ABDUL AHAD SHERA AND ORS vs STATE & ORS

Heard learned counsel for the parties.

The writ petitioners - 15 in number, R/O Village Thune, Tehsil Kangan, District Ganderbal, have filed this writ petition seeking several reliefs,

most of which are sought in the nature of Mandamus, which may be noticed as under :

Mandamus commanding thereby the official respondents not to carry on with the construction on spot till final disposal of the case

titled above.

Mandamus commanding thereby official respondents to state the reason and logic as to how the Kahcharai land stands converted into

proprietary land in the name of private respondents and other individuals of the area with whom the official respondents are in league

to get the funds of the state exchequer utilized for their personal benefits.

Mandamus commanding thereby official respondents not to release any more amount in favour of the other persons including the

private respondents till the matter is not finally adjudicated either way by this Hon''ble Court.

Mandamus commanding thereby official respondents as to how they have released 80% of amount in favour of private respondents

as compensation regarding the land record as Kascharai and converted as proprietary land in the name of private respondents and

other inhabitants of the said area.

Mandamus commanding thereby to any Judicial Authority to investigate and enquire as to how the Kascharai land stands converted

as proprietary land in the name of private respondents at the hands of official respondents by releasing huge amount in favour of

private respondents by showing them owners of the land by effecting mutations in their name in the revenue extracts as if they were

the owners of land which is recorded as Kascharai land as per narration of annexure :A supra.

The respondents 1 to 13 are official respondents and respondents 14 to 16 are private respondents. Respondent No.11 is Collector, Land

Acquisition, Revenue Ganderbal.

According to the petitioners, in order to establish a road between two villages under the Prime Ministers Gram Sadak Yojna (PMGSY), the

Collector proceeded to acquire certain land. The land was identified and according to the respondent - State, the same was acquired and

compensation paid to the private respondents.

The controversy in this case, as pleaded by the villagers - petitioners, is that a piece of land, on which the road is to be laid, is a Kascharai land,

owned and possessed by the State as per revenue records of the year 1984 Bikrami. The official respondents, in connivance with the private

respondents, have treated the said Kascharai land as proprietory land of the private respondents and have even given them compensation as if they

are the owners of the land. This land is grazing land of the village.

The petitioners submitted an application before the Deputy Commissioner (DC), Ganderbal, on 06th January, 2011 expressing their resentment

that the land, which belongs to the State, has been converted into proprietory land to benefit the private respondents. This, according to the

petitioners, is a fraud on the State by manipulation of records by the officials of Revenue Department in connivance with the private respondents.

The complaint appears to have reached the officials. However, it appears that some action has been taken by the authorities. They have

identified Kascharai land as well as the land owned by the private respondents. The details are given in paragraphs 8 to 13 of the Reply which may

be noticed :

...8. In the meanwhile some inhabitants of village Thune preferred application/representation before the Divisional Commissioner,

Kashmir, which was referred to Deputy Commissioner, Ganderbal, vide No. Div.Com/PS.116/Misc dated 10-01-2011 in the said

representation certain allegations were leveled by the inhabitants, that one Bashir Khan in league with revenue officials managed to get

excess payment of compensation in respect of Shamilaat section 5. One more communication was received from Div. Com, Kashmir

vide No. Div. Com/Dev-249/2975 dated 14-01-2011 together with the representation of inhabitants of Shah Mohalla Badipatri and

Thune Kangan wherein they have pleaded that some persons home in order to gain their personal scores are creating hurdles in

constructing the said road and due to non availability of the road the inhabitants suffer heavy losses.

That the said representations necessitated the enquiry which was ordered by the Deputy Commissioner, Ganderbal, by appointing

Additional Deputy Commissioner, Ganderbal, as Enquiry Officer vide order NO. 1224/DCG/2011 dated 19-01-2011 and

immediately after this initiated another enquiry vide his order No. DC/GBL/7351-55 dated 28- 02-2011 whereby Committee of the

officers/officials comprising Tehsildar Ganderbal, Sadar Kanoongo and one more revenue official co opted by the Tehsildar

Ganderbal, was constituted to proceed on spot, examine the records and report the factual position.

