MOHAMMAD YOUSUF KOKA Vs. STATE OF JK

JUDGEMENT

(1.) The pith and core of the petition of the petitioners herein this petition is that their father was an estate holder of village Imam Sahab Kadgam. He was in possession of the land measuring 4 kanals and 17 marlas bearing Survey No. 142 situated in the same village. The kind of the soil of this land was recorded as "Shamilat" on prorate basis. The respondents at the back of the father of the petitioners managed to change the kind of the soil of the land in the Revenue entries to that of "Mehfooz Kahcharai". This action of the respondents was resisted and challenged by their father and ultimately the matter was settled amicably. In terms of the settlement the father of the petitioners offered in exchange his proprietary land in lieu of the occupation of the aforesaid land. However, the respondent No.6 with an evil motive and in order to divest and deprive the petitioners from the aforesaid land filed an application in the year 2007 for the allotment of the said land for the establishment of a Sumo Stand.

(2.) The respondent No. 4 on the representation of the petitioners rejected the claim of the respondent No.6. Respondent No.6 yet again in the year 2012 filed an application on the same set of facts as pleaded in the year 2007. Respondent No.4 without going through the text and the contents of the record relating to the land allotted a patch of land measuring one kanal to the respondent No.6 out of survey No. 142 which constrained the petitioners to approach the respondent No.3. The respondent No.3 acknowledged the claim of the petitioners by passing an order in their favour. However, the said order was set aside by this Court on the ground that the respondent No.6 has not been given an opportunity of being heard.

(3.) In furtherance of the said order of the High Court, the Divisional Commissioner, Kashmir, was in law obliged to ascertain whether the kind of soil in question is "Mehfooz Kahcharai" or "Shamilat". However, to the dismay of the petitioners the respondent No.3 without making a proper enquiry viz-a-viz the nature of the land passed an order which is bad in law and is impugned herein this petition.