Markazi Auqaf Committee Salia vs J&K Special Tribunal And Ors

1) This is a petition by Markazi Auqaf Committee, Salia, through one Mushtaq Ahmad Wani, who claims to be its President, and authorized by a

resolution to file the instant petition. In this petition, the petitioners have sought following reliefs:

(I) Certiorari for quashing and setting aside the order dated 04.06.2018 passed by J&K Special Tribunal, Srinagar, in file No.STS/2868/2010 entitled

Markazi Auqaf Committee, Salia, Vs. Abdul Salam Mir;

(II) Certiorari for quashing and setting aside order No.107/SQ dated 24th of April, 1987, passed Deputy Commissioner, Anantnag;

(III) Certiorari for quashing and setting aside mutation No.1715 dated 27.06.1987 attested by Tehsildar, Anantnag;

(IV) Mandamus restraining the respondent No.6 from causing interference with the Kahcharai land measuring 1 kanal comprised in Khasra

No.1470/879.

2) With a view to appreciating the grounds on which the petitioners are seeking Writs prayed for, it is necessary to give a brief resume of the factual

antecedents leading to the filing of this petition.

3) As it appears from the record, Village Salia has a huge chunk of kahcharai land measuring about 125 kanals and 10 marlas comprised in Khasra

No.1470/879. The land is recorded in the revenue records as “Mehfooz Kahcharai†under Section 4 of Shamilat rules. Being land reserved for

grazing purposes, the same cannot be put to any use other than for the purpose it is reserved for. No villager who may otherwise have right or interest

in partible Shamilat Deh land is permitted, in law, to encroach upon this land for his or her exclusive use. The general public is thus vitally interested to

protect this land from any illegal encroachment by villager(s) or any other stranger. It is, however, not in dispute that a portion of this land has been put

to general public use and government buildings like Government Higher Secondary School, Salia, Primary Health Centre, two Middle Schools, and

quarters of Forest Protection Force have come up thereon. A big chunk of kahcharai land in Village Salia is also being used as Ahli Hadees Eidgah,

Hanfia Eidgah and Sports Ground etc.

4) The petitioners claim and assert that they have no grouse or grievance with regard to utilization of kahcharai land for public purpose but they cannot

tolerate the attempt of respondent No.6 to encroach upon one kanal out of such land for his exclusive use.

5) The grievance of the petitioners is that on the recommendations of Tehsildar, Anantnag, the Deputy Commissioner, Anantnag, illegally and

unauthorizedly accorded sanction to the exchange of kahcharai land measuring 1 kanal falling under Khasra No.1470/879-min with proprietary land of

the respondent No.6 falling under Khasra No.1002-Min situated in Village Salia Panzmulla Tehsil Anantnag. Pursuant to the aforesaid order passed by

Deputy Commissioner, Anantnag, Tehsildar, Anantnag, attested mutation No.1715 dated 27th of June, 1987. This was challenged by the petitioners

before the J&K Special Tribunal in revision petition titled Markazi Auqaf Committee, Salia vs. Abdul Salam Mir. The revision petition came to be

dismissed by the Tribunal in terms of impugned order dated 04.06.2018. The revision petition was held barred by limitation and was also not found

tenable on merits. It is this order along with other orders passed by the revenue authorities, to which reference has been made in the beginning of the

judgment, which have been assailed by the petitioners in this petition.

6) Having heard learned counsel for the parties and perused the record, I am of the view that the order passed by the J&K Special Tribunal falls

within the four corners of law and, therefore, does not call for interference by this Court in the exercise of extraordinary writ jurisdiction. Apart from

the fact that the revision petition was filed by the petitioners after 23 years without any explanation, I am of the considered view that the petitioners

have no locus standi to challenge the mutation with regard to exchange of one kanal of kahcharai land with equivalent proprietary land of respondent

No.6. Markazi Auqaf Committee, Salia, is not a juristic person having legal identity nor this petition is a petition filed in representative capacity. I am

aware that the petitioners in this petition were also the petitioners before the J&K Special Tribunal but that does not confer any status of juristic

person on the petitioners.

7) It appears that a big chunk of kahcharai land is under occupation of the petitioners illegally and without any authority of law. It is the own admission

of the petitioners that a part of chunk of kahcharai land available in the village has been put to general public use which includes Ahlihadees Eidgah

and Hanfia Eidgah. In this regard, no authorization by any competent authority has been placed on record by the petitioners. Needless to say that

Shamilat Deh land in the Village which is reserved for kahcharai is meant to be used for the purpose it is reserved for unless its conversion to some

other use is authorized by the competent authority after following due process of law. The villagers cannot be permitted to occupy land reserved for

grazing purpose (Mehfooz Kahcharai) even for a common purpose other than for grazing. In that view of the matter, the petitioners who are

themselves unauthorized occupants of land cannot be heard to raise voice against the exchange of one kanal of such land ordered by the competent

authority in favour of respondent No.6.

8) The plea of Mr. Reshi, learned counsel for the petitioners, that the mutation of exchange was attested at their back is also without any substance.

For attestation of mutation of exchange, Markazi Auqaf Committee, which does not have any existence in law, was neither a necessary nor a proper

party to be heard in the matter.

9) That apart, Section 26 of the J&K Agrarian Reforms Act, 1976, empowers the Collector to exchange the land reserved for grazing purpose under

occupation of a person with equivalent land held by him in proprietorship, subject, of course, to the compliance of the terms and conditions laid down in

the aforesaid Section. Absent the challenge laid to the order of respondent No.4 bearing No.107/SQ dated 24th July, 1987, challenge to the mutation

attested by Tehsildar, Anantnag, in compliance thereto before the J&K Special Tribunal was not maintainable. As a matter of fact, the order of

Deputy Commissioner dated 24th of April, 1987, was neither the subject matter of challenge in revision petition before the J&K Special Tribunal nor

the copy whereof has been placed on record in this writ petition. The Revisional Court had no occasion to go into the legality or otherwise of the

aforesaid order of Deputy Commissioner whereby the sanction was accorded to the exchange of land. The mutation attested by Tehsildar which was

only as a consequence of the order passed by Deputy Commissioner could not have been challenged in the absence of laying specific challenge to the

order of Deputy Commissioner. On this ground only, the revisional court would have been justified not to interfere with the order of mutation passed

by Tehsildar, Anantnag, which was the subject matter challenge before the revisional forum.

10) In view of the above, the order of learned Munsiff, Anantnag, dated 29.12.2015 in the civil suit for permanent prohibitory injunction titled Abdul

Salam Mir vs. Gh. Ahmad Wani & others, relied upon by the learned counsel for respondent No.6 has no effect on the merits of controversy being

adjudicated upon in this petition. This is for the reasons that the order of the civil court only binds the parties to the suit and is not judgment in rem.

11) For the foregoing, I find no merit in this petition and the same is, accordingly, dismissed. However, it is provided that in case the land given by the

respondent No.6 in exchange is still under his occupation, the same shall be got vacated by the official respondents immediately and forthwith and in

case of any resistance offered by respondent No.6, the kahcharai land measuring one kanal given in exchange shall be forthwith retrieved. The official

respondents shall do well to ensure the protection of kahcharai land in the Village Salia and see that all illegal occupants thereon are removed by

following due process of law.