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2021 DIGILAW 32 (JK)

Ghulam Din Chichi v. State of J&K

2021-02-24

SANJAY DHAR

body2021
Judgment Sanjay Dhar, J.—Petitioner seeks a direction against respondent No.4 to 9 declaring their attempts to take over the possession of the property comprising house with land underneath and appurtenant thereto measuring 12 kanals 10 marlas falling under Khasra No.2909/1500 situated at Saidpora Herpora Tehsil and District Shopian, as illegal and unlawful. A further direction restraining the said respondents from demolishing and/or interfering in petitioner’s peaceful enjoyment, use and occupation of the aforesaid property, has also been sought. 2. The case of the petitioner is that he is in lawful possession and occupation of land measuring 12 kanals 10 marlas falling under Khasra No.2909/1500 situated at Herpora Saidapora Shopian, in terms of judgment and order dated 18.04.2002 passed by Collector, Agrarian Reforms, Shopian, in exercise of powers vested in him under Agrarian Reforms Act. It is averred that previously, petitioner had filed a writ petition bearing OWP No.499/2010 and an interim direction was issued by this Court in the said petition on 26.05.2010 whereby respondents were directed not to interfere with the possession of the petitioner over the land in question. 3. According to the petitioner, during pendency of aforesaid writ petition, the respondents forcibly took over possession of the property in question compelling the petitioner to file a contempt petition bearing No.303/2010 against respondent No.4 to 9. In terms of the orders passed by this Court in the said contempt petition, a Commissioner was appointed for spot inspection and pursuant to the report submitted by the Commissioner, the aforesaid writ petition was disposed of in terms of order dated 09.09.2015, whereby Deputy Commissioner, Shopian, was directed to get the land in question demarcated in presence of Divisional Forest Officer, Shopian, and the petitioner. It was further provided that demarcation of the land will have the effect of settling the rights of the parties. 4. According to petitioner, in pursuance of the aforesaid directions of this Court, a team of officers headed by respondent No.3 undertook demarcation of the land in question in presence of respondent No.6, and a report was submitted by the said team on 22.03.2016, whereby title of the petitioner in respect of the land in question was confirmed. Another team of officers is stated to have been constituted to conduct fresh demarcation of the land in question and even after fresh demarcation, ownership of the petitioner over the land in question was confirmed. 5. Another team of officers is stated to have been constituted to conduct fresh demarcation of the land in question and even after fresh demarcation, ownership of the petitioner over the land in question was confirmed. 5. It is averred by the petitioner that in spite of these reports, the land in question continued to be encroached upon by respondent No.4 to 9, as a result of which petitioner took it upon himself to remove the said encroachment and he continues to be in lawful possession of the property in question till date and he has also constructed a small hutment/shed over there. It is further averred that the respondents 4 to 9 continued with their attempts to interfere in the petitioner’s lawful possession over the property in question which has compelled the petitioner to file the instant writ petition. 6. Respondent No.1 and 4 to 9 have resisted the writ petition by filing a reply thereto. In their reply respondents have disputed possession of the petitioner over the land in question and it has been claimed that the said land falls within demarcated forest as is clear from the GT Sheet Map from General Survey of India. It is further claimed that the order and decree obtained by the petitioner, on which he is basing his claim, is a nullity as the same has been obtained in exparte without affording any opportunity to the Forest Department to defend its case. It is averred that the present case is a pure and simple case of encroachment upon forest land which is lawfully owned and possessed by the respondents. Regarding the demarcation reports submitted by the revenue authorities, it has been submitted by the respondents that the demarcation has been undertaken without the presence of Divisional Forest Officer. Finally, it has been contended that the petition raises disputed question of fact which cannot be adjudicated upon by this Court in its extraordinary writ jurisdiction. 7. I have heard learned counsel for the parties and perused the pleadings and material on record. 8. The controversy involved in this writ petition is with regard to ownership and possession of land measuring 12 kanals 10 marlas situated at Saidapora Herpora Shopian. 7. I have heard learned counsel for the parties and perused the pleadings and material on record. 