respondents not to occupy, fence and close or taken possession of, by any means whatsoever the playground meant for the school measuring 8 kanals and 11 marlas under Khasra No. 149, the buildings of the school including the building under construction which stand constructed over the 10 kanals of land underneath and appurtenant thereto. b) Mandamus: -- commanding the respondents not to take possession of, or enclose by any means whatsoever the area of Mahfooz Kahcharie mentioned in the revenue record covered by Khasra No. 148 and 149. c) Mandamus: -- commanding the government to cancel the order if passed by which Mahfooz Kakcharie and the area of the school have been allotted to respondents for construction of Fisheries College." 4. On notice respondents 1 and 2 filed objections. 5. The basis for filing of writ petition is detailed out in para 3 to 5 which are reproduced as under:- "3.That the petitioners have been given the consent by the Villagers of Rangil to file this writ petition so as to safeguard the interest of the villagers which are being infringed by the respondents. A separate application under order 1 rule 8 has been filed seeking permission to file this writ petition in representative capacity. The facts are that State land (Shamilat Deh) measuring more than 200 Kanals Najaiz and maximum portion of which is used by the villagers as Kahcharai Mahfooz. The land under Khasra No. 149 which comprises of 92 Kanals and 11 Marlas, out of which maximum portion is reserved for grazing purposes i.e. Mahfooz Kahcharai. 8 Kanals and 11 Marlas of land have been allocated to Middle, Primary School Rangil as Playground. Apart from this two constructed building subsist in the area adjusant to the playground and one block is under construction for the school going children. 8 Kanals and 11 Marlas of land have been allocated to Middle, Primary School Rangil as Playground. Apart from this two constructed building subsist in the area adjusant to the playground and one block is under construction for the school going children. The Revenue record is annexed herewith as annexure-A. It is correct to mention here that the building of the school and the Blocks which is under construction of the school is over a piece of land which is nearly 10 kanals of land, as such the total land under the occupation of the school including the playground is nearly 18 kanals and 12 Marlas. It seems that the government has sanctioned, establishment of a Fishery College in Rangil and for such establishment they have taken the land under Khasra No. 148 and 149 for such establishment. In other words, Mahfooz Kacharai has been taken by the government and is being utilized for construction of Fishery College at Rangil. No doubt the government could not have done so because the Villagers of Rangil are cattle growers and the area to be used for construction of the college is their Mahfooz Kacharai. 4. That objection has already been raised by the petitioners that Mahfooz Kacharai cannot be used for any other purpose, except when the purpose of this land seize to exist, which in other words would mean that when the villagers of Rangil will not deal with cattle forming which is not the case in hand. The objections have not been addressed to by the government till date but in the meantime, the respondents have started enclosing the area under Khasra No. 148 and 149 by use of force and under the protection of the State Police, therefore, the petitioners are not in a position to stop them from enclosing the area. The respondents are also trying to enclose the playground and the school building, thus depriving the children of the Village from their studies. The respondents are also trying to enclose the playground and the school building, thus depriving the children of the Village from their studies. The petitioners did met the authorities, requesting them that so far as Mahfooz Kacharai is concerned, the matter will be taken up with the government but so far as the school buildings, playground and land underneath and appurtenant thereto is concerned, the respondents should not enclose the same because by doing so they will be deprived not only the facility of the education but also imparting education to these school going children in the school. The respondents seem to be adamant to enclose the whole area and have also advised the villages to approach the government for allocation of land for construction of a new school and further the respondents have told the villagers that they should admit their children in another school. The petitioners are enclosing herewith the map issued by Pathwari, showing the school, the playground and the proposed area to be used for the College and the same is annexed as annexure-B 5. The children of the village have a right of education and the school in which they study which is subject matter of dispute (i.e. Government Primary Middle School) and in case the school is closed by the act of the respondents, it will affect the right of education of the children of villagers, therefore the villagers have a right to file this writ petition for seeking appropriate, writ, order or direction." 