Residents of Village Jassore vs State Of Jammu & Kashmir Spl Tribunal And Ors

The case of the petitioners is that Evacuees Property Land measuring 10 marlas out of Kh. No.297 at Village Jassore being a Gair Mumkin Chapper (pond) was allotted by misrepresentation and fraud in favour of the respondents no. 3 and 4, and same came to be cancelled by virtue of order dated 04.02.2016, passed by the Court of Custodian Evacuee's Property Jammu with immediate effect and the Tehsildar Assistant Custodian R. S. Pura has been directed to get the whole Kh. No. 297 i.e. 4 kanals vacated from illegal occupants forthwith and to keep the said E.P. land on Superdnama of field inspector concerned. It is stated that the petitioners after getting the said order filed a caveat petition before the court of Special Tribunal, Jammu and requested to summon the petitioners before passing any order, but the Court of Special Tribunal Jammu in a revision filed by the respondents no. 3 and 4, stayed the order of Custodian without notice to the petitioners and thereafter by virtue of order impugned dated 16.04.2016 has remanded back the order to the Custodian for de-novo enquiry.

Through the present petition, petitioners seek quashment of the order impugned dated 16.04.2016, passed by respondent No. 1 with a further direction to get the whole Kh. No.297 i.e. 4 kanals vacated from illegal occupants. It is stated that admittedly the land measuring 10 marlas falling under khasra no.297 is a Shamlat Deh Mufeed Aam Gair Mumkin Chapper which fact is evident from Jamabandi pertaining to the year 1957-58 as well as Khasra Girdawri for the year 2014 and even otherwise also the respondent no.1 in the order impugned has also stated that according to the record of Custodian Department the land in dispute has continuously been recorded as chappri. It is further stated that a detailed report was sought by the Custodian before cancelling the order, and after visiting the spot personally, thus there was no occasion for the respondent no.1 to remand the matter to the Custodian for the fresh enquiry. The land being common land having recorded as Shamlat Deh and Ghair Mumkin Chapri (pond) in the column of owner and Type of Soil is the common land of the villagers, thus cannot be subject of allotment to any particular person.

Learned counsel for the petitioners states that after the enforcement of the enactment i.e. Water Resources Act all the water bodies have been declared to be property of the Govt., therefore,, respondent No.2 has rightly cancelled the allotment of common land Ghair Mumkin Chapri (pond) in favour of respondent no.3 & 4, as such, there is no need of conducting a fresh enquiry with regard to the present status of the land when the report of concerned Partwari is enclosed. It is stated that respondent nos.3 & 4 after illegally encroaching upon the land got the said land allotted in their favour in connivance with the then concerned officials, as such, the allotment of common land measuring 10 marlas in favour of respondent no.3 & 4 has been rightly cancelled by the respondent no.2, thus there was no occasion for the respondent no.1 to remand the case for the fresh enquiry.

I have considered the rival contentions of learned counsel for the parties.

At the time of entertaining this writ petition this Court on 25.05.2016, passed the following interim order:-

"Notice to the respondents in the main as well as in MP, returnable within four weeks. Requisite steps for service within one week. Dasti service is also permitted.

List immediately after four weeks

Meanwhile, respondent No.2 is directed to submit the findings of enquiry after conducting it as directed by respondent No. 1, before this Court by or before the next date of hearing."

In compliance to the above said interim order, Custodian Evacuee Property, Jammu has furnished report in a sealed cover. The same has been opened in open court and the operative part of the said report reads as under:-

"The undersigned has also visited the spot and found that some illegal constructions/encroachments have also been made on the said land covered under Kh. No. 297, by various persons i.e. Raj Kumar S/o Babu Ram one house (3 ½ MIs), Mela Ram S/o Babu Ram Khola (1 mls), Kholu Ram S/o Babu Ram , Khola (1mls), Lok Nath S/o Nand lal (3mls), Piritam Chand one house (6 mls), Mulkh Ram S/o Nand Ram ( 2 ½ MIS), Garhu Ram S/o Gian Chand (4mls) and a school building on 3 mls of said land illegally. Besides it has also been found that the land in dispute has continuously been recorded as Ghair Mumkin Chapri (Pond) and the petitioners have sought its allotment by mis-representation at that time, so that in the interest of EP department and safeguard of its property as well as Evacuee, the Court of the Custodian cancelled the order from the name of Petitioners Kirpal Singh and Joginder Singh S/o Dewan Singh and in the said cancellation order the Tehsildar Assistant Custodian R. S. Pura is directed to get the whole Kh. No. i.e. 297 vacated from the illegal occupants and to keep the said EP land on Superdanama of Field Inspector concerned.

In view of the above stated facts, the court of Custodian has not yet passed any order in response to the remand order dated 16-04-2016 of J&K Special Tribunal Jammu, due to the reasons that, at present the said remand order is under challenge before the Hon'ble High Court at Jammu.

Hence the enquiry report is submitted as desired."

In view of the above, the instant petition is disposed of with the direction to the Custodian Evacuee Property, Jammu to act upon the aforesaid enquiry report dated 09.09.2016 conducted by him and pass appropriate orders against the illegal occupants as per the law and rules governing the field, by a speaking order, within a period of six weeks from the date of receipt of certified of this order.

The writ petition alongwith connected IA stands disposed of in the above terms.