MOHD AKRAM BHAT Vs. STATE
HIGH COURT OF JAMMU AND KASHMIR
Mohd Akram Bhat
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(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
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