SABIR DAR Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) THIS petition was originally heard by one of us and the question debated before the single Judge was that Section 3 of the Jammu and Kashmir Common Land (Regulation) Act of 1956 (hereinafter to be referred to as 'The Act') was not applicable to the case in hand inasmuch as the land in dispute which is said to be the pathway and held in ownership rights of the petitioner cannot be said to be public or common land within the meaning of Section 3 of the Act and therefore is excluded from its operation. That Section, it is argued, applies only to the right of user in respect of public and common lands and not lands held in ownership rights even though it be assumed that such lands are used by the village folk of the locality. In support of the argument reliance was placed by the petitioner upon two decisions of this court reported as 1968 Kash LJ 15 and AIR 1971 J and K 117. The ratio of these authorities it was pointed out is that dominant intention of the legislature by enacting the legislation on common lands was to restrict its operation to public lands only and not to make it applicable to private lands. A contrary view was, however canvassed by the respondent that the subject matter of dispute between the parties did not come within the purview of Section 3 of the Act, inasmuch as the pathway was used as common pathway from times immemorial, and the same was established from the finding recorded by the Revenue Officers. In the course of arguments attention was invited to head-note of Section 3 and also to the words 'any path'..and 'right of user' occurring in the Section. It was argued that this case did fall within the ambit of Sections 3 and 4 of the Act.

(2.) ON a consideration of the matter it was found necessary to refer the matter to Full Bench for authoritative decision and also to examine the soundness of the view expressed in the aforesaid authorities of this court. This is how the case has come before the Full Bench.

(3.) AGGRIEVED by this order the petitioner filed an appeal before the Deputy Commissioner Anantnag who after holding spot inspection and after hearing the parties dismissed the appeal observing that the common pathway runs through Survey No. 74 upon which the petitioner has made encroachment by fencing it and by planting fruit trees. He further observed that there is no alternative way for the people of the village to use the same so as to reach their fields situate in another village. He affirmed the order of the Tehsildar, but gave an option to the petitioner to allow passage to the Zamindars from one side of his orchard instead of the middle. The petitioner, thereupon, moved the Divisional Commissioner who affirmed the order of the Revenue Officers below him. The petitioner has, now moved this Court in writ jurisdiction.