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2020 DIGILAW 659 (JK)

Azmat Gowhar Khan v. State of J&K

2020-12-04

SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—The petitioners in this petition have, inter alia, prayed for the following reliefs: (I) Mandamus to direct the respondents not to interfere with the land of the petitioners measuring 4 kanals and 14 marlas covered by survey No.2147 (old) wrongly recorded as kahcharai in the settlement of 2014-15 as survey No. 3521 (new) situated in estate Bemina; (II) Mandamus to direct the respondent-Financial Commissioner (Revenue) and the Committee constituted by him to rectify the mistakes committed during settlement with regard to Shamilat land of the petitioners which has been erroneously recorded as Kahcharai land; (III) Certiorari quashing communication bearing No.2273-76 dated 18.09.2015 whereby the land of the petitioners has been identified for construction of a dewatering station/sump. 2. The foundational facts as projected in the writ petition are that the petitioners are owners in possession of land measuring 4 kanals and 14 marlas “subject land” falling under survey No.2147 (old) situated at Hamdania Colony Sector 7, Bemina, Budgam for the last more than 24 years. They claim to have invested a lot of money in constructing a brick wall around the land. The petitioners claim that the entire land was recorded as ‘Shamilat’ under Rule 5 in the revenue record, as is evident from the extract of Jamabandi prepared in the year 1966-67. Out of the said land, a piece of land measuring 3 kanals, which was in possession of one Mohammad Yousuf Sofi, is claimed to have been transferred to the petitioners by way of an oral gift executed in the year 1992. The transfer by way of gift is evidenced by mutation No.2906 of Estate Bemina. Rest of the land measuring 1 kanal and 14 marlas is claimed to be in possession of the petitioners out of the Shamilat land covered by Survey No.2147-Min. This is how the petitioners claim their ownership and possession over the subject land. 3. The grievance of the petitioners is that during the preparation of last settlement which was undertaken by the Government for Village Bemina, the land in the village including the land under possession of the petitioners was wrongly entered as ‘Shamilat’ (Kahcharai) under Rule 4. The petitioners claim that not only they but other Zamindars of Estate Bemina Budgam represented to the Government against the error committed during the settlement with regard to ‘Shamilati Deh’ land available in the Estate. 4. The petitioners claim that not only they but other Zamindars of Estate Bemina Budgam represented to the Government against the error committed during the settlement with regard to ‘Shamilati Deh’ land available in the Estate. 4. On the representation of the petitioners, the Financial Commissioner (Revenue), who is the competent authority having been appointed in terms of SRO 517 dated 13th of December, 2013, constituted a Committee of three officers i.e. (1) Regional Director, Survey and Land Records, (2) Assistant Commissioner (Revenue), and (3) Tehsildar (Settlement), vide his order bearing No.FC-stl/159 of 2014 dated 18th of July, 2014. The Committee was asked to scrutinize the applications/representations, conduct on spot enquiry in every case and make specific recommendations for appropriate orders with reference to Section 27 of the J&K Land Revenue Act Svt. 1996 (hereinafter the Act). It is submitted that the aforesaid Committee was though constituted on 18th of July, 2014, did not complete the exercise and the subject land belonging to the petitioners continued to be shown as ‘Kahcharai’ land in the revenue records. 5. While the exercise by the Committee constituted by the Financial Commissioner (Revenue) was under way, the Executive Engineer, S&D, Division-II, SMC, Srinagar, proceeding on an assumption that the subject land held by the petitioners was a Kahcharai land, decided to construct a de-watering station over the subject land without acquiring the same and without payment of compensation. With a view to thwart the aforesaid attempt, the petitioners filed two suits, one before the Court of Sub Judge (Municipal Magistrate), Srinagar, and another before a Civil Court in District Budgam. In both the suits, the petitioners prayed for a decree of perpetual injunction for restraining the respondents from interfering with the peaceful possession and occupation of the suit land. 6. While the aforesaid suits were pending, the petitioners filed instant petition seeking, inter alia, a direction to the Financial Commissioner and the Committee constituted by him to complete the rectification proceedings and correct the records as per the position on spot. 7. 6. While the aforesaid suits were pending, the petitioners filed instant petition seeking, inter alia, a direction to the Financial Commissioner and the Committee constituted by him to complete the rectification proceedings and correct the records as per the position on spot. 7. This petition has been resisted by respondent No.16 on the ground that the petitioners have projected a wrong case before this Court that the settlement done by the official respondents in the year 2014-15 needs rectification whereas the fact remains that the petitioners have illegally encroached upon the Kahcharai land and have been filing case after case before different forums to perpetuate their illegal occupation of the subject land. 8. Mr. N. H. Shah, Sr. AAG, appearing for the official respondents has not filed objections but submits that the correction of entries in the Record of Rights or in Annual Records can only be varied by following the procedure laid down in Section 27 of the Act. He submits that in terms of Section 27(a) of the Act, the Government has authorized the Financial Commissioner to perform the duties under Section 27 of the Act with regard to rectification of the entries in records, if warranted. The Financial Commissioner is already seized of the matter and, therefore, petitioners should have no grievance. 