VEDYA LAL Vs. DY COMMISSIONER

JUDGEMENT

(1.) AGGRIEVED by an order passed by Tehsildar, Kishtwar, the petitioner herein preferred an appeal before the respondent No. 1, who vide his order impugned in the writ petition dismissed the same and directed the Tehsilder Kishtwar to proceed on spot and take action under law against all the delinquents. The brief facts noted by the respondent No. 1 in his order impugned in the writ petition are that Mohd Rammen and other respondents Zamindars filed an application before Tehsildar Kishtwar alloging that Vedya Lal appellant had closed their common path which was used by them from ancient times. A prayer was made to the Tehsildar for restoration of the path under the provisions of common Lands Act. The Tehsildar depnted the Naib Tehsildar to go on spot and submit a report after making an inquiry. After the receipt of the report of Naib - Tehsildar, the respondent . No. 2 ordered the restoration of the patn measuring 2 marlas which was held to have been closed by the petitioner. The order of the Tehsildar was challenged on the ground that he had passed the order in slip -shed manner without allowins the petitioner any change of being heard or filling of objections. The Tehsildar was not competent to send the Naib Tehsildar, on spot for inquiry in view on the directions given in SRO 16 datadl4th Jan. 1970 and that the petitioner and his fore -fathers were in continuous possession of the land in dispute from times immemorial. It was further urged that land being Abadd -Deh was outside the provisions of common Land Act.

(2.) IN the writ petition filed in -this court it has been submitted that the order impugned was without jurisdiction in view of the provisions of the Jammu and Kashmir Village Panchayat Act as according to the petitioner the proprietory control and management of public roads, eanes, thorough -fares, passages etc., falling within the area of the Panchayat vests in the Panchayats and dispute pertaining to their could be settled only under the provisions of Village Panchayat Act. It is contended on behalf of the petitioner that J&K Village Panchayat Act being a latter enactment over rides the provisions of the Jammu and Kashmir Common Land (Regulation) Act, 1956 by virtue of S. 3 of the Village Panchayat Act. It is submitted that common Land Act. lost its weight in regard to and in its application to the area which came within the peripheral limited of the Panchayat Act. Elaborating the point raised in the writ petition it has been submitted that the provisions of Common Land Act cannot be attracted in regard to a matter of encroachment, obstruction or any other violation concerning a public road, lane, or thorough -fare in a village abadil but the same would be determined under the provisions of the village Panchayat Act alone. Respondents 1 and 2 are, therefore, alleged to have exercised the powers without jurisdiction.

(3.) IN the objections filed on behalf of the respondents 1 and 2 it is admitted that the Jammu and Kashmir Village Panchayat Act is a latter enactment as compared to the Jammu and Kashmir Common Land Act. But it submitted that both the Acts deal with different properties and situation and as there was no conflict or inconsistency between the two, the order passed was legal, valid and according to law. It is further submitted that as the Panchayat did not exercise the powers, the question of inconsistency or conflict would not arise.