SHAFIQ AHMED Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) The petitioners in OWP No. 124/2018 have stated that the petitioner Nos. 1and 2 are owners in possession of the land measuring 2 kanals and 8 marlas comprising khasra No. 1156 (08 marlas) and khasra No. 1179 (2 kanals) situated at Village Rampur, District Rajouri, as they were conferred the ownership rights under the J&K State Land (Vesting of Ownership rights to the Occupants) Act, 2001 (for short the 'Roshni Act"), vide order dtd. 8/4/2008, pursuant to which the mutation was attested in favour of respondent Nos. 1 and 2. The petitioner Nos. 1 and 2 also claim to be the owners in possession of land measuring 1 kanal comprising khasra Nos. 1156 and 1179 situated at Village Rampur, District Rajouri also under the Roshni Act. The petitioner Nos. 1 and 2 further claim to be the owners in possession of 6 marlas of land comprising khasra No. 1158 and 1164 situated at Village Rampur, Rajouri. The petitioner Nos. 3 and 4 in turn claim to be the owners in possession of 15 marlas of land comprising khasra No. 1177 situated at Rampur, District Rajouri. It is urged by the petitioners that the respondents have wrongly and forcibly fenced the abovementioned land measuring 4 kanals and 9 marlas (2 kanals 8 marlas comprising khasra Nos. 1156 and 1179, 4 marlas comprising khasra No. 1158, 2 marlas comprising khasra No. 1164, 1 kanal comprising khasra No. 1156 and 1179 and 15 marlas comprising khasra No. 1177) situated at Village Rampur, District Rajouri and have sought the indulgence of this court for directing the respondents to allow the petitioners to enjoy the peaceful and uninterrupted possession of the aforesaid land being owners thereof

(2.) The respondents have filed their response stating therein that the land comprising khasra No. 1156 min (8 marlas) and khasra No. 1179 min (2 kanals), total measuring 2 kanals and 8 marlas situated at Rampur, District Rajouri is recorded as 'Ghair Mumkin Darya/Khol' in 'Missal-e-Haqiyat 1961-1962"(Record of rights, 1961-1962). The land in question was a part of enquiry initiated by the District Administration regarding illegal mutations/ownership rights obtained by some influential persons. In the case of the petitioners, the ownership rights were found to have been conferred in favour of the petitioner Nos. 1 and 2 (Shafiq Ahmed and Aftab Ahmed) under the Roshni Act and illegal mutation, bearing mutation No. 3125 dtd. 9/9/2009, has been found to be attested in their favour. In fact, the Roshni Act was not applicable to certain lands, which were recorded or used as pathway, grazing ground, graveyard, cremation ground, camping ground or khol (irrigation channel/canal). Therefore, the respondent No. 2 vide its order dtd. 22/11/2017, taking sue moto action, cancelled the mutation No. 3125 attested by the Tehsildar Rajouri in respect of land measuring 02 kanals and 8 marlas comprising khasra No. 1156 min and 1179 min. The order was issued as an outcome of enquiry after detailed verification and report by the Tehsildar, Rajouri followed by the recommendations of the Assistant Commissioner, Revenue, Rajouri following due process of law. It is also stated that the Chief Executive Officer, Municipal Committee, Rajouri vide its communication dtd. 29/12/2017 had placed an indent before the respondent No. 2 thereby requisitioning 10 kanals of land for construction of parking stand/lot. On receipt of aforesaid communication, answering respondent Nos. 2 to 4 in order to regulate the vehicular traffic tribulation and to get rid of the menace of traffic jam due to lack of parking facility in the District, undertook a project for establishment of parking lot at District Rajouri within the municipal limits. After identifying the suitable patch of land measuring 10 kanals 03 marlas and 08 sarsai comprising khasra Nos. 1154 (14 marlas), 1155 (14 marlas), 1156(11 marlas 6 sarsai), 1157 (08 marlas), 1158(03 marlas 08 sarsai), 1159 (03 marlas), 1160 (02 marlas 6 sarsai), 1161 (03 marlas), 1162 (01 marlas), 1177(01 marlas 3 sarsai) and 1179 (07 kanals 01 marlas 03 sarsai) situated at Village Rampur, Rajouri for aforesaid purpose, a notification was issued under Sec. 4(1) of the Land Acquisition Act, 1990 vide notice dtd. 1/1/2018 for calling objections in respect of the aforementioned land and was published in two daily news papers of the erstwhile State. As no objections were received in the office of answering respondents, the respondent No. 2 vide its communication dtd. 19/1/2018 requested the Divisional Commissioner, Jammu for getting the declaration issued under Sec. 6 and directive under Sec. 7 of the Land Acquisition Act for acquiring the land measuring 10 kanals and 03 marals and 8 sarsai situated at Village Rampur, District Rajouri from the Government for construction of parking lot by Urban Development Department. The Divisional Commissioner, Jammu vide its communication dtd. 15/2/2018 requested the Financial Commissioner (Revenue) Jammu for getting the declaration issued under Sec. 6 and 7 of the Land Acquisition Act for the above mentioned land from the competent authority. It is further submitted that the petitioners were at liberty to raise any objection before the answering respondents but in absence of any valid claim to make out their case, the petitioners instead of raising objections opted to approach the Court in a clear attempt to escape the likely legal action against them along with officials for wrongful mutation under the Roshni Act. It is also averred that khasra No. 1164 is not involved in the land acquisition proceedings and that the petitioners can claim compensation only for the proprietary land, if any, found involved in the acquisition.

(3.) While the writ petition OWP No. 124/2018 was pending before this Court, the petitioner Nos. 1 and 2 filed another writ petition bearing OWP No. 831/2018 for quashing of the order dtd. 22/11/2017 whereby taking suo moto action, mutation No. 3125 attested by the respondent No. 3 in respect of the land measuring 2 kanals 8 marlas comprising khasra No. 1156 (8 marals) and khasra No. 1179(02 kanals) situated at Village Rampur, District Rajouri was cancelled by the respondent No.2. It is urged by the petitioners that the order impugned dtd. 22/11/2017 has been issued by the respondent No. 2 without affording any opportunity of hearing to the petitioners. The respondent No 2 has filed the response and has reiterated the stand taken in the previous writ petition bearing OWP No. 831/2018 filed by the petitioners.