Jammu & Kashmir High Court - Srinagar Bench
Molvi Khalid Abbas And Ors vs Ut Of Jk And Ors on 24 August, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
S. No.88
Suppl. List 1
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 1777/2022
CM. No. 4361/2022
Caveat No. 1342/2022
Molvi Khalid Abbas and Ors. ...Petitioner(s)
Through: Mr. Mohammad Amin Khan, Adv, with Mr. Peerzada, Adv.
Vs.
UT of JK and Ors.
Through: Mr. Gulzar Ahmad Bhat, Adv, with Ms. Sehar, Advocate, for
Caveator(s).
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
Caveat stands discharged.
01. Impugned in this petition is Order of the Financial Commissioner (Revenue), ["FC(R)"] dated 21st July, 2022, passed in a reference titled Taha Khursheed vs. Molvi Javid Ahmad and Anr.
02. Before adverting to the grounds of challenge urged by the learned counsel for the petitioners, to assail the impugned order, it is necessary to set out brief resume of the case. One, Gula Shah, an estate holder of village Bonagam Shopian, was owner in possession of land measuring 9 Kanals under Survey No. 179 ('subject land'), which on his death devolved on his four sons. The subject land is recorded as "Aabi Awal"
and has been partly developed into orchard (04 Kanals) by Molvi Abdul Hameed, the father of petitioner no. 4 and upon rest of 05 Kanals, there exist five residential houses. The respondent no. 7 has constructed a plinth on a portion of the said land. Alongside the boundary of Survey No. 179, runs Survey No. 10, which is recorded as "Rafie Aam" and shown as "Kuhl" in Qisim-i-Zameen column of Girdawari of Kharief 2021. It is alleged that the pathway connects the said survey number with the main road. The parties also claim that there has been a private partition between all the co-sharers and with the consensus of all a pathway with the additional pathway of 5 feet has been left out. It is 2 WP(C) No. 1777/2022 this additional width of 5 feet, which is alleged to have been encroached by the respondent no. 7.
03. The petitioners in the first instance agitated the matter before the Deputy Commissioner, Shopian, for restoration of the pathway to their land which at present is an orchard. The matter was assigned to the Assistant Commissioner, Revenue ('ACR') to resolve the issue under law. The ACR vide its Order dated 3rd June, 2020, issued under Section 133(1) of Jammu and Kashmir Land Revenue Act, Svt.1996 ('the Act'), directed the respondent no. 7 to remove the encroachment from the pathway. The order was assailed by the respondent no. 7 before this Court. The writ petition was allowed and impugned order passed by the ACR dated 3rd June, 2020 was set-aside. The matter was sent back to ACR, with a direction to decide the same afresh after hearing both the parties. The ACR heard the matter again and vide Order dated 2nd January, 2021, allowed the application of the petitioners herein and directed the respondent no. 7 to demolish the encroachment from the subject pathway with a warning not to repeat encroachment on common pathway in future. It is this order of the ACR, Shopian, which was assailed by way of revision petition before the Commissioner Survey and Land Records, J&K, Srinagar, ('Settlement Commissioner'). The revision petition was accepted and the Settlement Commissioner after having returned the finding that the subject land was situated within the township of Shopian and, therefore, the authorities under the Act had no jurisdiction to entertain the grievance and issue any orders. Accordingly, the revision petition of the respondent no. 7 was accepted, the order of ACR dated 2nd January, 2021 was recommended to be set- aside. The matter was referred to the FC(R) for further orders. The FC(R) concurred with the view of Settlement Commissioner and vide its Order dated 21st July, 2022, impugned in this petition, accepted the reference and set-aside the order of ACR, Shopian, dated 2nd January, 2021.
04. The petitioners feel aggrieved of the order passed by the FC(R) and are before this Court invoking its extraordinary writ jurisdiction to quash the same.
05. Having heard learned counsel for the parties and perused the material on record, it is necessary to first take note of certain admitted facts.3 WP(C) No. 1777/2022
Indisputably, the subject matter of litigation, a pathway, allegedly exists in front of the residential houses and orchard of the parties. The residential houses as also the land appurtenant thereto including the alleged pathway is within the municipal limits of Municipal Council, Shopian. This position is fairly not disputed by learned counsel for the petitioners. He, however, submits that Section 133(1) of the Act applies to the land whether it is within or outside the municipal limits.
