Ghulam Hassan Bhat & Ors. v. State of J. & K. and Ors.
2012-07-09
MANSOOR AHMAD MIR
body2012
DigiLaw.ai
1. By the medium of this writ petition, petitioners have sought a writ of mandamus commanding the respondents not to change the present status and nature of Kahcharai land falling under Survey No. 1240 (old), new Survey Nos. 1897-Min and 1911-Min, measuring 84 kanals & 5 marlas, situated at Village Kadalbal Pampore and have also sought a writ of prohibition restraining the respondents from raising any construction over the said land, on the grounds taken in the writ petition. 2. Petitioners have filed this writ petition not in representative but in individual capacity. In para 3 of the petition, it has been averred that they have planted trees including fruit trees on the said land and are preserving and maintaining the present status of the said land, therefore, respondents be restrained from transferring the same to the Agriculture Department for raising construction. 3. Respondents have filed reply and resisted the petition on the grounds taken therein. 4. Respondents while challenging the maintainability of the writ petition have questioned the locus and rights of the petitioners over the land in question. It is averred that the Government of India has approved National Mission on Saffron for Economic Revival of J.&K. Saffron Sector vide No. 7-6/2010-RKVY dated 19-8-2010 at a total cost of Rs. 372.18 crores with central share of Rs. 288.06 crores. The aim and object of the mission is to improve technology, increase productivity and quality in the area under saffron crop for being adopted by the farmers. In order to implement various components of the said scheme, revenue agency identified the land, subject matter of the writ petition. It is averred that the petitioners have illegally encroached upon the said land by plainting certain fruit bearing trees. It is apt to reproduce para-2 of the reply filed by respondent No. 5. “That in reply to paras 3 & 4 of the petition, it is submitted that the old survey No. 1240 and New Survey No. 1897-min and 1911-min is recorded as Mehfooz Kacharie in the revenue record originally measuring 327 kanals and 12 marlas. This patch of land has time and again been encroached by the nearby land owners and others. The petitioners have also resorted to illegal encroachment of the said land and have planted certain fruit bearing trees on this patch of land.
This patch of land has time and again been encroached by the nearby land owners and others. The petitioners have also resorted to illegal encroachment of the said land and have planted certain fruit bearing trees on this patch of land. It is pertinent to mention that the Hon’ble High Court in OWP No. 257/2003 in the case titled Ab. Ahad Bhat and others v. State and others had set aside all exchange orders regarding this survey number and had directed the revenue officers to enter upon the possession of the land. Thereafter in LPA No. 286/2006 pertaining to same case the Hon’ble Court was pleased to pass the following order: “We find that the petitioners are bent upon to encroach upon the protected shamlat. The Deputy Commissioner in the circumstances as indicated by him in his affidavit is directed to take all measures to prevent any encroachment on the land.” In compliance, the Kacharie land comprising Survey No. 1240 was demarcated on spot and encroachments were removed under personal supervision of the then Deputy Commissioner, Pulwama. However, the petitioners time and again encroach the said piece of land and have succeeded in getting a temporary injunction in their favour from the Munsiff Court in ex parte by putting forth the mala fide and misleading facts.” 5. Admittedly, the land in question is a kahcharai land and is reserved only for grazing purposes, therefore, petitioners have no right over the said land. They have encroached upon the said land by planting certain fruit bearing trees and under the garb of this writ petition are trying to protect encroachment. 6. Respondents in their reply have specifically stated the reasons for transferring the said land in favour of Agriculture Department, which is in the interest of public at large and is a noble cause. No doubt grazing land cannot be acquired if alternative land is available. There is a big chunk of land for grazing purposes measuring 327 kanals and 12 marlas, falling under Survey No. 1240 (old), new Survey No. 1897-Min and 1911-Min, out of which only 84 kanals & 5 marlas are to be transferred, cannot in any way affect the purpose of grazing land. As discussed hereinabove, transferring of the land in question is for the interest of public at large and for economic revival of J.&K. Saffron Sector. 7.
As discussed hereinabove, transferring of the land in question is for the interest of public at large and for economic revival of J.&K. Saffron Sector. 7. It is settled position of law that Kahcharai Land is the property of the Government; therefore, the petitioners have no individual rights or interest on the said land. The Government is within its powers to acquire it, when the same is for the public purpose, moreso, when the amount of compensation on account of the land in question will be utilized by transferring the same to the village Panchayat in terms of Cabinet Decision No. 355 dated 27-3-1979 read with Government Order No. Rev. (LAK) 275 of 1979 dated 28-9-1979. A plain reading of the provisions of the Land Acquisition Act and the Government order aforementioned, clearly establishes that the Kahcharai Land can be utilized for the public purpose, when alternate and suitable land is not available. 8. This Court in case Habibullah Sheikh v. State of J.&K., 2009 (1) SLJ 150, incidentally of which I am the author, has held that Kahcharai Land can be acquired for public purpose and the amount of compensation in lieu thereof is payable to the concerned Panchayat, in whose jurisdiction land falls, to be spent for welfare of the community of the area in question. It would be apposite to reproduce the paragraphs 5 and 6 of the judgment, which read as follows: “5...... The petitioners have no right or interest over the said land. It is virtually a property of the government but meant for grazing purposes. If Kahcharai land is to be acquired for any public purpose the amount is to be spent for welfare of the community. Division Bench of this Court in case titled Ghulam Mohammad Bhat & others v. State and Anr. reported as 1981 SLJ JK 254 has held that if Kahcharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction land falls. It is the property of the community. 6. If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the benefit of the villagers. The villagers are not before the Court. The writ petitioners have filed writ petition in individual capacity.
It is the property of the community. 6. If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the benefit of the villagers. The villagers are not before the Court. The writ petitioners have filed writ petition in individual capacity. The electric department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose. The petitioners cannot seek any relief against the respondents-Electric Department......” 9. Testing the case at hand on the touchstone of the aforesaid settled position of law, what crystallizes from the above discussion is that the official respondents are within their power to acquire the land for economic revival of J. & K. Saffron Sector. 10. Viewed thus, I find no merit in this writ petition. Accordingly, it is dismissed along with CMPs. Interim direction, if any, shall stand vacated. There shall, however, be no order as to costs. Petition dismissed.