Rajasthan HC in Bhagadi Lal vs. State & Ors [25.02.2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 7446/2014

Bhagadi Lal                                                             ----Petitioner

Versus

State And Ors.                                                     ----Respondent

Connected With 

S.B. Civil Writ Petition No. 7445/2014 

Roop Lal                                                                 ----Petitioner 

Versus 

State And Ors.                                                     ----Respondent 

S.B. Civil Writ Petition No. 7447/2014 

Mangi Lal                                                              ----Petitioner 

Versus 

State And Ors.                                                    ----Respondent 

S.B. Civil Writ Petition No. 7449/2014 

Nathu Lal                                                             ----Petitioner 

Versus 

State And Ors.                                                  ----Respondent 

S.B. Civil Writ Petition No. 7457/2014 

Chaturbhuj                                                         ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

S.B. Civil Writ Petition No. 7458/2014 

Devi Lal                                                            ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

S.B. Civil Writ Petition No. 7459/2014 

Chunni Lal                                                        ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

S.B. Civil Writ Petition No. 7462/2014 

Panna Lal                                                         ----Petitioner 

Versus 

State And Ors.                                              ----Respondent 

S.B. Civil Writ Petition No. 7463/2014 

Vagadiya                                                         ----Petitioner 

Versus 

State And Ors.                                             ----Respondent 

S.B. Civil Writ Petition No. 7464/2014 

Vardha                                                             ----Petitioner 

Versus 

State And Ors.                                             ----Respondent 

S.B. Civil Writ Petition No. 7699/2014 

Unkar Lal                                                        ----Petitioner 

Versus 

State And Ors.                                              ----Respondent

S.B. Civil Writ Petition No. 7700/2014 

Unkar                                                                ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

S.B. Civil Writ Petition No. 7798/2014 

Ratan Lal                                                         ----Petitioner 

Versus 

State And Ors.                                              ----Respondent 

S.B. Civil Writ Petition No. 7799/2014 

Kishan Lal                                                        ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

S.B. Civil Writ Petition No. 7800/2014 

Devi Lal                                                             ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

S.B. Civil Writ Petition No. 7802/2014 

Narayan                                                             ----Petitioner 

Versus 

State And Ors.                                               ----Respondent 

S.B. Civil Writ Petition No. 7804/2014 

Laxman                                                             ----Petitioner 

Versus 

State And Ors.                                               ----Respondent 

S.B. Civil Writ Petition No. 7823/2014 

Ram Lal                                                             ----Petitioner 

Versus 

State And Ors.                                                ----Respondent 

For Petitioner(s) : Mr. R.S. Chundawat 

For Respondent(s) : Mr. Manish Tak, G.C.


HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI 

Order 

25/02/2022

01. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

02.The petitioner has preferred this petition with the following prayers:

"It is, therefore, most humbly and respectfully prayed that the writ petition of the petitioner may kindly be allowed and: -

(i) by an appropriate writ, order or direction the impugned order dated 24.09.2012 (Annexure-1) passed by District Collector, Udaipur cancelling the patta issued in favour of petitioner be quashed.

(ii) by an appropriate writ, order or direction the order dated 23.09.2013 (Annexure-12) in review application be quashed."

03. Learned counsel for the petitioner submits that certain appeals under Section 75 of the Rajasthan Land Revenue Act, 1956 were filed before the learned Revenue Appellate Authority, Udaipur against the order dated 23.10.2006 passed by the District Collector, Udaipur, whereby certain 'charaga' lands of the Gram Panchayat, Jetpura, Tehsil Valabh Nagar, District Udaipur, were converted into residential plots, beyond the sanctioned limit and without hearing, and allotted to the Nagar Palika, Bhinder.

04. Learned counsel for the petitioner further submits that the learned R.A.A., vide order dated 12.03.2008, recorded the findings, that the right over 'charaga land' is that of the Gram Sabha, and any such allotment made would have to be made only with the agreement of the concerned Gram Sabha, and that the Patwari Report clearly stated that the concerned Gram Sabha was not consulted or heard before making such allotment, and that the land much beyond the sanctioned limit was converted.

05. Learned counsel for the petitioner further submits that the learned R.A.A. partially upheld the said order of the concerned District Collector, to the extent of sanctioned conversion of land, and with regard to the unsanctioned lands for which permission was not acquired, remanded the matter back to the concerned District Collector with the direction to provide an opportunity of hearing to the concerned Gram Panchayat and pass fresh orders.

