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2022 DIGILAW 195 (JK)

Owais Adil Parray v. Union Territory of J&K

2022-04-27

SANJEEV KUMAR

body2022
JUDGMENT : 1. Order of Deputy Commissioner, Budgam bearing No. DCB/SQ/2001/F-916/10037, dated 08.01.2021 is subject matter of challenge in this petition filed by the petitioner invoking extraordinary writ jurisdiction of this court vested under Article 226 of the Constitution of India. 2. The dispute between the petitioner and respondent Nos. 8 to 10 pertains to land measuring 3 kanals falling under Survey No. 318 (1 kanal-10 marlas) and Survey No. 319 (1 kanal and 10 marlas) situated in estate Watadooru Galwanpora Tehsil Budgam. Respondent Nos. 8 to 10 claim that they have purchased land measuring 3 kanals, 1 kanal 10 marlas falling under Khasra No. 319 min khewat No. 56 and 1 kanal 10 marlas falling in Khasra No. 318 min khewat No. 37 situated at Watadooru Galwanpora Tehsil Budgam from vendors, namely Shaban Bhat, Gafar Bhat and Mohammad Wani through sale deeds executed on 7 th October, 1993 and 7 th September, 1993 respectively. In the first round of litigation, respondent Nos. 8 to 10 [hereinafter “private respondents”] preferred OWP No. 1454/2018, which was disposed of by this Court on 3rd August, 2018 granting liberty to the private respondents to approach the revenue authorities for demarcation of land in question. It appears that the private respondents were not handed over the possession of their land aforementioned and, therefore, they filed WP(C) No. 3095/2019 seeking, inter alia, a direction to the official respondents herein to hand over the possession of land measuring 3 kanals falling under Khasra Nos. 318 and 319 khewat Nos. 37 and 54 respectively situated at Watadooru Galwanpora. 3. The writ petition was dismissed by the learned Single Judge by holding that the documents purported to be the demarcation report relied upon by the private respondents did not demarcate and identify the land held by the private respondents. Learned Single Bench proceeded to hold that in the absence of proper identification and demarcation of the land held by the private respondents, it would not be possible for the competent authority to exercise powers under Section 95 of the Land Revenue Act. The judgment of the learned Single Judge was pronounced on 09.12.2019, which was challenged by the private respondents herein by way of LPA No. 321/2019. The judgment of the learned Single Judge was pronounced on 09.12.2019, which was challenged by the private respondents herein by way of LPA No. 321/2019. The LPA Bench allowed the appeal vide judgment dated 22.06.2020 and issued following directions:- “(i) Respondent No. 3-Deputy Commissioner, Budgam shall ensure proper identification and demarcation of the land of the appellants positively within a period of one month from the judgment. (ii) Upon preparation of such a demarcation report, the competent revenue officer would consider the request of the appellants (private respondents herein) by passing a speaking order thereon strictly in terms of Section 95 of the Land Revenue Act.” 4. It, thus, transpires that the Deputy Commissioner considered the matter in light of the directions issued by the Division Bench in its judgment dated 22.06.2020 passed in LPA No. 321/2019 and passed a speaking order, which is impugned in this petition. In the impugned order, the Deputy Commissioner has, though, found that in the absence of shajra kat of the subject land prepared and available, existing location of the piece of land falling in Khasra Nos. 318 and 319 is quite difficult to be demarcated. The Deputy Commissioner also concluded that as per spot position/demarcation conducted by the team of revenue officers, land under Survey Nos. 318, 319 and 320 is in possession of the petitioners and one Bashir Ahmad Mir as per the following breakup:- S. No. Name of the respondent (occupant) Survey No. Area Kanal Marla Sq.Ft 1. Owais Adil 318 - 13 107 319 1 6 41 2. Bashir Ahmad Mir 318 1 4 319 - 15 - 320 - 01 - 5. The Deputy Commissioner also found that the petitioner had purchased 2 kanals of land (19 marlas out of survey No. 316 and 1 kanal 1 marla from survey No. 320) through registered sale deeds in the year 1999 and Sh. Bashir Ahmad Mir had purchased 2 kanals (1 kanal 19 marla out of survey No. 318 and 01 marla out of survey No. 320) in the year 2010 and that the first transaction of this land took place in the year 1993, 1994 and 1998 when the original owners had sold it to different persons. Bashir Ahmad Mir had purchased 2 kanals (1 kanal 19 marla out of survey No. 318 and 01 marla out of survey No. 320) in the year 2010 and that the first transaction of this land took place in the year 1993, 1994 and 1998 when the original owners had sold it to different persons. The Deputy Commissioner, on the basis of report of the revenue officers, also found that the petitioner was not in possession of land purchased by him out of Survey No. 316 and 320 and instead the land in his possession would fall in survey Nos. 318 and 319. Similarly, it was found by the Deputy Commissioner that Sh. Bashir Ahmad Mir was in possession of 1 kanal 4 marlas of land out of survey No. 318 as against 1 kanal 19 marlas purchased by him. He was also found in possession of land measuring 1 marlas out of survey No. 320. Rest of 15 marlas of land which is in possession of Bashir Ahmad Mir was in survey No. 319. 