LPA No. 185/2023 CM No. 6125/2023
LPA No. 186/2023
LPA No. 187/2023
Date of Hearing: 20.10.2023
Date of Judgment: 01.11.2023
Inhabitants of Village Dambra Mahanpura Kathua ...Petitioner(s)/appellant(s)
Through: Mr. Karan Sharma, Advocate.
Vs.
UT of J&K th GAD and Ors. ...Respondent(s)
Through: Ms. Monika Kohli, Sr. AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
01.11.2023
N. Kotiswar Singh, CJ.
1. The present appeals, LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 have been preferred against the common judgment and order dated 11.08.2023 passed in WP(C) No. 671/2022, WPC No. 1668/2022, and WPC NO. 269/2023 by which the learned Single Judge has dismissed all the three petitions. Accordingly, these appeals are heard together and disposed of by this common judgment.
2. The three petitions were filed by the same petitioners, namely, the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua, through their representatives, challenging the act of the State in transferring certain Shamlat Deh (Mehfooz Kacharai) land located in village Dambra, Tehsil Mahanpur, District Kathua to the Prisons Department for setting up of a High Security Prison in Dambra Village.
3. The first writ petition WP(C) No. 671/2022, out of which LPA No. 185/2023 has arisen, was filed by the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua through their representatives challenging the Order No. 36 JK(Rev) of 2022, dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department by which Shamalat Deh (Mehfooz Kacharai) falling under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) at Village Dambra, Tehsil Mahanpur, District Kathua in favour of the Prisons Department, Jammu and Kashmir for construction of a High Security Prison, and by the same order, State land measuring 160 Kanals 04 Marlas under Khasra No. 1873 (73 Kanal 02 Marlas) Khasra No. 2597-2325 (78 Kanals) and Khasra No. 2598-2325 (09 Kanals 02 Marlas) situated at Village Dambra, Tehsil Mahanpur, District Kathua was transferred to the village Dambra to be used as Shamlat Deh (Mehfooz Kacharai).
4. The said transfer order dated 02.03.2022 was preceded by identification of the land which was duly communicated by the concerned Assistant Commissioner, Kathua to the Government vide his letter under No. 502/4388/Jail/Dambra/Kth/2696 dated 29.12.2021 which was also challenged along with the aforesaid land transfer order dated 02.03.2022 in the said writ petition, WP(C) No. 671/2022.
5. The second writ petition, WPC No. 1668/2022 out of which LPA No. 186/2023 has arisen, was also filed by the same petitioners, the Inhabitants of Village Dambra Tehsil Mahanpur, through their representatives seeking quashing of the Government order No. Home- 258 of 2022, dated 27.07.2022 issued by Commissioner Secretary Revenue Department, Civil Secretariat Jammu/Srinagar, by virtue of which sanction was accorded by the Government to the project of construction of High Security Prison at village Dambra. Further, the Notice Inviting Tender issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 26 of PHC Jammu Div/2022-23 dated 27.07.2022 for construction of the prison was also challenged.
6. In the third writ petition i.e., WPC NO. 269/2023, out of which LPA No. 187/2023 has arisen was filed by the same petitioners, in which the petitioners have challenged another NIT issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 42 of PHC Jammu Div/2022-23 dated 12.11.2022, relating to the construction of the High Security Prison and for directing restoration due to damages caused in the village land because of the construction of the said High Security Prison.
7. Thus, from the above, it is evident that the three writ petitions were filed being aggrieved by the transfer for use of Shamlat Deh (Mehfooz Kacharai) land for the purpose of establishing of a High Security Prison and other connected and consequential actions i.e., notice inviting tender etc.
8. The principal grounds taken in these writ petitions in challenging the aforesaid actions are that the respondent authorities had illegally transferred the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department of Jammu and Kashmir (J&K) in violation of a number of judgments of the Hon'ble Supreme Court relating to protection and preservation of environment and also various orders issued in this regard by the State authorities putting a bar on transfer of Shamlat Deh (Mehfooz Kacharai) land/community land for other purposes.
