CHAGGAR SINGH AND ORS. Vs. STATE OF J&K AND ORS.
LAWS(J&K)-2020-7-6
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 07,2020

Chaggar Singh And Ors. Appellant
VERSUS
State of JAndK And Ors. Respondents


Referred Judgements :-

HIMMAT SINGH V. STATE OF HARYANA [REFERRED TO]
FOOD CORPORATION OF INDIA V. HARMESH CHAND [REFERRED TO]
STATE OF ORISSA VS. MADAN GOPAL RUNGLA [REFERRED TO]
SOHAN LAL VS. UNION OF INDIA [REFERRED TO]
BOKARO AND RAMGUR LIMITED VS. STATE OF BIHAR [REFERRED TO]
STATE OF ORISSA VS. RAM CHANDRA DEV:MOHAN PRASAD SINGH DEO [REFERRED TO]
JOSEPH POTHEN VS. STATE OF KERALA [REFERRED TO]
GUNWANT KAUR VS. MUNICIPAL COMMITTEE BHATINDA [REFERRED TO]
ARYA VYASA SABHA VS. COMMISSIONER OF HINDU CHARITABLE AND RELIGIOUS INSTITUTIONS AND ENDOWMENTS HYDERABAD [REFERRED TO]
D L F HOUSING CONSTRUCTION PRIVATE LIMITED VS. DELHI MUNICIPAL CORPN [REFERRED TO]
NEW SATGRAM ENGINEERING WORKS UNION OF INDIA VS. UNION OF INDIA [REFERRED TO]
STATE OF RAJASTHAN VS. BHAWANI SINGH [REFERRED TO]
UNION OF INDIA VS. BATA INDIA LIMITED [REFERRED TO]
STATE OF GOA VS. LEUKOPLAST INDIA LIMITED [REFERRED TO]
STATE BANK OF INDIA VS. STATE BANK OF INDIA CANTEEN EMPLOYEES UNION [REFERRED TO]
CHAIRMAN GRID CORPORATION OF ORISSA LIMITED GRIDCO VS. SUKAMANI DAS [REFERRED TO]
STATE OF U.P. V. CHEMTREAT CHEMICAL [REFERRED TO]
STEEL AUTHORITY OF INDIA LIMITED VS. NATIONAL UNION WATER FRONT WORKERS [REFERRED TO]
ROURKELA SHRAMIK SANGH VS. STEEL AUTHORITY OF INDIA LIMITED [REFERRED TO]
S VS. TIMUDU ORAM [REFERRED TO]
S VS. TIMUDU ORAM [REFERRED TO]
HIMMAT SINGH VS. STATE OF HARYANA [REFERRED TO]
P R MURLIDHARAN VS. SWAMI DHARAMANDA THEERTH PADAR [REFERRED TO]
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VS. KENDRIYA KARAMCHARI SAHKARI GRIH NIRMAN SAMITI [REFERRED TO]
BIHARI RAI VS. STATE OF BIHAR [REFERRED TO]
MAHESH CHANDRA GUPTA VS. UNION OF INDIA [REFERRED TO]
PADMAVATHI CONSTRUCTIONS VS. A P INDUSTRIAL INFRASTRUCTURE CORPORATION LIMITED [REFERRED TO]
ROSHINA T VS. ABDUL AZEEZ K.T. & ORS. [REFERRED TO]