6. In view of the aforesaid findings recorded by the Deputy Commissioner, Budgam, Tehsildar Budgam (Assistant Collector 1st Class) was directed to proceed under Section 95 of the Land Revenue Act to consider request of private respondents for possession and pass speaking order after hearing both the parties. It is this order of the Deputy Commissioner, Budgam, which is called in question by the petitioner. It may be noted that Bashir Ahmad Mir, who is similarly situated with the petitioner has chosen not to contest the proceedings. 7. The petitioner has assailed the impugned order primarily on two counts:- (i) That the order impugned passed by the Deputy Commissioner, Budgam runs counter and is contrary to the judgment of the Division Bench rendered in LPA No. 321/2019. (ii) That the impugned order is not sustainable even on merits, in that, the Deputy Commissioner, Budgam after returning a finding that the land claimed by the private respondents was not identifiable could not have directed the Tehsildar to proceed under Section 95 of the Land Revenue Act. (ii) That the impugned order is not sustainable even on merits, in that, the Deputy Commissioner, Budgam after returning a finding that the land claimed by the private respondents was not identifiable could not have directed the Tehsildar to proceed under Section 95 of the Land Revenue Act. (iii) That Section 95 of the Land Revenue Act is not attracted in the given facts and circumstances of the case, in that, dispossession of the private respondents, if any, from their land has taken place much prior to six months of passing of the order in terms of Section 94 of the Land Revenue Act. 8. Elaborating his submissions, Mr. R.A. Jan, learned Senior Counsel appearing for the petitioner submits that in terms of directions issued by the Division Bench in its judgment dated 22.06.2020, identification and demarcation of the land claimed by the private respondents was a condition precedent for invoking Section 95 of the Land Revenue Act. He argues that once the Deputy Commissioner, Budgam could not come to any definite conclusion with regard to identification of boundaries of the land claimed by the private respondents, it was not competent for him to direct the Assistant Collector 1st Class (Tehsildar, Budgam) to embark upon the proceedings under Section 95 of the Land Revenue Act. He, therefore, submits that the order having been issued in violation of the directions of the Division Bench is not sustainable in law. 9. Per contra, Mr. A.H. Naik, learned Senior Counsel appearing for the private respondents submits that this petition is not maintainable in view of the availability of alternate statutory remedy under the Land Revenue Act. He further submits that the petitioner has not come to this Court with clean hands, in that, the petitioner has suppressed the relevant information from this Court to the extent that against the impugned order, the petitioner filed WP(C) No. 510/2021 on 15th March, 2021, which when came up before the Court was dismissed as withdrawn with liberty to file fresh, if cause survived in terms of order dated 22.03.2021. The petitioner, thereafter, pursued his remedy against the impugned order before the Civil Court by filing a suit before the Additional District Judge, Budgam seeking a decree of declaration and injunction against the impugned order. The petitioner, thereafter, pursued his remedy against the impugned order before the Civil Court by filing a suit before the Additional District Judge, Budgam seeking a decree of declaration and injunction against the impugned order. The suit was opposed by the private respondents, who sought rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The application was allowed and the plaint filed by the petitioner was rejected. It is, thus, submitted that the petitioner having failed before the learned Single Bench as also before the Civil Court is debarred from filing the instant petition. 