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2011 DIGILAW 558 (JK)

Gouri-D-Bajju v. Dy. Commissioner, Jammu

2011-10-22

FAKKIR MOHAMED IBRAHIM KALIFULLA, Virender Singh

body2011
Per Ibrahim Kalifulla, CJ (Oral). 1. This appeal is directed against the order of the learned Single Judge dated 24-08-2011 passed in OWP No. 1399/2010. 2. The brief facts which are required to be stated are that, the appellant filed a suit for mandatory injunction as against certain persons, namely, the defendants to remove Crates and Plantation in order to open 25 feet road towards Southern side of the land belonging to the appellant and 20 feet Nallah. The said suit was decreed by the learned Subordinate Judge, Jammu on 24-09-2009 against the defendants, commanding the defendants, by way of mandatory injunction, to remove stone crates and plantation thereby opening 25 ft. road towards southern side of the land belonging to the appellant and 20 ft. nallah which was kept for general public by the defendant Nos.1 to 7 therein as owners of khasra Nos. 01 min, 17 min, 18 min of village Raipur Domana, Jammu while selling those lands themselves or through their legal heirs, successors and connected persons. The defendants were further directed to through the public road, which was earmarked by the defendants which has to go straight way upto the house of a police Constable Opposite Tulsi Public School and take a U turn through his plot to join road leading to Jammu- Poonch National Highway. 3. The Trial Court also made it clear that the decree should be binding between the parties and was subject to any existing legal provision. 4. The appellant approached the Deputy Commissioner, Jammu for the execution of decree by his letter dated 17-04-2010. The Dy. Commissioner, Jammu directed the Tehsildar, Jammu to visit the spot for resolving the issue. The Tehsildar, Jammu in turn directed the Naib Tehsildar as directed by the Deputy Commissioner, Jammu. 5. Be that as it may, there was a representation to the Deputy Commissioner, Jammu by the 5th respondent and 6 others alleging that the appellant himself made certain illegal constructions of house on land falling in khasra No. 1 min which is a nallah at Gumpul, Domana. 6. Pursuant to the said representation, the appellant was issued with a notice by the Tehsildar, Jammu on 26-10-2010 calling upon him to explain about his stand and that such explanation should be submitted before 29-11-2010. 6. Pursuant to the said representation, the appellant was issued with a notice by the Tehsildar, Jammu on 26-10-2010 calling upon him to explain about his stand and that such explanation should be submitted before 29-11-2010. While so, on 26-11-2011, the Tehsildar, Jammu was stated to have issued further direction to the Patwari concerned under the provisions of Agrarian Reforms Act. 7. Aggrieved by such action of the Tehsildar, the appellant filed a writ petition contending that there was no scope to invoke the provisions of the Land Reforms Act itself and consequently, the entire proceedings of the Tehsildar cannot be sustained. 8. The learned Single Judge after hearing learned counsel for the appellant as well as the learned AAG for the State and the counsel for the 6th respondent took a view that the contentions of the appellant and the Very act as alleged against the appellant cannot be accepted in the light of Section 3 (f) read with Section 13 of the Act and therefore the appellant has to necessarily face the enquiry. A Contention was also raised about the jurisdiction of the Tehsildar which was also turned down by the learned Judge. Further contention of the appellant that while attempting to execute the decree dated 24-08-2011, the official, respondents are not empowered to proceed against the appellant was also rejected. 9. While assailing the order of the learned Single Judge, Mr. Jagjit Rai learned counsel for the appellant also contended that the Tehsildar has no jurisdiction in the light of the Section 13(3) read with Rule 57 of the Agrarian Reforms Act and the Rules framed thereunder and that Section 19 cannot be invoked to justify the action of the Tehsildar impugned in the writ petition. 10. As far as the contention of the appellant about the competence of the Tehsildar to initiate the proceedings is concerned, when we examined Section 13(3), Section 19 and Rule 57 of the Agrarian Reforms Act, we find under section 13(3) it is specifically provided that the rights, title and interests in land of any person who, except for reasons beyond his control, fails to utilizes the land in accordance with, or utilizes land in contravention of, the provisions of sub section (1) or lets land to a tenant contravention of the provisions of sub section (2) shall, after such enquiry, as may be prescribed, vest in the State. Under Rule 57, it is specified that the enquiry under sub section (3) of section 13 shall be conducted by the Collector, having jurisdiction in the area in which the land is situate, and the Collector may, after giving a reasonable opportunity of being heard to the person who has contravened the provision of section 13, give a finding whether or not such default has arisen out of reasons beyond the control of such person and where the Collector finds otherwise can pass order to the effect that the land vests with the States Under section 19 it is prescribed that there is scope for investing with such powers to be exercised in respect of the matters specified under the Act by any class of revenue officer. Such a scope is restricted in its application. 11. Therefore, the combined reading of Sections 13(3), 18 & 19 read with Rule 57 makes it abundantly clear that the Collector alone is the Competent Authority to hold an enquiry under section 13(3) of the Act. In such circumstances, to the extent where the learned Judge holds the Tehsildar having competent jurisdiction cannot be sustained. 12. We only direct the Collector (Agrarian), Jammu to initiate enquiry proceedings right from the issuance of the notice to the appellant, if he so chooses, in accordance with the Agrarian Reforms Act and the Rules framed thereunder and pass final orders after giving due opportunity to the appellant. It is always open to the appellant to raise all plausible contentions including the objection if any relating to the jurisdiction. It is for the Collector to consider the contentions of the appellant and pass orders in accordance with law. 13. Having regard to the controversy between the appellant and the other parties, it is desirable that the Collector initiate proceedings and conclude the same expeditiously preferably within three months from the date of receipt of copy of this order. 14. It is needless to state that the appellant should cooperate with the proceedings initiated by the Collector by submitting his reply as well as by appearing on the hearing dates fixed and by submitting whatever documents she wants to rely upon. 15. 14. It is needless to state that the appellant should cooperate with the proceedings initiated by the Collector by submitting his reply as well as by appearing on the hearing dates fixed and by submitting whatever documents she wants to rely upon. 15. If the Collector finds that the appellant is not extending the required cooperation for deciding the matter within the stipulated time limit by recording reasons, it is open to the Collector to pass final order in accordance with Law. 16. In the light of the present order passed directing the Collector himself to initiate the proceedings, any other proceedings initiated by any other Authority till date cannot survive and the same are accordingly set aside 17. The appeal stands disposed of with the above observations along with CMP.