9. The said writ petitions came to be considered by the Ld. Single Judge on 18.08.2023 by which the said petitions were dismissed, which is challenged in this batch of letters patent appeals. On going through the impugned order dated 18.08.2023 passed by the Ld. Single Judge, it is seen that the writ petitions were dismissed by the Ld. Single Judge, as also contended before us by the ld. Counsel for the appellant petitioners, without touching on the merits of the case. These petitions were dismissed primarily because of the conduct of the petitioners, which the Ld. Single Judge found unacceptable. When the writ petitions were taken up for consideration, Ld. Govt. Counsel for the respondents, Ms. Monika Kohli, Sr. AAG brought to the notice of the Writ Court a legal notice dated 07.08.2022 issued by the petitioners, which was kept on record by the Writ Court. The said legal notice was addressed to the Chief Secretary, Government of UT of J&K, the Financial Commissioner/Additional Chief Secretary to Government of UT of J&K, and the Executive Engineer of J&K Police Housing Corporation, by which the counsel for the appellant/petitioners warned that if the ongoing construction works for the prison at the site was not stopped within two days, contempt proceedings would be initiated against them. When the Ld. Single Judge dealing with the said legal notice enquired from the counsel for the appellant petitioners, Shri Karam Sharma, as to which order of the Writ Court was violated on the basis of which the legal notice for initiating contempt proceedings was issued to the aforesaid officials, it was submitted by the counsel for the petitioner appellants that it was with reference to a decision of the Hon'ble Supreme Court rendered in Jagpal Singh &Ors. Vs. State of Punjab in Civil Appeal No. 1132/2011in which it was held that allotment of Gram Sabha land is illegal.
10. The Ld. Single Judge took the view that if the writ petitioners in these petitions were aggrieved by any alleged violation of the order passed by the Hon'ble Supreme Court in Jagpal Singh (supra), the petitioners would be free to file appropriate contempt petition for alleged violation of the judgment of the Hon'ble Supreme Court, but in the present case, since no interim order was passed by the Writ Court in any of the three writ petitions, the Ld. Single Judge deprecated the aforesaid act of the counsel for the writ petitioners which according to the Ld. Single Judge would amount to attempt to browbeat the State officials and, accordingly, Ld. Single Judge took the view that the petitions had been filed without bonafide motive and, accordingly, dismissed the writ petitions with liberty to petitioners to take recourse in the matter of contempt if the judgment of the Hon'ble Supreme Court was violated as claimed by the counsel for the petitioners appellants.
11. On perusal of the impugned order dated 11.08.2023, we have also noted that the Ld. Single Judge did not dwell on the merit of the case but dismissed the writ petitions because of the aforesaid questionable conduct of the petitioners in serving notice for initiating contempt proceedings against the State officials.
12. In view of above, we have allowed the learned counsel for the appellants, writ petitioners, Shri Karam Sharma, to address us also on the merit of the case, as the pleadings are otherwise complete, and the objections/affidavit in opposition filed by the respondents in all the three petitions are on record before us.
13. Accordingly, we have heard learned counsel for the parties on merit extensively.
14. Learned counsel for the appellants has challenged the aforesaid act of the official respondents in transferring the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department principally on two grounds as discussed herein below.
15. Firstly, it has been submitted that Shamalat Deh (Mehfooz Kacharai Land) is the land which was being used by the villagers since time immemorial primarily for the purpose of grazing of cattle in the village and thus, has been kept free of constructions. It is also used for recreational activities as a playground for the villagers. It has been also contended that it's utility for maintaining ecological balance in the village surroundings also cannot be doubted as this land has also ponds and large tract of forests. Thus, if any permanent and large constructions are made on such land by destroying trees, grazing grounds, and filling up the ponds, it will disturb the environment and ecological balance in the village, which has been deprecated in a catena of decisions by the Hon'ble Supreme Court as in T.N. Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1 in which it was observed that natural resources are the assets of the entire nation and it is the obligation of all concerned, including the Union Government and State Governments to conserve, and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
Intellectual Forum, Tirupathy vs State of AP, (2006) 3 SCC 549 was also relied upon wherein it was observed that temple tanks maintain environment of surrounding areas and these are communal property and the state authorities are their trustees to hold and manage such properties for the benefit of the community and the State authorities should not be allowed to commit any act or omission which will infringe upon the right of the community to enjoy the property.
In the case of Rameshbhai Virabhai Chaudhari Vs. State of Gujarat (Civil Appeal No. 5135 of 2021), which was also relied upon by the appellants, the Hon'ble Supreme Court held that it is trite to say that Kahcharai land can be used only for purposes for which it is permitted to be used and if there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on.
