AB AHAD BHAT Vs. STATE OF J&K
LAWS(J&K)-2006-5-44
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 03,2006

Ab Ahad Bhat Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) VIDE orders No. DCP -Sq/100 dated 02.05.1995, DCP -SQ -004 dated 31.05.1995, 278/ACP dated 11.08.1992,426/ACP dated 9.12.1991, 40/ACP dated 27.6.1991 and 260/ACP dated 3.8.1992 purporting to have been passed by concerned Assistant Commissioner, petitioners 1. 2, 3, 10 and 11 were given two kanals of khacharai land each, and petitioners 4 to 6 and 7 to 9, three kanals of each group, from Survey No. 1240 Min, in exchange of their proprietary land, regarding which the follow up mutations No. 2805,2806,2771,2772,2572/1,2908 and 2533 were attested by concerned Revenue Officials.
(2.) THE aforesaid exchange along with mutations reflective thereof were all overset by concerned Deputy Commissioner under order No. DCP -Sq/45 of 2003 dated 25.01.2003 without any notice to petitioners whatsoever, allegedly on the grounds that petitioners had not parted with their proprietary land claimed to have been given in exchange of aforesaid State land and that some of them offered land, kilometers away from the main village site and thus not suitable for grazing purposes. Besides cancellation of exchange, concerned Deputy Commissioner also ordered recovery of more than Rs. 2 Crores from petitioners as cost of earth excavated from aforesaid State land. This order has been challenged by petitioners herein before concerned Financial Commissioner through a revision petition which is stated to be pending till date, with however, the interim stay order earlier passed in petitioners favour, vacated albeit without hearing them.
(3.) AGGRIEVED thereby the petitioners seek to have both, the order of Deputy Commissioner as also that of Financial Commissioner quashed on the ground that after valid exchange as aforesaid they had duly become owners of the State land and as such the Deputy Commissioner was not competent to undo the same the way it has been done. In his reply as adopted by other respondents the concerned Deputy Commissioner has, among other things stated that the exchange relied upon by petitioners was ordered by Assistant Commissioner without competence and hence bad, particularly because the petitioners had not been in possession of the respective parcels of State land given to them in exchange wherefrom they excavated earth and sold the same against consideration of more than Rs.2 Crores, and thereby put the State exchequer to great loss. During course of their submissions counsel for rival sides have reiterated their respective pleadings with reference to annexures on record. I have heard learned counsel and considered the matter. Perusal of annexures reveals that mutations Nos. 2805, 2806, 2771, 2772,2572/1,2908 and 2533 have been attested in favour of petitioners regarding State land given to them in exchange of their proprietary land, to the extent of 22 kanals and 19 marlas. Vide order No. DCP -sq/45 of 2003 dated 25.01.2003 the concerned Deputy Commissioner while directing resumption of whole grazing land measuring 327 kanals under Survey No. 1240 Min, recorded as 'Mehfooz Khahcharai in village Calender of Tehsil Pampore revoked the orders of exchange purporting to have been made as aforesaid by concerned Assistant Commissioner and directed them to stop earth excavation there from etc. within 24 hours. The Deputy Commissioner also ordered recovery of Rs. 2,05,52,600/ -reportedly earned by them by sale of earth excavated there from, from petitioners, as arrears of land revenue. This order was impugned before Financial Commissioner through the medium of a revision petition which is reportedly still pending in that court wherein vide interim order dated 10.02.2003 operation of Deputy Commissioners order aforesaid was stayed that thereafter by another order dated 25.03.2003 the stay order was vacated and the concerned Settlement Officer directed to conduct an inquiry in the matter and submit a report. With that circumstantial backdrop arises the question of the vires of proceedings conducted throughout, with petitioners challenging Deputy Commissioners competence to pass the impugned order and respondents the power of concerned Assistant Commissioner to order the exchange as aforesaid.;


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