Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yousuf Hurrah And Ors vs Ut Of J&K And Ors on 13 September, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
S. No. 6
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 865/2022
Mohammad Yousuf Hurrah and Ors. ...Appellant/Petitioner(s)
Through: Mr. M. A. Wani, Advocate with
Mr. Z. A. Wani, Advocate
Vs.
UT of J&K and Ors. ...Respondent(s)
Through: Mr. Allau-ud-Din Ganaie, AAG
Mr. Syed Faisal Qadiri, Sr. Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
13.09.2023
1. Through the medium of this petition, the petitioners are seeking quashment of order dated 10.02.2022, issued by respondent no.2-Joint Financial Commissioner (Rev.) in a case bearing File No.814/J.FC/AP titled as Mohammad Yousuf Hurrah v. State and Ors and Notice bearing No.The/Bla/OQ/136 dated 16.04.2022, issued by Assistant Collector 1st Class (Tehsildar), Baramulla. They also seek a writ of prohibition, prohibiting official respondents from dispossessing the petitioners from the land comprising of Survey No.2249 (1 Kanal 1 Marla) situated in Village Dewari Bagh Tehsil Baramulla.
2. Briefly stated, facts giving rise to filing of this petition are that Ab.
Rahman Hurra and others have filed an appeal against the order dated 02.07.2005, passed by Assistant Commissioner, Revenue, Baramulla, on an application filed by Gh. Nabi Wasil, whereby Tehsildar Baramulla, was directed to conduct demarcation of the land falling under Survey no.2249, situated at Ushakora (Rangwar). The said 2 WP(C) No. 865/2022 appeal was disposed of vide order dated 31.10.2013, and the case was remanded to Tehsildar, Baramulla, along with copy of the order dated 02.02.2005 with a direction to make the demarcation of the said land and get the pathway evicted if encroached by the appellants/ petitioners and as was existing in the relevant records under Common Lands Act. In compliance to the said order, Tehsildar Baramulla, conducted demarcation and observed that the record of verification shows that no pathway existed in the relevant records and that reference of Common Lands Act made by Deputy Commissioner requires to be reviewed as the land in question fell within the municipal limits of Baramulla and the Common Lands Act did not apply to the land situated within the municipal limits. It is further stated by Tehsildar in his communication/report dated 24.11.2015 that proceedings for eviction of said Kahcharia land under Section 133 Land Revenue Act had been initiated.
3. The petitioner initially did not challenge the order dated 31.10.2013 passed by Deputy Commissioner, Baramulla. Ordinarily, petitioner ought not to have been felt aggrieved of the said order as there was no finding with regard to existing pathway as claimed by respondents. The petitioner, however, challenged the order passed by Deputy Commissioner, Baramulla as well as report of the Tehsildar Baramulla, in an appeal before Joint Commissioner (Rev) J&K. The only observation in the report submitted by Tehsildar to Deputy Commissioner was that he has initiated action with regard to illegal occupants on Kahcharie land under Section 133. The petitioner has himself challenged those orders before Joint Financial Commissioner 3 WP(C) No. 865/2022 (Rev.) J&K, which was dismissed. While dismissing the appeal, it was observed by Joint Financial Commissioner (Rev.) J&K, that subject land was recorded as Shamilat land and petitioner was illegal occupant thereof and the administrative machinery in the field were well within their power to remove any such illegal occupant, after giving a show cause notice and a brief hearing under due process of law as directed by the Apex Court in Civil Appeal No. 1132/2011 @ SLP(C) No. 3109/2011 titled, Jagpal Singh & Ors v. State of Punjab and Ors. dated 28.01.2011. This observation of Joint Financial Commissioner has been invited by petitioner himself by challenging the orders which were not in any way against him. The only observation made is that the proceedings have been initiated under Section 133 against the illegal occupants of Kahcharie Land. In pursuance of order of the Joint Financial Commissioner, the Tehsidar has issued notice whereby petitioner has been asked to remove illegal occupation from the Kahcharie land within one week otherwise proceedings in accordance with law would be initiated.
4. Petitioner is aggrieved of the notice dated 16.04.2022, which has been issued in pursuance of order dated 10.02.2022 passed by Joint Financial Commissioner.
5. In terms of order dated 10.02.2022, on the basis of which notice dated 16.04.2022 has been issued, provide that before illegal occupation is removed, a show cause notice as well as brief hearing is required to be given to the petitioner.
6. Notice impugned, issued to the petitioner, does not show any prior notice was given to the petitioner for a brief hearing, which was 4 WP(C) No. 865/2022 required to be afforded to him under and in terms of the order dated 10.02.022 passed by Joint Financial Commissioner. Even otherwise, in case any order is passed under the provisions of Section 133 of Land Revenue Act for removal of illegal occupants from Kahcharie Land, the petitioner, or for that matter any occupant thereof, has a remedy under the provisions of Land Revenue Act, which he could avail.
7. Tehsildar Baramulla, before issuing a notice for removal of occupant, has to comply with the direction of Joint Financial Commissioner, i.e. Tehsildar has to issue show cause notice and brief hearing to the petitioner before proceeding to evict him from the illegal occupation. This part is required to be followed by Tehsildar.
Therefore notice dated 16.04.2022, issued by Tehsildar Baramulla is required to be quashed and the same is, accordingly quashed. However, Tehsildar Baramulla is at liberty to proceed in compliance with the order passed by Joint Financial Commissioner, Revenue, for removing illegal occupants. Before taking such steps, he shall give liberty of being heard to the petitioner and pass appropriate orders strictly in accordance with law. In the event petitioner is aggrieved of order passed by Tehsilder Baramulla, he shall be at liberty to take recourse of such a legal remedy as may be available to him under law.
8. Disposed of.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 13.09.2023 Manzoor