The appellants also referred to M.I. Builders (P) Ltd. Vs. Radhey Sham Sahu (1996) 6 SCC 464, in which the Hon'ble Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over hundreds of crores of rupees.
In Jagpal Singh v. State of Punjab (2011) 11 SCC 396 heavily relied upon by the appellants, it has been held by the Hon'ble Supreme Court that since time immemorial there have been common lands inhering in the village communities in India, variously called Gram Sabha land, Gram Panchayat land (in many North Indian States), Shamlat Deh (Mehfooz Kacharai) (in Punjab, etc.), Mandaveli and Poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village and also others like ponds were used for various purposes e.g. for their cattle to drink and bathe. These lands are also used for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats and they were generally treated as inalienable in order that their status as community land be preserved. The Hon'ble Supreme Court also noted that there can be no doubt that there are some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of these land to landless labourers and members of the Scheduled Castes/Tribes, but this was only to be done in exceptional cases.
16. Secondly, it was contended on behalf of the appellants that the transfer of the Shamlat Deh (Mehfooz Kahcharai Land) to the Prisons Department is plainly in contravention of the Government Circular No. FC-LS/Misc- 3744/2010 dated 09.12.2010 which deals with the acquisition/transfer/ allotment of Kahcharai land in which it has been specifically mentioned that frequently cases have been put up for recommendation for acquisition/transfer/allotment of Kahcharai land instead of State land, which should be the first priority. Under the second paragraph of the said Circular dated 09.12.2018, it has been stated that Kahcharai land being under the collective ownership of the local community, reserved for grazing purpose, should be left free for use for the purpose it has been reserved for. The said Circular further enjoined upon all the subordinate revenue officers not to process cases regarding the allotment or transfer of Kahcharai land in future. The said Circular was issued in terms of the advice received from the Administrative Department, vide no. Rev/S/123/2010, dated 12.08.2010.
It has been accordingly, submitted that the transfer of the aforesaid land to the Prisons Department by the impugned order dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department is plainly against the aforesaid Circular issued by the same Revenue Department. It has been submitted that the aforesaid land is a protected land, used as a grazing land for the villages and for recreational activities of the youth of the villages which contain ponds and temples, which requires to be preserved and should not be used for any other purpose other than for grazing purpose.
17. It has been submitted that the appellants have learnt as per information received from the authorities through applications filed under the Right to Information Act, 2005 that though there are 2018 Kanals and 06 Marlas of State land available in the village Dambra, yet there is no finding by the respondent authorities that no other alternative land is available in the village nor in any part of the UT of Jammu and Kashmir and as such, if Kahcharai land is used instead of State land which is 10 | P a g e abundantly available for construction of prison, the impugned order will be plainly contrary to the aforesaid decision of the of the Government as reflected in the Circular/Order dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department.
18. The appellants also claim that the Deputy Commissioner, Kathua had written to the Divisional Commissioner on 12.11.2021 that it had been reported that the land selected for the construction of High Security Prison is located far away about 50-55 kms. away from the District Court Complex, District Police Lines and Government Medical College and in view of the prevailing security scenario in the Jammu &Kashmir with past incidents of militant attacks, escaping of prisoners during transit time, to and fro the court after court hearing and for special medical treatment of the prisoners outside the jail hospital, the identified location is not suitable for the said purpose. It was also mentioned that the Inspector General, Prisons also had pointed out certain drawbacks about the said proposed site and requested for identifying land near the District Headquarter of Kathua. Thus, it was contended that when an important functionary like Inspector General of Prisons had expressed doubts about the efficacy of establishing the prison at the said location, it was unwise and undesirable on the part of the Government to proceed with the said project in the village of Dambra.
19. It has been also contended by the Ld. Counsel for the appellants that on an earlier occasion, the Office of the Assistant Collector, Kishtwar had issued an order on 15.02.2020 for eviction of unlawful encroachers from State/Kahcharai/Common/Forest Land in terms of directions issued by the Supreme Court in Jagpal Singh case and by this Court in PIL No. 19/2021 titled "SK Bhalla vs. State of J&K and others", Circular issued by the Financial Commissioner vide No. FC-LS/Misc-3744/2010 dated 09.12.2010 (referred to above), and other decisions of this Court which clearly underline the fact that Kahcharai Land is to be fully protected from unauthorized use and encroachment and the aforesaid action of the Government will be also applicable in the present case as the Kahcharai Land is sought to be used for some other purpose for which is not intended to be used.
