Habibullah Sheikh and Others vs State of Jammu & Kashmir and Others

Mohammad Yaqoob Mir, J.—I deem it proper to decide the above titled petitions by this common judgment because common questions of

law are involved in both these writ petitions.

It is averred in these petitions that Kahcharai land measuring 204 kanals and 3 marlas falling under survey N.261, 94 kanals 12 marlas tailing

under survey No. 262 and land measuring 187 kanals falling under survey No. 263 situated at village Nowbugh is reserved for grazing purposes. It

is further averred that a portion of it came to be encroached by some inhabitants in league with revenue field staff and a representation came to be

made to the revenue officials but without any fruit.

Respondents-Electric Department filed reply in both the writ petitions. It is profitable to reproduce para-2 of the reply filed in OWP No.

891/2007 herein:

In reply to paras 3 to 7, it is submitted that the petition is not maintainable in the present form, the petitioners have no right to file this writ petition

on behalf of the whole population/zamindaras of village Nowbug Chadoora District Budgam, It is submitted that the proposed construction of the

Grid Station has been initiated not only on the demand of villagers of village Nowbug but also as per requirement/necessity of the same for

providing proper and uninterrupted power supply to numbers of villages of Tehsil Chadoora and District Budgam respectively. It was in the year

2005 that the Government through Deputy Commissioner Budgam was requested to make available land for construction of the Grid Station. The

revenue authorities identified the land in village Nowbug and accordingly proceedings under land acquisition for land measuring 45 kanals coming

under khasra No. 263 was initiated, and finally it was in the year 2006, vide order No. DCB Land Acquisition/674/2542-44 dated 4.12.2006 the

Assistant Commissioner Revenue Budgam directed the Tehsildar Chadoora to handover the possession of the land (45 kanals) to the answering

respondents herein, and as such, the possession over the same of the respondents herein is legal. The petitioners have no right to challenge the

possession of the answering respondents herein over the same nor they have any legal right to seek any relief from this Hon'ble Court regarding the

construction of the Grid Station. It is submitted that the land in question is already in possession of the answering respondents herein. The raising of

the wall around the said piece of land is in progress and near about 35% of the work has been completed. The Government has already allotted

the funds for the construction of the Grid station on spot and same is to be completed during this summer season in order to avoid complicacy and

hardships of the people in the next winter. The relevant documents which shows that the authorities have completed all the legal formalities before

handing over of the possession of land to the answering respondents herein. The contention of the petitions to the extent that the answering

respondents are raising construction on spot without any competence or legal right is therefore without any force. The writ petition is as such liable

to be dismissed.

Admittedly, the land in question is a Kacharai land- reserved for grazing purposes. The petitioners have no individual right or interest in the said

land. Neither the writ petitions have filed the writ petitions in representative capacity nor permission was sought for filing the writ petitions.

It is also not mentioned in the writ petitions who are the persons who have encroached or encroaching upon the 'Kahcharai land'. Thus, both the

writ petitions suffer from non-joinder of necessary parties. The petitioners have no right or interest over the said land. It is virtually a property of the

government but meant for grazing purposes. If Kahcharai land is to be acquired for any public purpose the amount is to be spent for welfare of the

community.

Division Bench of this Court in case titled Ghulam Mohammad Bhat and Ors. v. State and Anr. reported as 1981 SLJ 254 has held that if

Kahcharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction land falls. It is the property of the

community.

If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the

benefit of the villagers. The villagers are not before the court. The writ petitioners have filed writ petition in individual capacity. The electric

department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose. The

petitioners cannot seek any relief against the respondents-Electric Department.

It is not known who has made encroachment and no order can be passed without arraying such person(s) as party(es). If at all any

encroachment is made by any person the remedy lies elsewhere.

Learned Counsel for the petitioners cited a judgment delivered in case titled State of J&K v. Smt. Hamida Begum and Ors. reported as AIR

1979 J&K 48. The said judgment is of no help to the petitioners but same is virtually against them. It is held in the said judgment that if a person is

in possession of grazing land in terms of Government Grant or otherwise, he has a possessory right. The petitioners have nowhere stated that they

are in possession in terms of any grant/sanction made by the Government. If at all they are in possession that is illegal possession. A person who is

in illegal possession cannot seek any equitable relief.

In the given circumstances, both the writ petitions merit to be dismissed, as such, are dismissed along with all connected CMPs. Interim direction, if

any, shall stand vacated.