9. Having heard learned counsel for the parties and perused the record, I am of the view that the grievance projected by the petitioners in this petition is two fold, i.e.: (i) The Financial Commissioner and the Committee constituted by him vide order dated 18th of July, 2014, has failed to perform his duty as enjoined by Section 27 of the Act and, therefore, Financial Commissioner is liable to be directed by issuance of Writ of Mandamus to perform statutory duty; and (ii) Till the exercise undertaken by the Financial Commissioner on the request of villagers and the petitioners for rectification of settlement records is completed, the subject land in possession of the petitioners be not acquired or taken possession of by the official respondents even for public purpose without first acquiring the same under Land Acquisition Legislation in force as on date. 10. So far as the first part of grievance of the petitioners is concerned, I do find substance. 10. So far as the first part of grievance of the petitioners is concerned, I do find substance. Admittedly, there is voice raised by some of the villagers including the petitioners against the entries made with regard to Shamilati Deh land in Estate Bemina during the settlement operations conducted in the year 2014-15. The Government has taken note of the grievance of the villagers and the authorized officer i.e. Financial Commissioner vide his order dated 18th of July, 2014, has constituted a Committee of three officers to look into the matter. Reportedly, the Committee has not yet completed its job though more than six years have elapsed. Had the Committee acted with some seriousness and shown promptitude, the grievance of the petitioners would have been redressed. May be the Committee does not find any substance in the plea raised by the petitioners with regard to entry recorded during settlement operations qua the subject land, however, the Financial Commissioner, who is enjoined a duty under Section 27 of the Act, cannot sit over the matter for six years forcing the aggrieved parties to litigation. I am, therefore, in agreement with the learned counsel for the petitioners that the respondents, particularly the Financial Commissioner, who is an authorized officer appointed by the Government in terms of SRO 517 of 2013, is liable to be directed by way of Mandamus to perform his statutory duty. 11. However, I find no merit in the second part of the grievance raised by the petitioners in this petition. So long as the exercise undertaken by the Financial Commissioner on the representation of the villages is not completed and appropriate orders for rectification or otherwise are passed in terms of Section 27 of the Act, the recorded position of the subject land as per the last settlement is required to be maintained. And if that be the position, the subject land, which is recorded as ‘Kahcharai land’ during the last settlement operations, cannot be claimed to be owned and possessed by the petitioners nor its user can be changed otherwise than in due course of law. The subject land, for all practical purposes, shall be treated to be ‘Kahcharai land’ and this position will subsist till it is changed by the orders of Financial Commissioner to be passed in terms of Section 27 of the Act. 12. The subject land, for all practical purposes, shall be treated to be ‘Kahcharai land’ and this position will subsist till it is changed by the orders of Financial Commissioner to be passed in terms of Section 27 of the Act. 12. The prayer of the petitioners that the respondents, particularly, Srinagar Municipal Corporation be restrained from taking over the possession of the subject land from the petitioners without following due process of law, cannot also be granted at this stage. As per the own admission of the petitioners, the subject land, as per the records maintained pursuant to the last settlement operations, is recorded as ‘Kahcharai land’ and the same, therefore, cannot be owned and possessed by the land holders of the Estate. As a matter of fact, the petitioners are not even the land holders in the Estate of Bemina and claim to be in possession of the subject land by way of a gift deed executed by a land holder who had a share in Shamilati Deh. Therefore, so long as the subject land continues to be ‘Kahcharai land’ recorded in the revenue records, nobody including the petitioners can lay a claim of ownership or possession over the said land. 13. It is also interesting to note that the petitioners in a bid to perpetuate their possession over the subject land have filed two suits in two different jurisdictions and also the instant petition on the basis of a single cause of action. Such course is not permissible in law. The conduct of the petitioners exhibited by them by invoking three forums for a same cause of action is good enough for this Court to refuse to exercise discretion vested in this Court under Article 226 of the Constitution of India. 14. Be that as it may, the fact remains that the Financial Commissioner cannot escape from his statutory liability to perform his duties enjoined by Section 27 of the Act and, therefore, this petition is disposed of by directing Financial Commissioner (Revenue) to complete the exercise initiated by him by constituting a Committee of three officers vide his order dated 18th of July, 2014 and take it to its logical conclusion without any further waste of time. Keeping in view that more than six years have already elapsed, it would be in the fitness of things if a direction is issued to the Financial Commissioner to look into the grievances of the petitioners and other villagers and pass appropriate orders in reference to Section 27 of the Act as may be warranted in the facts and circumstances of the case within a period of four months from the date a copy of this order is served upon him. Ordered accordingly. 15. Dependent upon the outcome of the exercise aforesaid to be undertaken and concluded by the Financial Commissioner, the rights of the petitioners shall be determined by the competent revenue authority in accordance with law and till such time, the position of subject land on spot shall not be changed.