20. The respondent authorities contested all these petitions by filing objections. Ms. Monika Kohli, Sr. AAG, submitting on behalf of the respondents contends that all the decisions of the Hon'ble Supreme Court relied upon by the appellants relate to illegal encroachment of public land/community land. But in the present case, the land had been utilized after being transferred by following proper procedure and after being approved by the competent authority and it is not a case of illegal occupation. As such, these judgments are not applicable in the present case.
21. It has been also submitted by Ms. Monika Kohli, Sr. AAG, on behalf of the respondents that construction of High Security Prison at village Dambra, Kathua District does not pose any threat to the environment, natural resources, as well as the ecosystem. Further, in lieu of the Shamalat Deh (Mehfooz Kahcharai) land measuring 148 Kanals 04 12 | P a g e Marlas transferred to the Prisons Department, State land measuring 160 Kanals 04Marlas situated in the same village had been transferred to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai). Thus, the village is adequately compensated by transfer of State land.
22. It has been further submitted that at present there are 1218 Kanals and 04 Marlas of Shamalat land available in Dambra village, of which 148 Kanal of land were transferred to the Prison Department, in lieu of which the Government transferred 160 Kanals and 04 Marlas of State land to the village. Thus, at present, the village of Dambra has got 1230 Kanals and 8 Marlas of Kahcharai land available with it. Thus, the village possesses more than adequate Kahcharai land at their disposal.
23. It had been further submitted that in the process of use of the aforesaid Kahcharai land, no pond, water bodies or temple were damaged, since no such structure existed over the said transferred land and as such the allegations made by the appellants are false.
24. It has been submitted that pursuant to a meeting taken in the Ministry of the Home Affairs on 06.07.2021 regarding construction of a High Security Prison in Kathua, in J&K, the Prisons Department requested the Deputy Commissioner, Kathua for identification of a government land. Accordingly, the Deputy Commissioner, Kathua identified 148 kanals of village land at Dambra and the same was submitted to the revenue authorities. Necessary layout plan for the prison was prepared by the Police Housing Corporation, which was duly approved by the Ministry of Home Affairs vide Order no. 13030/45/2021-S(JKL), dated 13 | P a g e 19.01.2022. It was also contended that the Revenue Department, Government of Jammu and Kashmir, had accorded sanction and transferred the said identified land measuring 148 Kanals 04 Marlas to the Prisons Department for the purpose of construction of the High Security Prison vide Government order No. 36-JK (Rev) of 2022 dated 02.03.2022. Subsequently, Mutation No. 1901, dated 16.03.2022 was attested in favour of the Prisons Department. All these acts were duly approved by the Administrative Council.
25. Heard the Learned Counsel for the parties and perused the records.
26. Before we examine the applicability of the various decisions of the Hon'ble Supreme Court cited by the learned counsel for the appellants in support of their plea that the transfer of the Kahcharai land for the use of construction of High Security Prison in the village is against the directions of the Hon'ble Supreme Court, we would like to examine whether the process of transfer of the land was done in violation of any of the existing rules or orders issued by the Government of UT of JK in that regard.
27. The impugned transfer of the land vide order dated 02.03.2022 was issued by the Commissioner/Secretary to the Government, Revenue Department. The appellants/writ petitioners also had relied on a Government Order No. 30-Rev(S) of 2019 dated 05.03.2019 wherein it has been provided that proposals regarding transfer of state/departmental land for various public purposes shall be processed for consideration by the authorities in the manner mentioned therein. In the said order dated 14 | P a g e 05.03.2019 it has been mentioned that the Government in the Revenue Department shall be the competent authority to decide cases relating to transfer of state/departmental land exceeding 100 Kanals and up to 500 Kanals (free from encumbrances) to the State Government Departments for public purposes/departmental programmes.
28. In the present case, the order dated 02.03.2022 by which the land was transferred to the Prisons Department measuring 148 Kanals under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) was issued by the Commissioner/Secretary, Revenue Department, and as such, the said transfer order dated 02.03.2022 was issued by the competent authority i.e., the Government, as provided under Government Order dated 05.03.2019. Hence, there was no violation of any order of the Government as regards the authority which transferred the land.
