Jammu and Kashmir High Court
OWP No. 468/2013, CMP Nos. 1121 and 749/2013 (19 Feb, 2015)
Bansi Lal Bhat, J.:--
1. The petitioners have filed this writ petition in representative capacity for and on behalf of inhabitants of Village Chinner seeking writ of mandamus to command the respondents to keep intact and maintain Kahcharai land situate at Mouza Chinner, Tehsil Kangan, District Ganderbal, and restrain any person, body or organization from usurping and using the said land for any other purpose, with a further prayer to direct the official respondents to demolish and remove all kinds of structures/constructions raised thereon. The case set up by the petitioners is that land measuring 158 Kanals and 17 marlas comprising in Khasra No. 548/378 and land measuring 99 Kanals comprising in Khasra No. 415/379 situated at Mouza Chinner, Tehsil Kangan, District Ganderbal, having been exclusively reserved for grazing purposes, is being used by the inhabitants of village Chinner for the said purpose. The land is said to be recorded as Mehfooz Kahcharai in revenue records. It is further averred that the inhabitants of Village Chinner have been in possession, occupation and enjoyment of aforesaid land since times immemorial, the land being in the form of water channel irrigating the village Chinner and adjoining areas. The State functionaries under the supervision of the Deputy Commissioner, Ganderbal, is alleged to have raised constructions in the aforesaid land to the detriment of legal rights of the petitioners who used the said land for grazing purposes. It is alleged that the said land is being used for construction purposes without resorting to acquisition proceedings. The petitioners are alleged to have approached the Tehsildar, Kangan, for stopping the illegal constructions going on over the land. According to the petitioners, such constructions would also affect the flow of water in the water channel used by the villagers for irrigation purposes. They even claim to have approached the District Development Commissioner, Ganderbal, respondent No. 3 herein, but since no heed was paid to their requests, they approached the Divisional Commissioner, Kashmir, respondent No. 2 herein, seeking restraint against the functionaries of district Ganderbal against constructions on and over the aforesaid Kahcharai land. The respondent No. 2 is said to have endorsed the application to respondent No. 3 directing him to inquire into the matter and protect the rights of the people over the Kahcharai land.
2. It is further averred in the writ petition that in terms of the provisions of land revenue act read with Scheme of Eviction of Encroachment on Common Land, 2011, the land reserved for grazing purposes cannot be used for any purpose other than grazing (Kahcharai) purposes. The State Government through Revenue Department is said to have issued directions to the Deputy Commissioner, Ganderbal, vide letter dated 24.03.2012 prohibiting any type of construction over and on the Kahcharai land. It is further averred in the writ petition that the Government has restrained acquisition of Kahcharai Land for any purpose of public utility and Financial Commissioner (Revenue), Jammu & Kashmir, enjoined upon all the subordinate officers not to process the cases regarding the transfer of Kahcharai land in future.
3. Upon consideration of the matter on 30.04.2013, the petitioners were permitted to file the instant writ petition in the representative capacity and respondents were put to notice. The respondents were directed that they shall not put to use the land with regard to subject of writ petition, not permitted under law. Upon consideration of the application for appointment of Commissioner on 28.05.2013, this Court appointed Mr. Parvez Hussain Kachroo, Chief Judicial Magistrate, Ganderbal, as Commissioner, who was directed to report about the actual position obtaining on the spot.
4. In opposition to the writ petition, the respondents 8 & 9 have filed the reply and adopted the same on behalf of all the official respondents on 09.10.2013. Alongside, an application was also filed by some of the applicants which was allowed in terms of the same order and they were impleaded as party respondents and arrayed as respondents 12 to 18.