8. The controversy involved in this writ petition is with regard to ownership and possession of land measuring 12 kanals 10 marlas situated at Saidapora Herpora Shopian. According to the petitioner, he is owner in possession of the said land whereas Forest Department claims that the land in question is a demarcated forest and the petitioner is trying to encroach upon the said land. There has been previous litigation between the parties in respect of the same subject matter. The earlier writ petition bearing OWP No.499/2010 was disposed of by this Court in terms of order dated September 9, 2015, which is reproduced as under: “It is pleaded by the respondents that the land which is subject matter of the writ petition is forest land. Learned counsel for the petitioner disputed the aforesaid assertion of the respondents and referred to revenue records which are enclosed with the writ petition to indicate that it is not the forest land. The Commissioner appointed by the Court has not given any final opinion but has only referred to the material produced before him by the concerned Pathwari and officers of the forest department. The issue raised in this petition requires to be finally settled. This writ petition along with connect CMP(s) is disposed of and Deputy Commissioner, Shopian is directed to get the land, which is subject matter of the writ petition, demarcated in presence of Divisional Forest Officer, Shopian and the petitioner. The demarcation of the land will have the effect of settling the rights of the parties. The Deputy Commissioner, Shopian to demarcate the aforesaid land within eight weeks from the date copy of this order is served.” 9. Pursuant to the aforesaid order, it appears that revenue authorities have conducted demarcation of the land in question by constituting a team of revenue officers/officials in this regard. As per demarcation report dated 20.01.2016, the ownership of the land in question is shown to be recorded in the name of the State whereas possession of the same is recorded in the name of petitioner by virtue of a decree of the Revenue Court pursuant to which an entry has been made in the revenue record. As per demarcation report dated 20.01.2016, the ownership of the land in question is shown to be recorded in the name of the State whereas possession of the same is recorded in the name of petitioner by virtue of a decree of the Revenue Court pursuant to which an entry has been made in the revenue record. The report further goes on to state that that the Forest Department has fenced the land in question and the same is in its possession. The subsequent demarcation report dated 07.11.2016 reiterates the position stated in the earlier report. 10. Pursuant to the aforesaid demarcation reports, it appears that the respondent No.2, Deputy Commissioner, Shopian, has asked the respondent No.7 to vacate the land in question in terms of the orders of the High Court. A reminder, in this regard, appears to have been issued by respondent No.2 to respondent No.7 vide letter dated 08.04.2017 and ultimately vide letter dated 04.08.2017, the respondent No.3 has directed SHO, P/S Heerpora, to register an FIR in the matter. 11. All this exercise, it appears, is being undertaken by the respondents in pursuance of and in compliance with the directions issued by this Court on 09.09.2015 in OWP No.499/2010. 12. So far as the contention of the respondents that the entry in the revenue record pertaining to the land in question in favour of the petitioner has been recorded on the basis of an exparte order of a Revenue Court and, as such, the same is invalid, is concerned, the same is without merit because unless and until the said order is varied or set aside by a competent authority, it cannot be stated that the claim of the petitioner over the land in question is unlawful or illegal. The petitioner, therefore, is well within his rights to resist the claim of respondents 4 to 9 over the property in question. 13. So far as the present status of the land in question is concerned, petitioner claims that he is in possession thereof whereas respondents No.4 to 9 have vehemently disputed the same and have claimed that they are in possession of the property in question. 13. So far as the present status of the land in question is concerned, petitioner claims that he is in possession thereof whereas respondents No.4 to 9 have vehemently disputed the same and have claimed that they are in possession of the property in question. The documents annexed to the writ petition, prima facie, show that the land in question is in possession of the respondents and that the revenue authorities are trying to remove the encroachment of respondents on the property in question in compliance to the orders passed by this Court on 09.09.2015. The conflicting claims of the parties regarding possession of the property in question have given rise to disputed questions of fact which cannot be determined in these proceedings. Therefore, it may not be possible for this Court to issue a direction regarding protection of petitioner’s possession over the property in question. 14. Thus for the reason that the petition raises disputed questions of fact which cannot be gone into in the writ proceedings, the same is dismissed leaving it open to parties to have recourse to the appropriate remedies that may be available to them under law, if so advised.