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2024 DIGILAW 139 (JK)

Jagjit Singh v. Union Territory of J&K

2024-03-22

JAVED IQBAL WANI

body2024
ORDER : 1. The issues involved in the instant petitions are analogous and akin to each other as such, are disposed of by this common judgment. 2. The petitioners, in the writ petition-WP(C) No. 2546/2021, have prayed for the following reliefs: (i) “Order, Writ or direction most precisely in the nature of certiorari for quashing the order passed by respondent No. 2 dated 09.07.2021 to the extent of the land of the petitioners falling under khasra No. 135 (02 Kanal 19 marlas), khasra No. 139 (01 kanals 17 marlas), khasra No. 140 (02 kanal 12 marlas), khasra No. 172 (01 kanal 12 marlas) (total 10 kanals) and khasra No. 139 (02 kanal 01 marla), khasra No. 143 (03 kanals 11 marlas), Khasra No. 113 (02 kanals 08 marlas), khasra No. 129 (08 kanal 01 marlas) (total 16 kanals and 01 marlas) situated at Chak Phagwari, Tehsil at present Pargwal (earlier Akhnoor), District Jammu directing the Tehsildar Pargwal to keep the same on spurdari may kindly be issued in favour of the petitioners and against the respondents. (ii) Further writ of prohibition directing the Tehsildar Pargwal proceeding in any manner qua the land stated supra on the instance of private respondent against the petitioners. AND in the writ petition-WP(C) No. 1456/2022, have prayed for the following reliefs: i) “Order, Writ or direction most precisely in the nature of certiorari for quashing the order passed by respondent No. 2 dated 09.07.2021 to the extent of the land of the petitioners falling under khasra No. 200 measuring 7 kanal 4 marlas, khasra No. 95 measuring 2 kanal 13 marlas khasra No. 96, 1 kanal 19 marlas, khasra No. 144, 4 kanal 1 marla, khasra No. 114 land measuring 4 kanal 18 marlas khasra no. 70 land measuring 19 marlas, khasra No. 74 land measuring 4 kanal 11 marlas, khasra No. 92, 1 kanal and khasra No. 94 land measuring 2 kanals 13 marlas situated at Chak Phagwari, Tehsil at present Pargwal (earlier Akhnoor), District Jammu directing the Tehsildar Pargwal to keep the same on spurdari may kindly be issued in favour of the petitioners and against the respondents. (ii) Further writ of prohibition directing the Tehsildar Pargwal proceeding in any manner qua the land stated supra on the instance of private respondent against the petitioners. 3. (ii) Further writ of prohibition directing the Tehsildar Pargwal proceeding in any manner qua the land stated supra on the instance of private respondent against the petitioners. 3. The petitioners, in both the petitions, have questioned order dated 09.07.2021 (for short, ‘the impugned order’) passed by the Deputy Commissioner- Jammu-respondent 2 herein on the premise that their predecessor-in-interest S. Harnam Singh had been in cultivating possession of the land covered under khasra No. 135 measuring 02 Kanal 19 marlas, khasra No. 139 measuring 01 kanal 17 marlas, khasra No. 140 measuring 03 kanal 12 marlas, khasra No. 172 measuring 01 kanal 12 marlas (total 10 kanals) and khasra No. 139 measuring 02 kanal 01 marla, khasra No. 143 measuring 03 kanals 11 marlas, Khasra No. 113 measuring 02 kanals 08 marlas, khasra No. 128 measuring 08 kanal 01 marlas (total 16 kanals and 01 marlas) situated at Chak Phagwari, Tehsil at present Pargwal (earlier Akhnoor), District Jammu. 4. It is being stated that mutation No. 39 under Section 4 of the Agrarian Reforms Act, 1976 dated 16.03.1981, mutation No. 57 dated 23.09.1989 and mutation No. 59 dated 28.09.1989 both under Section 8 of the Agrarian Reforms Act, 1976 came to be attested in favour of said S. Harnam Singh, aggrieved whereof the private respondent 4 herein assailed the said mutations in an appeal before the Joint Agrarian Reforms Commissioner, Jammu wherein the said mutations came to be set aside in terms of order dated 02.11.2016 whereafter the petitioners herein preferred a revision petition before the Jammu and Kashmir Special Tribunal, Jammu, which came to be disposed of in terms of order dated 11.12.2013 directing holding of a denovo enquiry by the Tehsildar Pargwal-respondent 3 herein in presence of the interested parties, Village body and passing of an appropriate order. 