5. The official respondents in their reply have pleaded that the petitioners have no locus to maintain the writ petition as the land involved in construction of playground and Panchayat Ghar is Shamliat Deh, and is being utilized for public purpose. It is further pleaded that the petitioners who are only 4 in numbers, oppose the construction of playground and Panchayat Ghar. It is further pleaded that work for construction of playground near Waza Mohalla, Upper Chinner, with an estimated cost of Rs. 2.80 lacs under the scheme Kahcharai Land compensation, has almost been completed and in regard to Panchayat Ghar, 80% of the work stands completed. It is pleaded that the developmental activities in rural area of Block Kangan including Village Chinner of Panchayat Halqa, Wussan-B, are being carried out by the department of Rural Department and Panchayati Raj. A statutory body representing the Halqa Panchayat is in existence and vested with the powers of planning, monitoring and supervising developmental activities, and monitoring of works are identified by PRI/Deh-Majlis and the works are executed under supervision of Rural Engineering Wing of the Department. It is pleaded that the construction of playground near Waza Mohalla, Upper Chinner, with an estimated cost of Rs. 2.80 lacs under the Scheme Kahcharai Land and Compensation was identified by PRIs/Deh-Majlis as per the resolution passed by it on 29.08.2011. The construction work is said to have been taken up for execution after complying with the codal formalities and allotted to mates as per the resolution passed by PRIs/Deh-Majlis on 26.07.2012. It is pleaded further that the work in question is almost near completion. It is further pleaded that after coming into existence of PRIs, the construction of Apna Panchayat Ghar has become the priority of the Government as all the developmental activities are conducted in the Panchayat Ghar which is regarded as Parliament in the Panchayat Halqa. It is further pleaded that since there was no Panchayat Ghar existing in Panchayat Halqa, Wussan-B, the land for the same was identified by the PRIs representing the Panchayat Halqa, strictly as per the instructions of Government contained in letter dated 20.08.2011. The site of Panchayat Ghar was identified at the given place as no other land was available in the Halqa for the said purpose. The Tehsildar Kangan has submitted the revenue record for proposed construction of Panchayat Ghar in estate Chinner and the District Panchayat Officer, Ganderbal, had requested the District Development Commissioner, Gander-bal, that at least one Kanal of State land be made available for construction of Panchayat Ghar in Panchayat Halqa, Wussan-B. In furtherance of the same, Tehsildar, Kangan, was directed to identify and handover at least one Kanal of State land for the Block Development Officer, Kangan, for construction of Panchayat Ghar. In response thereto, the Tehsildar Kangan reported that no State land was available in village Chinner for construction of Panchayat Ghar and he got Shajri Khasra prepared for two Kanals of land out of Shamilat Deh (Section 4) under Survey No. 548/378 in estate Chinner and Panchayat Committee through resolution dated 02.12.2013 resolved to take over the possession of the said land and to start work on Panchayat Ghar. The work of Panchayat Ghar is said to have been completed upto roof level under the close supervision of Engineering Wing of the Department, but due to interim direction of this Court status quo has been maintained. It is stated further that overall eighty percent of the construction work has been completed.
6. Respondents 12 to 18 who were impleaded as party-respondents in terms of order passed by this Court on 09.10.2013, have also filed the detailed reply. The newly added respondents who are elected Sarpanch and members of the Panchayat Halqa, Wussan-B have pleaded that the subject matter of the writ petition is mostly barren and unfit for grazing purposes. It is pleaded that the Kahcharai land is divided into two parts by a link road leading from National Highway to village Chinner. In both parts there are number of shops in existence. There is also a residential house constructed on the Kahcharai land. It is also pleaded that on the chunk of land measuring 158 Kanals and 17 marlas, there is a building owned by Doordarshan Kendra, a Grid Station of Power Development Department and a structure occupied by Women Development Corporation. It is also pleaded that the petitioners who are in illegal occupation of parcels of Kahcharai Land, never raised any objection with regard to the aforesaid constructions. The petition is pleaded to have been filed on mala fide ground to thwart construction of Apna Panchayat Ghar and playground for local inhabitants. The petitioners are stated to be the defeated candidates in previous Panchayat elections, who want to frustrate designs of the duly elected Panchayat to construct playground and Apna Panchayat Ghar on a small portion of Kahcharai land, which was identified by Halqa Panchayat and Deh-Majlis as per the Resolution passed by it. The other pleas taken in the reply are pari material with the reply filed by the official respondents.
7. The Commissioner appointed in terms of order dated 28.05.2013, has also filed his report, which states that the subject matter of the writ petition is divided into two parts by a link road proceeding from National Highway to village Chinner. A number of shops have been constructed on either side of the link road, to be precise, 5 shops on the right side and four shops on the left side. There are two small shops and a small residential house located behind the four shops on left side of the link road, a building owned by Doordarshan Kendra, a Grid Station of PDD and a structure occupied by Women Development Corporation, existing in land falling under Khasra No. 548/378. Except the structure of the Women Development Corporation, the other two institutions are functional. The playground exists on the right side of the road. A structure stated to be the Panchayat Ghar has been raised to the level of first storey on the right side of the road and the same is still under construction. As per the Commissioner's report, villagers are divided into two factions with regard to construction of Panchayat Ghar. The report of the Commissioner refutes the allegation in the petition that the construction of Panchayat Ghar has blocked the flow of water in the stream rendering the land barren. The playground is being developed on the left side of the link road and there exists a stone crusher adjacent to the same. A newly constructed plinth also exists there. Besides two stone crushers are functional near the Nallah Sindh which are stated to be operational for the last more than two decades. The Commissioner also found small dunes of sand and bajri scattered on the land which were extracted from river Sindh by locals for purposes of sale.
