S. No.88

Suppl. List 1

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 1777/2022

CM. No. 4361/2022

Caveat No. 1342/2022

Molvi Khalid Abbas and Ors.

…Petitioner(s)

Through: Mr. Mohammad Amin Khan, Adv, with Mr. Peerzada, Adv.

Vs.

UT of JK and Ors.

Through: Mr. Gulzar Ahmad Bhat, Adv, with Ms. Sehar, Advocate, for

Caveator(s).

CORAM:

HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE

J U D G M E N T

Caveat stands discharged.

01. Impugned in this petition is Order of the Financial Commissioner

(Revenue), [<FC(R)=] dated 21^st July, 2022, passed in a reference titled

Taha Khursheed vs. Molvi Javid Ahmad and Anr.

02. Before adverting to the grounds of challenge urged by the learned

counsel for the petitioners, to assail the impugned order, it is necessary

to set out brief resume of the case. One, Gula Shah, an estate holder of

village Bonagam Shopian, was owner in possession of land measuring

9 Kanals under Survey No. 179 (8subject land9), which on his death

devolved on his four sons. The subject land is recorded as <Aabi Awal=

and has been partly developed into orchard (04 Kanals) by Molvi Abdul

Hameed, the father of petitioner no. 4 and upon rest of 05 Kanals, there

exist five residential houses. The respondent no. 7 has constructed a

plinth on a portion of the said land. Alongside the boundary of Survey

No. 179, runs Survey No. 10, which is recorded as <Rafie Aam= and

shown as <Kuhl= in Qisim-i-Zameen column of Girdawari of Kharief

2021. It is alleged that the pathway connects the said survey number

with the main road. The parties also claim that there has been a private

partition between all the co-sharers and with the consensus of all a

pathway with the additional pathway of 5 feet has been left out. It is

2 WP(C) No. 1777/2022

this additional width of 5 feet, which is alleged to have been encroached

by the respondent no. 7.

03. The petitioners in the first instance agitated the matter before the

Deputy Commissioner, Shopian, for restoration of the pathway to their

land which at present is an orchard. The matter was assigned to the

Assistant Commissioner, Revenue (8ACR9) to resolve the issue under

law. The ACR vide its Order dated 3^rd June, 2020, issued under Section

133(1) of Jammu and Kashmir Land Revenue Act, Svt.1996 (8the Act9),

directed the respondent no. 7 to remove the encroachment from the

pathway. The order was assailed by the respondent no. 7 before this

Court. The writ petition was allowed and impugned order passed by the

ACR dated 3^rd June, 2020 was set-aside. The matter was sent back to

ACR, with a direction to decide the same afresh after hearing both the

parties. The ACR heard the matter again and vide Order dated 2^nd

January, 2021, allowed the application of the petitioners herein and

directed the respondent no. 7 to demolish the encroachment from the

subject pathway with a warning not to repeat encroachment on common

pathway in future. It is this order of the ACR, Shopian, which was

assailed by way of revision petition before the Commissioner Survey

and Land Records, J&K, Srinagar, (8Settlement Commissioner9). The

revision petition was accepted and the Settlement Commissioner after

having returned the finding that the subject land was situated within the

township of Shopian and, therefore, the authorities under the Act had

no jurisdiction to entertain the grievance and issue any orders.

Accordingly, the revision petition of the respondent no. 7 was accepted,

the order of ACR dated 2^nd January, 2021 was recommended to be set-

aside. The matter was referred to the FC(R) for further orders. The

FC(R) concurred with the view of Settlement Commissioner and vide

its Order dated 21^st July, 2022, impugned in this petition, accepted the

reference and set-aside the order of ACR, Shopian, dated 2^nd January,

2021.

04. The petitioners