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2011 DIGILAW 297 (JK)

Ghulam Mohd Bhat v. State of J&K & Ors.

2011-06-02

SUNIL HALI

body2011
1. Dispute in respect of land comprised in Survey Nos. 1717 and 2005, situated at Moza Kripalpora, Pattan, between the petitioner and private respondents, necessitated initiation of proceedings under Section 145 of Criminal Procedure Code. An application in this behalf was received by the Tehsildar (Executive Magistrate), Pattan, from the police station concerned. A composite order came to be passed on the aforementioned application dt. 12th of Aug' 09, whereby the property in dispute was attached. Aggrieved by the above order, a revision petition was preferred by the private respondents before the learned Additional District Judge, Baramulla. 2. The revisional court after hearing learned counsel for the parties, set aside the order passed by the learned Tehsildar (Executive Magistrate), Pattan, vide order impugned dated 26th of April 10, on the following grounds: - i. that the land in question which was the subject matter of dispute was an orchard as such, the learned Executive Magistrate lacked jurisdiction to initiate such proceedings; ii. that the preliminary order passed by the authority concerned directing attached of the property, was not in consonance with the law. 3. Aggrieved by the aforementioned order, the present petition has been filed. 4. The dispute in this case relates to the land measuring 17 kanals comprised in Survey Nos. 1717 and 2005, situated in Kripalpora, Pattan. Land comprised in Survey No. 2005, is admittedly an orchard while the land situated in Survey in Survey No. 1717, is Nehri Awal, which is an agricultural land. Present petitioner has raised a dispute that out of the land comprised in Survey No. 2005, 9 Kanals of land stands exchanged in his favour by the father of respondents 2 to 5 which assertion of the petitioner is being denied by the other side. However, no dispute is being raised with respect to the land comprised in survey No. 1717, which is an agricultural land. 5. 'Land' has been defined under Section 2(9) of the J&K Agrarian Reforms Act, 1976. An 'orchard' is not covered under the definition of land as is apparent from the perusal of the aforementioned Section. As is revealed from the order impugned, 9 Kanals of land comprised in survey No. 2005 is an orchard which fact is admitted by the petitioner. Once the petitioner on his own admits this land to be an orchard, the Executive Magistrate had no jurisdiction to initiate proceedings under Section 145 (l)ofCr. As is revealed from the order impugned, 9 Kanals of land comprised in survey No. 2005 is an orchard which fact is admitted by the petitioner. Once the petitioner on his own admits this land to be an orchard, the Executive Magistrate had no jurisdiction to initiate proceedings under Section 145 (l)ofCr. P.C. 6. Further, while examining the order passed by the Executive Magistrate, it is revealed that the property in respect of which the proceedings were required to be initiated has not been identified or defined. The order of Executive Magistrate, makes a reference of Survey Nos. 1717 and 2005 but it does not define the actual area of land which is subject matter of dispute. As noticed above, the land comprised in both the Survey Nos., referred to above, is not the subject matter of dispute. Under these circumstances, the proceedings initiated by the learned Tehsildar (Executive Magistrate), Pattan, cannot be said to be in accordance with the law, and the order passed in this regard has been rightly set aside by the revisional court. 7. For the reasons mentioned above, I do not find any reason to interfere with the order impugned dt. 26th of April 10, passed by the court below. This petition is, accordingly, dismissed with the direction that the property in dispute shall be handed over to the respondents from whom the same was taken over at the time of attachment.