6. The respondents 1 and 2 have in their objections responded to the pleas so taken in the following manner. Para 2 is reproduced as under: - "The petitioners in the present case have claimed the existence of a functional school building on a part of land transferred to SKUAST-K for establishment of the faculty. This is an afterthought because in the earlier petition no such claim was preferred. The fact of the matter is that there is a dilapidated old school building existing on a part of the area which is in disuse of the last 20 years as the building has become totally unsafe as is revealed from the communication dated 10.11.2006 of the Deputy Chief Education Officer, Ganderbal marked annexure R3. The fact of the matter is that there is a dilapidated old school building existing on a part of the area which is in disuse of the last 20 years as the building has become totally unsafe as is revealed from the communication dated 10.11.2006 of the Deputy Chief Education Officer, Ganderbal marked annexure R3. The communication further shows that presently there is a Middle School running in a separate accommodation in the same area in which faculty of Fisheries has been established. This accommodation has been provided separate road by the University on spot. The University does not intend to raise any structures to prevent the ingress and egress to the said school building. The SKUAST-K on transfer of the land has further agreed to provide land for construction of another school building in lieu of abandoned building together with a play ground covering on an area of 11 kanals of land. The school building on the land will be constructed by the SKUAST-K out of its own funds. The map annexed with the writ petition clearly shows the existence of the portion of the land reserved for construction of the school building (to be constructed by SKUAST) and a play ground. The area is shown to be 11 kanals. The petitioners have over reached the court and have by concealment of material facts and misrepresentation, succeeded in obtaining the interim direction for forestalling the construction process." 7. The ld writ court after hearing parties and considering the matter, dismissed the writ petition vide judgment dated 07th May 2008. Appellants being aggrieved of the said judgment have filed this LPA. 8. We have heard ld counsel for parties. Considered the matter. 9. The claim of petitioners as projected in the writ petition does not clothe them with any right in law. A person who is not clothed with any right in law cannot pray for issuance of high prerogative writ from writ court. 10. The claim of the petitioners is that the land which was subject matter of the writ petition is "reserved Kahcharie" and they are in illegal possession thereof is not in consonance with the material which the appellants have produced before the writ court along with the writ petition. 10. The claim of the petitioners is that the land which was subject matter of the writ petition is "reserved Kahcharie" and they are in illegal possession thereof is not in consonance with the material which the appellants have produced before the writ court along with the writ petition. The copies of the revenue extracts (Khasra Girdawari) pertaining to survey No. 148 and 149 would show that the nature of the land is `Shamilat Deh' (4) and a part of the land is described as reserved Kahcharie and other parts are shown to have been in possession of the Public Works Department, one Pandith Pramanand who has enclosed his part of the land with wall and one Ab. Rehim having house in the land. 11. Similarly part of the land is shown to be play ground and some part to be in unauthorized possession of some of the persons. The persons who are recorded in unauthorized occupation as per record have not approached the writ court in their individual capacity to enforce any of their individual legal rights. What is sought to be enforced through writ petition is a so called community right based on the plea that a school is functional in the part of the land, by transfer of the land to SKUAST, would affect the education of school going children and other part of the land being reserved Kahcharie, cattle of the villagers will also suffer. 12. Both the contentions projected by the appellants in the writ petition are baseless interalia for the reasons that the School building in which school is claimed to be housed by the appellants is in dilapidated condition and has been abandoned by the Education Department some twenty years back. The building is without doors, windows etc. The Middle school Rangil is functional in different building in the same vicinity. This contention of the respondents derives support from the communication of Dy. Chief Education Officer Ganderbal addressed to Sub Divisional Magistrate Ganderbal bearing No. DCEO/Gbl/2173-75 dated 18.11.2006. It is also pleaded that the land on spot is barren land which would mean that it does not grow anything so cannot be used for grazing purposes. 13. The LPA would further suffer dismissal for the reason that the villagers have given consent for transfer of land to the SKUAST. 14. It is also pleaded that the land on spot is barren land which would mean that it does not grow anything so cannot be used for grazing purposes. 13. The LPA would further suffer dismissal for the reason that the villagers have given consent for transfer of land to the SKUAST. 14. The appellants have in this LPA filed an application No. 314/08 in which they have prayed for appointment of commissioner as also for taking on record the documents annexed with the said application. The documents annexed with the application reveal that the affidavits have been executed by villagers declaring therein that a committee comprising of some of the villagers has been set up to look after the interest of the villagers. Perusal of the affidavits further reveal that the committee so constituted by the villagers has been authorized to seek compensation from the Government. 15. Bonafides of the writ petition filed in representative capacity has come under eclipse on the own showing of the appellants in view of the documents filed by them. The pleas raised and violation of constitutional as also legal rights alleged in the writ petition is not thus a fact. 16. The respondents 1 and 2 have given undertaking that the School would be kept functional and-land for play ground made available. 17. In view of the communication of Dy. Chief Education officer Middle School of Village Rangil is functional, thus the education of children of the Village would not suffer in any manner whatsoever. 18. For the above stated reasons, we do not find any infirmity in the impugned judgment. This LPA being meritless, is accordingly dismissed.