Sabir Dar vs Deputy Commissioner (Collector) and Others

Mian Jalal-Ud-Din, C.J.—This petition was originally heard by one of us and the question debated before the single Judge was that Section

3 of the Jammu and Kashmir Common Lands (Regulation) Act of 1956 (hereinafter to be referred to as 'The Act') was not applicable to the case

in hand inasmuch as the land in dispute which is said to be the pathway and held in ownership rights of the petitioner cannot be said to be public or

common land within the meaning of Section 3 of the Act and therefore is excluded from its operation. That Section, it is argued, applies only to the

right of user in respect of public and common lands and not lands held in ownership rights even though it be assumed that such lands are used by

the village folk of the locality. In support of the argument reliance was placed by the petitioner upon two decisions of this Court reported as 1968

K LJ 15 and AIR 1971 J & K 117. The ratio of these authorities it was pointed out is that dominant intention of the legislature by enacting the

legislation on common lands was to restrict its operation to public lands only and not to make it applicable to private lands. A contrary view was,

however canvassed by the respondent that the subject matter of dispute between the parties did not come within the purview of Section 3 of the

Act, inasmuch as the pathway was used as common pathway from times immemorial, and the same was established from the finding recorded by

the Revenue Officers. In the course of arguments attention was invited to head-note of Section, 3 and also to the words 'any path'...and 'right of

user' occurring in the Section. It was argued that this case did fall within the ambit of Sections 3 and 4 of the Act.

On a consideration of the matter it was found necessary to refer the matter to Full Bench for authoritative decision and also to examine the

soundness of the view expressed in the aforesaid authorities of this Court. This is how the case has come before the Full Bench.

To put in brief the facts of the case are: an application was moved by the respondents 2 to 6 on their behalf and on behalf of the Zamindars of

the locality of Dedipora before the Tehsildar Kulgam under the Act complaining against the encroachment made by the petitioner on a piece of

land used as pathway by the Zamindars of the village from times immemorial. They, therefore sought an order for removal of the encroachment. An

enquiry was held by the Tehsildar on spot. He, by his order dated 7-2-1973, found that the strip of land measuring one kanal and odd running

through Survey No. 74 was a common pathway used by the Zamindars from times immemorial. Further that the said path leads to most of the

fields of the Zamindars of the locality. The respondent had blocked the pathway. He therefore, ordered the removal of the enchroachment u/s 3 of

the Act.

Aggrieved by this order the petitioner filed an appeal before the Deputy Commissioner Anantnag who after holding spot inspection and after

hearing the parties dismissed the appeal observing that the common pathway runs through Survey No. 74 upon which the petitioner has made

encroachment by fencing it and by planting fruit trees. He further observed that there is no alternative way for the people of the village to use the

same so as to reach their fields situate in another village. He affirmed the order of the Tehsildar, but gave an option to the petitioner to allow

passage to the Zamindars from one side of his orchard instead of the middle. The petitioner, thereupon, moved the Divisional Commissioner who

affirmed the order of the Revenue Officers below him. The petitioner has, now moved this Court in writ jurisdiction.

According to the averments made in the petition the impugned orders are liable to be quashed on the ground that the Act has no application to

the case in hand as no order could be passed under the Act in respect of the private land. It is asserted that admittedly the land, under Survey No.

74 is in proprietary rights of the petitioner and in view of this Sections 3 and 4 of the Act were wrongly made applicable to the case by the

Revenue Officers. The operation of the Act is restricted to common and public lands and is not meant to cover disputes between two individuals

so as to decide the question of right of easement claimed by one inhabitant over the land of another.

In the reply affidavit sworn in by the Tehsildar Kulgam, he has affirmed that although the petitioner is an owner in Survey No. 74 comprised of

Khewat No. 11 situate at village Dedipora nevertheless the inhabitants of the village Dedipora have got right of user of the common path in the said

land which stands established from the orders of the competent authorities. The respondents (petitioners)' raised fencing round the said strip of the

land and obstructed the right of user of the common path by the Zamindars. An application was moved before him by the inhabitants of the village

against the petitioner and others for removing the obstruction to the common path. On receipt of this application a proper enquiry was held under

the Act. As a . result of the enquiry it was found that the inhabitants of village Dedipora have right of user to the common path passing through the

land in dispute since times immemorial which has unlawfully been obstructed by the petitioners. Accordingly the Tehsildar Kulgam in exercise of his

power under the Act directed the removal of the obstruction. An appeal was filed before the Collector (Dy. Commissioner) Anantnag who by his

order dated 20th of March, 1974 affirmed his order. A further appeal was filed before the Divisional Commissioner who also dismissed the same

vide his order dated 3-5-1975. Not only the petitioner, it is affirmed has violated the provisions of the Act but also he was guilty of having violated

Section 133-A of the Jammu and Kashmir Land Revenue Act.