06. On the other hand, learned counsel for the respondents submits that the petitioner's claims are not sustainable in the eye of law as the claims made are pertaining to 'charaga' lands which were incorrectly mutated in the land revenue records. And that, the provision of law laid down in Section 92 of the Land Revenue Act, 1956 categorically debars the use of such lands for any other purpose other than as pasture lands, and that the same is laid down under Section 16 of the Rajasthan Tenancy Act, 1955 wherein no khaatedari right shall accrue in relation to pasture land. Furthermore, Rule 7 (1) of the Rajasthan Tenancy (Government) Rules, 1955 provides as under:

"7. Allotment or setting apart of pasture land. -

(1) The Collector may, in consultation with the Panchayat, change the classification of any pasture land, as defined in sub-section (28) of Section 5 of the Act or any pasture land set- apart under Section 92 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956), as unoccupied culturable Government land (Sawai Chak), for allotment for agricultural or any non-agricultural purposes:

Provided that in case where the area of the land sought to be so allotted or setapart exceeds 4 hectares, the Collector shall obtain prior permission of the State Government :

Provided further that the classification of pasture land shall not be changed as unoccupied culturable government land (Sawai Chak) for mining purposes without the prior permission of the State Government. The permission by the State Government shall be granted only if applicant has surrendered equal area of khatedari land in favour of the State Government in the same village or nearby village within the same Panchayat, if applicant is not able to surrender khatedari land in the same village or nearby village within the same Panchayat, the equal area of khatedari land may be surrendered in the nearby village of adjoining Panchayat and if the land is not available even in the adjoining Panchayat for such purpose, it may be surrendered, in exceptional cases from the other Panchayat of the District and has deposited development charges for the development of such surrendered land as pasture land. The development charges for the year 2017-2018 shall be rupees fifty thousand per bigha or part thereof and for subsequent year it shall be increased by five percent every year. The Development charges so deposited may also be used for the welfare of the cattle of the village by the village Panchayat with prior approval of the District Collector. The land so classified as unoccupied culturable government land (Sawai Chak) shall always remain and treated as government land for all purposes; Provided also that any such land, falling within the boundary limits of the Jaipur Region as defined in the Jaipur Development Authority Act, 1982 (Act No. 25 of 1982) or within the periphery of 2 kms. of a municipality, shall not be allotted except for the purpose of a public utility institution or for expansion of abadi.

(2) Where classification of any pasture land is changed under sub-rule (1), the Collector may set-apart an equal area of unoccupied culturable Government land, if available, as pasture land in the same village or nearby village within the same Panchayat:

Provided that where land is required for infrastructure projects viz air strip, lift irrigation, pumping station government buildings, government offices, shamshan, kabristan, gaushala and rehabilitation purpose and unoccupied culturable government land is not available in the same village or nearby village within the same Panchayat and the necessity is absolute necessity and absence of alternative means is proved, the equal area of unoccupied culturable land may be set apart in the nearby village of adjoining Panchayat. If land is not available in the adjoining Panchayat for such purpose, it may be set apart, in exceptional cases, from the other Panchayat of the District with the prior approval of the State Government.]

07. Learned counsel for the respondents further submits that the judgments dated 24.09.2012 and 23.09.2013 passed by the competent authority are perfectly in accordance with the law.

08. Heard learned counsel for both parties and perused the record of the case.

09. This Court observes that the concerned District Collector, vide order dated 24.09.2012, stated that the relevant revenue records were corrected and the said lands in question were recorded as 'charaga' lands, in pursuance of the direction issued in the above mentioned order passed by the learned R.A.A. And that, the allotment of land was made to certain persons during the period when it was incorrectly mutated and entered into the revenue records as 'abadi' lands, although it was formerly and subsequently, after correction also recorded as 'charaga' lands.

10. This Court further observes that the judgment, dated 24.09.2012, passed by the concerned District Collector rightly drew strength from the judgment rendered by the Hon'ble Apex Court in Jagpal Singh and Ors. Vs. State of Punjab and Ors. (2011) 11 SCC 396 wherein the Hon'ble Apex Court observed that encroachment of property, by way of illegal construction or alienation of property cannot be permissible and directed that land be handed over back to the Gram Panchayat.

11. This Court further observes that the judgment, dated 23.09.2013, at Annexure-12, passed by the concerned District Collector, on a review of the aforementioned judgment dated 24.09.2012 preferred by the petitioners therein, wherein the concerned District Collector observed that no basis for review arise as the relevant provisions of law as stated in aforementioned judgment apply squarely to the facts and circumstances of the said case, and that no new grounds for same relief being sought, were raised by the petitioners therein.

