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Jammu & Kashmir High Court - Srinagar Bench

Tahira Bano vs State Of J&K; And Others on 27 December, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

       HIGH COURT OF JAMMU AND KASHMIR
                  AT SRINAGAR

OWP No. 635/2008
MP No. 1300/2008

                                                      Date of Order: 27.12.2017
                                      TahiraBano
                                          Vs.
                               State of J&K and Others
Coram:
             Hon'ble Mr Justice Sanjay Kumar Gupta, Judge.
Appearance:

For petitioner(s):   Mr. A. Andrabi, Advocate
For respondent(s):    Mr. M. A. Wani, Sr. AAG.

i/     Whether to be reported in                 Yes/No
       Press/Media?
ii/    Whether to be reported in                 Yes/No
       Digest/Journal?

1. The case of the petitioner is that she purchased land measuring 4 Kanals through the execution of a registered sale deed attested on 12.08.1981, bearing Khasra No. 165/2345m under Khewat No. 210/234 village Rawalpora in the year 1981. The land stands mutated in revenue records in favour of the petitioner vide Mutation order No. 2451 Divisional Commissioner Kashmir issued order of cancellation of various mutations in thearea on the reports that State land has been changed into proprietary land through the connivance of unscrupulous revenue officials. However, the mutation of the petitioner shown in intact and was not cancelled. Later on Financial Commissioner (Revenue) J&K confirms the orders of Divisional Commissioner. Notices issued to some land owners by AC(R) to producetheir title deeds.

2. However, newspapers reports about the evil intentions of the Revenue officials and their mods operadii and suspected that the excuse of loss of Akselatha was a deliberate mischief of the Revenue Officials. The new demarcation was not satisfactory. It was urged that the scandal should be investigated by honest people some revenue officials were arrested by the Crime branch of Police. The plight of 200 families having suffered due to land scam was highlighted. A detailed report was compiled by the revenue department about the illegal occupants. The petitioner's land does not fall under it. In the meanwhile, the Hon'ble High Court ordered protection in favour of a similarly circumstanced land owner in a petition titled Maqbool Hussain Vs State. In the year 2001 "The J&K State Lands (Vesting of Ownership to the Occupants) Act 2001" was assented by the governor and came into force from this date. Amendments in the Act came into force in the year 2004 ad in the year 2007 "the J&K State Lands (Vesting of Ownership to theOccupants) Rules, 2007" came into force. Recently the Government has regularized the occupation of the illegal occupants through the issuance of G.O No. 155-Rev/NG/2008 dated 23.05.2008. The petitioner's land does not fall under this and his possession and title remains intact. An extract of Jamabandi was issued in his favour showing his possession and title as intact and clear. He approached the concerned revenue authorities including the AC(R) for demarcation under Section 94 of L.R Act. The matter referred to Tehsildar(s) who in turn refers to Girdawar and concerned patwari. But the Patwari declines to identify the land on the pretext that the map (LathaAksi is not clear). Petitioner obtains ma from DLP office. No action taken. Suspects malafide and apprehends mischief on the part of the Revenue Officials and land brokers. Seeks indulgence at this stage.

3. Petitioner has confined his relief as follows:-

"Mandamus commanding the respondents not to alter the existing position in records in respect of the land bearing Khasra No. 154/2345 m under Khewat No. 210/234 village Rawalpora".

"Mandamus directing the respondents to identify, demarcate and protect the land owned and possessed by petitioner in terms of the provisions of Section 94, 95 and 96 of the Land Revenue Act, rules and circulars applicable thereto and submit a compliance report in the matter within a period of one month".

"Mandamus directing the respondents to produce the record pertaining to transfer/ regularization of land in favour of illegal occupants in terms of the provisions of "The J&K Vesting of ownership Right to the Occupants Act 2001".

"Mandamus commanding the respondents to produce all the record and material pertaining to the status of the inquiries initiated against the unscrupulous officials and list of all such officials who have been found involved in the scam."

4. Counsel for respondents have filed objections stating therein that, in fact, the petitioner approached the answering respondent through the medium of an application/ representation for demarcation of land situated at Village Rawalpora, Srinagar. Accordingly, the matter was referred to the concerned Tehsildar for doing the needful. As per revenue records submitted by the subordinate filed agency, the petitioner had purchased land measuring four (4) kanals under Survey No. 2345/165 from one MahrajKrishen by way of Sale Deed executed on 14.08.1981. But the petitioner on spot is not in possession of any land and it is impossible to trace out the land of petitioner, as the Akas-Latha of said village is not available. As such the process of demarcation of petitioner's land could not be continued. It is further submitted that AksiLathaTarmeemiAwal is available, same indicates land measuring 200 kanalsunder Survey No. OWP No. 635/2008 Page 3 of 7 1013 and 960 is available on spot, which may include petitioner's land also out of these two hundred kanals of land.

5. This petition has yet to be admitted. I have considered the arguments of learned counsel for the petitioner and respondents for admission of writ petition.