Appearing for the petitioner Shri M.L. Bhat has contended that Survey No. 74 through which the disputed path runs is in the proprietary

ownership of the petitioner. That being so Section 3 of the Act could not be invoked to such a case. According to him, the only dominant intention

of the legislature by enacting the Common Lands Act was to restrict the operation thereof to user of public and common lands only and not to

private lands. Attention has been invited to a Division Bench authority of this Court reported as AIR 1971 J&K 117 and a Single Bench authority

of this Court reported as 1969 K LJ 311. It is contended that no right of user can be exercised on private land even if the village folk have been

using it. It may at the most give rise to an action relating to easement; but surely the remedy was not to approach the Tehsildar and invoke Sections

and 4 of the Act to their aid.

Again, it has been submitted that there was no proper enquiry held by the Tahsildar in order to find out whether the piece of land was actually

used as pathway by the village folk. If some of the individuals of the village had approached the Tehsildar complaining against the encroachment

that would not mean that the entire village folk were interested therein. As a matter of fact the indidual applicants have tried to enforce their

individual rights on the proprietary land of the petitioner. No finding was recorded by the Tehsildar that the land was used at least one year before

the Act came into force. The Act came into force in the year 1956. Merely stating that the pathway was used by the village folk from times

immemorial was a vague expression which did not precisely indicate the time of its user.

In that view of the matter it is submitted that the action taken by the Tehsildar and also the orders passed by the Dy. Commissioner as also the

Divisional Commissioner are not sustainable in the eye of law.

In reply Shri K.N. Raina has submitted that this was never the case of the petitioner in the Courts below that the right over pathway was not

exercised before 1956. But his case throughout has been that there was no common pathway at all. He denied its very existence. The learned

Counsel has referred us to the head note of Section 3 as also the preamble of the Act. From this he has sought to establish that the dominant

intention expressed by the legislature in Section 3 was to protect right of user over the pathways and places used for common or public purposes

even though such lands were not public lands. This intention can be gathered from Section 3 itself. Therefore, where a piece of land even belonging

to a priviate individual on which the inhabitants of the village have been exercising their right of user uninterruptedly even for the one year before the

commencement of the Act, will come under the definition of common land for the purpose of Section 3 of the Act. The cardinal principles of rules

of interpretation of statute have to be borne in mind while interpreting Section 3 of the Act.

The expression 'common lands' has not been defined in the Act. The ordinary connotation of the expression is the places, such as a road,

street, pathway, channel, drain etc. in a village over which the inhabitants of the village exercise common right of user. Such places are used for

common or public purposes. According to the proviso to Section 3 of the Act right of user over pathways and places must be exercised by the

inhabitants of the village for one year continuously at any time prior to the commencement of the J & K Common Lands Regulations Ordinance of

1956. It is true that a dispute between the two individuals over the user of a place in a village cannot attract Section 4 of the Act, such private

dispute may give rise to an action for easement; but where the inhabitants of a village have been exercising right of user over pathway even

belonging to a private individual who voluntarily allowed the inhabitants to use this pathway from times immemorial then every inhabitant of village

has a right of user in respect of such piece of land and the owner individual concerned cannot restrain any member of the village folk from

exercising that right. He cannot be allowed to put an obstruction to the user of that right, as the said pathway has been used by the villagers for

common purpose. u/s 3 of the Act this right has been recognised and can be exercised by every inhabitant of a village notwithstanding any law in

force or any agreement, custom, usage or even a decree or order of any Court or any authority to the contrary. That this right of user over any

path way or any road, street etc. has been recognized, appears from the very head-note and language of Section 3 of the Act. As observed by

their Lordships of the Supreme Court in Sri Ram Ram Narain Medhi Vs. The State of Bombay, , the heads of legislation should not be construed

in a narrow and pedantic sense but should be given large and liberal interpretation, construction of a statute which is most beneficial to the widest

possible amplitude of its powers must be adopted.

Again, it is profitable to reproduce here with advantage the observations of Lord Denning as have been quoted by Malhotra, in 'the Industrial

Dispute' Vol. I, pp. 44 and 45:

The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were.... He (the Judge) must set to

work in the constructive task of finding the intention of Parliament, and he must do this not only from the language of the Statute, but also from a

consideration of the social conditions which gave rise to it: and of the mischief which it was passed to remedy, and then he must supplement the

written word so as to give 'force and life' to the intention of the legislature....

A Judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have

straightened it out. He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and

should iron out the creases ...The duty of the Court is to interpret the words that the Legislature has used; those words may be ambiguous, but,

even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited."" Again, dwelling upon the

interpretation of Statutes the Supreme Court (vide Union of India (UOI) and Another Vs. B.N. Prasad, )observed:

Statute intended for public benefit should be construed liberally.