12. This Court, in light of the aforesaid observations, finds that the impugned judgments do not suffer from any legal infirmity, and therefore the present case is not a fit case warranting any interference by this Court.

13. Consequently, the present petitions are dismissed. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J. 

Madras High Court reserves orders on encroachments in Bethel Nagar [17.03.2022]

The Madras High Court has reserved orders on matter involving encroachments in Bethel Nagar at Injambakkam.

The bench of Chief Justice Munishwar Nath and Justice D Bharatha Chakravarthy were hearing a contempt of court petition filed by one I.H Sekar, Managing Trustee of "The Nature Trust". The contempt petition was filed against the non-compliance of orders passed by the court in a previous writ filed by this petitioner.

The writ petition was filed seeing direction to remove the encroachments made in the marsh lands and canal puramboke area complying with the orders of the Supreme Court in Hirch Lal Tiwari v. Kamala Devi and Ors and in accordance with Tamil Nadu Land Encroachment Act, 1905 and direct to retrieve these lands.

This writ petition was disposed off with directions to confirm the validity and authenticity of the alteration and in case the alteration is unauthorised, to take action against the defaulting officers. It was also directed that since the eviction of unauthorised occupants is a periodic exercise, a fresh exercise may be undertaken after giving notice to all concerned to clear the land.

The court had directed the District Collector to conduct this exercise and to file a status report within two months with proper site plans and photographs of the area.

The case of the petitioner is that the order was passed in 2015 and there have been various postings before this court for reporting compliance. In the last posting, the court had even granted one year time to carry out the exercise of regularization/eviction of the encroachers based on the survey conducted by IIT Madras.

The petitioners believe that the respondent officials are seeking to regularize the encroachments in gross violation to the various directions of the court. The petitioners argue that the respondents are willfully defying the directions of the court by attempting to favor and benefit the illegal encroachers and cause huge loss of assets.

The petitioners have therefore filed the contempt petition as the court had already held that no further orders are necessary in the above matters.

Earlier, the Additional Advocate General had submitted a status report to show part compliance of the judgement. It was submitted that the buildings constructed and put to use for commercial purposes have been sealed and during the course of the day, the electricity connection would be withdrawn. the court had taken the status report on record. The court had then directed the Advocate General to intervene in the matter and point out who are the occupiers and when the land was occupied/encroached by them and while not endorsing the encroachment, how the issue is to be resolved taking into consideration the legal provision as well as the Government policy.

Based on the direction of the court, on 08.02.2022, the Advocate General submitted that information had been submitted by many persons regarding occupation of land for residential purpose with certain details and that few occupiers were yet to give the details regarding date of occupation of land. Later, on 15.02.2022, the Advovate General submitted that since the documents submitted by the encroachers to support their statement was not legible, the Government would make necessary verification based on records and a decision to re-locate the encroachers would be taken.

The court however drew attention to the Apex Court decision in the case of Rameshbhai Virabhai Chaudhari v. State of Gujarat where the apex court had not permitted regularisation of grazing land. The Apex Court had held emphatically that grazing land should be used only for the purpose for which it permitted and no encroachment on such land is permissible.

The court highlighted that in light of the law enunciated in the decision of the Apex Court, any liberty to the Government to regularise the encroachment is nothing but to promote the encroachment by process of law also.

"It is for this reason that at first people would encroach government land and then the Government would pass an order to regularise By such regularisation, the tendency to make encroachment is going to increase, which is otherwise seen by us day in and day out. This clarification was made in reference to what best can be arranged for the solution already given by the Government that is regarding allotment of land elsewhere and not regularisation."

The court had stated that the scope of contempt is very limited and therefore, the court cannot accept the arguments raised by the counsel for applicant even on the applications preferred by them in the contempt petition. The court has heard the matter in detail and has reserved orders.