5. It is being next stated that after the remand order passed by the Tribunal dated 11.12.2013, the Tehsildar, Pargwal-respondent 3 herein in presence of the parties conducted an enquiry and confirmed the mutations No. 39 under Section 4 and Mutation Nos. 57 and 59 under Section 8 of the Agrarian Reforms Act, 1976 vide his order dated 29.12.2015 in favour of the petitioners. 6. 57 and 59 under Section 8 of the Agrarian Reforms Act, 1976 vide his order dated 29.12.2015 in favour of the petitioners. 6. It is being next stated that the Tehsildar, Pargwal-respondent 3 herein while attesting the aforesaid mutations, however, left out the land in khasra No. 135 measuring 02 kanal 19 marlas, khasra No. 139 measuring 01 kanal 17 marlas, Khasra No. 140 measuring 03 kanal 12 marlas, khasra No. 172 measuring 01 kanal 12 marlas (total 10 kanas) on the premise that the same is under the possession of the Indian Army, aggrieved whereof the petitioners preferred an appeal before the Additional Deputy Commissioner, Jammu, which is pending. 7. It is being next stated that respondent 4 herein filed an application before the Deputy Commissioner, Jammu-respondent 2 herein, who passed the impugned order thereon providing therein that the land in respect of which the mutations have had been attested in favour of the petitioners on 29.12.2015 besides the other land shall be kept under the spurdari with an independent person till further orders by the Tehsildar, Pargwal-respondent 3 herein and also cause the produce of the land to be divided among the co-sharers after deducting the expenses; providing further therein in the order that the Tehsildar, Pargwal herein shall start fresh proceedings for partition of the land among the co-sharers after due consideration to the report dated 11.03.2020 furnished by the Committee constituted in this regard. 8. The petitioners, in both the petitions, have questioned the impugned order, inter alia, on the ground that the same has been passed without issuing any notice to them and without affording them an opportunity of hearing. 9. Objections to the petitions have been filed by the official respondents as well as respondent 4 herein. 10. The official respondents, in their objections filed to the petitions, have stated that the impugned order does not suffer from any illegality or infirmity and on account of the threat of hanging himself by respondent 4 herein, the Deputy Commissioner, Jammu-respondent 3 herein had no option but to keep the land on spurdari in terms of the impugned order. 11. The official respondents, in their objections filed to the petitions, have stated that the impugned order does not suffer from any illegality or infirmity and on account of the threat of hanging himself by respondent 4 herein, the Deputy Commissioner, Jammu-respondent 3 herein had no option but to keep the land on spurdari in terms of the impugned order. 11. In the objections filed by respondent 4 herein, it is being stated that the land in question in fact stands partitioned in terms of partition proceedings initiated on 06.12.2018 by Assistant Collector Ist Class, Pargwal upon a motion laid by him on 26.10.2018, which partition, however, did not result into delivery of possession of the land falling to his share. Heard learned counsel for the parties and perused the record. 12. The moot question involved in both the petitions by the petitioners pertains to the passing of the impugned order dated 09.07.2021 allegedly without issuing any notice to them and without affording them an opportunity of hearing. 13. A bare perusal of the impugned order ex facie reveals that there is a substance in the said contentions raised by the petitioners herein. Law is settled that a judicial, quasi judicial or a statutory authority while passing any order adverse to the rights and interests of a person has to issue a notice to the said person and afford him an opportunity of hearing before passing an order adversely affecting his rights and interests. 14. Having noticed the aforesaid violation of the basic fundamental principles of natural justice, the impugned order is rendered legally unsustainable. Accordingly, both the petitions succeed as a consequence whereof, the impugned order dated 09.07.2021 is set aside. 15. Disposed of along with connected applications.