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2023 Supreme(J&K) 473
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
MOKSHA KHAJURIA KAZMI, J.
Mohammad Yousuf Mir S/o Mohammad Ayoub Mir – Petitioner
Versus
State of Jammu and Kashmir – Respondent
O.W.P. No. 1349 of 2015
Decided On : 12-09-2023
Advocate Appeared:
For the Petitioners: M.A. Wani, Z.A. Wani.
For the Respondent: Mubeen Wani.
Proper enquiry and authority are essential before issuing recovery orders under the Land Revenue Act.
Headnote:
missing person - ex-gratia relief - SRO-43 - Land Revenue Act - [SRO-43, Land Revenue Act] - The court discussed the ex-gratia relief granted to the petitioner under SRO-43 and the subsequent order to recover the amount under the Land Revenue Act. The court highlighted the lack of proper enquiry and authority to issue the recovery order, leading to the setting aside of the order and a direction for a fresh enquiry.
Fact of the Case:
The petitioner's missing brother, declared untraceable, reappeared after 24 years. The authorities directed the petitioner to remit the ex-gratia relief and cash compensation received in lieu of Government employment. The petitioner challenged the recovery order under the Land Revenue Act.
Finding of the Court:
The court set aside the recovery order and directed a fresh enquiry, citing lack of proper enquiry and authority to issue the order.
Issues: Validity of the recovery order under the Land Revenue Act without proper enquiry and authority.
Ratio Decidendi: The court emphasized the need for a proper enquiry and authority before issuing recovery orders under the Land Revenue Act.
Final Decision: The recovery order was set aside, and a fresh enquiry was directed.
JUDGMENT :
MOKSHA KHAJURIA KAZMI, J.
1. In the instant petition, the person (Gh. Nabi Mir) who was declared as missing/untraceable for about 25 years is stated to be alive. The petitioner, who had accepted the ex-gratia relief of Rs. 01 lakh as also Rs. 04 lakhs as cash compensation in lieu of Government employment on the basis of the reports submitted by the competent authority, has been directed to remit the same in the office account of the respondents in terms of the impugned communication No. DCK/R/GN/257-58 dated 20.07.2015.
2. The brief facts are summarized as under:
Ghulam Nabi Mir, a bachelor was living with his brother, i.e. petitioner in the year 1990, and he went to Kupwara market but did not return. During the said year, the District Kupwara, especially the village of the petitioner, used to be a hub of the militancy. Despite the best possible efforts, the brother of the petitioner could not be found. The concerned police was also approached for the purpose but they could not also find the missing person. The Chowkidar of the village had also informed the police agencies regarding the disappearance of the brother of the petitioner. Petitioner had also lodged a written report regarding the disappearance of his brother with the concerned authorities.
3. It is also urged in the writ petition that petitioner was informed by the revenue agency as also by the police that whereabouts of his brother are not known for more than a decade as such, compensation could be claimed from the Government. Accordingly, on the directions of Tehsildar concerned and the police agencies, petitioner submitted an application for grant of ex-gratia relief and other benefits under SRO-43.
4. The Naib Teshildar published a communication dated April 7, 2011, in a local daily newspaper for inviting objections against the dependency certificate of the petitioner from the interested persons. A copy of the paper cutting is annexed with the petition as annexure-B. The Tehsildar concerned certified that the brother of the petitioner is missing since the year 1990 and nobody from the family has taken any benefit under SRO-43 except the ex-gratia relief of Rs. 1.00 lac. It is stated that in the year 2012 an amount of Rs. 4.00 lacs was also sanctioned in favour of the petitioner as cash compensation under SRO-43 in lieu of the employment.
5. It is further stated that the official respondents have taken more than 2.00 lac rupees from the petitioner in processing his case. Besides, the claim has been finalized in 22 years. That in the year 2014, missing brother of the petitioner appeared all of a sudden in his village to the surprise of one and all after a gap of more than 24 years. Accordingly, Assistant Commissioner Revenue vide his communication No. DCK/R/GN/257-58 dated 20.07.2015 addressed to Teshildar Kupwara directed to recover the sanctioned amount from the petitioner and remit it into his official account. In pursuance of the said communication Teshildar Kupwara has addressed a communication to J&K Bank branch Awoora/Kupwara/ Trehgam to provide the bank account details of the petitioner and his son and it is also directed that if any amount is lying in the accounts, same shall be stopped till further orders.
6. It is stated that the Teshildar concerned has also issued a notice dated 22.07.2015, to the petitioner and his brother for appearance. In pursuance of the said notice, petitioner along with his brother appeared before the Tehsildar and narrated the events as to how the concerned officials have extorted almost half of the amount in processing the case but the respondents are adamant to recover the same under the Land Revenue Act.
7. It is stated in the writ petition that that the impugned communication dated 20.07.2015 of the Assistant Commissioner Revenue addressed to Tehsildar Kupwara to recover the ex-gratia relief from the petitioner as arrears of land under the Land Revenue Act is bad in law and the same is challenged on the ground that the re
