HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU OWP No. 177/2019 CM No. 973/2019[1/2019] CM No. 5057/2020 Mohan Lal …..Appellant(s)/Petitioner(s) Through: Mr. RKS Thakur, Advocate vs Financial Commissioner and ors. .…. Respondent(s) Through: Mrs. Monika Kohli, Sr. AAG for R-1 to 3 Mr. P. C. Sharma, Advocate for R-4 to 13 Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE ORDER 05.03.2025 1. Assailed in this writ petition is the order dated 16.01.2019 passed by respondent No. 1 in revision titled, ‘Satpal and ors. vs. State of J&K and ors.’, whereby revision petition preferred by the respondent Nos. 4 to 13 has been accepted and the order dated 21.10.2016 passed by respondent No. 2 has been set aside. 2. The official respondents have not filed reply but respondent Nos. 4 to 13 have filed reply thereby supporting the order dated 16.01.2019 passed by respondent No. 1. 3. Mr. RKS Thakur, learned counsel for the petitioner has argued that even if it is assumed that order dated 11.06.2012 passed by the respondent No. 3 has been passed by invoking the provisions of Section 133 of Land Revenue Act, though reference has been made to Serial No. 33 2 OWP No. 177/2019 Section 4 of Jammu and Kashmir Common Lands (Regulation) Act in the same, still quashing of the order dated 21.10.2016 whereby order dated 11.06.2012 was set aside by respondent No. 2, has resulted into denial of opportunity of hearing, as respondent No. 1 while setting aside order dated 21.10.2016 has directed the Tehsildar to continue the proceedings of eviction and recovery of fine after making correction in the notice dated 11.06.2012 by mentioning Section 133 of the Land Revenue Act instead of Section 4 of Jammu and Kashmir Common Lands (Regulation) Act. 4. Mr. P.C. Sharma, learned counsel for respondent Nos. 4 to 13 has submitted that respondent No. 1 has rightly passed the order as the petitioner had encroached the Shamilat land and that is why the respondent No. 2 initiated the proceedings of eviction and recovery of fine against the petitioner. 5. Heard learned counsel for the parties and perused the record. 6. A perusal of the record reveals that initially order dated 11.06.2012 was issued by respondent No. 3 against the petitioner and proforma respondent No. 14 for vacating the land measuring 12 Kanals comprising Survey No. 193 min situated at Village Jib and for recovery of fine. The said order was assailed by the petitioner before respondent No. 2 and respondent No. 2 vide order dated 21.10.2016, set aside the order passed by the Tehsildar. The order dated 21.10.2016 was assailed by predecessor in interest of some of the respondents and other respondents in revision petition before respondent No. 1 and respondent No. 1 while setting aside the order 3 OWP No. 177/2019 dated 21.10.2016, returned a finding that order dated 11.06.2012 passed by respondent No. 3 was not under the provisions of Jammu and Kashmir Common Lands (Regulation) Act but the same was passed by invoking the provisions contained in Section 133 of J&K Land Revenue Act. 7. It is contended by the petitioner that even if the order passed by respondent No. 1 is right, still it has resulted into denial of opportunity of hearing to the petitioner since respondent No. 1 has directed the respondent No. 3 to proceed ahead with the eviction and recovery of fine from the petitioner. It is borne from the record that no opportunity of hearing was afforded to the petitioner by Tehsildar before passing order dated 11.06.2012. Learned counsels appearing for the parties are also unanimous in their submission before this Court that no opportunity was afforded to the petitioner by Tehsildar before passing order dated 11.06.2012. The order dated 11.06.2012 passed by Tehsildar is penal in nature and at least petitioner was required to be afforded due opportunity of hearing before passing of any such order. 8. Accordingly, the order dated 16.01.2019 passed by respondent No. 1 is modified to the extent that order dated 11.06.2012 passed by the Tehsildar is set aside and the Tehsildar shall initiate afresh proceedings and shall afford due opportunity of hearing to all the interested parties before passing any order. At this stage, Mr. P. C. Sharma, learned counsel for the private respondents submits that the private respondents be directed not to change the nature of the land. This Court is not inclined to pass any order in this respect, however 4 OWP No. 177/2019 leaves the private respondents free to approach the Tehsidar concerned with any such prayer. 9. Disposed of. (RAJNESH OSWAL) JUDGE Jammu 05.03.2025 Neha-II Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No NEHA KUMARI 2025.03.10 13:22 I attest to the accuracy and integrity of this document