Intizamia Committee vs State and Others

Syed Bashir-Ud-Din, J.—In revision 84 of 1996 against the order dated 13.11.1996 of Divisional Commissioner Kashmir in appeal No.

130/92, while upholding the order of Divisional Commissioner of setting aside order of Dy.Commissioner/Collector Budgam of allotment of 5

marlas of land in Khasra No. 348 situated at Baghat Barzulla in favour of Ab. Rashid Rather, respondent No. 6, the Financial Commissioner

dismissed the revision on 26.10.1997 with the observation :--

....Thus taking a balanced view on the ground of equity as well as the other factors, I feel that the case for regularization of allotment made in

favour of these two petitioners should be processed separately by the Dy. Commissioner and regularization proposed on payment of an amount

which is considered to be reasonable having due regard to the location and other aspects ............ However, the Dy. Commissioner Badgam is

directed to initiate the case for regularisation of the possession of the concerned on payment of reasonable amount.

This observation read as direction in the order of revision of Financial Commissioner is challenged in this petition and is prayed to be quashed

and further respondents 5 & 6 (allottees, of 5 marlas of land to each of the two respondents) are solicited to hand over vacant possession of the

land to petitioner and for the purpose writ of mandamus, is prayed for.

Facts necessary and relevant for this writ petition are as follows --

Abdul Rashid Rather respondent No. 6, was allotted 5 marlas of land in survey No. 348 recorded as ""Shamilat Deh Mehfooz Kahcharai

situated in village Baghat Burzulla of tehsil Badgam by Dy. Commissioner Badgam under Order No. 433-35/SQ dated 38.01.1991. By another

order respondent No. 5 was also allotted 5 marlas of land in Khasra No. 346 min at Baghat Barzulla by District Collector Badgam under order

No. 903-3/SQ dated 24.10.1988. Both allotments were made under the Scheme called ""20 Point Programme"" meant for allotment of land for

construction of houses to eligible persons below poverty line who qualify for such allotment under the Scheme. However, Gh. Nabi Bhat has filed

this writ petition on behalf of Intizamia Committee Masjid Sharief as its Chairman. He also moved on application for cancellation of the order.

Simultaneously he also filed an appeal against both orders. This appeal, after the parties were engaged in bouts of litigation for condonation of

delay before Appellate and Revisional Forums and also before the writ Court, was finally disposed of by Divisional Commissioner, Kashmir vide

his order dated 13.11.1996 (annexure K), holding the allotment of the said land to Ab. Rashid Rather not legal, as he has not qualified for the land

under the Scheme and provisions of J&K, Land Revenue Regulations Act 1946. The Common Lands Regulations Act was held not applicable as

the land in question lies within the Municipal limits of City Srinagar. Against this order, revision was filed before Financial Commissioner. The

Revisional Forum upheld the impugned order. However, the Financial Commissioner noted that the then Dy. Commissioner Badgam allotted the

land to two respondents pursuant to policy initiative of the Govt. of India to provide land for house sites to people living below poverty line when

20 Point Programme was launched for the purpose. Both the petitioners have been given the plots on the basis that they are landless people. These

small plots of land were under their possession prior to 1971. On both plots they have build their houses. Petitioners father who did possess the

land sold it during his life time and obviously petitioner are stated not to own this land. They have no right or title to their father's land during his life

time. The unauthorised occupation of the land in possession of petitioners since 1971, could not be disturbed. The enquiry conducted by the Dy.

Commissioner is found imperfect by the Revisional Forum with regard to question if petitioners were landless workers/labourers. It is also

observed that contradictory reports eminate from the filed agency as to whether petitioners' father did possess the land or did sell whole land. In

any case the Revisional Forum has found that no proper enquiry was conducted and that the petitioners did not qualify for the land and 20 Point

Programme. Yet on closer look of the matter, the Financial Commissioner found that the balanced view on grounds of equity and factors, germane

to the question show that the respondent do make out a case for regularisation of allotments required to be processed separately by the Dy.

