MOHD AKRAM BHAT Vs. STATE
LAWS(J&K)-2006-3-29
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 08,2006

Mohd Akram Bhat Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) VIDE order No. DCP -SQ/Sett/E -44/03/59 -60 dated: 15.05.2003 passed by Assistant Commissioner (revenue), Pulwama the petitioners were given two kanals of state land in village Charsoo Tehsil Tral situated in survey No. 377/min in exchange against their proprietary land whereafter the order was cancelled by concerned Collector/Dy. Commissioner alongwith other such orders passed by the said Asstt. Commissioner. While observing that the exchange in question alongwith other such cases had been made by Astt. Commissioner without competence and in violation of norms/rules governing the matters, particularly because Tehsil's of Tral and Pampore in Pulwama District were under settlement operation during which no such exchange could be ordered, the said Dy. Commissioner passed the order No. DEP.EQ/E -44/03/508 -13 dated: 15.7.2003 canceling all exchanges including Addl. Dy. Commissioner, for conducting inquiry into the matter.
(2.) AGGRIEVED thereby the petitioners have instituted this writ petition for having the same quashed on the ground that the cancellation orders were passed by concerned Dy. Commissioner without inquiry whatsoever and was voilative of the powers of Assistant Commissioner concerned who was fully competent to order such exchanges, particularly because petitioners were not given a hearing before passing of the cancellation order etc.
(3.) IN their reply the respondents have among other things pleaded that the petitioners had encroached upon a patch of Kacharai land measuring 2 kanals and 5 marlas under survey No. 568/min of village Charsoo -Tral and only thereafter applied to Tehsildar Tral for exchange offering their properity land of 2 kanals and 5 marlas under survey No. 337/min on whose report the concerned Asstt. Commissioner ordered the exchange under section 26 of the J & K Agrarian Reforms Act, (hereinafter to be referred to as "the Act") without having jurisdiction for the same due to which the exchange was ab -initio invalid and could not have been ordered as such. During course of threshold submissions the petitioners counsel, besides reiterating the contents of the petition also contended that the petitioner has already constructed a house in the Kacharai land which they got in exchange and their eviction theefrom would result in irreparable loss to them while as respondents counsel relying upon his memo of objections has argued that the exchange being ab -initio illegal cannot confer any benefit upon the petitioners etc. I have heard learned counsel and considered the matter. The question of encroachment on state land and land reserved for grazing purposes and the option to give the same in exchange to the propriety land of encroachers has been dealt with under section 26 of the Act which provides that where a person has unauthorized raised an orchard or plantation of trees on state land or land reserved for grazing purposes, the Collector shall by notice direct such person either to give in exchange for such land equal area held by him as owner or to abandon the possession of State land and as a result of his failure t do so such orchard or plantation etc. would be attached by Collector after hearing the concerned person. The only exception provided relates to unauthorized occupants of State land/land reserved for grazing purposes, not exceeding two kanals in area, who do not hold any other land or dwelling house etc. Instantly, however since the petitioner claims to have given the propriety land in exchange, he cannot take recourse to the aforementioned exception which covers only landless people/people without dwelling houses. Under the aforesaid Section Collector has expressly been mentioned and that too only in cases where state land unauthorisedly occupied has been developed into a plantation or orchard. Instantly however the petitioner claims to have constructed residential house on the land which makes it quite debatable as to whether the matter would be covered by section 26 of the Act at all. However, the power of exchange having been expressly vested in Collector and not in Assistant Commissioner concerned was perhaps not competent as he would not be deemed to be Collector for purposes of the Act. It may however be appropriate to notice that the Agrarian Act does not define the expression "Collector", but at the same time provides that any term/phrase not defined thereunder will have the meaning given thereto under the Land Revenue Act and Tenancy Act etc. Now so far as the Land Revenue Act is concerned, the classes of Revenue Officers have been defined under sec. 6, according to sub -sec. (2) whereof the Dy. Commissioner of the District shall be the Collector thereof and the Assistant Commissioner, an Assistant Collector. Thus "Collector" under Agrarian Act would mean the Dy. Commissioner and competence of Assistant Collector for ordering the exchange as claimed by petitioner does not appear to be substantiated, rendering his claim and consequential benefits baseless.;


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