That the Committee appointed by the DC, Ganderbal after scrutinizing and examining the records, inter alia, reported vide their

No. 132/WBN/11 dated 05-03-2022 that, one Bashir Ahmad Khan and others Sons of Sona Khan are entitled to claim ownership

rights for only 2 kanals and 14 marlas and 7 sirsai of Shamillat land defined u/s 5 of Shamillat Rules on pro rate basis as per their

holding for which the compensation is permissible to be paid instead of land measuring 15 kanals 3 marlas and 41/2 sirsai involved

thereunder.

That after facts were brought into light by the Enquiry Committee, a notice vide No. DCG/LAS/1742 dated 11-03-2011 was

served by the Collector ate PMGSY to the person who had received payment in excess of his share asking him that instead of 80%

compensation amounting to Rs. 45,18000/- paid to him, he is entitled to receive only Rs. 7,01,155/- (80%) compensation and

therefore the excess to the tune of Rs. 38,16,845/- should be deposited by him in the District Treasury Ganderbal under major

Account Head 8443 Revenue within 5 days positively.

That acting upon the notices, the above said person has deposited the Rs. 3.00 lac in District Treasury vide Tr. No.09 dated 24-

03-2011. That in amendment to first notice dated 11-03-2011, another notice by the Collect orate was served to him to deposit the

excess amount of Rs. 25.00 lacs. This move was initiated on the strength that his property land measuring 1 kanal and 8 marlas were

also coming with the alignment of road construction and compensation of which was unpaid and thereof the amount of compensation

due to his land can be adjusted in our records against the recovery of excess compensation paid in respect of Shamillat land, besides

an amount of Rs. 10,28,88/- on account of 20% compensation payment which was yet to be paid will also be adjusted against the

excess payment.

That acting upon said notice, the said persons again deposited Rs. 2.00 lacs in District Treasury vide Tr. No. 03 dated 30-04-

2011.

The petitioners now plead that based on erroneous acquisition proceedings, tainted by fraud and manipulation, a road is sought to be laid and

compensation paid to the persons, who are legally not entitled to the same. In this view of the matter, this writ petition has been filed on the premise

that grazing land has been taken away.

The respondents were noticed. Mr. Shamas, learned Dy.AG, who appeared for the official respondents, referred to the proceedings taken by

the official respondents on the basis of a complaint and the action taken in this regard. The details whereof have been reproduced above.

Learned counsel, therefore, submitted that appropriate and necessary action has been taken as required by law against the private respondents

for recovery of excess amount. Therefore, the reliefs sought for by the petitioners, i.e., not to proceed with construction of road ; not to release the

amount in favour of the persons ; why 80% amount has been released in favour of private respondents, have all become academic. Since action as

required by law has been taken, the prayer for grant of mandamus as above, for appointing Judicial enquiry, is unnecessary. Learned counsel

prayed for vacating the interim order so as to lay the road. He pleads for dismissal of the writ petition as well.

Since substantial issue raised by the petitioners has already been addressed by the official respondents. The laying of road between two

villages is for the benefit of the villagers, hence, the interim order passed by this Court stands vacated. The authorities are entitled to lay the road

within this financial year so as to avoid funds getting lapsed.

Learned counsel for the petitioners are entitled to place records in support of their plea that compensation has been paid to the persons in

respect of Kascharai land. They are entitled to produce those documents before the DC, Ganderbal, who shall look into the nature of complaint.

The error, if any, pointed out by the petitioners can be considered and appropriate remedial measures be taken so as to ensure that nobody is

unfairly enriched at the cost of State exchequer. This plea appears to be appropriate and appealing to the Court.

Since the competent authority has already initiated action for recovery of the excess amount, the reliefs that are now being sought for by the

petitioners has become academic. However, they are given liberty to raise fresh issue before Deputy Commissioner, Ganderbal, who will look into

the complaint and take decision on its own merits.

In this view of the matter, the interim order, passed in this writ petition stands vacated. Writ petition is, accordingly, disposed of along with

connected IAs in the above terms.