10. So far as official respondents are concerned, the stand taken in the reply affidavit filed by the Deputy Commissioner, Budgam is that in compliance to the directions of the Division Bench, the Deputy Commissioner vide his order dated 08.07.2020 constituted a demarcation team to demarcate and identify the disputed piece of land. The team after concluding its proceedings vide communication dated 23.07.2020 submitted its report delineating the disputed land on map duly superimposed on the google map. The team also reported that the area is built up and that the possession of land had been given to the petitioner in the shape of plots irrespective of survey numbers. The Deputy Commissioner, therefore, submitted that the exact boundaries of the land could not be ascertained in view of the absence of shajra kat with sale deed(s) but having regard to the report submitted by the demarcation team that the petitioner is in illegal possession of the land of the private respondents, he directed the Tehsildar to proceed under Section 95 of the Land Revenue Act. 11. Having heard learned counsel for the parties and perused the material on record, it is seen that the dispute between the petitioner and the private respondents with regard to land measuring 3 kanals falling in Survey No. 318 and 319, which private respondents claim to have purchased vide sale deeds dated 16.09.1993 and 06.10.1993 was put in spot by the Division Bench of this Court in judgment dated 22.06.2020 passed in LPA No. 321/2019. But since dispute was only with regard to identification of the land and, therefore, demarcation of the land was set out as a condition precedent for delivery of possession under Section 95 of the Land Revenue Act. But since dispute was only with regard to identification of the land and, therefore, demarcation of the land was set out as a condition precedent for delivery of possession under Section 95 of the Land Revenue Act. In compliance to the order dated 22.06.2020, Deputy Commissioner, Budgam constituted a demarcation team of revenue officers to identify and demarcate the land subject matter of two sale deeds dated 16.09.1993 and 09.10.1993. The demarcation team could not effectively identify and demarcate the exact location of the land due to non-availability of shajra kat prepared and made part of the sale deeds but the demarcation team did find that the petitioner was in possession of 13 marlas of land falling in Khasra No. 318 and 1 kanal 6 marlas in Khasra No. 319 whereas the petitioner had purchased two kanals of land (19 marlas out of survey No. 316 and 1 kanal 01 marlas out of survey No. 320). The petitioner, therefore, had not purchased any land in survey Nos. 318 and 319 and, therefore, his possession over 1 kanal 19 marlas, which was found by the demarcation team was not supported by any documentary evidence. 12. On the contrary, the private respondents have purchased 1 kanals and 10 marlas out of survey No. 318 and 1 kanal 10 marlas out of survey No. 319. True it is that on the basis of this material, it cannot be concluded as to whether the land in possession of the petitioner measuring 13 marlas out of survey No. 318 and 1 kanal 6 marlas out of survey No. 319 is actually the land purchased by the private respondents or is the land of somebody else but surely the land in possession of the petitioner falling in survey No. 318 and 2019 is not the land purchased by him. Similarly, Bashir Ahmad Mir, who has withdrawn from the contest and has chosen to accept the impugned order has purchased 1 kanal 19 marlas of land out of survey No. 318 and 01 marlas out of survey No. 320. The land of Bashir Ahmad Mir measuring 1 kanal 19 marlas is in survey No. 318 from where the private respondents have also purchased 1 kanal 10 marlas of land. The land of Bashir Ahmad Mir measuring 1 kanal 19 marlas is in survey No. 318 from where the private respondents have also purchased 1 kanal 10 marlas of land. There is, therefore, possibility of overlapping between the land of the private respondents falling in survey No. 318 and the land purchased by Bashir Ahmad Mir under survey No. 318. Sh. Bashir Ahmed Mir has not contested the impugned order, therefore, it is not necessary to look into that aspect but from the demarcation report and the order impugned, it is clear that the petitioner is in possession of land measuring 13 marlas out of survey No. 318 and 1 kanal 6 marlas out of survey No. 319, whereas he has not purchased any land from the said khasra numbers. The land, which the petitioner had purchased in the year 1999 is 19 marlas out of survey No. 316 and 1 kanal 1 marla from survey No. 320. To this extent the findings of the demarcation report, as taken note of by the Deputy Commissioner in the impugned order, cannot be found fault with. There may not be actual demarcation of the land of the private respondents by proper identification of the boundaries yet in the absence of any other rival claim, there is nothing wrong to presume that the land in possession of the petitioner is the land claimed by the private respondents. 13. On the issue of applicability of Section 95 of the Land Revenue Act, suffice it to say that under Section 95 of the Land Revenue Act, the Revenue Officer may direct that the party dispossessed be placed in possession provided the land is shown to be illegally encroached upon within a period of six months preceding the date of his order declaring illegal encroachment. For facility of reference, Sections 94 and 95 of the Land Revenue Act are reproduced hereunder:- “94. Power of Revenue officer to define boundaries.