Jammu & Kashmir High Court
Subash Chander And Others vs State Of J&K And Others on 27 December, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 08
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 295/2011
IA Nos. 380/2011, 01/2018
& 02/2018
Subash Chander and others ......Petitioner(s)
Through :- Mr. Anuj Dewan Raina, Advocate
Mr. Mazher Ali Khan, Advocate
v/s
State of J&K and others ......Respondent (s)
Through :- Mr. S.S Nanda, Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
::: : ORDER
1. In this petition, the petitioners have prayed for the following reliefs:-
(i) Mandamus:- to command and direct the respondents not to interfere in the allotment, possession, occupation and cultivation of the petitioners over the land measuring 14 kanals and 15 marlas falling under Khasra No. 78-min situated at Village Rampur Rajouri.
(ii) Certiorari quashing communication No. MCR/2010-
11/551-54 dated 09-03-2011 issued by the respondent No. 6 and order No. SQ/2486-90 dated 09-03-2011, issued by the respondent No. 2, whereby despite the active knowledge of the status quo orders passed by the Hon'ble Court on 09-03-2011, the respondent No. 2 directed the respondent No. 4 to 7 to demolish the workshop existing on the land of the petitioner No. 2 on 10-03-2011.
(iii) Writ in the nature of Mandamus commanding the respondents to restore back the land of the petitioner No. 2 and also pay the compensation to the petitioner No. 2 in lieu of the damage caused by the respondents by 2 OWP No. 295/2011 demolishing the workshop existing on the land of the petitioner No. 2.
(iv) Prohibition restraining the respondents not to interfere in any manner whatsoever in the land of the petitioner No. 2.
(v) Certiorari:- to set aside and quash any order/orders passed by the respondent No. 2 and 3 cancelling the allotment of the petitioners at the back of the petitioners without providing any opportunity of hearing.
2. The short grievance projected by the petitioners in this petition is that they are owners in possession of the land measuring 14 kanals 15 marlas comprising in Khasra No. 78 min, which was allotted in favour of Sh. Nathu Ram, late father of petitioner Nos. 1 to 3. They claim that the respondents, on the complaint of one Sh. K.K Langar, have been unnecessarily and without any authority of law, interfering with the peaceful possession of the petitioners over the said land. Apprehending that the respondents may have cancel the allotment, the instant petition was filed by the petitioners.
3. The respondents have filed their objections and fairly conceded that so far as the land measuring 14 kanals 15 marlas falling in Khasra No. 78 min claimed by the petitioners is concerned, the same was allotted in favour of one Nathu Ram, S/O Isher Dass in exchange for the land belonging to the said Nathu Ram falling in Khasra No. 21 of the same village. It is also not disputed that the petitioner Nos. 1 to 3 are the sons of Late Nathu Ram. The respondents, however, have stated that in the garb of allotment of the aforesaid land, the petitioners have been found encroaching upon the land in their vicinity. It is submitted that it is true that on the basis of complaint received from one Sh. K.K Langar in the Chief Minister's Grievance Cell, the revenue field staff conducted a verification on spot and found that the 3 OWP No. 295/2011 petitioners had encroached upon Kahcharai land, which was not part of the land allotted in their favour. The aforesaid encroachment was removed.
4. In view of the pleadings of the parties, I do not see any serious dispute between the parties which needs determination in this petition.
5. Admittedly, the petitioner Nos. 1 to 3 are in possession of the land measuring 14 kanals 15 marlas, which was allotted in favour of their late father in exchange for his proprietary land. There is proper mutation also attested by the concerned revenue officer. The respondents have also fairly conceded that the petitioner No. 4 too is owner in possession of 07 marlas of land out of the land, which was mutated in favour of one Sh. Amar Nath, S/O Isher Dass under Government order No. 254/C.
6. In view of the admitted position, I see no reason or justification for anybody including the respondents to interfere in the peaceful possession of the land owned and possessed by the petitioners. However, I am in agreement with the stand of the official respondents that in the garb of the aforesaid allotment of the land, the petitioners cannot be permitted to encroach upon the land reserved as Kahcharai land and that they are well within their rights to remove the encroachment as and when it is found on spot.
7. Keeping in view the totality of circumstances and the admitted position, this petition is disposed of by providing that the respondents shall not interfere or cause any interference with the land of the petitioner Nos. 1 to 3 measuring 14 kanasl 15 marlas comprising in Khasra No. 78 min, which the petitioners have inherited from their late father namely Sh. Nathu Ram, who was allotted the said land by the respondents. Similarly, the official respondents shall forbear from interfering or causing any interference in the land measuring 07 marlas owned and possessed by petitioner No. 4. The 4 OWP No. 295/2011 petitioners, if intend to use that land for raising construction or erecting a boundary wall, may do so subject to the permission to be granted by the concerned Municipal Authorities.
8. The official respondents, however, shall be free to remove the encroachment of the land, if any, made by the petitioners beyond the land owned and possessed by them.
9. Learned counsel for the petitioners submits that during the pendency of this writ petition, some standing trees were cut and construction, which was existing on the land allotted to the petitioners, was demolished by respondents and, therefore, he be given liberty to sue the respondents for the loss caused to the petitioners. Needless to say that the aforesaid issue is not subject matter of adjudication in this petition and the petitioners are free to work out their remedy as may be available to them under law.
10. The writ petition is, accordingly, disposed of.
(Sanjeev Kumar) Judge Jammu 27.12.2019 Tarun Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No TARUN KUMAR GUPTA 2019.12.28 17:13 I attest to the accuracy and integrity of this document