MOHD AKRAM BHAT Vs. STATE

JUDGEMENT

(1.) VIDE order No. DCP -SQ/Sett/E -44/03/59 -60 dated: 15.05.2003 passed by Assistant Commissioner (revenue), Pulwama the petitioners were given two kanals of state land in village Charsoo Tehsil Tral situated in survey No. 377/min in exchange against their proprietary land whereafter the order was cancelled by concerned Collector/Dy. Commissioner alongwith other such orders passed by the said Asstt. Commissioner. While observing that the exchange in question alongwith other such cases had been made by Astt. Commissioner without competence and in violation of norms/rules governing the matters, particularly because Tehsil's of Tral and Pampore in Pulwama District were under settlement operation during which no such exchange could be ordered, the said Dy. Commissioner passed the order No. DEP.EQ/E -44/03/508 -13 dated: 15.7.2003 canceling all exchanges including Addl. Dy. Commissioner, for conducting inquiry into the matter.

(2.) AGGRIEVED thereby the petitioners have instituted this writ petition for having the same quashed on the ground that the cancellation orders were passed by concerned Dy. Commissioner without inquiry whatsoever and was voilative of the powers of Assistant Commissioner concerned who was fully competent to order such exchanges, particularly because petitioners were not given a hearing before passing of the cancellation order etc.

(3.) IN their reply the respondents have among other things pleaded that the petitioners had encroached upon a patch of Kacharai land measuring 2 kanals and 5 marlas under survey No. 568/min of village Charsoo -Tral and only thereafter applied to Tehsildar Tral for exchange offering their properity land of 2 kanals and 5 marlas under survey No. 337/min on whose report the concerned Asstt. Commissioner ordered the exchange under section 26 of the J & K Agrarian Reforms Act, (hereinafter to be referred to as "the Act") without having jurisdiction for the same due to which the exchange was ab -initio invalid and could not have been ordered as such. During course of threshold submissions the petitioners counsel, besides reiterating the contents of the petition also contended that the petitioner has already constructed a house in the Kacharai land which they got in exchange and their eviction theefrom would result in irreparable loss to them while as respondents counsel relying upon his memo of objections has argued that the exchange being ab -initio illegal cannot confer any benefit upon the petitioners etc.