AI Structured Summary
Not yet generated for this judgment
Judgment
Justice Sunil Hali, J.—Dispute in respect of land comprised in Survey Nos.1717 and 2005, situated at Moza Kripalpora, Pattan, between
the petitioner and private respondents, necessitated initiation of proceedings u/s 145 of Criminal Procedure Code. An application in this behalf was
received by the Tehsildar (Executive Magistrate), Pattan, from the police station concerned. A composite order came to be passed on the
aforementioned application dt. 12th of Aug'09, whereby the property in dispute was attached. Aggrieved by the above order, a revision petition
was preferred by the private respondents before the learned Additional District Judge, Baramulla.
The revisional court after hearing learned counsel for the parties, set aside the order passed by the learned Tehsildar (Executive Magistrate),
Pattan, vide order impugned dt. 26th of April'10, on the following grounds:- i/ that the land in question which was the subject matter of dispute was
an orchard as such, the learned Executive Magistrate lacked jurisdiction to initiate such proceedings; ii/ that the preliminary order passed by the
authority concerned directing attachment of the property, was not in consonance with the law.
Aggrieved by the aforementioned order, the present petition has been filed.
The dispute in this case relates to the land measuring 17 kanals comprised in Survey Nos. 1717 and 2005, situated in Kripalpora, Pattan. Land
comprised in Survey No. 2005, is admittedly an orchard while the land situated in Survey No. 1717, is Nehri Awal, which is an agricultural land.
Present petitioner has raised a dispute that out of the land comprised in Survey No. 2005, 9 kanals of land stands exchanged in his favour by the
father of respondents 2 to 5 which assertion of the petitioner is being denied by the other side. However, no dispute is being raised with respect to
the land comprised in survey No. 1717, which is an agricultural land.
'Land' has been defined u/s 2(9) of the J&K Agrarian Reforms Act, 1976. An 'orchard' is not covered under the definition of land as is apparent
from the perusal of the aforementioned Section. As is revealed from the order impugned, 9 kanals of land comprised in survey No. 2005 is an
orchard which fact is admitted by the petitioner. Once the petitioner on his own admits this land to be an orchard, the Executive Magistrate had no
jurisdiction to initiate proceedings u/s 145(1) of Cr.P.C.
Further, while examining the order passed by the Executive Magistrate, it is revealed that the property in respect of which the proceedings were
required to be initiated has not been identified or defined. The order of Executive Magistrate, makes a reference of Survey Nos. 1717 and 2005
but it does not define the actual area of land which is subject matter of dispute. As noticed above, the land comprised in both the Survey Nos.,
referred to above, is not the subject matter of dispute. Under these circumstances, the proceedings initiated by the learned Tehsildar (Executive
Magistrate), Patan, cannot be said to be in accordance with the law, and the order passed in this regard has been rightly set aside by the revisional
court.
For the reasons mentioned above, I do not find any reason to interfere with the order impugned dt. 26th of April'10, passed by the court below.
This petition is, accordingly, dismissed with the direction that the property in dispute shall be handed over to the respondents from whom the same
was taken over at the time of attachment.