8. I have heard learned counsel for the parties and considered the matter.
9. From perusal of the extract of Jamabandi for the year 1971-72, it emerges that the subject matter of the instant writ petition is Shamilat Land recorded as Mehfooz Kahcharai. The land is reserved for grazing purposes. However, it appears that over the years portions of the land have been usurped by raising shops and by constructing private commercial establishments, besides a residential house. There are public utility institutions in the form of Doordarshan Kendra, power grid station, and a building occupied by Women Development Corporation. This factual position obtaining on spot is established from the report of the Court Commissioner. The report submitted by Commissioner further brings it to fore that a Panchayat Ghar upto level of 1st storey is under construction. The report further categorically belies the contention raised on behalf of the petitioners that construction thereof has blocked the flow of the water in the stream. The Commissioner has observed in explicit terms that small channel of water located behind the Panchayat Ghar building under construction is flowing unimpeded. A playground appears to have been developed on the left side of the link road bifurcating the subject matter of the writ petition into two parcels of land.
10. The official stand taken is that construction of playground and the Panchayat Ghar is being done in terms of the resolution passed by the Panchayati Raj Institutions/Deh Majlis on 29.08.2011 to serve the public purpose as the construction of Apna Panchayat Ghar is the most priority area of the Government. According to official respondents, all the developmental activities coming within the jurisdiction of Panchayat Raj Institutions require conducting of Gram Sabhas, meetings of Panchayat Representatives and holding of Panchayat Adalats. The stand taken by the official respondents that no State land was available for setting up of Panchayati Raj Institutions like Apna Panchayat Ghar and for development of playground in terms of the Panchayat Resolution, the competent authorities had to allot the land out of the subject matter of the writ petition for public purpose, has not been refuted by the petitioners. It is undeniable that the playground and Panchayat Ghar are institutions of public utility used for welfare of the local residents and allotment of the land for setting up of such institutions sub-serves a public purpose for the common benefit of the villagers.
11. Viewed thus, no fault can be found with the construction of Panchayat Ghar and developing of playground on the subject matter of the writ petition. However, in so far as usurpation of land for setting up of private commercial establishments and residential houses is concerned, same is in clear violation of the provisions of law, in terms whereof the user of the land is reserved for common benefit of villagers. Shamilat Deh and Kahcharai land are public utility lands in the villages used for common benefit of villagers and same cannot be usurped for private use by any individual to the exclusion of the local village community. Thus, occupying the Kahcharai land for individual purpose, be it raising for residential apartments or for setting up of commercial establishments tantamount to usurping of Common Land of villagers and such persons, being trespassers, are liable to be evicted therefrom in terms of the judgment of the Hon'ble Supreme Court handed down in Jagpal Singh and others v. State of Punjab and others reported in AIR 2011 SC 1123, wherein it has been laid down that illegalities committed in nature of usurpation of Common Lands of the village communities cannot be regularized and the common interest of the villagers cannot be made to suffer merely because the unauthorized occupation has subsisted for many years. The Hon'ble Apex Court while disposing of the case has directed the Chief Secretaries of all the States to formulate the Schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Shamilat Land and to restore such lands to Gram Sabha/Gram Panchayat for the common use of residents of the village.
12. Bearing in mind the report of the Commissioner and the stand taken by the official respondents besides the ratio of the judgment supra, this petition is disposed of by holding that the petitioners claim in so far as construction of Apna Panchayat Ghar and development of Playground for common benefit of residents of the village in terms of the Resolution passed by the PFJ/Deh-Majlis is concerned, is dismissed. In so far as usurpation of the subject matter of the petition by setting up of private commercial establishments like shops and stone crushers and raising of private residential houses is concerned, the State functionaries are directed to take action for eviction of the illegal encroachers/trespassers in terms of the judgment of the Hon'ble Apex Court in Jagpal Singh v. State of Punjab reported in AIR 2011 SC 1123 and restore the land for the common benefit of the villagers. The exercise shall be done as expeditiously as possible, preferably within a period of six months. Interim directions shall stand vacated. Registry is directed to send a copy of this judgment to the Chief Secretary of the State for immediate compliance keeping in view the law laid down by the Apex Court in the judgment supra.
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