Case Title: I.H Sekar vs. MR P. Ponniah, IAS and 2 Ors

Case No: CONT P/1874/2018

https://www.livelaw.in/news-updates/madras-high-court-reserves-orders-on-encroachment-in-bethel-nagar-194371

Telangana HC: Smaller public interest & personal interest have to pave path for larger public interest [21.02.2022]

TELANGANA HIGH COURT

WRIT PETITION (PIL) No.301 of 2017 & W.P. No. 5553 of 2018 

J. Ravinder Reddy vs. State of Telangana 

J. Ramesh Goud vs. State of Telangana

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA 

AND THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI 

COMMON ORDER 

(Per the Hon'ble the Chief Justice Satish Chandra Sharma) 

Regard being had to the controversy involved in the aforesaid cases, they were heard together and are being decided by a common order. The facts of W.P.(PIL).No.301 of 2017 are reproduced as under: The present public interest litigation has been filed by the petitioner stating that he is a resident of Gajwel Village, Siddipet District and the respondent - State is constructing a bus stand outside the Gajwel town, which is at a distance of 5½ KM. It has also been stated that the land over which the bus stand is being constructed in Sy.No.685 of Gajwel village to an extent of Ac.7.16 guntas is a shikam land as per the revenue record. The revenue record of the year 2017 has been filed in support of the aforesaid averment. Pahanies of the years 1950-51, 1955-53, 1985-86, 2005-06, 2010-11 were also been filed which describe the land as Adavi Mamindla Kunta Shikam i.e., small tank.

The petitioner's contention is that in the light of the judgment delivered by the Hon'ble Supreme Court in Jagpal Singh and others vs. State of Punjab and others decided on 28.01.2011, no such construction can take place.

A detailed and exhaustive counter affidavit has been filed in the matter by the State Government and the affidavit reflects that the distance between the proposed bus stand in Sy.No.685 and Gajwel town is only Ac.2.4 guntas and not 5½ kms. It has been stated that the present bus stand is located in a very congested locality and only six busses can park in the parking way and therefore, keeping in view the necessity to have a bigger bus stand, a decision has been taken by the Government to allot Ac.3.5 guntas in Sy.No.685 to the Telangana State Road Transport Corporation for construction of bus stand. The reply further reveals that the so-called Adavi Mamindla Kunta was abandoned more than 50 years back and there is a road connecting Toopran village and Gajwel town through the same Kunta dividing Ac.7.16 guntas. It has also been stated that on one side of the road the land is Ac.3.5 guntas and on the other side of the road, the land is Ac.2.10 guntas. It has also been stated that a permanent road (bituminous) is existing over the so-called Adavi Mamindla Kunta. The respondents have also stated that as there was a need to construct a bus stand and as the land is having ayacut, letter dated 03.07.2017 was written to the Chief Commissioner of Land Administration, Telangana, for conversion of shikam land in Sy.No.685 to an extent of Ac.7.16 guntas of Gajwel Village and Mandal into Ayan and the Government of Telangana by order dated 08.07.2017 has accorded permission and the land was converted into Ayan over which a bus stand can very well be constructed. The Managing Director of TSRTC requested the District Collector, Siddipet, to allot suitable land to an extent of Ac.7.00 to Ac.8.00 for construction of modern bus station at Gajwel and thereafter, a proposal was sent and finally land admeasuring Ac.3.5 guntas in Sy.No.685 has been allotted for construction of bus stand and an amount of Rs.5 crores was released by the Government of Telangana vide G.O.Rt.No.715, Planning (VI) Department, dated 25.09.2017.

This Court has carefully gone through the documents on record and the undisputed facts reveal that there is no such lake in existence at present. The so-called lake/shikam land in Sy.No.685 of Gajwal village is also having a permanent road bifurcating the land into two pieces and the road is in existence over the last 50 years. It is true that some of the revenue records reflected the land as shikam land. However, in larger public interest, the conversion of shikam land in Sy.No.685 has already been done by the State of Telangana by an order dated 31.07.2017 and funds have been allocated for construction of bus stand. Much has been argued before this Court by placing reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of Jagpal Singh (supra).

In the aforesaid case, the Hon'ble Supreme Court was certainly dealing with Gram Sabha land, Gram Panchayat land and the Hon'ble Supreme Court in para 5 of the judgment has observed that since independence over the country common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout and the land is not left for villagers at all.

In the present case, the situation is altogether different. The land in question has been converted as land for construction of a bus stand in larger public interest, which is going to benefit the villagers as well as Gajwel town. The judgment delivered by the Hon'ble Supreme Court also makes it very clear that the Supreme Court has directed all the State Governments to prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and to restore them for common use of the villagers/village. It has also been observed that no regularization order should be passed in respect of illegal occupants and regularization should be permitted in exceptional cases where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes or where there is already a school, dispensary or other public utility on the land. In the present case there is public utility i.e., construction of bus stand keeping in view the expansion of population. The land has been converted by the State Government and funds have been allocated. Therefore, this Court does not find any reason to allow the prayer made by the writ petitioner and the W.P.(PIL).No.301 of 2017 deserves to be dismissed.

