Inhabitants of village Kukroosa v. State of J. &K.
2023-08-03
JAVED IQBAL WANI
body2023
DigiLaw.ai
ORDER : The instant petitions raise issues which are akin and analogous to each other as such are being disposed of by this common judgment/order. OWP 2137/2015: 1. The petitioner herein claim to be chairman of Ziyaratgah Committee Bangandar, Khanpora and Jogandarbagh of village Kukroosa, Handwara having sought a writ of Certiorari for quashing of order dated 3.11.2015 passed by respondent 3 Deputy Commissioner, besides a writ of mandamus for commanding the respondents not to interfere with the peaceful possession of land measuring 36 kanal 11 marla covered under survey no. 1091 and 2092. Besides impleading the official respondents as party respondents 1 to 4 in the petition, inhabitants of village Kukroosa through Haji Mohammad Akbar Bhat are impleaded as a party respondent 5 in the petition. 2. The petitioner states that village Kukroosa comprise of various Mohallas namely Sheikh Mohalla, Kulli Kha Mohalla, Khan Mohalla, War Mohalla, Rather Mohalla, Jogendarbagh, Harkarpora and Khanpora. Mohalla Jogenderbagh, Harkarpora and Khanpora are stated to have their common graveyard in land covered under khasra no. 1091 and 1092 whereas the rest of the Mohallas are stated to have their separate graveyard in the land covered under survey no. 1040, 1041 and 1042. 3. It is being stated that the villagers of respondent 5 have constructed various residential houses in their own graveyard, as a result whereof they tried to encroach upon a vacant portion of land measuring 21 kanal being used by the petitioner villagers as a graveyard, which resulted into a dispute and same landed before a civil court wherein upon reference to National Lok Adalat, an award came to be passed on 14.3.2015 with the consent of the litigating parties providing therein that the appellants and respondents have settled that as per Muhafiz Khana record the Ahle Islam land at Kukroosa shall be demarcated and identified by Tehsildar Villagam in presence of the parties concerned and thereafter the parties shall arrange for fencing and preservation within three months from today and that the record of the Muhafiz Khana shall be obtained by the Tehsil office through proper channel and none of the parties shall have any objection in respect of the authenticity of that record and the action taken by the Tehsildar concerned pursuant to that record and that the Tehsildar concerned shall report action taken to the ADC Handwara in due course of time. 4.
4. It is being stated by the petitioner that the respondent 3 Additional Deputy Commissioner, Handwara, submitted a report to respondent 2 Deputy Commissioner Kupwara dated 4.9.2015 soliciting advice and guidance from respondent 2 for resolving the dispute between the villagers and that the respondent 3 consequently addressed a communication to respondent 3 dated 3.11.2015 being impugned in the instant petition calling upon him to implement the order of the Lok Adalat as per revenue record and in case anyone is found involved in creating any sort of law and order problem, he must be dealt with in accordance with law. 5. It is being inter alia urged in the grounds of challenge averred in the petition that the impugned order is contemptuous in nature and invasion on the rights of the petitioners qua the graveyard belonging to them. 6. Objections to the petition have been filed by the official as well as private respondents. 7. In the objections filed by the official respondents, it is being averred that in pursuance of the directions as contained in the Lok Adalat award the demarcation of the land covered under khasra no. 1040, 1041, 1042, 1092, 1091, 1231, 1046 was conducted in presence of the parties and as per the demarcation report land under khasra no. 1040, 1041, 1042 and 1044 was found as graveyard whereas Jamia Masjid, Darasgah and Jinazgah was found existing in khasra no. 1045 and 1046 and land under khasra no. 1231 was found to be Mahfooz Khahchari measuring 20 kanals, 3 marlas and 18 sirsai. 8. In the objections filed by respondent 5 it is being stated that the impugned order dated 3.11.2015 came to be issued by respondent 2 on the basis of the report of a committee and that the said order does not suffer from any illegality or infirmity and that the petitioner while maintaining the instant petition and having failed to obtain an interim order on 30.11.2015, on the very same date filed a revision petition before the Divisional Commissioner against order dated 3.11.2015 issued by respondent 2, which revision petition came to be disposed of on 8.2.2016 observing that the respondent 5 herein shall utilize land covered under survey no. 1231 for purposes of graveyard without interfering into the petitioners’ graveyard covered under survey no. 1092. OWP 334/2016 9.