- (1) A Revenue Officer may, for the purpose of framing any record or making assessment under this Act or on the application of any person interested, define the limits of any estate, or of any holding, tenancy, field or other portion of an estate, and may, for the purpose of indicating those limits, require survey-marks to be erected or repaired. (2) In defining the limits of any land under sub-section (1), the Revenue Officer may cause survey-marks to be erected on any boundary already determined by, or by order of, any Court, or Revenue Officer, or restore any survey-mark already set up by, or by order of, any Court or any such officer. (3) The Revenue Officer to whom an application under this section may be made may depute another Revenue officer subordinate to him to take the necessary proceedings. 95. Power of Revenue officer in proceedings under section 94 to reinstate party dispossessed.- (1) In any proceeding under section 94 if it appears to the Revenue Officer that any of the parties to the proceedings has, within a period of six months preceding the date of his order illegally encroached upon any land adjacent to the boundary defined, and previously in the lawful possession of any of the other parties to the proceeding, he may by his order direct that the party dispossessed be placed in possession of such land: Provided that, no order under this section shall be passed by any officer below the rank of an Assistant Collector of the first class and if proceedings under section 94 are taken by an inferior officer he shall submit the case for orders to the Assistant Collector of the first class having jurisdiction. (2) The party dissatisfied with the order of the Revenue Officer passed under sub-section (1) may seek his remedy in the Civil Court and subject to the decision of the Civil Court such order shall be final.” 14. From a reading of Section 94, it is abundantly clear that revenue officer for the purposes of framing any record or making any assessment or on the application of any person interested, may define limits of any estate, or of any holding, tenancy etc. and may for the purpose of indicating those limits require survey marks to be erected or repaired (demarcation). 15. Section 95 gives power to the revenue officer not below the rank of Assistant Collector of the first class to reinstate the party found dispossessed under Section 94 but this power can be exercised by the competent authority only, if the person has been dispossessed of his land within a period of six months preceding the date of his order. 16. Be that as it may, Section 95, as it is, has to operate. 16. Be that as it may, Section 95, as it is, has to operate. The Deputy Commissioner has only passed an order in terms of Section 94 and has left it to the competent authority i.e. Assistant Collector of first class to initiate and proceed under Section 95 of the Land Revenue Act after providing opportunity of being heard to all the parties concerned. The petitioner is, therefore, well within his right to raise all objections with regard to applicability of Section 95 of the Land Revenue Act to the proceedings and it shall be the duty of the competent authority to deal with such objection, if any, raised by the petitioner. 17. I am not in agreement with Mr. Naik that there is suppression of material information from this Court and, therefore, the petitioner is not entitled to maintain this petition. It is true that WP(C) No. 510/2021 challenging the impugned order was dismissed as withdrawn but this Court while dismissing the petition has also given liberty to the petitioner to file fresh petition. The petitioner instead of filing fresh petition took a chance before the Civil Court and filed a suit. On the objection raised by the clients of Mr. Naik with regard to the jurisdiction of the Civil Court, the plaint of the petitioner was rejected by the Civil Court under Order-7 Rule 11 of the Code of Civil Procedure for want of jurisdiction. In these circumstances, neither dismissal of the earlier writ petition nor order of the Civil Court rejecting the plaint of the petitioner would operate as res judicata. The petitioner has also placed on record the relevant material and, therefore, there is no question of any suppression of any material fact. The objection raised by Mr. Naik is, thus, found not tenable and, therefore, rejected. 18. For the foregoing reasons, I find no illegality or infirmity in the order of the Deputy Commissioner, insofar as it pertains to the petitioner and the same is, accordingly, upheld leaving it open to the petitioner to raise all objections in the proceedings under Section 95 of the Land Revenue Act initiated by the Assistant Collector 1st Class, Tehsildar Budgam in terms of the directions contained in the impugned order. 19. With the aforesaid observations, this writ petition is disposed of.