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2016 DIGILAW 360 (JK)

Ajay Singh v. State of J&K

2016-07-15

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. 1. Through the medium of this petition, the petitioner is seeking to quash order dated 06.08.2014 passed by the learned 2nd Additional District Judge, Jammu, whereby the status quo order dated 03.07.2014 passed by the learned Chief Judicial Magistrate, Jammu, with respect to the construction being raised upon a Talab approximately 13 kanals 12 marlas comprised in Khasra No. 178(old) 320(new), Khata No. 115/120 and khewat No. 1, situate at Thanger, Channi Bye Pass, Jammu, has been vacated. The facts-in-brief as pleaded in the writ petition are that the petitioner along with proforma respondent has filed a Civil Suit in the Court of Civil Subordinate Judge (Senior Division) CJM, Jammu, seeking issuance of a mandatory injunction for removal of concrete plinth/foundation of pillars raised by Respondent No. 6 upon the suit property, referred to hereinabove, and further restraining him from raising any sort of construction. It is averred that the learned Chief Judicial Magistrate, Jammu vide detailed order dated 03.07.2014 passed in the application for interim relief directed parties to the suit to maintain status-quo with respect to the suit property. Against the said order, Respondent No. 6 herein filed Civil Miscellaneous Appeal before the learned 2nd Additional District Judge, Jammu. Learned Additional District Judge, while vacating the order of learned trial court vide a detailed order dated 06.08.2014, directed Respondent No. 6 herein to furnish an undertaking before the trial Court to the effect that it shall remove the construction at its own risk and costs in the event appellant as well as proforma respondent herein succeed in the Civil Suit. Hence, the present writ petition on behalf of one of the plaintiffs, namely, Ajay Singh, under Article 227 of the Constitution of India read with Section 104 of the Constitution of J & K State. 2. The contention of learned counsel for petitioner is that petitioner along with proforma respondent (plaintiffs before the trial Court) own ancestral landed properties in Village Thanger, where Respondent No. 6 (defendant No. 5 before the trial Court) after encroaching upon a Talab started the work of digging and construction of concrete plinth/foundation of the pillars upon the Talab, which is the common property of the inhabitants of the Village, who have been using the said Talab for the last more than 100 years. He further contended that the order of learned trial Court dated 03.07.2014 was interim in nature and was subject to objections of Respondents, therefore, the appeal of Respondent No. 6 against the said order was not maintainable. He further contended that even if it is presumed that Respondent No. 6 had purchased the property-in-question, as per Water Resources Act, Talab/Pond is a water source and every water source is and shall remain the property of the Government and any proprietary and ownership rights over the aforesaid water source shall from the date of commencement of the Act be deemed to have been terminated and vested in the Government and nobody can raise any sort of construction over a water source. He further contended that the Official Respondents have as yet not filed their written statement before the learned trial Court; therefore, the learned 2nd Addl. District Judge has erred in vacating the interim order. He, therefore, argued that the order impugned requires to be set aside. 3. Mr. Sethi, learned senior counsel, on the other hand argued that Respondent No. 6 Parjan Kumar Jain has purchased the suit property from one Sat Dev Sethi by virtue of validly executed four Sale Deeds in the year 2005, wherein he along with his business associates are constructing multi-storied commercial complex under the name and style of Golden Palms and has obtained NOCs from the concerned agencies of the Government. He further argued that the suit land has been shown in the revenue record as Banjer Kadeem and the plaintiffs in the suit have intentionally concealed/suppressed this fact. 4. Heard learned counsel appearing for the parties and considered the rival contentions. 5. He further argued that the suit land has been shown in the revenue record as Banjer Kadeem and the plaintiffs in the suit have intentionally concealed/suppressed this fact. 4. Heard learned counsel appearing for the parties and considered the rival contentions. 5. The petitioner has questioned the ownership of Respondent No. 6 over the suit land on two counts; first, the suit land is a Talab/Pond which is the common property of the inhabitants of the Village, who have been using the same for the last more than 100 years; and, second, as per Section 3(1) of Water Resources Act, Talab/Pond is a water source and every water source in the State is and shall remain property of the Government and any proprietary and ownership rights of any persons in such water sources shall from the date of commencement of the Act be deemed to have been terminated and vested in the Government, therefore, nobody can raise any sort of construction over a water source. 6. Firstly, I deal with the first contention of petitioner that the suit land is the common property of the inhabitants of the village. 7. It is the specific case of Respondent No. 6 that he purchased the suit land from one Sat Dev Sethi by virtue of four Sale Deeds in July 2005, who in turn had purchased the same from its original owners. 8. Today, during the course of hearing of this petition, learned counsel appearing for Respondent No. 6 produced a photocopy of judgment dated 03.05.2005 delivered by the Court of learned Additional District Judge, Jammu, wherein it has been recorded that aforementioned Sat Dev Sethi had earlier purchased the suit land vide two registered sale deeds dated 22.09.1990 and 16.10.1990. The said judgment came to be passed in response to a Civil First Appeal filed by said Sat Dev Sethi against three persons, namely, Raghubir Singh, Surinder Singh (brother of Ajay Singh, appellant in the present writ petition) and Mohan Singh, who had challenged the title of Sat Dev Sethi over the suit land in a Civil Suit before the learned Sub Judge, Jammu. It would be appropriate to reproduce the relevant portion of judgment hereunder: "... It would be appropriate to reproduce the relevant portion of judgment hereunder: "... The perusal of copies of revenue extracts filed by the plaintiffs-Respondents alongwith the plaint in the court below reveal that though the nature of the suit land has been recorded as pond but the name of the owners of the land have also been recorded in the column of owners. None of the Plaintiffs/Respondents has been recorded as owner or figure in the column of the possession. On the other hand, the extracts of the revenue record produced by the appellant herein categorically reflects the name of the owners from whom the land has been purchased by the appellant and consequent upon the sale deeds executed by the owners of the suit land in favour of the appellant, mutations have been attested and the appellant has been shown in possession of the land since the registration of the sale deeds. Therefore, the appellant is a recorded owner in possession of the suit land and the revenue record officially maintained in due course of time carries the presumption of correctness though the presumption is rebuttable. ..." 