29. The impugned order of transfer of land dated 05.03.2019 also makes a reference to the decision of the Administrative Council dated 23.02.2022. Thus, it is evident that the said transfer of land had the approval of the Administrative Council of the Government of Jammu &Kashmir. It may be noted that after the enactment and implementation of the Jammu and Kashmir Re-organization Act, 2019, and creation of the UT of Jammu & Kashmir, the Lieutenant Governor of the UT is responsible for the administration of the UT of Jammu & Kashmir. It has been provided under Section 14 of the Re-organization Act, 2019 that there shall be an Administrator appointed under Article 239 of the Constitution of India for the Union Territory of Jammu and Kashmir and shall be designated as Lieutenant (Lt.) Governor of the UT. Section 14 also provides for a Legislative Assembly. However, in absence of the Legislative Assembly, the Lt. Governor is primarily responsible for the administration of the UT for which the Lt. Governor issued an order creating an Administrative Council with the Lt. Governor as the Chairman and his Advisors as Members to dispose of cases mentioned in the "Second Schedule" to the Re-organization Act, 2019 involving legislation, including the issue of ordinances, proposals to summon or prorogue or dissolve the legislature of the State, address of the Lt. Governor to the legislature etc., or such matters as the Lt. Governor may direct to be placed before it, and the Chief Secretary is the Secretary to the Administrative Council. Thus, the Administrative Council takes all important policy decisions in the UT of Jammu and Kashmir.
30. Accordingly, if the aforesaid transfer of land by the Commissioner, Revenue Department to the Prisons Department was approved by the Administrative Council, the highest decision making authority in the UT, the Circular/Order issued by the Revenue Department on taken 05.03.2019 cannot come in the way of such decision taken by the Administrative Council. Further, we also agree with the submission advanced on behalf of the respondents that the transfer of land to the Prisons Department was to achieve certain public purpose, that is, to establish a High Security Prison which in our view, cannot be questioned or subjected to judicial review considering that it was a policy decision of the Government to establish such a prison in view of the prevailing situation in the UT of Jammu & Kashmir, which is afflicted by terrorist activities which are abated by inimical foreign forces and agencies. As also submitted by Ms. Monika Kohli, Sr. AAG, relying on the decision of the Hon'ble Supreme Court in Devendra Singh versus State of UP (Civil Appeal No.6293 OF 2011) decided on 03.08.2011, that it cannot be said that construction of a Jail does not serve public purpose.
31. We have also noted that in lieu of the land which have been taken from the village for the purpose of construction of the High Security Prison, proportionate State land had been transferred to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai) land, thus the village has been adequately compensated.
32. We also have noted that there are sufficient Shamalat Deh (Mehfooz Kahcharai) land already available with the village. As per the records, after the transfer of the State land measuring 160 Kanals and 04 Marlas, there are altogether 1230 Kanals and 08 Marlas of Shamalat Kahacharai land available with the villagers of Dambra. Thus, it cannot be said by any stretch of imagination that the villagers are prejudiced in any manner by the transfer of the aforesaid land to the Prisons Department.
33. Nothing thus, has been brought to our notice about violation of any particular rule or statute in the aforesaid act of transfer of land. The aforesaid transfer of land was executed with due approval of the competent authorities, i.e., the Revenue Department and Administrative Council.
34. Under the circumstances, we are not able to subscribe to the submission advanced on behalf of the appellants that the transfer of the Shamalat Kahcharai land to the Prisons Department for the purpose of construction of High Security Prison is illegal, and in violation of the orders and rules applicable in the UT of Jammu and Kashmir.
35. Having satisfied that the transfer of Shamalat Deh (Mehfooz Kahcharai) land to the Prisons Department does not violate or contravene any of the extant orders or rules in this regard, we would proceed to examine whether such transfer amounts to violation of any direction or order of the Hon'ble Supreme Court as contended by the Ld. Counsel for the appellants.
