HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on 26.03.2025 Pronounced on 07.04.2025 OWP No. 250/2013 Altaf Hussain and others Through: Mr. S. H. Rather, Advocate Vs. State of J&K and others. Through: Ms. Monika Kohli, Sr. Advocate Mr. K. S. Puri, Advocate CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The petitioners through the medium of present petition have challenged order dated 13.12.2012 passed by Joint Financial Commissioner (AR) (with power of Financial Commissioner Revenue), Jammu (hereinafter to be referred as respondent No. 2) in a reference made by Additional Commissioner, Jammu (with powers of Divisional Commissioner) ( hereinafter to be referred as respondent No. 3) vide order dated 06.01.2004 passed in a revision petition titled, “Ghulam Rasool and ors. Vs. Wali Mohd and others”, by virtue of which respondent No. 2 has accepted the reference made by respondent No. 3 and set aside order dated 03.10.1992 passed by respondent No. 5. Challenge has also been thrown to order of reference dated 06.01.2004 passed by respondent No. 3. The petitioners have further sought a direction upon the respondents restraining them from interfering in his peaceful possession over the land measuring 33 kanals comprised in Khasra No. 2135, situated at village Arai, Tehsil Mandi, District Poonch. 2 OWP No. 250/2013 2. As per case of the petitioner, land measuring 33 kanals (Kap) in Khasra No. 2135 situated at village Arai has been under his possession since time immemorial and the said land was being used by him for the purpose of grazing domestic animals. It has been submitted that as per Khasra Girdawari for the year 1959-61, land measuring 40 kanals in the aforesaid khasra number, was shown to be in possession of the petitioner and the said land continues to be in his uninterrupted possession. It has been further submitted that in the year 1967, the Tehsildar concerned attested mutation No. 156 by virtue of which land measuring 454 kanals and 13 marlas, including the land of the petitioner, was reserved for kahchari (grazing land). However, even after the attestation of the said mutation, the aforesaid land measuring 33 kanals in Khasra No. 3135 remained under the possession of the petitioner. It has been submitted that when in the year 1992, respondent No. 8 tried to encroach upon the aforesaid land of the petitioner, he came to know that mutation No. 156 dated 05.12.1967 has been attested, whereafter, he immediately filed an appeal against the said mutation before Assustant Commissioner (Collector) Poonch to the extent of the land belonging to him. Vide order dated 03.10.1992 passed by the Assistant Commissioner (Collector), Poonch, mutation No. 156 dated 05.12.1967 was modified/set aside to the extent of land measuring 33 kanals under Khasra No. 2135 and said portion of the land was regularized in favour of the petitioner. 3. According to the petitioners, respondent No. 8, who was serving in the Police department concocted a false and frivolous story and by forging the signatures of the villagers, challenged order dated 03.10.1992 passed by the Assistant Commissioner Revenue (Collector) Poonch by way of a revision petition before Divisional Commissioner, Jammu, respondent No. 3, who 3 OWP No. 250/2013 without giving opportunity of hearing to the petitioner and without considering the record, set aside order dated 03.10.1992 passed by the Collector Poonch and recommended to respondent No. 2 that order dated 03.10.1992 passed by the Collector be set aside as a consequence whereof, mutation No. 156 dated 05.12.1967 be upheld. The Joint Financial Commissioner, respondent No. 2 accepted the reference vide impugned order dated 13.12.2012 and set aside order dated 03.10.1992 passed by the Collector and all other consequential orders passed by the Tehsildar, who had regularized the land in dispute in favour of the petitioner. Accordingly, mutation order No. 156 dated 05.12.1967 was upheld. 4. The petitioners have challenged the impugned orders passed by the Joint Financial Commissioner (respondent No. 2) and the Additional Commissioner, Jammu (respondent No. 3) on the grounds that the land in question to the extent of 33 kanals is admittedly in possession of the petitioner since the year 1959-61 as is reflected in the khasra Girdawari for the said years. It has been further contended that land adjoining to the subject land is not being used as khacharai, therefore, there is no question of the land in question being used as khacharai. It has been further contended that the learned Assistant Commissioner Revenue (Collector) Poonch has passed a reasoned order on 03.10.1992 and there was no ground for respondent Nos. 2 & 3 to set aside the said order. 5. Respondent Nos. 8 to 22 have contested the petition by filing their reply to the same. In their reply, they have submitted that land measuring 33 kanals under khasra No. 2135 in village Arai is a State land reserved for grazing purpose. It has been submitted that the concerned Girdawar had 4 OWP No. 250/2013 illegally and un-authorizedly forged the revenue entry in the name of the petitioner in respect of land in question though he was never in possession of the said land. It has been further submitted that as a matter of fact, vide mutation No. 156 dated 05.12.1967, Tehsildar concerned had attested mutation for land measuring 414 kanals and 13 marlas, which included the land measuring 33 kanals comprised in khasra No. 2135, reserving the said land for village community as khachari. According to the private respondents, the petitioner had filed an appeal against the aforesaid order after 25 years in the year 1992 and the Assistant Commissioner, Poonch without giving any reasons for condoning the delay and without hearing the villagers, allowed the appeal in terms of order dated 03.10.1992. It has been further submitted that the said order is illegal and not sustainable in law and accordingly, the same has been rightly set aside by respondent Nos. 2 & 3 by virtue of impugned orders. 