Learned counsel for the petitioner has vehemently argued before this Court that the judgment of the Hon'ble Supreme Court has to be complied with.

There is no doubt about it. However, it is clarified that the judgment, which, learned counsel is referring to is not a judgment, but it is an interim order passed by the Court on 21.01.2011. Otherwise also, the present case is not a case where some land grabbers are encroaching the Government land. A bus stand is being constructed by the TSRTC. The land was converted and it is not at all a lake. There is not a drop of water over the land and a road is already in existence over the last 50 years and the construction, which is being raised, is in the larger public interest.

In W.P.No.5553 of 2018, learned counsel has drawn the attention of this Court towards the judgment dated 27.11.2012 passed in W.P.No.23829 of 1997.

We are in agreement with the aforesaid judgment. The lakes are required to be protected. However, the present case is having a distinguishable feature. The so-called shikam land is bifurcated by a permanent road (bituminous) and the road is in existence over the last 50 years. Not only this, the land, which has been allotted for construction of bus stand, does not have a single drop of water and the conversion has already taken place and the conversion order has been passed by the appropriate authority. Therefore, thus in larger public interest, the smaller public interest and the personal interest have to pave path for the larger public interest.

Resultantly, both the writ petitions are dismissed. Miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.

__________________________________ 

SATISH CHANDRA SHARMA, CJ 

________________________________ 

ABHINAND KUMAR SHAVILI, J 

21.02.2022 

Gauhati HC in Md. Abdul Hussain & Anr. vs. State of Assam & Ors. [22.02.2022]

THE GAUHATI HIGH COURT 

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) 

Case No. : WP(C)/1108/2022 

Md. Abdul Hussain & Anr. S/o Late Umar Ali, R/o Village Paschim Dhaniram Pathar, Near Adarsha Bazar, P.O. and P.S. Hajo, Dist.- Hojai, Assam - 782435.

2. Md. Faruk Ahmed S/o Late Moin Uddin R/o - Village Paschim Dhaniram Pathar, Near Adarsha Bazar, P.O. and P.S. Hajo, Dist.- Hojai, Assam - 782435.

VERSUS 

The State of Assam & 4 Ors.

Rep. by the Commissioner and Secretary to the Govt. of Assam, Land and Revenue Department, Dispur, Guwahati-6.

2. The Director of Land Records and Surveys etc, Govt. of Assam, Rupnagar, Guwahati-32.

3. The Deputy Commissioner, Hojai Sankardevnagar, P.O. and P.S. Hojai, Dist.-Hojai, Assam. 

4. The Circle Officer, Hojai Revenue Circle, P.O. and P.S. and Dist.-Hojai, Assam. 

5. The Chairperson, Hojai Municipal Board, Mouza-Hojai, P.O. P.S. & Dist.-Hojai, Assam, PIN- 782435. 

Advocate for the Petitioner : MR F K R AHMED 

Advocate for the Respondent : GA, ASSAM

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 

22.02.2022 

Heard Mr. F. K. R. Ahmed, learned counsel for the petitioners and Mr. B. J. Talukdar, learned Standing Counsel, Revenue Department for the respondent Nos. 1 and 2. Also heard Mr. K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent Nos. 3 and 4.

The Circle Officer, Hojai Revenue Circle, Hojai, Assam on 05.01.2022 issued seven days notice to the petitioner No. 1 under the provision of Rule 18 (2) of the Assam Land and Revenue Regulation, 1886 in Encroachment Case No. 1/2021/183 to vacate the Government Grazing Reserve Land of Dag No. 8 at Village - Paschim Dhaniram Pathar under Hojai Mouza intimating him that on his failure to vacate the said land as directed, action under Section 18 (5) of said 1886 Regulation will be taken against him.

Being aggrieved with the same, the petitioners have preferred this writ petition stating that prior to this, on 02.11.2015, the Chairperson of Hojai Municipal Board issued encroachment notice under Section 159 of the Assam Municipal Act, 1956 with regard to the land in question to which the petitioner preferred Title Suit No. 81/2015 against the Hojai Municipal Board which is presently pending before the Court of learned Munsiff, Hojai, Sankardev Nagar, Hojai, Assam and is in the stage of cross-examination of DWs.

