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2025 Supreme(J&K) 122
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAJNESH OSWAL, J.
Nirmal – Appellant
versus
Union Territory of J&K and others – Respondent
WP(C) No. 248 of 2024
Decided on : 12-03-2025
Advocate Appeared:
For the Appellant : Mr. Rishab Vaid, Adv. Ms. Ishna Vaid, Adv.
For the Respondent: Ms. Monika Kohli, Sr. AAG
The issuance of Fard Intikhab is contingent upon the completion of the delineation exercise for water bodies as per the Jammu and Kashmir Water Resources Act.
Headnote:
(A) Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010 - Section 4 - Jammu and Kashmir Land Revenue Act, 1996 - Section 27 - Petition for issuance of Fard Intikhab for land measuring 3 ½ marlas - Respondents cited the need for delineation of water bodies as per Government Order No. 18-JK-(Rev) of 2022 - The delineation exercise has not been completed, thus Fard cannot be issued. (Paras 3, 4, 8, 11)
(B) Administrative delay - The court noted the slow progress of the respondents in completing the delineation exercise, emphasizing that citizens should not suffer due to administrative laxity. (Paras 8, 11)
Facts of the case:
The petitioner sought Fard Intikhab for land in Village Channi Kamala, which is recorded as Gair Mumkin Khad. The respondents indicated that the delineation process for water bodies has not been completed, preventing the issuance of Fard.
Findings of Court:
The court directed the Deputy Commissioner to decide the application for Fard Intikhab within thirty days, considering the Tehsildar's report.
Issues: The main issue was whether the Fard Intikhab could be issued given the incomplete delineation of water bodies.
Ratio Decidendi: The court ruled that the issuance of Fard Intikhab is contingent upon the completion of the delineation exercise as mandated by the relevant government orders.
Result: Petition disposed of.
ORDER :
1. With the consent of learned counsel for both the sides, the instant petition is taken up for final disposal.
2. The petitioner has filed the present petition for directing the respondents to issue fard intikhab in respect of land measuring 3 ½ marlas comprising khasra No. 15 situated at Village Channi Kamala, Tehsil Bahu, District Jammu. It is stated that vide communication dated 18.01.2021, the Sub Divisional Magistrate, Jammu South Gangyal submitted the report to the Deputy Commissioner, Jammu and sought further necessary direction in the matter but till date no decision has been taken.
3. The respondents have filed the response stating therein that with a view to preserve and safeguard of water bodies, wetlands, water courses, drainage, lakes and springs as well as State land in the shape of “khads” from being encroached by anti-social elements/land mafia/builders, the Jammu and Kashmir State Legislature enacted Jammu and Kashmir Water Resource (Regulation and Management) Act, 2010. However, vide SRO-456 of 25th of October, 2017, the Government adopted the State Water Policy and Plan in exercise of the powers conferred by section 4 of the J&K Water Resources (Regulation & Management) ACT, 2010. Clause 5.2 of the State Water Policy and Plan provides for proper demarcation/delineation of the water source and course to ensure that the khads are segregated from Khads which do not form water course/ source. Whereas, pursuant to the clause 5.2 of SRO-456 of 2017, Government Order No. 18-JK-(Rev) of 2022 Dated 04.02.2022 was issued by which the sanction was accorded for the constitution of three tier committees and the procedure to demarcate/delineate the water source/course which do not form the part of any water course/source but has been recorded as the Gair Mumkin Khad, Gair Mumkin Darya, Gair Mumkin Nallah etc. in the revenue record was accorded.
4. It is further stated that in the instant case a report was sought from Tehsildar concerned who in his report stated that the total land falling under khasra No. 15 of Village Channi Kamala, Tehsil Bahu measuring 9 kanals 12 marlas is recorded as Gair Mumkin Khad and the delineation exercise in terms of Government Order No. 18JK-(Rev) of 2022 dated04.02.2022 has not yet been completed therefore, Fard cannot be issued.
5. Taking into consideration the contention of the respondents that the delineation exercise has not been completed, the Fard cannot be issued, this Court vide order dated 26.11.2024, directed respondent No. 1 to file affidavit with regard to the time frame within which the delineation exercise for the purpose of identification of water bodies shall be completed.
6. In response to order dated 26.11.2024, the affidavit has been filed by the Secretary to Government, Revenue Department, UT of J&K respondent No. 1 herein, wherein it is stated that in partial modification and amplification of Government order No. 18-JK(Rev) of 2022 dated 04.02.2022, the revised procedure to be followed and the Divisional level and District Level Committees were notified vide Government Order No. 102-JK(Rev) of 2024 dated 02.08.2024 and as per said order, the Deputy Commissioner, upto 200 kanals per khasra and the Divisional Commissioner upto 200-500 kanals per khasra shall effect changes in the kind of soil under section 27 of the Jammu and Kashmir Land Revenue Act, 1996 SVT and the UT Level Committee shall recommend change to be incorporated in revenue records of 500 kanals and above per khasra to the Government.
7. Further in terms of Government order dated 02.08.2024, the Divisional Level Committee shall formulate the SOP for delineation on the recommendation of the Chief Engineer, Irrigation and Flood Control in consultation with domain experts in the field. The Divisional Commissioner shall be competent authority to enter into MoU with chosen expert Government Agencies/Institutions to carry out the delineation exercise. The Standard Operating Procedure has been formulated and Draf