9. It has been further observed: "... Though the entry of pond exists in the suit land but it cannot be said as village pond or common land as name of the owners of the land exist in the respective column and in pursuance to the existing record the revenue authorities issued 'fardintkhab' in favour of owners of the land showing to be in possession of the property and consequently the sale deeds of the suit land have been registered in favour of the appellant..." 10. Learned counsel for Respondent No. 6 has also produced photocopies of Fard Intikhab Jamabandi Kharief 1956 Rabbi 1957, Register of Mutation, Missal Haqiat Kharief 2006 Rabbi 2007 (Bandabost/Settlement of 2008) and other related documents in respect of Village Thanger, Tehsil & District Jammu. 11. Learned counsel for Respondent No. 6 has also produced photocopies of Fard Intikhab Jamabandi Kharief 1956 Rabbi 1957, Register of Mutation, Missal Haqiat Kharief 2006 Rabbi 2007 (Bandabost/Settlement of 2008) and other related documents in respect of Village Thanger, Tehsil & District Jammu. 11. A perusal of the file, documents produced and the relevant portion of the judgment, referred to above, clearly reveal that although in the earlier/old revenue records the nature of suit land had been recorded as pond, however, the names of actual owners of the suit land had also been recorded in the 'column of owners'; meaning thereby the suit land was not the 'village pond' or the 'common property' of the inhabitants of the Village as is being claimed by the petitioner herein, rather the same was in possession of its actual owners in their independent capacity. Therefore, in absence of any specific documentary proof, I do not find any force in the contention of petitioner that the suit land was the 'common property' of the inhabitants of the village 12. Now, the next contention of petitioner is that in terms of Water Resources Act, any proprietary and ownership rights of any person in any water source, talab/pond in the State shall be deemed to have been terminated with the commencement of the Act and vested with the Government. 13. For the just and meaningful disposal of case, I would like to quote Section 3(1) of Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010 hereunder: "3. Property of the Government (1) Every water source in the State is, and shall remain, the property of the Government and any proprietary ownership, or any riparian or usage right, on such water resources vested in any individual, group of individuals or any other body, corporation, company society or community shall, from the date of commencement of the Act, be deemed to have been terminated and vested with the Government." 14. The Act provides that any proprietary or ownership rights of any person in any water source in the State shall be deemed to have been terminated and vested with the Government with the commencement of the Act. 15. The Act provides that any proprietary or ownership rights of any person in any water source in the State shall be deemed to have been terminated and vested with the Government with the commencement of the Act. 15. The Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010 came to be enacted on 23.10.2010 and it came into force on 10.11.2010 vide SRO 415 when the Government notified the same in the Government Gazette; meaning thereby, Section 3(1) of the Act would apply only with effect from 10.11.2010. Therefore, as per the Act, any water source/talab/pond existed in the State as on 10.11.2010 would be deemed to be the property of the Government and not before that. 16. Whereas, in the present case, as per copy of Register of Mutation issued by the Patwari Halqa on 05.05.2008 as well as copy of Missal Haqiat Kharief 2006 Rabbi 2007 (Bandabost/Settlement of 2008) in respect of Village Thanger, Tehsil & District Jammu, the nature of suit land has been defined as Banjar Qadeem and the mutation in respect of the suit land has also been attested in favour of Prajan Kumar Jain, Respondent No. 6 herein. Since the nature of suit land had already been changed well before the enactment and commencement of Water Resources Act and the same has been defined as Banjar Qadeem in the relevant revenue extracts, therefore, I do not find any force in the contention of petitioner that the ownership and proprietary rights of suit land vest with the Government in view of enactment of the said Act. 17. When confronted with this situation, learned counsel appearing for petitioner showed his ignorance to this development that the suit land has already been defined in the revenue extracts as Banjar Qadeem and that at present there exists no pond/talab. He, however, did not dispute the present position in respect of the suit land. 18. Otherwise too, there are registered sale deeds on record which have been executed after the issuance of relevant revenue extract with regard to the suit property, therefore, Respondent No. 6 cannot be said to be a trespasser or encroacher of the suit land. Even the petitioner has not challenged the sale deeds executed in favour of Respondent No. 6 disputing his possession and title over the suit land. Even the petitioner has not challenged the sale deeds executed in favour of Respondent No. 6 disputing his possession and title over the suit land. Not only this, even the J.D.A. and other Government agencies have accorded sanction in favour of petitioner for construction of Multiplex. I have also gone through the order passed by the appellate court, i.e., 2nd Additional District Judge, Jammu and I do not find any error or illegality in the same. Therefore, in view of above discussion, I do not find any merit in the petition. Accordingly, the same is dismissed. Connected miscellaneous petition, accordingly, stands disposed of. However, learned trial Court is directed to decide the Civil Suit at the earliest independent of the decision given in the present petition and without being influenced by the observations, if any, given hereinabove.