1231 for purposes of graveyard without interfering into the petitioners’ graveyard covered under survey no. 1092. OWP 334/2016 9. The instant petition is filed by inhabitants of village Kukroosa being respondent 5 in OWP 2137/2015. In the instant petition, the petitioners have sought a writ of Certiorari for quashing of order dated 8.2.2016 supra passed by the Divisional Commissioner whereunder while disposing of revision petition filed by the writ petitioner of OWP 2137/2015 supra, it came to be provided by the Divisional Commissioner that the present petitioners shall utilize land covered under khasra no. 1231 being a Khahchari land for the purposes of graveyard without interfering with the graveyard of the writ petitioners of OWP 2137/2015 covered under khasra no. 1092. It is also being prayed by the writ petitioners that by issuance of a writ of mandamus the official respondents be directed to implement the report of Tehsildar respondent 5 herein dated 9.9.2014 and the consequential order of Deputy Commissioner respondent 3 herein dated 3.11.2015. 10. The facts stated in the instant petition, in view of the facts pleaded in the petition OWP 2137/2015 supra and noticed hereinabove, in order to avoid repetition and for the sake of brevity are not referred herein. Heard learned counsel for the parties and perused the record. 11. The appearing counsel for the parties while making their respective submissions produced a copy of order dated 4.5.2016 passed by the Divisional Commissioner, Kashmir, whereunder order dated 8.2.2016 impugned in OWP 334/2016 supra has been reviewed under Section 13 of the Land Revenue Act. The relevant extract of the order is referred hereunder: “Status quo ante as on 8.2.2016 shall be maintained by all the parties (petitioners as well as respondents) on spot and therefore additional land measuring 21 kanal, 01 marla under khasra no. 1231 situated at village Kukroosa recorded as Mahfooz Khahchari in revenue recods (Misili Haqiyat) RoR year 1959-60/Jamabandhi 1968-69 Girdawari year 2015 shall continue to be kept reserved for grazing purpose by entire village community of village Kukroosa, however both parties (petitioners as well as respondents) may utilize their respective graveyard as per past practice in vogue till verdict is delivered by the Hon’ble High Court of J&K”.
It has been further provided in the order supra by the Divisional Commissioner in the interim in order “to maintain peace/tranquility in the area, I deem it appropriate to refer the matter to Deputy Commissioner/District Magistrate, Kupwara, who shall resolve the matter amicably between the parties and maintain peace and public order. Superintendent of Police Handwara shall render all necessary support to District Magistrate Kupwara.” In view of aforesaid position, since order dated 8.2.2016 stands essentially recalled by the Divisional Commissioner, OWP 334/2016 has become infructuous to the said extent. 12. Reverting back to prayers made in OWP 2137/2015 supra and the rest of the prayers made in OWP 334/2016 supra, the petitioners of OWP 2137/2015 seek quashment of order dated 3.11.2015 issued by respondent Deputy Commissioner, whereas writ petitioners of OWP 334/2016 seek enforcement and implementation of said order dated 3.11.2015 issued by Deputy Commissioner. A bare perusal of order dated 3.11.2015 would reveal that the same pertains to the demarcation of land covered under khasra no. 1231 in village Kukroosa observing therein that the said patch of land belongs to the entire village and the inhabitants of the entire village are having equal rights over the said patch of land. As has been provided by the Divisional Commissioner in his review order dated 4.5.2016 supra, the land covered under survey no. 1231 measuring 21 kanal, 1 marla situated at village Kukroosa is recorded as Mahfooz Khahchari reserved for grazing purposes by entire village community of village Kukroosa. In this view of the matter the petitioners of both the petitions cannot said to be having any right recognized under law to use the said parcel of land as a graveyard more so in view of the law laid down by the Apex Court in case titled as “Jagpal Singh and others vs. State of Punjab and others reported in 2011 (11) SCC 396 ”. 13. The petitioners of both the petitions are bound by the award passed by the Lok Adalat dated 14.3.2015 and the consequent demarcation undertaken thereof by the official respondents. The respondent Deputy Commissioner in view of aforesaid facts and circumstances is bound to ensure that the aforesaid Kahchari land covered under khasra no.
13. The petitioners of both the petitions are bound by the award passed by the Lok Adalat dated 14.3.2015 and the consequent demarcation undertaken thereof by the official respondents. The respondent Deputy Commissioner in view of aforesaid facts and circumstances is bound to ensure that the aforesaid Kahchari land covered under khasra no. 1231 is not used and utilized by the either of the petitioners of the writ petitions supra as a graveyard and also has to ensure that the demarcation undertaken by the revenue authorities pursuant to the award of the Lok Adalat supra dated 14.3.2015 of the land being used as graveyard by the parties is being followed and adhered to by the parties peacefully without any kind of violation. 14. For what has been observed, analyzed and considered hereinabove, the petitions shall stand disposed of, and interim directions, if any, passed by this court earlier shall stand vacated.