Indra Devi and another vs U. T. of J&K and others

The petitioners have filed this petition seeking the following reliefs:

It is contended that the land measuring 01 kanal 08 marlas, situated in Village Arnora (Ghat), Tehsil and District Doda belonging to the grandfather of petitioner No. 1, was acquired by Assistant Commissioner (R), Doda for the construction of Bus Stand, Ghat and the final award came to be passed in this regard on 28.02.1986. The grandfather had executed a gift deed on 04.04.1996 in favour of the petitioners in 1996 regarding the residence/house existing on the land comprising survey No. 54 measuring 29ft. x 28ft. comprising of two bedrooms, one kitchen, one bathroom, a store and a lobby situated in Village Arnora (Ghat), Tehsil and District Doda. It is stated that the residential house of the petitioners exists on the proprietary land, which is not the part of the award dated 28.02.1996 and the respondents, on the basis of the illegal demarcation report, without associating the petitioners, are misconstruing that the residential property of the petitioners is the part of the Bus Stand, Ghat. The petitioners further claim to have filed an application dated 22.09.2022 for fresh demarcation but respondent No. 2, instead of acceding to the request of the petitioners, directed removal of the encroachment. Besides, it is also urged by the petitioners that the house gifted by the grandfather was renovated by the petitioners and no encroachment has been made by the petitioners on any State land including the land of Bus Stand, Ghat.

Respondent Nos. 2 and 3 in their response have admitted execution of the gift deed in favour of petitioners No. 1 regarding the land measuring 3 marlas comprising survey No. 54 of Revenue Village Arnora, Tehsil and District Doda on 04.04.1996, but it is contented by respondent Nos. 2 and 3 that the petitioners have recently extended their structures and some part of it, is constructed on survey No. 53 already acquired for Bus Stand, Ghat, for which, the grandfather of petitioner No. 1 had already received the compensation. Besides, it is urged by the respondents that the fresh demarcation report was sought by the Tehsildar Doda from the field staff, which was received from the office of Tehsildar Doda on 23.02.2023 and as per report, the demarcation was conducted in presence of petitioner Nos. 1 and 2 and as per the record, the total land of survey No. 53 is 01 kanal 08 marlas, which stands acquired for the construction of Bus Stand, Ghat from the grandfather of the petitioner No. 1. It is further transpired that 08 sarsai excess land in the form of extension of the house of the petitioners is in their possession.

Heard learned counsel for the parties and perused the record.

The petitioners claim to be the owners of the residential house measuring 29ft. x 28 ft., subsequently renovated existing on the land falling under survey No. 54 situated in Village Arnora (Ghat), Tehsil and District Doda. The sole grievance of the petitioners is that they have not encroached upon any State land while constructing/renovating their house over the land referred to hereinabove.

Mr. Gagan Basotra, learned Senior Counsel appearing for the petitioners, in order to buttress his submission that the State land has not been encroached upon by the petitioners, has drawn the attention of this Court to Annexure-6, which is in the form of an NOC issued by the Executive Engineer, PWD, wherein it has been specifically stated that there is no encroachment upon the Government land.

The contention of the respondents is that the house has been expanded by the petitioners recently and while doing so, they have encroached 08 sarsai of land in excess comprising survey No. 53, situated in Village Arnora (Ghat), Tehsil and District Doda, which was acquired for the construction of Bus Stand, Ghat.

The controversy has now narrowed down with regard to the alleged encroachment by the petitioners over land measuring 8 sarsai, comprising survey No. 53 situated in Village Arnora (Ghat), Tehsil and District Doda. It was vehemently argued by Mr. Basotra that while conducting fresh demarcation, the gift deed and the revenue record accompanying the same were not taken note of by the revenue authorities and as such, communication dated 15.02.2022 issued pursuant thereto, could not have been issued.

Though the demarcation report dated 23.02.2023 records that the demarcation was conducted in the presence of the petitioners, the said assertion has been seriously disputed by learned Senior Counsel appearing for the petitioners. Mr. Ravinder Gupta, learned AAG has submitted that the petitioners had earlier filed an appeal against the order dated 15.05.2022 passed by Executive Engineer, PWD R&B Div. Doda, impugned in this petition as well, but the said appeal was dismissed on the ground of maintainability vide order 28.05.2022 passed by learned Addl. District Judge, Doda. The petitioners have themselves disclosed this fact in para-8 of the petition.

Be that as it may, the present petition is disposed of with a direction to respondent No. 3, Tehsildar, Doda, to conduct a fresh demarcation to ascertain whether the land measuring 8 sarsai, allegedly encroached upon by the petitioners, forms part of Survey No. 53, situated at Village Arnora (Ghat), Tehsil and District Doda and in the event the fresh demarcation establishes that the aforesaid land forms part of Survey No. 53, the respondents shall be at liberty to proceed further in accordance with the communication dated 15.02.2022 issued by respondent No. 4, in accordance with law. Needless to say that the Tehsildar, Doda shall conduct demarcation in presence of the petitioner and the officials of department concerned.