Point of Law: Prevention of encroachment on common land - Absence of any such order from competent authority qua acceptance of offer made for seeking exchange of land, attestation of mutations, on this count alone cannot be countenanced by law and same has to be treated as non-est in eyes of law.

JUDGMENT :

1. Impugned in this Petition is Order dated 25th of June, 2020 issued by the Sub Divisional Magistrate, Chadoora/Respondent No.4 herein, in terms whereof mutation Nos. 110 and 111 have been set aside and land measuring 18 Marlas covered under Survey No. 1071 Min restored back as Kahcharie land and the land under Survey Nos. 745 and 334 provided in exchange restored back to the Petitioners.

2. The Petitioners claim to be the residents of Village Ranger, Budgam and, upon facing shortage of land for purpose of construction of residential houses, applied before the concerned revenue authorities for exchange of their proprietary land with Kahcharie land situated at Village Ranger. This application of the Petitioners, as stated, was accepted by the Respondents subject to exchange of double proprietary land from the Petitioners and, resultantly, the Petitioners were given 09 Marlas of Kahcharie land in exchange of 19 Marlas of their proprietary land falling under Survey Nos. 745 and 334. It is stated that accordingly the concerned authorities in the Revenue Department attested mutation Nos. 110 and 111 in the revenue records. However, the Sub-Divisional Magistrate, Chadoora/Respondent No.4 herein, on the appeal filed by the Tehsildar Chadoora and Respondent No.7 herein, vide the Order impugned, has set aside the aforesaid two mutations and has restored back land measuring 18 Marlas falling under Survey no.1071 Min as Kahcharie land and the land under Survey Nos. 745 and 334 restored back to the Petitioners.

3. Mr M. Y. Lone, the learned counsel for the Petitioners, submitted that the Order impugned is bad in law inasmuch as the same has been issued by the Respondent No.4 at the back of the Petitioners. It is further submitted that there is proper exchange of land between the Petitioners and the Revenue Department, wherein the Petitioners gave double proprietary land for the Kahcharie land provided to them by the Revenue Department. The learned counsel contended that the impugned Order has been issued in violation of the rules governing the field as no inquiry was conducted in the matter before arriving at the conclusion arrived at in the said Order.

4. Objections stand filed on behalf of the Respondents.

5. The Respondents 1, 3, 4 & 6, in their Objections, have submitted that the Petitioners have no cause of action as they have given nothing in exchange of the Kahcharie land occupied by them in lieu of a simple communication rather through a proper transfer Order from Collector, Budgam, besides they have kept the land too which they claim to have exchanged with themselves. It is submitted that the applications of the Petitioners were forwarded to Tehsildar concerned and no explicit orders were issued for any exchange of land. The Petitioners, as stated, have illegally managed to get mutation Orders bearing Nos. 110 and 111 effected for exchange of land whereunder 09 Marlas each of Kahcharie land bearing Survey No.1071 was given to them in exchange of proprietary land of the Petitioners from Survey Nos. 745 and 334, however, despite managing the illegal exchange on the basis of simple communication, the Petitioners chose to retain both Kahcharie land as well as the land claimed to have been provided by them in exchange with themselves parting nothing in real but grabbing both by cheating the Government exchequer. The contention of the Petitioners that they were not provided any opportunity of being heard before issuance of the Order impugned has been vehemently denied by stating that the Petitioners were called/summoned twice for the purpose before setting aside the mutations.

6. The Respondents 2 and 5 have submitted that the land in question falls under Khasra No. 1071 measuring 04 Kanals and 05 Marlas and, out of the said land, the Respondent Department has occupied 02 Kanals of land for purpose of construction of Receiving Station for which the indent stands placed by the Department. It is further submitted that the area of R