6. I have heard learned counsel for the parties and perused the record of the case. 7. A perusal of the revenue record placed on record by the petitioner would reveal that the land in question is “State land” and it is also recorded in the revenue record that the said land is grazing land (Kap), though it has been shown in unauthorized occupation of the petitioner. The record further shows that vide mutation No. 156 dated 05.12.1967, a big chunk of land including the land, which is subject matter of the writ petition, was reserved for grazing purpose. It was only on 04.06.1992, that the said mutation came to be challenged by the petitioners by way of an appeal before the Assistant Commissioner Revenue (Collector), Poonch. 5 OWP No. 250/2013 8. The only reason for condoning the delay in filing the appeal assigned by the Collector in his order dated 03.10.1992 is that the petitioner is an illiterate person, residing in a far flung area. It seems that the petitioner had not even filed an application for condonation of delay of 25 years in filing the appeal and he had not even explained the reasons for not assailing the mutation order passed in the year 1967 for all these years. However, the Collector, it seems, on its own presumed that the petitioner because of his illiteracy and because he belongs to a far flung area could not approach the said authority within time. In absence of any assertion on the part of the petitioner before the Collector to this effect, it was not open to the Collector to condone the huge delay of 25 years. 9. A perusal of the title of the appeal filed by the petitioner before the Collector would reveal that not even the villagers were made party to the appeal. As per the mutation dated 05.12.1967, the land was reserved for grazing of the cattle belonging to the villagers. The affected persons viz. the village body was not made party to the appeal. Thus, the appeal of the petitioners was not only barred by limitation but it was also not maintainable for non-joinder of necessary parties. 10. The Revisional Authority, respondent No. 3 has, on the basis of available revenue record, observed that the land in question is State land reserved for khacharai for the common purpose and for benefit of the villagers. The observation of respondent No. 3 is that the same could not have been regularized in favour of a private person. Respondent No. 2 while deciding the reference made by respondent No. 3 has observed that the Assistant Commissioner (Collector), Poonch has not been able to justify adjudication of 6 OWP No. 250/2013 the appeal on merits after a long span of 25 years and the said authority has agreed with the finding of respondent No. 3 that land in question is a State land reserved for khacharai and as such, the same could not have been regularized in favour of the petitioner. 11. The aforesaid observations of respondent Nos. 2 & 3 with regard to the status of land being State land reserved for grazing purpose, which could not have been regularized in favour of the petitioner, are based on revenue record. Hence, the same are absolutely in accordance with law and do not call for any interference from this Court in exercise of its writ jurisdiction. 12. Apart from the above, the Supreme Court in case of Jagpal Singh and others vs. State of Punjab and other, AIR 2011 SC 1123, has directed all the State Governments and Union Territories in the country to prepare scheme for eviction of illegal/unauthorized occupants of common lands so that these are restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. The State Governments and Union Territories have been further directed by the Supreme Court to prepare a scheme for speedy eviction of illegal occupants and it has also been made clear that long duration of illegal occupation or huge expenditure in making construction on such lands must not be treated as a justification for condoning the illegal act or for regularization of illegal possession. 13. In face of the aforesaid directions extended by the Supreme Court, even if it is presumed that the petitioner is in possession of the land, which is subject matter of the writ petition, still then the said land admittedly being the State land reserved for grazing purposes, could not have been regularized in favour of the petitioner. Respondent No. 3 as well as respondent No. 2 are, 7 OWP No. 250/2013 therefore, well within their jurisdiction to set aside the order of Assistant Commissioner Revenue (Collector) Poonch, whereby the land in question was directed to be regularized in favour of the petitioner. 14. For the forgoing reasons, I do not find any merit in this writ petition. The same is, accordingly, dismissed. (SANJAY DHAR) JUDGE Jammu 07.04.2025 Karam Chand/Secy. KARAM CHAND 2025.04.07 17:20 I attest to the accuracy and integrity of this document