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2023 DIGILAW 275 (JK)

Abdul Ahad Reshi v. UT Of J. & K.

2023-07-14

SANJAY DHAR

body2023
ORDER : 1. The petitioner has challenged order dated 21st January 2021 issued by respondent No.4, whereby a penalty to the tune of Rs. 25,000/- with a further penalty of Rs. 5,000/- each day w.e.f. 1st August, 2021, till the contravention is removed, has been imposed upon the petitioner. The petitioner has also sought a Writ of Mandamus to direct the respondents to consider his application for exchange of his proprietary land against land measuring 242 sqft. of kahcharai land comprised in Khasra No.62 situated Saidpora Bala Srinagar. A further direction restraining the respondents from demolishing the structure raised by the petitioner on his aforesaid land has also been sought. 2. Briefly stated, the case of the petitioner is that he is in possession of land measuring 9 ½ marlas falling under Khasra No.62-min in estate Saidpora Tehsil Khas District Srinagar. It has been submitted that after obtaining requisite permission, the petitioner raised construction of shops over the said land. It has been further submitted that the petitioner had moved an application before the respondents on 19th of June 2021, seeking exchange of his proprietary land to the extent of 242 sqft. which the respondents allege has been encroached upon by the petitioner. It has been submitted that the application of the petitioner under Section 133 (2) of Land Revenue Act for exchange of proprietary land against 242 sqft. of kahcharai land is pending consideration before the respondents but the impugned order has been issued directing the petitioner to remove the encroachment and he has also been asked to pay the penalty in terms of the impugned order. 3. It has been contended that without deciding the application of the petitioner for exchange of proprietary land against the allegedly encroached portion of the kahcharai land, the impugned order could not have been issued. It has also been submitted that the portion of allegedly encroached land has not been properly demarcated and without undertaking a proper demarcation, the impugned order could not have been issued against the petitioner which according to him is arbitrary in nature. It has further been contended that the impugned order and the notice are without jurisdiction and that the same have been issued without application of mind on the basis of anonymous complaint. 4. The respondents have contested the writ petition by filing on a reply thereto. It has further been contended that the impugned order and the notice are without jurisdiction and that the same have been issued without application of mind on the basis of anonymous complaint. 4. The respondents have contested the writ petition by filing on a reply thereto. In their reply, it has been submitted that after proper verification and demarcation, it has been found that 242 sqft. of kahcharai land of Village Saidpora under survey No.64 has been encroached upon. It has been submitted that a proper notice was issued to the petitioner in terms of notice bearing No. TNS/OQ/1493-97/21 dated 20th August 2021 and the same has been served upon the petitioner. 5. I have heard learned counsel for the parties and perused the record of the case. 6. It has been contended by learned counsel for the petitioner that the impugned notice is without jurisdiction as the same has not been issued by a competent authority. The learned counsel has also contended that no proper demarcation of the land belonging to the petitioner has been conducted by the respondents before issuing the impugned order and that without deciding the application of the petitioner for exchange of proprietary land with the allegedly encroached kahcharai land in terms of provisions under Section 133 of the Land Revenue Act, the impugned order could not have been issued. 7. So far as the first contention of the petitioner is concerned, the impugned order has been passed by Tehsildar North, Srinagar. As per the provisions contained in newly inserted Section 133(4-b) of the Jammu and Kashmir Land Revenue Act, any person who contravenes the provisions of sub-section (1)(2) and (3) of Section 133 of the Act, is punishable by the Settlement Officer or any officer not below the rank of an Assistant Collector with fine. 8. The case of the respondents is that the petitioner has raised construction on a portion of Kahcharai land. Sub-section (2)(b), as amended vide S.O.3808(E) dated 26.10.2020, provides that right of a common land does not confer right of encroachment upon the said land. Thus, according to the respondents, there has been contravention of provisions contained in Section 133 of the Land Revenue Act on the part by the petitioner and as, such, he is liable to be penalized in terms of Section 133(4b) of the Land Revenue Act. Thus, according to the respondents, there has been contravention of provisions contained in Section 133 of the Land Revenue Act on the part by the petitioner and as, such, he is liable to be penalized in terms of Section 133(4b) of the Land Revenue Act. The power to impose penalty under the said provision vests with a Settlement Officer or Assistant Collector. Section 6 of the Land Revenue Act, which defines the classes of Revenue Officers, provides that a Tehsildar shall be an Assistant Collector of the 1st Class. Since the impugned order has been passed by Tehsildar North, who is also an Assistant Collector 1st class in terms of Section 6(2) of the Land Revenue Act, as such, the impugned order which has been issued under Section 133 of the Land Revenue Act, has been passed by a competent authority. The argument of the learned counsel for the petitioner in this regard is without any merit. 