Court dismissed application seeking stay on retrivation of 152 kanal State land
JKUT (Jammu), June-11-2021-( JNF):- CJM Jammu Amarjeet Singh dimissed an application seeking retrivation of 152 Kanals and 16 Marlas situated at village Chak Bhalwal Tehsil Bhalwal District .
In a suit filed by Abdul Majid & ors who were in possession of State land bearing Khasra nos. 911, 924, 928, 929 ,931, 997, 998, 999, 1002, 1004, 1008, 1021, 1082, 1083 (measuring 152 Kanals and 16 Marlas) situated at village Chak Bhalwal Tehsil Bhalwal District Jammu prior to 1997-98; that after the death of predecessor-in-interest of applicants, applicants stepped into their shoes and came into cultivating possession of land aforementioned (hereinafter referred to as suit land); that in the month of Feb. 2007, Tehsildar Jammu issued Form No. 2 to applicants for conferment of rights under J&K State Lands ( Vesting of Ownership to the Occupants Act, 2001; that mutation Nos. 1013, 1014, 1015/1 and 1016/1 were attested with regard to suit land; that non-applicant no. 2 set aside the aforesaid mutations; that applicants filed a Revision Petition before J&K Special Tribunal, Jammu against the order of District Collector, Jammu ( Non-applicant no. 2); that J&K Special Tribunal, Jammu vide order dated 15.10.2020 remanded the case back to non-applicant no. 2 for re-looking into the matter; that pending adjudication in the office of Deputy Commissioner/District Collector, Jammu, Tehsildar Bhalwal and other Revenue functionaries are forcibly interfering in suit land time and again; that hon’ble Division Bench of High Court of J&K on 09.10.2020 declared J&K State Land ( Vesting of Ownership to the Occupants) Act, 2001 ultra-virus and issued directions to State authorities to retrieve the State land vested to beneficiaries; that review petitions were filed against aforesaid judgement and that said review petitions are pending disposal before Hon’ble High Court; that Hon’ble Supreme Court has directed Government of Jammu and Kashmir not to take coercive measures against the occupants who have been given rights under Roshni Act; that on 14.04.2021, non-applicants no. 2 to 4 alongwith officers of other departments forcibly entered upon the suit land and started measuring the same in absence of applicants; that non-applicants have threatened applicant no. 1 that he will be forcibly evicted from suit land etc. etc. Hence this litigation and this application in particular seeking relief as outlined in the beginning of this order.
CJM Jammu Amarjeet Singh Langeh after gone through the arguments of counsel observed that 13. Applicants have not sought declaration as a relief in the main suit to the effect that they are in continuous, long, settled and peaceful possession of suit land right from the period of their ancestors/predecessors in interest. Applicants, instead, have straightway sought relief of Permanent Prohibitory Injunction in main suit on the basis of purported claim of their long and settled possession whereas there is nothing on record except photocopy of Khasra Girdawari for the year 2018 showing applicants Abdul Majid and Ghulam Rasool in possession of some portion of suit land. Ironically, when suit land admittedly happens to be State land, it then is not understandable as to how the name of applicant Abdul Majid has been reflected in the ownership column of aforesaid revenue extract. It also needs to be noted that if someone occupies Government land on account of administrative apathy for some period of time, the character of said possession cannot be equated with settled, effective or un-disturbed possession. It also needs to be under-scored that horror story of encroachment over government land has many facets. Collusion and connivance with government officials and patronage of influential is one such facet. The mode and manner adopted in attestation of mutations with regard to suit land purportedly under J&K State Land (Vesting of Ownership to the Occupants) Act, 2001, as revealed in the order dated 06.02.2020 passed by Ld. Deputy Commissioner Jammu – would show that if observance of law and rules is allowed to rest on the whim of those who are supposed to observe and implement the same in letter and spirit, the only inevitable consequence in such scenario is perpetuation of private profiteering over public property. Essentially therefore, possession over government land for not that lengthy a duration on account of administrative apathy as aforesaid, cannot – in law be countenanced as settled possession. This is to say the least.
Court further said that there is yet another angle through which claim that applicants have raised in this application – can be examined. It is this. Assuming for the sake of arguments that mutations in question with regard to suit land were attested in favour of applicants under J&K State Land ( Vesting of Ownership to Occupants) Act, commonly known as Roshni Act and rights thereof vested in them, yet it needs to be taken note of that said Act was declared un-constitutional, contrary to law and un-sustainable by virtue of the Judgement of our own Hon’ble High Court with direction to authorities concerned to retrieve the possession of such State/Government land from occupants under law. Seen in this back drop, does it lie in the jurisdictional competence of a civil court to injunct the process of retrieval of said land by authorities concerned in light of Judgement of Hon’ble High Court in Roshni Act case? On this analysis also, relief sought by applicants in this application does not merit acceptance. 15. For all what is discussed hereinabove, it is held that applicants have not succeeded in establishing prima facie case in their favour. The balance of convenience is also heavily tilted/poised against applicants on facts. The third ingredient of Order 39 Rule 1 & 2 of CPC, on facts, also does not lean in favour of applicants as discussed hereinabove. This application therefore has no merit and is therefore dismissed. JNF