6. Learned counsel for the petitioner has argued that during the pendency of the writ petition, he has challenged the mutation no 4685 of Estate Rawalpora before the Divisional Commissioner, Kashmir. The Divisional Commissioner, Kashmir has stayed the impugned mutation vide order dated 17.8.2011. He has argued that during the pendency of this writ petition, Crime Branch filed a status report, which vindicated, the stands of petitioner.

7. I have given my thoughtful consideration to whole aspects of matter. The status report of crime branch reads as under:-

On 12.11.2011TahiraBano approached before Crime Branch, Kashmirwith acomplaint duly endorsed by chief judicial magistrate Srinagar. The complainant inter-allia alleges that she had purchased a piece ofland measuring 04 kanals under Khasra No. 165/2545 min, Khewat No. 210/234 at village Rawalpora in the year 1981. Subsequently the said land was muted in her favour in the concerned revenue records by mutation order No. 2451. The possession of the said land remained with her undisturbed since its purchase. The complainant being an old lady and because of the death of her husband is not in a position to look after her estates effectively. The complainant approached the concerned revenue authorities for proper demarcation of her land situated at Rawalpora. The concerned patwari initially declined to demarcate the, land on the pretext that the map aksi-i-Latha is not clear. After persuasion the OWP No. 635/2008 Page 4 of 7 complaint obtained the map from Director Land (Revenue) Records. The complainant further stated that she was surprised to know the transfer of her land by virtue of a fake and fraudulent gift deed purportedly executed in the year 1994 in favour of Sh. Wali Mohammad Sheikh. The above named Wali Mohammad Sheikh had a furtherance of a criminal conspiracy with the revenue officials of manipulated a gift deed and mutated the land in his favour. The said Wali Mohammad Sheikh has subsequently sold the land to a third party in-lieu of hand-some amount etc. Consequent to the receipt of the complaint Crime Branch Kashmir with the approval of Inspector General Of Police Crime J&K initiated a PV. During the course of enquiry Crime Branch Kashmir seized Parat-i-Sarkar of mutation No. 4585 from Tehsil Office Budgam. In the initial stage the finger prints of the complainant lady namely TahiraBano W/o Gh. Mohi-ud-din Malik R/o Rainawari Srinagar were obtained in presence of Executive Magistrate 1st Class Srinagar by finger print expert and the same alongwith the questioned finger impressions on the parat-i-sarkar under mutation No. 4585 were sent to FSL Srinagar for expert opinion. The expert in his opinion opined that the finger prints of the complainant does not match with the questioned documents i.e. parat-i-sarkar under mutation No. 4585. It is amply clear from the expert opinion that some other persons in league with revenue officials have impersonated and forged the finger prints on the questioned documents and have thereby made a false entry in revenue records.

The status report filed by AAG B.A.Dar dated 8/12/2016 would reveal that challan against revenue officer and one beneficiary OWP No. 635/2008 Page 5 of 7 WaliMohd. U/s 420/468/471/120-B r/w 5(2) P.C Act, has been produced before Special Judge Anti-corruption Srinagar after conclusion of investigation.

Further demarcation of land in dispute has also been conducted in terms of order of this court by Tehsildar Chanpura; the report in this regard has been produced on 18/12/2017; this report reveals that petitioner was owner of land measuring 1 k 17m in kh.no 2297 and 4k under kh.no. 2451 total 5 k 17 m, situated at village Rawalpura Tehsil Chanpora Srinagar. These land was purchased by virtue of sale deeds by the petitioner. As per report this land has been alienated by petitioner to WaliMohd. (4k ) by virtue of Gift deed and 10 m to Khalid Ajaz and 1k7m to Altaf Hussain by virtue of sale deeds . The mutations have also been attested in their favor. It has also been stated that a big chunk of land of KAHACHRIA existsadjacent to kh.no.165 and a lot of miscreants/ land mafia are eyeing to grab the said land.

Whereas, petitioner has disputed that she has alienated the lands, in question by any modes. In the facts and circumstances of case as discussed above,it is evident that petitioner has raised seriousdisputed questions of facts, which cannot be adjudicated in this writ petition; there require appreciation of facts after collecting the evidence documentary and orally. This court in writ jurisdiction cannot cancel gift deed or sale deeds; it is only civil court who can declare it cancelled as per law. Similarly in writ jurisdiction this court cannot cancel mutations, it is only appropriate authority who has been vested with such power. This court in the writ jurisdiction cannot collect evidence and appreciate for coming to conclusion as to whether petitioner is in physical possession of land under dispute or not. Further already Divisional Commissioner Srinagar and special Judge Anti-corruption Srinagar, have seized of matter. Law is OWP No. 635/2008 Page 6 of 7 clear that a writ petition involving serious disputed questions of facts which require consideration of evidence which is not on record, will not be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account it may not appropriately be tried in a writ petition, the High Court may decline to try a petition.

This petition is thus dismissed at this stage. Petitioner is at liberty to avail all other legal remedy available to him under law.

(Sanjay Kumar Gupta) Judge Srinagar December 27, 2017 "ISHAQ"