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Seriously disputed questions of fact which require consideration of the evidence, are not to be decided in a petition under Article 226: High Court Of Jammu And Kashmir

Irresponsibility by the State Revenue authorities regarding not mutating the land in the name of the Government of India, Ministry of Defence, cannot be taken as the fault of respondents, and that Union of India is the legal owner of landed property in question. Such an opinion was held by The Hon’ble High Court Of Jammu And Kashmir before The Hon’ble Chief Justice Pankaj Mithal And The Hon’ble Mr. Justice Vinod Chatterji Koul in the matter of  Zahoor Ahmad Wani vs. Union Territory of J&K and another [OWP no.1523/2013] [IA no.01/2013].

The facts of the case relate to the petitioner who in the writ petition sought to revoke an order passed by Defence Estates Officer, Kashmir Circle dated 24th September 2013. The petitioner also sought a direction regarding the return of the land of the petitioner measuring 46 Kanals 18 Marlas from the respondents and other necessaries. The instant writ petition was regarding a big chunk of land which was requisitioned to build an airport in Srinagar. It was taken on the promise that the landowners would be paid the rent compensations. It was submitted that previously due to the legal position then in force, the Government of India could not acquire the land, and subsequently, the J&K Requisition and Acquisition of Immovable Property Act was enforced in the year 1968.  It was determined by the Writ Court in the said petition that the land was in possession of the Army and in terms of provisions of the Requisition and Acquisition Act.

Respondents 1&4 filed a Reply affidavit wherein they contended that the Indian Army occupied a big chunk of land all over the Kashmir Valley in the year 1952 most of the land was regularized either by way of acquisition, requisitioning, hiring, etc. The respondents submitted that filing of a petition bearing OWP no.167/2009 by the petitioner was not willfully impleaded the Union of India as a party. It is claimed that land in question is Defence land and State Revenue Authorities was responsible to update its revenue records, change of ownership, mutations etc and, therefore, failing of duty by the State Revenue authorities regarding not mutating the land in the name of Government of India, Ministry of Defence, cannot be taken as the fault of respondents. An impugned order issued by Defence Estates Officer dated 24th September 2013, stated that land in question had been transferred from J&K State to Union of India, was Ex-State Forces property. 

The Hon’ble Court held that, “… It may be added here that consideration order dated 24th September 2013 has been passed taking into account order dated 30th September 2011, whereby mutation has been set-aside, so unless and until the order, cancelling mutation, is challenged in separate proceedings as available under the Land Revenue Act, the consideration order cannot be said to be illegal or passed in violation of principles of natural justice and resultantly the instant writ petition is not maintainable and is liable to be dismissed…”

The Hon’ble High Court Of Jammu And Kashmir stated that, “This Court, while rendering a judgement dated 18th August 2021, in Bashir Ahmad Fargodoo vs. State of J&K and others, which is similar to instant writ petition, has held that when writ petition involves dispute of title/ownership, the same is to be adjudicated upon in accordance with provisions of Section 9 of the Code of Civil Procedure by an appropriate civil court on the basis of the evidence of the parties and as a consequence of which writ petition is liable to be dismissed… For the foregoing reasons, this writ petition is without any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated.” 

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Judgment reviewed by Bipasha Kundu

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