JUDGEMENT

- (1.)Petitioners seek a direction to respondents not to interfere in their possession over the land measuring 20 Kanals 10 Marlas falling under Khasra no.21 situated in Village Chak Riju Tehsil and District Kathua. Petitioners also seek a direction to respondents to grant proprietary rights in their favour vis-a-vis aforesaid land in accordance with Ellan no.17 dated 27 Badhon 1984 (BK).
(2.)The case set up by petitioners in writ petition on hand is that predecessors-in-interest of petitioners, namely, Khuslu, Maigu and Phatu had been granted rights as occupancy-tenants in the State land prior to coming into force of J&K Tenancy Act Svt. 1980, falling under Khasra nos.10, 22, 13, 12, 21, 23 and 23/1, situated at Village Chak Riju Tehsil and District Kathua. The occupancy-tenants were holding the aforesaid rights as co-sharers and there was no partition of land. Petitioners 1&2 as well as Late Jarnail Singh were three brothers as successors-in-interest of occupancy tenant-Khuslu and insofar petitioner no.3 is concerned, he is also successor-in-interest of Late Khuslu being son of Late brother of petitioners 1&2, namely, Late Jarnail Singh and that petitioner no.4 is also successor-in-interest of Khuslu and petitioner no.5 is successor-in-interest of Phatu and petitioners 6&7 are successors-in-interest of occupant tenant-Maigu. It is maintained by petitioners that after settlement operations in the year 1979-1980 (BK) [1923-24] i.e., new settlement operations, Khasra numbers of the land, in which predecessors-in-interest of petitioners had been awarded the occupancy tenancy rights were changed to different numbers. The predecessors-in-interest of petitioners had been granted occupancy rights by the Maharajas, i.e. the Ruler of the State prior to coming into force of J&K Tenancy Act Svt. 1980, and therefore, they were Grade-A Class-I occupancy tenants and the rights of occupancy tenants were duly protected and inheritable as per the law of Succession in terms of Section 67 of J&K Tenancy Act Svt. 1980. It is also averred by petitioners that in the year 1973 (BK) when a canal was to be constructed and land was required for construction of Canal by Irrigation Department of J&K, the occupancy rights of predecessors-in-interest of petitioners were cancelled to the extent of 20 Kanals 10 Marlas of land by the then Tehsildar Kathua vide Mutation No.32 dated 17 Kartik 1973 (BK). It is further stated that even total land measuring 21 Kanals 15 Marlas, whereabout occupancy tenancy rights were cancelled, the land measuring 20 Kanals 10 Malas was belonging to their predecessors- in-interest and rest of land measuring 01 Kanal 05 Marlas belonged to a different occupancy tenant. Petitioners claim that although their predecessors-in-interest had been granted occupancy rights, yet cancellation of occupancy rights was subject to payment of compensation to them by Revenue Department. However, no such compensation was ever paid and, in the interregnum, Canal was constructed in the land in question. It is also mentioned in writ petition that when in the year 1979-80(BK) settlement operations were conducted in the erstwhile State of Jammu and Kashmir about 42 Kanals 03 Marlas of land, which had purportedly been acquired for construction of Canal, was shown as State land under occupation of Irrigation Department and it was reflected as if same had been purchased, but no such purchase had taken place nor the land had been acquired by paying compensation to occupancy tenants. Petitioners state that in the year 1955 a new Canal was constructed and old location was abandoned by the State and therefore occupancy tenants who had been deprived of their rights subject to payment of compensation and who had not been paid compensation, again got in possession of their land in the year 1955 itself and that predecessors- in-interest of petitioners were occupants of the land after the land was abandoned by Irrigation Department and so has been shown in revenue records. Nevertheless, petitioners, as claimed by them in writ petition on hand, are being harassed by respondents, forcing them to move instant writ petition.
(3.)Objections have been filed by respondents 1 to 3. They insist that petitioners cannot claim proprietary rights over subject-matter of land under Ailan 17 dated 27 Badhoon 1984 BK inasmuch as the said Ailan does not cover their case at all. Another objection raised by respondents 1 to 3 is that disputed questions have been raised in writ petition which cannot be gone into through writ proceedings. It is also insisted by respondents that as per the record annexed with writ petition, land under Survey no.21 measuring 42 Kanals 03 Marlas is recorded as State land in ownership column and in cultivation column, Department of Irrigation/ Canal is recorded as in cultivating possession upto the extent of 13 Kanals 01 Marla. Respondents claim that revenue entry seems to have been manipulated somewhere in the year 1995, so as to show petitioners as unauthorized occupants in respect of small pieces of land and that even petitioners are not in actual and physical possession of Land falling under Survey no.21. Respondents maintain that unauthorized occupation cannot denude the State to assert its title over the land and utilize it in accordance with law. The land measuring 03 Kanals in Survey no.21 is stated to have been allotted to Drug and Food Control Organization for construction of Modern Drug and Food Laboratory and that possession of land being vacant on spot, was delivered to the Department concerned on 26th September 2019. It is averred that petitioners have no locus to file writ petition and seek proprietary rights in the State land. Respondents contend that cancellation of rights was never subject to any compensation and petitioners cannot seek compensation of the land as the persons, whose occupancy rights were cancelled 70 years ago, never agitated the issue for long 70 years. Respondents vehemently claim that petitioners are not in possession of the land as the same when allotted to Drug and Food Control Organisation was vacant on spot and possession thereof was delivered to the said Organsation, which fenced it, but same was damaged by petitioner, which was followed by a communication no.ADC/K/220199-20/579 dated 22nd August 2019 to Incharge Police Post Hatli Morh, Kathua, as a result whereof FIR has been lodged by competent authority. It is asserted that neither provisions of Section 133 of Land Revenue Act apply to instant case nor provisions of Ailan no.17 and similarly provisions of Big Landed State Abolition Act or J&K Agrarian Reforms Act do not apply to the instant case.
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