Commissioner on payment of evaluated and assessed compensation.

Learned Counsel for the petitioners submit that once Financial Commissioner like Divisional Commissioner found the orders of allotment of land

to respondents bad in law, the Financial Commissioner has no powers to direct the Dy. Commissioner to initiate the process for regularisation of

possession of the land to petitioners on payment of assessed compensation. Both respondents have been allotted land on the premises that they

qualify for such allotment under 20 Point programme. Once the Financial Commissioner found it not so and set aside the order of Dy.

Commissioner Badgam in allotting the land to respondents on the premises of their cases not falling within the sweep of the scheme and the matter

not covered by J&K Common Lands Regulations Act 1956 and Agrarian Reforms Act not applicable, the only option with Financial

Commissioner was to confirm the order under appeal, which the Financial Commissioner did without while issuing any further directions in the

matter.

The L. C. for the respondents in reply submits that each of the two respondents have been allotted 5 marlas of land from ""Abadi Deh Mehfooz

Kahcharai"" and the land in all comprises over 52 kanals 6 marlas in survey No. 300, 338, 340 and besides 348 at Baghat Barzulla, who too have

encroached on this land and build their houses and other structures on site. Even the petitioner also possess sufficient chunk of land out of this

Abadi Deh Mehfooz Kahcharai"" land. The two respondents who have been just allotted two plots of 5 marlas each are dragged in litigation for

last over a decade in the name of Mosque, on the plea that this land is part of ""Jenazgah and graveyard"". The Mosque or Intizamia Committee

cannot hold land meant for ""Jenazgah and graveyard"" in as much as the land in question is not at all a burial ground. The people who may bury their

dead on spot, have to acquire and own for the purpose. So long the proprietary character of the land is not shown, it cannot be used as a

cemetery. All this is not pleaded and no such case is presented before the court. Apart from doubtful questions of law raised and disputed acts

stearing in the face, as answered by the Appellate and Revisional Forum with the sweeping remarks in omnibus terms, the fact is that the direction

of the Financial Commissioner in the impugned order objected to is nothing but an equitable and just direction sustainable under law. None of the

rights of the petitioner are violated, as a result of the impugned direction. The Financial Commissioner has powers and jurisdiction under law to

pass direction for regularisation of the small plots of land in respondent possession for last over three decades. Irrespective of whether source of

power is rightly or wrongly referred, so long the Financial Commissioner has power to issue the direction, same cannot be beyond pale of law. The

counsel further submits that in the facts and circumstances of this case Mosque may be through its Intizamia Committee or its Chairman cannot sue

and has no locus standi to do that, in laying claim to land as burial site on behalf of the inhabitants of the locality or actual users (if so). There is no

proof of disposition of land as ""Qaberistan."" Mosque is not the owner of land. This is not a case where rights of inhabitants of the village are

claimed to be infringed or violated.

The impugned order (annexure I) decides nothing against the writ petitioners and is not in any manner adverse to petitioner. The order is passed

within ambit of law. The Financial Commissioner has jurisdiction and powers to decide the revision and to give direction down the line to Divisional

Commissioner, Dy. Commissioner and other revenue field staff. Merely because a direction is given to the Dy. Commissioner to initiate and

process the respondents 'case for regularisation of the possession on payment of compensation, it cannot be said that the direction is dehors the

powers and beyond pale of law. The Revisional Forum has observed that in the facts and circumstances and on equitable considerations, direction

of regularisation on payment of assessed value has to be place in a large chunk of land is already possessed and occupied by various inhabitants of

village Bagat Burzella out of the ""Abadi Deh Mehfooz Kahcharai"" land, why to pick up the two respondents allotted just a pittance of 5 marlas a

piece for litigation and eviction. There is nothing on record, to show as to whether ""Intizamia Committee"" headed by Gh. Nabi Bhat, who is super-

heading the litigation as petitioner is in fact the representative of the Masjid Sharief Bagat Burzella. Contextually it cannot be also lost sight of that

there is no material whatsoever to show that the land in question in Khasra No. 348 is properitory or duly acquired land of the inhabitants of Bagat

Burzella who are allegedly using this land as ""Jenazgah and graveyard"". The Intizamia Committee of a Mosque, cannot claim and assume to itself

the role of litigating on behalf of a section of the ""Abadi Deh"" for the alleged burial ground. Those, who are to bury their dead and use the land as

graveyard, have to acquire title/properitory/users right in the land.

