Zamindars of Village Hablish vs Financial Commissioner

Mr. Mohammad Yaqoob Mir, J. - Quashment of the orders dated 06.04.1995, passed by Deputy Commissioner, Anantnag and 15.06.2004,

passed by Financial Commissioner (Revenue) is sought.

Deputy Commissioner (Collector), Anantnag vide order dated 06.04.1995 (wrongly reflected as order dated 06.08.1995) on the

recommendations of Tehsildar, Kulgam, has accorded sanction to the grant of exchange of kahcharai land covered by survey No. 380/1-min

measuring 8 marlas with 8 marlas of proprietary land of respondent No. 4 covered by survey No. 225-min situated at village Hablish Tehsil

Kulgam. Later on vide order dated 24.4.1995, Deputy Commissioner (Collector), Anantnag while referring to order dated 6.4.1995 has made it

clear that the proprietary land as offered by respondent No. 4 is covered by survey No. 424/min instead of survey No. 225/min. Dissatisfied with

the basic order dated 06.04.1995 petitioner filed revision petition before Financial Commissioner Revenue but without success as the learned

Financial Commissioner has observed in the order that the petitioner has misrepresented the Zamindars of the village as none of the Zamindars has

put his signature on the petition or on the vakalatnama filed by the petitioner nor there is any power of attorney from the Zamindars to the petitioner

which clearly shows mala fide intention of the petitioner, secondly the petition has been filed after a lapse of seven years which would mean that the

petitioner was satisfied for long seven years, as an afterthought has filed the petition when he has no locus standi to challenge the said order as none

of his rights have been infringed.

Basically, what has happened is that the petitioner is in possession of land covered by survey No. 367. Having no access to the said land has

moved an application before the revenue authorities offering his proprietary land measuring 8 marlas under survey No. 225 in exchange of 8 marlas

of land recorded as kahcharai (reserved for grazing purposes) under survey No. 380/1 which kahcharai land is adjacent to his other proprietary

land. Naib Tehsildar after recording statement of Zamindars of the village has made it clear that the proprietary land offered by respondent No. 4 is

suitable for kahcharai land and has recommended its exchange. Naib Tehsildar has initially recorded statements of six persons and thereafter of

further persons including Lumberdar and Chowkidar who have stated that the land offered by respondent No. 4 is suitable for kahcharai purposes,

they shall have no objection if the exchange is accepted.

According to learned counsel for the petitioner, firstly there is no period of limitation prescribed for filing revision petition before Financial

Commissioner against the orders of subordinate revenue authorities, therefore, observation of learned Financial Commissioner that the petitioner

has filed the petition after seven years is untenable. Secondly, the exchange of land as against kahcharai land is governed either by Section 26 of

the Agrarian Reforms Act or by Section 133 of Land Revenue Act. The present proceedings have been initiated under Land Revenue Act so same

are governed by Section 133 of Land Revenue Act. The said provision provides that if a person is in possession of kahcharai land which has been

brought under plantation or under construction then such a person has to be forthwith evicted after leaving 10 marlas of land beneath and

appurtenant thereto for which he has to be given notice to offer suitable proprietary land in exchange thereto. This aspect of the case has neither

been looked into by learned Financial Commissioner nor by the subordinate revenue authorities. Thirdly, learned revisional court has observed that

the petitioner has no locus as none of the villagers has joined him when vis-a-vis encroachment on kahcharai land revenue authorities of their own

have to take action and any person of the village can raise objection or complaint, there is no requirement of other villagers to join for an action

against such encroachment.

Lastly, learned counsel would submit that the subordinate revenue authorities had no jurisdiction because area was under settlement operation

and only the revenue officers who were involved in the settlement proceedings were competent to deal with the matter.

According to learned counsel for respondent No. 4 petitioner, in fact, is son-in-law of a person of the village, he is a trouble shooter

unnecessarily causing problems. The Village Guard (Chowkidar) and the Lumberdar of the village in their statements recorded by Naib Tehsildar

along with other villagers/land owners have in unequivocal terms agreed for the exchange, there could be no cause for the petitioner to agitate

against the same, that too after a lapse of seven years.

Learned counsel for respondent No. 4 while making submissions also made it clear that 8 marlas of proprietary land under survey No. 225/min

as made mention of in order dated 06.04.1995 was due to an error when, in fact, respondent No. 4 had offered 8 marlas of land out of his

proprietary land which is covered by survey No. 424/min. Same position has been rectified by the Collector vide his order dated 24.04.3995. In

addition thereto, Tehsildar, Kulgam in his detailed report dated 17.07.1995, copy of which is produced during the course of arguments, has

clarified the position that the proprietary land of 8 marlas covered by survey No. 380/1 has been recorded as kahcharai land in exchange of 8

marlas of land covered by survey No. 424/min. In the said report Tehsildar has made it clear that he has visited the spot in presence of Lumberdar,

Chowkidar, land owners, Patwari and other villagers, 8 marlas of land covered by survey No. 424/min which is proprietary land of respondent

No. 4 has been left free for kahcharai purposes (grazing purposes) and same has been adjusted with kahcharai land. 8 marlas of land reserved for

kahcharai purposes as recorded under survey No. 380/1-min occupied by respondent No. 4 using the same as pathway i.e. access to his house

was also seen, Lumberdar, Chowkidar, Patwari and others on spot supported the same 8 marlas of land under survey No. 380/1-min, in fact is an

inseparable part of proprietary land of respondent No. 4 without which his other proprietary land is rendered useless.

The observation of learned Financial Commissioner as made in the order impugned that no other person has joined the petitioner assumes

importance because petitioner had filed revision under the title ""Zamindaran Hablish through Gull Mohammad Parray son-in-law of Ali Mohammad

Dar. No Zamindar has supported him. It is true that in personal capacity he could object to the encroachment but keeping in view the detailed

reports of the revenue agencies, there was no scope for the petitioner to file revision petition after a period of seven years from the date of order of

exchange had been issued. No doubt, no period of limitation is prescribed for revision but reasonable approach and reasonable action must sprout

from the acts of seeker of the relief. It appears that for wreaking vengeance petitioner has initiated process against the respondent No. 4.

Contention of learned counsel for the petitioner that the revenue officers who have passed the impugned orders were not competent to pass

such orders as the area was under settlement proceedings, is negative by a certificate placed on record along with objections by respondent No. 4

wherein it has been made clear that the settlement has been started in Tehsil Kulgam with effect from June, 1997-98. The order has been passed in

the year 1995. Therefore, prior to 1997, Collector was competent to pass the order.

Learned counsel for the petitioner would submit that Section 133 of Land Revenue Act will apply only when respondent No. 4 would have

been in possession of kahcharai land and would have brought it under plantation or construction of any structure. That is true but scope cannot be

narrowed down. When proprietary land of the petitioner is adjacent to the kahcharai land and he has no access to his land otherwise he would not

allow it to remain as kahcharai land, the object of grazing purpose would get negatived. Respondent No. 4 has clearly offered his proprietary land

which has been accepted by the village body, more particularly Lumberdar and Chowkidar of the village, so, in-effect, he has not grabbed the

kahcharai land, he has offered proprietary land in exchange thereof.

In the totality of the facts and circumstances what emerges is that the petitioner unnecessarily has started a litigative process against the

respondent No. 4. When respondent No. 4 has offered 8 marlas of land out of his proprietary land which has been duly carried into effect in the

revenue records and has been left open on the spot for grazing purposes, what can be the purpose of this litigation initiated by the petitioner.

For the stated reasons, no interference is warranted, petition, as such, dismissed.