Villagers of Beehama Ganderbal & Ors. v. State & Ors.
2012-08-06
MANSOOR AHMAD MIR
body2012
DigiLaw.ai
1. Petitioners have filed this writ petition in the representative capacity on behalf of inhabitants of Village Beehama, Ganderbal, on the grounds taken in it. 2. It is contended that 965 kanals of mehfooz kahcharai land was reserved and is in possession of villagers of Beehama, Ganderbal, which they are using for grazing purposes. It is further contended that the Government vide Order No. Rev (S) 72 of 2007 dated 27.02.2007 accorded sanction for transfer of 426 kanals 10 marlas of Shamlat Deh (Mahfooz Kahcharai) land, situated at Beehama, and 574 kanals 14 marlas, situated at Village Watlar, Tehsil Ganderbal (totaling 1001 kanals & 04 marlas), in favour of Sher-e-Kashmir University of Agriculture Science & Technology (for short, SKUAST). It is contended that SKUAST is not only fencing the land allotted to it, but is also trying to encroach upon and fence 600 kanals more kahcharai and shamlat deh land belonging to the villagers of Beehama, which constrained them to file an application before the Deputy Commissioner, Ganderbal for demarcation (nishandehi) of the land allotted to SKUAST. It is contended that without making demarcation the SKUAST has started fencing the land. Accordingly, it is prayed that respondents be directed not to fence any portion of the land until and unless demarcation is made by the revenue authorities so that no encroachment is made by the SKUAST. It is further prayed that while fencing the land no impediment is to be caused to the water channel/sub-water channels passing through the land allotted to the SKUAST. The said water channels are being used by the petitioners for irrigating more than 3000 kanals of land. It is prayed that the respondents be also directed to assess and pay compensation for the allotted land and the same be paid to the concerned Panchayats for being used for development of the villages. 3. Respondents have filed reply contesting the writ petition. 4. Respondents 1 & 3 have specifically averred that as per revenue record land measuring 426 kanals 10 marlas of Mehfooz Kahcharai in Estate Beehama, District Ganderbal and 574 kanals 14 marlas in Village Watlar Tehsil Ganderbal is in possession of SKUAST (Faculty of Forestry) and the same has been brought under fencing alter the demarcation was made by the revenue authorities.
It is stated that a total of 1001 kanals and 04 marlas of land stands already allotted in favour of SKUAST for establishment of Faculty of Forestry. Detail of the demarcation report is given in para-6 of the reply. Further it is stated that the respondents have not in any way caused impediment in the smooth flow of water channels which are being used by the petitioners for irrigation purposes. Further, both the water channels are not passing through the land allotted in favour of SKUAST and the fencing do not block/hinder the irrigation in any way. 5. SKUAST, respondent no.2 herein, has also filed reply. It is specifically averred that the demarcation has been made and the land already stands fenced and is in possession of the University, Fencing of the allotted land was with the intent to protect the same and the faculty premises. There is no question of blocking the irrigation channels and taking possession of 600 kanals more land which is in excess of the allotted land. 6. Writ petitioners have not questioned the allotment of land made by the Government in favour of SKUAST. It is admitted by the petitioners that respondent no.2 has taken possession of the allotted land and the same is mehfooz kahcharai. It appears that the petitioners are apprehending that respondent no.2 is trying to fence more land, which is in excess of the allotted land. They are also apprehending that fencing may cause blockage to smooth flow of water channels which the petitioners are using for irrigating their land. Respondents have specifically denied the same. 7. This Court in Villagers of Anzwalla v. State, 2012 (3) JKJ HC-213 [OWP No. 399/2010, decided on 12.06.2012], has held that the Government is within its powers to acquire mehfooz kahcharai land for public purposes when no other land is available and the amount of compensation is to be used for public purposes, payable to the concerned panchayat. It is apt to reproduce paragraphs 5 & 6 herein: "5. 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.
It is apt to reproduce paragraphs 5 & 6 herein: "5. 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, more so, 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 27.03.1979 read with Government Order No. Rev (LAK) 275 of 1979 dated 28.09.1979. A plain reading of the provision 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. 6. This Court in case Habibullah Sheikh v. State of J&K, 2009 (1) SLJ 150 : 2008 (3) JKJ HC-170, incidentally of which 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 reads 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 SLJ 1981JK 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. The electric department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose.
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..." 8. The specific stand of the respondents herein is that SKUAST is in possession of the allotted land which has already been fenced by it. Further, SKUAST has not fenced the land in excess of the land allotted to it. 9. In the given circumstances, petitioners have failed to make out any case. Accordingly, the writ petition is dismissed along with all CMPs.