Petitioners have annexed copies of the plaint of said Title Suit No. 81/2015 as well as the written statement submitted by Hojai Municipal Board with regard to the eviction Page No.# 3/3 notice issued by the Hojai Municipal Board on 02.11.2015 to this petition.

Petitioners have admitted the fact that they have encroached the Government land and in the said Title Suit No. 81/2015, the petitioners as plaintiffs prayed for possessory right of the said land. In the schedule of the said Title Suit No. 81/2015 which is presently pending before the Court of learned Munsiff, Hojai, Sankardev Nagar, Hojai, Assam, the petitioners have clearly stated that the land at Dag No. 10 of Tauji Bahira No. 43 measuring about 30 Lechas of land is at Village- Dhanirampathar Ward No. 1, Mouza- Hojai, (at page 33 of Annexure-D to this petition) whereas from the impugned eviction notice dated 05.01.2022 (Annexure-G, at page Nos. 46/47 to this petition) it is seen that the land is at Dag No. 8 of Government Grazing Reserve of Village - Paschim Dhaniram Pathar and it is not the land at Dag No. 10 of Village- Dhanirampathar Ward No. 1, Mouza- Hojai.

As such, the prayer of the petitioners that the land indicated in the impugned eviction notice dated 05.01.2022 issued by the Circle Officer, Hojai Revenue Circle, Hojai, Assam is same with that of the land involved in said Title Suit No. 81/2015 is not found to be correct.

The Hon'ble Apex Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others reported in (2011) 11 SCC 396 has settled the law that encroachment of common land including community land cannot be taken away and that there cannot be any right over such public and Government land used for community.

As both the parcels of land described by the petitioners are different, and admittedly the petitioners have encroached the Government Grazing Land of Dag No. 8 at Village - Paschim Dhaniram Pathar of Hojai Mouza under Hojai Revenue Circle, Hojai, Assam and considering the above the prayer of the petitioners made in this writ petition being not tenable, this writ petition, being devoid of merit, stands dismissed.

JUDGE

J&K High Court in Zaina Begum & Ors. vs. UT of J&K & Ors. [25.02.2022]

HIGH COURT OF JAMMU & KASHMIR AND LADAKH 

AT SRINAGAR 

WP(C) No. 277/2022 

CM No. 745/2022 

Zaina Begum and others                                                                                 .....Appellant(s)/Petitioner(s) 

Through: Mr. Shah Ashiq Hussain, Advocate and Mr. Lone Altaf, Advocate 

Vs 

UT of J&K and others                                                                                                     ..... Respondent(s) 

Through: Mr. M. A. Chashoo, AAG 

Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE 

ORDER

25.02.2022

01. The petitioners claim that they are in occupation of Kahcharai land under Survey No. 414 for the last more than thirty years, over which it is alleged that some construction has been raised. The Revenue Authorities, by virtue of impugned notice dated 12.02.2022, asked the petitioners to demolish the structures standing on the said Kahcharai land.

02. The case of the petitioners is that in terms of the provisions of Section 133(2)(c) of the Land Revenue Act, a representation has already been moved with the official respondents offering them proprietary land in exchange of Kahcharai land, which is under their occupation. It is stated that till such time as the representation of the petitioners is considered in terms of Section 133(2)(c), the official respondents may be restrained from taking any coercive action against them.

03. While it may be true that in terms of Section 133(2)(c), the person who is in illegal occupation of the land, which is used for grazing purposes can be evicted, however, the said section also envisages that the said person may offer suitable equivalent area in exchange from out of his proprietary land in the same village, failing which the Revenue Officer concerned is authorized to evict the owner and dismantle the structure erected by such a person.

04. Notwithstanding the aforementioned provisions, one cannot lose sight of the directions which have been issued by the Apex Court in the case of "Jagpal Singh and others Vs State of Punjab and others" reported in (2011)11 SCC 396, wherein directions have been issued by the Apex Court to evict unauthorized occupants inter-alia from Kahcharai land throughout the country.

05. The relief prayed for by the petitioners in the present petition, therefore, would come in direct conflict with the directions issued by the Apex Court in Jagpal Singh's case supra, which makes no exception from eviction of unauthorized occupants of Kahcharai land, much less does it permit the authorities to take the land in exchange of Kahcharai land.

06. Be that as it may, no such direction as is prayed for by the petitioners can be given in the present petition. The petition is found to be without any merit and is, accordingly, dismissed.

(Dhiraj Singh Thakur) 

Judge 

Srinagar                                                                                                                                           25.02.2022