06. Per-contra, learned counsel for the respondents submits that the issue has been thoroughly examined by the revenue Authorities and Settlement Commissioner as well as the FC(R) has concurrently held that the subject land is a site of building situated within the municipal limits of Shopian and not assessed to land revenue is, thus, not "land"
as defined under Section 3(2) of the Act.
07. In view of the rival contentions of the parties, the only issue that arises for determination in this writ petition is whether the term "land" as defined under Section 3 (2) of the Act would be land which is reserved as a site of building in a town or village abadi or is land appurtenant to such building or site and, therefore, outside the purview of Jammu and Kashmir Land Revenue Act, Svt,1996. The issue should not detain this court even for a while for the reasons that the same has been considered by this Court in case WP(C) No. 1355/2021 titled Renue Rattan vs. UT of JK and Ors. decided on 28th June, 2022. This Court, while referring to the provisions of Section 3 (2) of the Act, has firmly concluded that, if the land, with respect to which a dispute has arisen, is a residential site in a town or village, the jurisdiction of revenue Authorities under the Act is completely ousted and it is the civil court of competent jurisdiction that alone will have jurisdiction to deal with any dispute arising out of such land. To recapitulate Section 3(2) is reproduced hereunder:-
'Section 3(2): "land" means land which is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes the sites of buildings and other structures situated in such land and trees standing on such land, as well as areas covered by or fields floating over water, and sites of jandars and gharats but does not include the sites of any building in a town or village abadi or any land appurtenant to such building or sites;4 WP(C) No. 1777/2022
08. From the plain reading of the definition of the land, it clearly transpires that the term "land" as used in the Land Revenue Act and defined under Section 3(2) does not include the sites of any building in a town or village abadi or any land appurtenant to such land or sites. The definition of land further indicates that "land" would mean that the "land", which is occupied and has been let for agricultural purposes or purposes subservient to agriculture or for pasture and would also include the sites of buildings and other structures situated in such land and trees standing on such land etc.
09. Viewed from any angle, the land, which falls within the municipal limits of a Municipal Corporation, Municipal Council or Municipal Committee is completely excluded from the purview of Land Revenue Act. Section 133 (1) of the Act, which was invoked by ACR, Shopian also refers to "land" which has been reserved for common purposes of co-sharers. The terms "land" wherever used in Land Revenue Act would necessarily mean the "land" as defined under Section 3 (2) of the Act unless the same has been separately defined in a different manner. For exercising jurisdiction under Section 133 by the revenue officer, it has to be ascertained in the first instance as to whether the land with regard to which a dispute has arisen between the co-sharers is a land as defined under the Land Revenue Act or not. Unless the land with respect to which a dispute has arisen between the co-sharers is a land as defined under Section 3(2) of the Act, the revenue officer will have no jurisdiction and the parties ought to be relegated to the civil court of competent jurisdiction.
10. The Settlement Commissioner has also referred to Section 4 of the Act, which excludes certain lands from the operation of the Act. As is evident from Section 4, the land which is occupied as a site of a town or village and is not assessed to land revenue is excluded from the operation of various provisions of the Act. For the facility of reference, Section 4 is reproduced as under: -
"4. Exclusion of certain land from operation of the Act, (1) Except so far as may be necessary for the record, recovery and administration of village cesses, nothing in this Act applies to land which is occupied as the site of a town or village and is not assessed to land revenue.
(2) An assistant Collector of the first class may define for the purposes of this Act, the limits of any such land."5 WP(C) No. 1777/2022
11. From the conjoined reading of Section 3 and 4 reproduced above along with Section 139, there is no escape from the conclusion that the land which is situated within the municipal limits of Municipal Corporation, Municipal Council or Municipal Committee or the land which is a site of building in a town or village abadi or any land appurtenant to such building or site, is not the land, to which, the provisions of the Act apply. The revenue officer and other Authorities under the Land Revenue Act, therefore, lack jurisdiction to decide the rights arising out of such land.
12. For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed.
(SANJEEV KUMAR) JUDGE SRINAGAR 24.08.2022 "Shamim Dar"
Whether the order is reportable? Yes/No Whether the order is speaking? Yes/No