36. Mr. Karan Sharma Ld. Counsel for the appellants had placed reliance on the decision of the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad (supra) which deals extensively with sustainable development and need for protection of environment by observing that derivation of economic benefit must be subordinated to ensure environmental stability and maintenance of equally ecological balance and non fulfillment of this principle would be violative of Articles 14 and 21 of the Constitution. It was also observed that economic development at the cost of degradation of environment and depletion of forest cover would not be long lasting and as such, development would be counter productive. The Hon'ble Supreme Court was also concerned with the dwindling forest cover in India and emphasized the need for overall development and systematic approach. While there cannot be any difference of opinion about such observations made by the Hon'ble Supreme Court for protection of forest and preservation of environment for sustainable development, it may be noted that Hon'ble Supreme Court has not placed any blanket ban on the use of forest land. In any event, in the present case, the land in issue does not come under forest area, but it is essentially a grazing ground as also contended by the appellants. Further, the transfer of the land to the Prisons Department is also for a specific public purpose which was done by the competent authority.
37. Much emphasis had been laid on the decision of the Hon'ble Supreme Court in Rameshbahi Virabhai Chaudhary (supra) by picking out a particular paragraph in the said decision in which it has been observed that Kahcharai land can be used only for the purpose for which it is permitted to be used and if there is a user contrary to the permissible user, whether by the state or by any third party, the same cannot go on. It is to be noted that the said observation was made in the context of the facts involved in the said case, that is, encroachment in the village Kahcharai land by 72 persons by constructing residential houses. A plea was taken that some of the encroachers belong to Scheduled Castes and Scheduled Tribes and socially, economically backward classes and they had been in occupation for a long period, and they could not have been evicted without providing alternative accommodation. The Hon'ble Supreme Court after examining the facts of the case, observed that only three persons were entitled to alternative accommodation as others were 19 | P a g e having the alternative accommodation. It was in that context that the aforesaid observation was made by the Hon'ble Supreme Court. Hence, in our opinion, the said case dealing with encroachment will not be also applicable in the present case.
38. In Jagpal Singh's case, the Hon'ble Supreme Court was dealing with a case of large-scale encroachment of a village Gram Panchayat land and the encroachers were claiming regularization of such encroachment on the plea of long occupation. The Hon'ble Supreme Court noted with disdain the complicity of the administration in allowing unauthorized encroachment and also in directing regularization of encroached land by recovering the cost of the land on the plea that huge amounts had been spent by the encroachers on the encroached land. In that context, it was observed by the Hon'ble Supreme Court that the common interest of villagers should not be allowed to suffer merely because unauthorized occupation had been subsisting for many years, and accordingly, directed removal of the construction and restoration of possession of the village land to the Gram Panchayat. In that context, the aforesaid observations were made and directions were issued to all the state Governments to prepare schemes for eviction of illegal, unauthorized occupants of Gram Sabha, Gram Panchayat, Porambakkam, Shamlat land. In the present case, no encroachment of village land is involved but it is a case where the state authorities had transferred Shamalat Deh (Mehfooz Kahcharai) land to the Prisons Department after following due process and after being approved by the competent authority for a public purpose and as such, in our view the aforesaid observations of the Hon'ble Supreme Court cannot come in the way of the transfer of land in the present case.
39. Construction of a High Security Prison in the UT of Jammu and Kashmir is the need of the hour in view of the prevailing situation in the UT, which is afflicted by violence and terrorism sponsored by inimical force from across the border, which obviously would entail and involve detention of high value prisoners who would be required to be kept in very secure prisons. Thus, the construction of a High Security Prison is not only in public interest, but would subserve the interest and security of the nation.
40. We also have noted that the construction of this High Security Prison does not totally obliterate the grazing grounds of the village or the Shamalat Deh (Mehfooz Kahcharai) land available in the village. In fact, as discussed above, there are sufficient and large areas of Shamalat Deh (Mehfooz Kahcharai) land already still existing in the village. Further, the village had been adequately compensated by transfer of State land to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai) land by the villagers.
41. Thus, keeping the public interest involved in the construction of the High Security Prison which is necessary for the security of the nation, we are of the view that the decisions of the Hon'ble Supreme Court cited by the Ld. Counsel for the appellants are not applicable in the present case. In our opinion, the aforesaid decisions could not be invoked to come in the way of an important project required in public interest and for the security of the Nation.
