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2012 DIGILAW 122 (JK)

Mohammad Anwar Wani & Ors. v. State & Ors.

2012-03-28

HASNAIN MASSODI

body2012
1. Petitioners on the strength of averments made in the petition, seek a writ of certiorari quashing order No.Dep-Sq/E/03/508 dated 15.7.2003 whereby Deputy Commissioner, Pulwama, - respondent No.2 herein, cancelled order of Collector Agrarian Reforms (Assistant Commissioner Revenue) according sanction to the exchange of Kahcharai land with/in lieu of proprietary land, of the petitioners. The background facts are as under: The Collector Agrarian Reforms (Assistant Commissioner, Revenue) Pulwama, vide order Nos. DCP-SQ/E-2003/6/9-10 and DCP-SQ/E-2003/7/11-12 dated 5.4.2003 on the recommendation of Tehsildar Pampore accorded sanction to exchange of kahcharai land with proprietary land for residential purposes under section 26 of the Agrarian Reforms Act 1976 and directed Tehsildar Pampore to handover/take over the possession of land exchanged. It would be worthwhile to reproduce hereunder the aforementioned orders made in favour of the petitioners. "OFFICE OF THE DEPUTY COMMISSIONER PULWAMA ORDER On the basis of report and recommendation of Tehsildar Pampore vide his No. TP-OQ/1420 dated 10.2.2003 and other field agency sanction is hereby accorded for exchange of Kahcharie land for residential purposes under section (26) of Agrarian Reforms Act. 1975. The particulars of land are as under:- S.No. Name of the applicant Particulars of proprietary land given in =exchange Particulars of Kahcharie land sanctioned 1 2 3 4 1 M. Anwar Ward S/o M. Sidiq Wani R/o Khrew The. Pampore 3307 Min KM 01-10 Situated village Khrewa Tehsil Pampore 2049/3 15 Maralas Tehsildar Pampore is directed to handover/takeover the possession of land exchanged and furnish copy of Mutation to this office for record and reference. Sd/- Collector Agrarian Reforms (ACR), Pulwama NO.DCP-SQ/E-2003/6/9-10 Dated 5.4.2003 OFFICE OF THE DEPUTY COMMISSIONER PULWAMA ORDER On the basis of report and recommendation of Tehsildar Pampore vide his No. TP-OQ/1375 dated 3.2.2003 and other field agency sanction is hereby accorded for exchange of Kahcharie land for residential purpose under section (26) of Agrarian Reforms Act. 1975. The particulars of land are as under:- S.No. Name of the applicant Particulars of proprietary land given in =exchange Particulars of Kahcharie land sanctioned 1 2 3 4 1 Gh. Nabi 4317/3179 2049/3 2. Gh. Mohammad. KM 15 Maralas 3. Bashir Ahmad 01-10 Hajam R/o Khrew Situated village Khrew Tehsil Tehsil Pampore Pampore Tehsildar Pampore is directed to handover/takeover the position of land exchanged and furnish copy of Mutation to this office for record and reference. Subject to any R.D. encroachment. Nabi 4317/3179 2049/3 2. Gh. Mohammad. KM 15 Maralas 3. Bashir Ahmad 01-10 Hajam R/o Khrew Situated village Khrew Tehsil Tehsil Pampore Pampore Tehsildar Pampore is directed to handover/takeover the position of land exchanged and furnish copy of Mutation to this office for record and reference. Subject to any R.D. encroachment. Sd/- Collector Agrarian Reforms (ACR), Pulwama NO.DCP-SQ/E-2003/7/11-12 Dated 5.4.2003" 2. The Deputy Commissioner, Pulwama, on acquiring knowledge about the exchange of kahcharai land with the proprietary land sanctioned, cancelled the orders so made by the Collector Agrarian Reforms (Assistant Commissioner, Revenue) Pulwama. The reasons for such action are spelt out in the order No. DEP-SQ/E/03/508 dated 15.7.2003 which reads as under: "Office of the Deputy Commissioner Pulwama. ORDER NO. Dep-Sq/E/03/508 Dated 15.7.2003 Whereas it has been brought my notice that exchange cases under section 26 of Agrarian Reforms Act have been sanctioned by Assistant Commissioner Revenue whereas according the record available in this office the following order have been declared have been issued by the Asstt. Commr. Pulwama. No. & date of order Name of Tehsildar Particulars of a person whom and is allowed to exchange with Description of land DCPSQ/E/S/003/2: Dated 22.1.2003 Pampore Gh. Mohd. Bhat S/o Mohd Ismail Bhat R/o Patalbagh 983 Min 14 M DCPSQ/E-2003/8 Dated 22.1.2003 Pampore Mst. Rahti D/o Mohd Wani R/oNambalbal Pampore 16552/2 10M 2656/1405 DCP-SQ/E/-6/2003 79-10 Dated 5.4.2003 Khrew Anwar Wani S/o Sidiq 3307 IK 10 M 2049 15 M DCP-SQ/E/ST/E-7/2003/Kahcharie Dated 5.4.2003 Khrew Gh. Nabi, Gh. Mohd. Bashir Ahmad sons of Rahim Hajam 4317/K10M 3179 2049/3 15 M Whereas Assistant Commr. Revenue has not sought approval of this office before issuing the exchange orders. Whereas, prima facility it appears that exchange orders have been issued in competently and without observing rules, conditions,/norms as envisaged under Agrarian Reforms Act 1976. Whereas, the Tehsildar Pulwama and Pampore were the orders have been issued or under settlement operation and there is no such provision to issue such orders. Now, therefore, the aforementioned orders issued by Asstt. Commr. Revenue are hereby cancelled and Addl. Dy. Commr. will conduct a denovo enquiry into the matter as ascertaining the facts of the each case in token of its genuineness etc. and furnish his explicit and concrete opinion within a weeks time positively. Sd/- Dy. Commrr. Pulwama" 3. The petitioners question that Dy. Commr. Revenue are hereby cancelled and Addl. Dy. Commr. will conduct a denovo enquiry into the matter as ascertaining the facts of the each case in token of its genuineness etc. and furnish his explicit and concrete opinion