JAMMU, May 8: High Court has annulled order issued by Tehsildar Jammu whereby mutations attested in favour of Abdul Majid of Bathindi possessing properties including Grand Hill Restaurant were cancelled & made it clear that Deputy Commissioner has not been vested with any revisional authority pursuant to Section 15 of the J&K Land Revenue Act, 1939 and demolition of structures must adhere to established legal protocols and due process.
Moreover, the Bench of Justice Wasim Sadiq Nargal has directed the respondents to pay the petitioner a compensation to the tune of Rs 10 lakh as an interim measures which will be in addition to the compensation to the tune of Rs 76,40,200, which has been assessed for demolishing the property of the petitioner without any authority of law.
Further, Government has been directed to conduct an in-depth enquiry within a period of two months and on the basis of the findings of the enquiry, take suitable action including penal measures to ensure accountability of officers who have acted in violation of the law in the light of the guiding principles laid down by the Apex Court in catena of judgments.
Through two different petitions, the petitioner-Abdul Majid (owner of Grand Hill Restaurant) challenged the order dated 15.09.2020 passed by Tehsildar Jammu cancelling Mutations Nos. 97, 98, and 105 attested in favor of the petitioner and demolition of the petitioner’s properties (including Grand Hill Restaurant) by the Forest Department without due process.
After hearing Advocates Sakal Bhushan and Rahul Sharma for the petitioner and Senior AAG Monika Kohli and Deputy AG Vishal Sharma for the respondents and perusal of record, Justice Wasim Sadiq Nargal observed, “following the acquisition of the land by the petitioner through three distinct Sale Deeds, the petitioner was granted possession of the land by the previous owners and even mutations were duly attested”, adding the record indicates that petitioner established a restaurant on a section of land in 2012, having secured all necessary approvals from the relevant authorities, which the respondents have not contested.
The respondents action of cancelling the mutations attested in favour of the petitioner in 2002 and 2004, as per the order dated 15.09.2020 issued by Tehsildar Jammu has occurred after 18 years without notifying the petitioner or granting an opportunity for a hearing, High Court said, adding Tehsildar has exceeded the jurisdiction conferred by the J&K Land Revenue Act of 1939 as he possesses no power to annul or amend mutations solely based on administrative directives from a superior officer, namely, Deputy Commissioner of Jammu.
The High Court further said, moreover, the Deputy Commissioner has not been vested with any revisional authority pursuant to Section 15 of the J&K Land Revenue Act, 1939, which confers revisional authority upon higher officials, Financial Commissioner and Divisional Commissioner under certain conditions allowing them to review and amend decisions made by subordinate authorities, adding the respondents action, as per the impugned order to cancel the mutation, is unlawful, capricious and infringes upon the petitioner’s constitutional right to possess the property.
Under what circumstances did the concerned Tehsildar conduct a one sided inquiry on 12.09.2020 resulting in a report indicating that the beneficiary had not cultivated the land during the critical cropping period and thus was not recognized as a tenant-at-will for the land?
High Court asked once proprietary rights have been granted to the cultivators of land vide Government Order No. S-432 dated 03.06.1966, the Government cannot, after 62 years, reverse this decision. The Forest Department’s actions are purportedly based on a 2015 order issued by the Financial Commissioner.
The Forest Department initiated eviction proceedings against the petitioner based on this order, in which the petitioner was not a party and the same was not applicable to the petitioner.
The respondents commenced eviction proceedings in 2021, seven years after the issuance of the order, in which the petitioner was neither a party nor afforded an opportunity to be heard & HC added that Forest Department demolished the building despite the petitioner having expressed a willingness to participate in any demarcation process.
HC added that the eviction was executed surreptitiously, without compliance with the legal protocols or stipulations prescribed by law. This action was done without due process and constituted an arbitrary exercise of power and an abuse of authority & dubbed the respondents action in demolishing the petitioner’s properties as unlawful.
With these observations and directions, High Court disposed of both the petitions.
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