42. It has been also brought to our notice by the Ld. Sr. AAG for the respondents that earlier, this Court had the occasions to deal with similar issues of transfer of Shamlat Deh (Mehfooz Kacharai) land for construction of government institutions and this Court had allowed such transfers for public purposes by drawing our attention to the decision in Villagers of Anzwalla Versus State Of J&K & Ors. 2012 (3) JKJ[HC]
213. We have perused the aforesaid judgment.
43. We are of the view that there are precedents in the past where Shamalat Deh (Kahcharai) land had been allowed to be transferred for construction of public institutions and for public purposes. In the said case of Villagers of Anzwala (supra) the petitioners therein had filed the writ petition questioning the transfer of certain Shamalat Deh land to the Health Department for construction of Primary Health Centre. It was contended by the petitioners therein that the land is "Mehfooz Kahcharai Land" and is reserved for grazing purposes and hence, cannot be utilized for any other purpose. The said contention was resisted by the State taking the plea that it was necessary for providing better health care facilities to the public in general, and, more particularly to the rural population of the area. It was held by this Court that Kahcharai land is the property of the Government and villagers have no individual rights on the said land and in view of the interests of the public in general, the Government was within its powers to transfer the Kahcharai land in question for the aforesaid public purpose. It was thus observed as follows:
"5. It is settled position of law that Kahcharai Land is the property of the Government, hence, the villagers had no individual rights or interest on the said land. The Government is within its powers to acquire it, when the same is for the public purpose, more so, when the amount of compensation on account of the land in question will be utilized by transferring the same to the village Panchayat in terms of Cabinet Decision No. 355 dated 27.03.1979 read with Government Order No. Rev (LAK) 275 of 1979 dated 28.09.1979. A plain reading of the provisions of the Land Acquisition Act and the Government order aforementioned, clearly establishes that the Kahcharai Land can be utilized for the public purpose, when alternate and suitable land is not available.
6. This Court in case Habibullah Sheikh v. State of J&K, 2009 (1) SLJ 150, 2008 (3) JKJ 170[HC], incidentally of which I am the author, has held that Kahcharai Land can be acquired for public purpose and the amount of compensation in lieu thereof is payable to the concerned Panchayat, in whose jurisdiction land falls, to be spent for welfare of the community of the area in question. It would be apposite to reproduce the paragraphs 5 and 6 of the judgement, which read as follows:
"5. The petitioners have no right or interest over the said land. It is virtually a property of the government but meant for grazing purposes. If Kahcharai land is to be acquired for any public purpose the amount is to be spent for welfare of the community. Division Bench of this Court in case titled [1]Gh. Mohammad Bhat & Others v. State and Anr. reported as SLJ 1981 J&K 254 has held that if Kahcharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction land falls. It is the property of the community.
6. If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the benefit of the villagers. The villagers are not before the Court. The writ petitioners have filed writ petition in individual capacity. The electric department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose. The petitioners cannot seek any relief against the respondents-Electric Department"
44. We are of the view that the aforesaid decision of this Court in Villagers of Anzwalla (supra) will be squally applicable in the present case.
45. The appellants/villagers of Dambra may have a right to enjoy the Samalat Deh (Mehfooz Kahcharai) land in the village, yet it cannot be said that the land belongs to them. The State is ultimately the custodian of such a land as a trustee for such land to be used by the villagers for their benefit. It cannot be said that the villagers are the owners of the Shamalat Deh (Mehfooz Kahcharai) land. Thus, if such land is utilized for a public purposes, it cannot be said that the legal rights of the villages are infringed.
46. We are, thus, satisfied that the transfer of Shamalat Deh (Mehfooz Kahchari) land by the State vide order dated 02.03.2022 is valid. Hence, the subsequent acts of the authority in issuing NIT and constructions made on the transferred land do not warrant interference from our end.
47. Under the circumstances, after hearing the parties and on perusal of the record and for the reasons discussed above, we are of the opinion that there is no merit in these writ petitions as well as in these appeals and accordingly, the appeals deserve to be dismissed as being devoid of merit.
48. We, however, have not examined the correctness or otherwise of the reason given by the Ld. Single Judge in dismissing the writ petitions on the ground of lack of bona fide of the petitioners in filing the writ petitions, as the appeals have been dismissed after considering merit in these appeals.
49. Consequently, all the appeals LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 are dismissed.
50. Registry to place a copy of this order in each file.
(MOKSHA KHAJURIA KAZMI) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
01.11.2023