Therefore where right of user has vested in the inhabitants of the village and the same is declared to have existed by an order of the competent

authority it cannot be said that Section 4 has no application to such a case. In the instant case it is found that respondents 2 to 6 moved the

Tehsildar on their own behalf and on behalf of the villagers of Dedipora for removing the obstruction caused by the petitioner to the use of the

pathway. The Tehsildar went on spot. He summoned the parties. He conducted the enquiry to which the petitioner did not associate himself. He

recorded the statements of the villagers who unequivocally stated that the disputed piece of land, the path way, leads to the fields of Zamindar, and

the Zamindars of the village have been using this pathway for going to their fields from times immemorial. Even the Dy. Commissioner to whom the

petitioner approached by way of appeal also went on spot and found the claim and right of the villagers established. Having found the right of user

established, can the petitioner be allowed to deny this right of the village folk. In my opinion he cannot be allowed to do so when he, and his

predecessors voluntarily allowed the inhabitants of the village to use this piece of land as pathway for common purposes. According to the

Tehsildar;, there is no other pathway than the disputed one which Zamindars can use for going to their fields.

That even private land can be put, to common use for the purpose of the Act is also provided in Section 6 of the Act. That section provides

that where in a village no land is recorded for extension of the village Abadi or if, where the land so reserved, is inadequate. A Collector may by an

order in writing assign the land which can include cultivated land of a proprietor for use of common or public purpose. It is further provided that

where the land assigned is held in ownership rights then all rights, title and interest of the land shall be extinguished and such rights, title and interest

shall be vested in the inhabitants of the village in whose favour the said land is apportioned. Of course this can be done by paying compensation to

the owner thereof.

This negatives the contention of the learned Counsel for the petitioner that lands held in the ownership rights cannot be put to use for common

or public purposes in any case and in any manner. We have seen that this can be done and this is permissible u/s 6 of the Act. In the same way

where a piece of land even though held in the ownership rights of an individual has been put to use uninterruptedly for common purposes from

times immemorial by the village folk with the consent or acquiescence of the owner of the land, it would mean that the owner had voluntarily

assigned or apportioned such strip of land for common use and common purpose, and after the village folk have acquired right of user over that the

owner cannot turn round and repudiate the claim of the villagers to exercise that right. Such denial on the part of the individual would attract

Section 4 of the Act. The contention of the petitioner in the instant case is not that the village folk have no right of user but that as a matter of fact

no such common pathway existed at all. He characterised this dispute as between two individuals as a private dispute which could not be taken

cognizance of by a Revenue Officer under the Act. But, on enquiry the Tehsildar has found, so the Dy. Commissioner that the right of user of path

way exists. The authorities relied upon by the learned Counsel for the petitioner do not apply to the facts of the present case and are therefore

distinguishable. In 1969 K LJ 311 one of the questions related to the competence of the Tehsildar to have made the order u/s 4 of the Act and the

question related to the mode of the execution of the order. The other question was with regard to the right of user in a particular survey number. It

was found that as a matter of fact there was no dispute raised about this particular survey number and therefore the petitioner in that case had been

wrongfully ejected. It was disputed in that case that any proceedings were taken under the Act about this particular survey number. No inquiry was

held and no determination was made. As delivery of possession of this land was without any proceedings under the Act it was held that the action

of the Revenue Officer in removing obstruction from that number was without jurisdiction.

Again, AIR 1971 J & K 117 was a case in which there was a dispute between two individuals over a right of way on a piece of land. In that

case one Chandi Ram had filed an application before the Tehsildar Samba that the respondent had closed the pathway which was being used by

the applicants in that case for a long time. The finding recorded by the Tehsildar after holding enquiry was that the pathway no doubt belonged to

the respondent but had been used by the applicant and his ancestor for a pretty long time. He accordingly declared the right of respondents to use

the path and acting u/s 4 of the Act he-made the order. The Division Bench which heard the appeal observed that Section 4 could not be invoked

in any private dispute between two individuals or by way of easement, claimed by one inhabitant over the other, as the Act applies only to common

or public lands and not to private lands. It was in this context that the Division Bench observed that the intention of the legislature was to restrict the

provisions of the Act to the user of public and common lands only. There can be no dispute with regard to the proposition that private disputes

cannot be made subject-matter of a petition u/s 4 of the Act. If a pathway belonging to 'A' is used by 'B' for a long time and if 'B' stops 'A' from

using the pathway that may give rise to an action for easement. But surely that will not give rise to an action u/s 4 of the Act inasmuch as in order to

attract Section 4 it is necessary to establish that the entire village folk and not any particular individual have been collectively exercising the right of

user for a long time. Of course, the operation of Section 3 cannot be restricted to public places only. Its operation extends even to private lands

over which the inhabitants of the village have acquired the right of user uninterruptedly for a long time to the knowledge of the owner of the land

and with his consent or acquiescence. In that view of the matter the observations made in AIR 1971 J & K 117 that the dominant intention of the

legislature is to restrict the provision of the Act to user of public and common lands only may not be correct proposition of law, as this omits to

take notice of head-note of Section 3 and the. language thereof.

For the foregoing reasons, we are of the view that the impugned order is sound in law. There is no force in this petition which is hereby

dismissed. In view of the important question of law involved in the petition we leave the parties to bear their own costs.

A.S. Anand, J.

I agree.

I.K. Kotwal, J.

I agree.