9. That takes us to the contention of learned counsel for the petitioner that the land under the occupation of the petitioner has not been properly demarcated by the respondents, as such, the impugned order could not have been passed. 10. The petitioner has placed on record a copy of Jamabandi which shows that he is owner in possession of only 9 marlas of land under Khasra No.62 of Village Saidpora and according to his own pleadings, the petitioner has occupied land measuring 9½ marlas meaning thereby he has encroached upon half a marla of land. In fact, in Annexure-IV to the writ petition, which is an application of the petitioner addressed to Deputy Commissioner Srinagar, the petitioner has clearly admitted that he has encroached upon 242 sqft. of kahcharai land. In view of this admission of the petitioner, there was no need to undertake any fresh demarcation for ascertaining as to whether he has encroached upon any kahcharai land. 11. The respondents have passed the impugned order after serving notice dated 15th of July 2021 upon the petitioner, as is clear from the recitals of the impugned order and the service of notice has not been denied by the petitioner. Therefore, before passing impugned order, the respondents have adhered to principles of natural justice. 12. 11. The respondents have passed the impugned order after serving notice dated 15th of July 2021 upon the petitioner, as is clear from the recitals of the impugned order and the service of notice has not been denied by the petitioner. Therefore, before passing impugned order, the respondents have adhered to principles of natural justice. 12. Lastly, it has been urged by learned counsel for the petitioner that the petitioner’s application for exchange of proprietary land against the allegedly encroached portion of kahcharai land was still pending with the respondents and without deciding the said application, the impugned order could not have been passed. 13. The claim of the petitioner with regard to exchange of his proprietary land against the kahcharai land rests on the provisions contained in Section 133(2) of the Land Revenue Act, which was existing prior to its amendment effected vide S.O.3808(E) dated 26.10.2020. As per the earlier provision, before removing encroachment on a kahcharai land, the occupier had to be given a notice in writing affording him an opportunity, inter alia, to offer an equivalent suitable area in exchange from out of his proprietary land. As per the said provision, the Collector was the competent authority to accept or reject the offer made for exchange of land. 14. As per the said provision, the Collector was the competent authority to accept or reject the offer made for exchange of land. 14. Sub-section (2) of Section 133 of the Land Revenue Act, on the basis of which petitioner has projected his claim regarding offer of proprietary land in exchange of kahcharai land, has been substituted by an entirely new provision, which reads as under: “(2) Prevention of encroachments on or cultivation of common land, or land reserved for public purposes or of which cultivation has been prohibited or is objectionable, or, by person, not entitled to, bring it under cultivation.–– (a) Subject to any law, agreement, custom, usage or any decree or order of any Court or other authority, for the time being in force, every person shall exercise the right of user in respect of any road, street, lane, path, Water Channel, Water Course and Water Source and other common land defined as such in any law or declared as such by the Government or the Board; (b) The right of user permitted by clause (a) shall not be deemed to include or otherwise confer, create or assign any right of encroachment, whether by means of construction, including fencing, walling or putting any barrier or by breaking up of land, diversion or otherwise.” 15. From a perusal of the aforesaid provision, it is clear that the exchange of proprietary land for encroached kahcharai land is not permissible now and the Deputy Commissioner concerned has no power to accept any such offer. In the absence of any legal or statutory framework for considering the offer of the petitioner, it is not open to this Court to issue a direction upon the respondents to accept the offer of the petitioner nor was it possible for the respondents to accept the offer of the petitioner. The contention of the petitioner is, therefore, without any merit. 16. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. Interim direction, if any, shall cease to be in operation. 17. Parties to bear their own costs.