within a weeks time positively. Sd/- Dy. Commrr. Pulwama" 3. The petitioners question that Dy. Commissioner Pulwama's order cancelling the orders made by Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama on the grounds that Deputy Commissioner Pulwama lacked jurisdiction to pass the impugned order. It is pleaded that the impugned order has been made without notice to the petitioners and without affording the petitioners an opportunity of being heard. The writ petition is opposed on the grounds that the land offered by the petitioners in exchange of one kanal and ten marlas of kahcharai land comprising khasra No.2049/3 Min situated at Khrew Tehsil Pampore, in their illegal occupation, comprising of two separate strips acquired by the petitioners under section 4 and 8 Agrarian Reforms Act 1976, does not fall within section 26 of the Act. It is pointed out hat section 26 of the Act deals with orchards and plantation areas and not the kahcharai land taken over for residential purposes. The Collector Agrarian Reforms (Assistant Commissioner Revenue) according to the respondents has no jurisdiction to pass an order under section 26 of the Act for exchange of the land in question. The mutation order effected in consequence of the sanction granted by the Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama, according to the respondents are void and of no legal effect. All other averments made in the petition are denied by the respondents. 4. Heard and considered. 5. Section 26 Agrarian Reforms Act 1976, empowers the Collector to direct a person who has unauthorisedly raised an 'orchard' or 'plantation of trees' on State land or land reserved for grazing purposes, either to give in exchange for such land an equal area held or acquired by him as owner or to abandon possession of such land, within a period of six months. However, the land given in exchange must be suitable for grazing purpose and easementary rights for the land must also conferred in such manner that the land can be used for grazing purposes. 6. However, the land given in exchange must be suitable for grazing purpose and easementary rights for the land must also conferred in such manner that the land can be used for grazing purposes. 6. A bare look at section 26 of the Act would make it clear that it can be pressed into service only where the State land or land reserved for grazing purposes (Kahcharai land) has been unauthorizedly occupied for raising an orchard or a plantation of trees. In such a case it would not be proper to cut down/fell the trees and clear the 'orchard' or 'plantation of trees' to restore it as grazing land. It is in the said background that power is conferred under Collector to ask the person to give proprietary land of equal area suitable for grazing purposes that is capable of being put to such use. Section 26 thus does not deal with a strip of State land or land reserved for grazing purposes (kahcharai land) unauthorizedly occupied as in the instant case by a person(s) to raise construction. The Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama, obviously lacked power to make use of section 26 to sanction exchange of the land with the proprietary land of the petitioners. 7. One more aspect of the matter needs to be noticed. As evident from order of Dy. Commissioner Pulwama- impugned in the petition, the Order according sanction to the exchange, was made by the Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama, when the settlement operations were on in village Khrew where the land is situated. In terms of SRO 59 dated 3.2.1997, Assistant Commissioner Revenue though competent to pass orders under different provisions of Jammu & Kashmir Agrarian Reforms Act 1976, is not to exercise such powers in the areas notified and taken up for settlement operations. The Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama, therefore lacked power and jurisdiction to pass orders in question whereby sanction was accorded to the exchange mentioned therein. The respondent No.2 having supervisory jurisdiction over all the Revenue Officers in the District cannot be faulted for his having taken cognizance of the matter and directed cancellation of the order Nos. DCP-SQ/E-2003/6/9-10 and DCP-SQ/E-2003/7/11-12 dated 5.4.2003 whereby sanction was unauthorisedly accorded by Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama, to exchange of land in violation of mandate of section 26 Agrarian Reforms Act. 8. DCP-SQ/E-2003/6/9-10 and DCP-SQ/E-2003/7/11-12 dated 5.4.2003 whereby sanction was unauthorisedly accorded by Collector Agrarian Reforms (Assistant Commissioner Revenue) Pulwama, to exchange of land in violation of mandate of section 26 Agrarian Reforms Act. 8. The grievance as regards denial of opportunity of being heard to the petitioners, is misplaced for the reason that the respondent No.2 has left scope for an enquiry to be conducted by Addl. Deputy Commissioner Pulwama to ascertain the facts and submit the report. The Enquiry Officer is expected to look into all aspects of the matter and while conducting enquiry hear the petitioners and offer them an adequate opportunity to project their stand and submit the documents that may in their possession to reinforce their claim and submit his report to the Deputy Commissioner thereafter. The final order in the matter, obviously, is to be issued only after such report is received by the Deputy Commissioner. 9. So viewed, the writ petition is held without any merit and dismissed accordingly.