Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 173 (JK)

Ab. Jabbar Sheikh v. State of J&K

2016-04-05

ALI MOHD.MAGREY

body2016
JUDGMENT : Ali Mohd. Magrey, J. 1. This petition calls in question what is actually a report dated 12.03.2013 of Deputy Commissioner, Kupwara, containing the recommendations of the Committee constituted under the Jammu and Kashmir Lands (Vesting of Ownership Rights to Occupants) Act, 2001, prepared on the findings of the team of officers appointed pursuant to order dated 07.12.2012 passed by the Court in the petitioners' earlier writ petition, OWP No. 826/2011, recommending to set aside the Order No. 1165-DCK/Roshni of 2010, dated 29.07.2010. Short facts of the case are that in terms of Govt. Order No. 1165-DCK/Roshni of 2010, dated 29.07.2010 passed by the Deputy Commissioner, Kupwara, under the relevant provisions of the Jammu and Kashmir Lands (Vesting of Ownership Rights to Occupants) Act, 2001 (also known as, Roshni Act) and the Rules framed thereunder, ownership of the land measuring 04 Kanals covered under survey No. 311/min situated at Regipora, Kupwara, was ordered to vest in the petitioners subject to their depositing the cost thereof. Petitioners deposited the requisite cost and mutation was effected in their favour. 2. Pursuant to complaints and representations made by some inhabitants of the village Regipora, the Tehsildar, Kupwara, addressed communication No. TK/R/11/102, dated 28.06.2011 to the Deputy Commissioner, Kupwara, recommending revocation of Order No. 1165-DCK/Roshni of 2010, dated 29.07.2010, vesting ownership of the aforesaid land in the petitioners, on the grounds that the case had been processed against norms of the Roshni Act. The petitioners challenged the aforesaid communication dated 29.07.2010 by filing writ petition, OWP No. 826/2011. That writ petition was disposed of by the Court by judgment dated 07.12.2012 in the following terms: "15. While summing up, it would be quite appropriate to direct Deputy Commissioner, Kupwara to constitute a team of officers who shall visit the spot, after assessing the position prevailing on spot and the earlier position of the land including recorded position, shall prepare the report. While doing so, they shall keep in view the observations made hereinabove. Based on such report, Deputy Commissioner, as Chairman of the Committee as constituted under the Act, shall re-examine the case of the petitioners and after re-examination shall pass such orders which may include revocation of the Order No. 1165-DCK/Roshni of 2010, dated 29.07.2010 and the consequent mutation No. 450, dated 22.10.2010, in-keeping with the provisions of the Act. 16. Based on such report, Deputy Commissioner, as Chairman of the Committee as constituted under the Act, shall re-examine the case of the petitioners and after re-examination shall pass such orders which may include revocation of the Order No. 1165-DCK/Roshni of 2010, dated 29.07.2010 and the consequent mutation No. 450, dated 22.10.2010, in-keeping with the provisions of the Act. 16. Let the above exercise be undertaken and completed within a period of two months from the date copy of the order is served upon Deputy Commissioner, Kupwara. It shall be open for the parties to re-agitate if thereafter cause survives." 3. Pursuant to the above directions of the Court, an exercise seems to have been undertaken and the final report prepared. 4. The petitioners have filed this writ petition challenging the aforesaid report and seek its quashing. 5. After notice was issued to the respondents, an application, CMP No. 670/2013, came to be filed by the inhabitants of the village Regipora, Kupwara, in representative capacity, seeking arraignment as party respondents in the petition. That application was allowed by order dated 22.07.2013. 6. Both, the official as well as the private respondents, have filed their respective objections/reply, contesting the claim and assertions of the petitioners. 7. The petition is still at its admission stage. I heard learned counsel for the parties and considered the matter. 8. I am of the view that this writ petition is premature, inasmuch as no final order has been passed. The subject matter of challenge in this writ petition, as mentioned above, is the report prepared by the Deputy Commissioner, Kupwara, the last paragraph whereof reads as under: "Consistent with the above and also keeping in view the directions of Hon'ble High Court of J & K and the report of then Deputy Commissioner, the committee recommends that the Roshni Order No. 1165-DCK/Roshni, dated 20.07.2010 should be set aside. However, since the Roshni Act is silent about the authority competent to rescind/amend/cancel an earlier order, necessary directions are solicited with regard to the authority competent to issue the order." The report is not addressed to any authority. It bears an endorsement to the following effect: "Copy to the: 1. Divisional Commissioner, Kashmir for information; 2. However, since the Roshni Act is silent about the authority competent to rescind/amend/cancel an earlier order, necessary directions are solicited with regard to the authority competent to issue the order." The report is not addressed to any authority. It bears an endorsement to the following effect: "Copy to the: 1. Divisional Commissioner, Kashmir for information; 2. Shri N.H. Shah Deputy Advocate General J & K for information." However, the report does not bear any despatch No. or date; thereby it appears not to have been sent to any authority for further action. This is one aspect of the matter. 9. The other most important aspect of the matter is that even if it be assumed that the report has been sent to any authority, before passing any final order in the matter, the principles of natural justice would have to be followed and a notice would need to be issued to the petitioners by the competent authority to show cause why on the basis of the findings so arrived at by the committee, the order dated 20.07.2010 be not revoked. So far no notice has been issued to the petitioners and they have rushed to the Court challenging the report. It may be noted here that the Court in its order dated 07.12.2012 has categorically directed that "the Deputy Commissioner, as Chairman of the Committee as constituted under the Act, shall re-examine the case of the petitioners and after re-examination shall pass such orders which may include revocation of the Order No. 1165-DCK/Roshni, dated 29.07.2010 and the consequent mutation No. 450, dated 22.10.2010, in keeping with the provisions of the Act". Examination or re-examination of the petitioners' case would necessarily require a hearing to be given to them in accordance with law. Final orders cannot be passed at their back and without hearing them, for, the principles of natural justice have to be read in every Statute and executive action, unless expressly barred by any law. 10. In light of the above, it would not be appropriate for the Court to touch the merits of the case. 11. The writ petition is, therefore, disposed of as being premature together with the connected CMP. Interim direction, if any, subsisting shall stand vacated. 10. In light of the above, it would not be appropriate for the Court to touch the merits of the case. 11. The writ petition is, therefore, disposed of as being premature together with the connected CMP. Interim direction, if any, subsisting shall stand vacated. So far as the private respondents are concerned, nothing would prevent them to seek participation in the process of re-examination of the petitioners' case to put up their point of view before the Deputy Commissioner, if required.