Though, number of factual errors are noticeable but the fact remains that on an over all consideration of the matter, and in the totality of facts

and circumstances of the case, the impugned order with direction of initiating and processing the regularisation of the plots to the two respondents

cannot be said to be vitiated. The order is passed in exercise of powers and within jurisdiction. It is covered by law.

The contention whether Mosque at Rawath pora Bagat Burzella has a locus standi in the facts and circumstances of this case to file this petition

and further whether Gh. Nabi Bhat alleged Chairman of Intizamia Committee of the Masjid Sharief can come to the Court to challenge the

impugned order or matter cannot be brushed aside. 'Mosque' is hardly capable of owing and possessing ""Qaberistan"" (burila ground). The

graveyard cannot be part of the Mosque. They are two separate entities. Mosque is open for entry to every Mohammedan and is dedicated to

Allah for offering prayers. The Mosque is hardly artificial juristic person capable to file or sue to involve itself in the litigation over a piece of land

claimed as burial or graveyard. Under Mohammaden Law, if land is used as graveyard/cemetery with burial from time immemorial then same is to

be recorded as dedication of the land as ""Wakf"" for the purpose and same is to be presumed and in such cases, it is not necessary to prove

dedication as Wakf. However, where the user of land as burial ground is recent in origin and for short duration (as in this case land is alleged to be

used as 'Qabristan' just for last 25 years) then it is necessary to prove number of instances, adequate in number and extent and sufficient of

character, from which the court can infer that the land was necessarily used as a Public burial ground. When the period for which land is used as

burial ground is not to be taken back to the time immemorial, then nature, manner and mode in which burials have been permitted by the owner of

the property is also to be looked into.

AIR 1936 83 (Privy Council)

Mohammad Kasam Abdul Rehman and Another Vs. Abdul Gafoor Ahmedji and Others,

Skh. Bashir Ahmad and Others Vs. Skh. Abdul Jabbar and Others,

In this case the burial of dead on the land is stated to be recent in origin for 25 years back. Instances adequate in number and extent and

sufficient in character are wholly missing. No document, material or proof is on record to show that the land was and is being used as Public burial

ground. The entry in records about the land is ""Abadi Deh Mehfooz Kahcharai"". Thereby meaning land is used as protected grazing land by the

villagers. The Financial Commissioner in the impugned order and other respondent(s) in more than one place that petitioners have come to occupy

and are in continued possession of their 5 marlas of land (each) earlier to 1971. If so, they are in possession/occupation of the land much before

land is claimed as Qaberistan (graveyard). Some person appears interested in the litigation for himself, notwithstanding 'mosque intizamia

committee' is used in litigation. There appears more than what meets the eye. If the writ petition is filed by the inhabitants or users of the land is

question, may be to claim graveyard, the matter is understandable, but that is not the case here. Even so the writ petition had to be filed by

concerned persons (Abadi) and may be in representative character, but that is not so.

The contention of petitioners' counsel that no restriction on invocation of writ jurisdiction under Article 226 by any person or body of person

not aggrieved or adversely affected does not apply to this case is suspect. It is always the person aggrieved who can come to the court. But all the

same the exercise of extra ordinary jurisdiction under Article 226 requires that the relief asked for must be one for enforcement of legal right. The

normal rule that ordinary right sought to be enforced must be personal or individual right of the petitioner himself applies in this case. The authorities

cited at Bar viz., Bhuneshwar Prasad Vs. Deputy Director of Education and Others, are noticed.

In result, in the above view of the matter, the writ petition merits dismissal and is accordingly dismissed.