Mohan Lal vs Financial Commissioner And Ors on 5 March, 2025

Jammu & Kashmir High Court

Mohan Lal vs Financial Commissioner And Ors on 5 March, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

                                                                     Serial No. 33

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                  AT JAMMU

OWP No. 177/2019
CM No. 973/2019[1/2019]
CM No. 5057/2020


Mohan Lal                                          .....Appellant(s)/Petitioner(s)


                       Through: Mr. RKS Thakur, Advocate
                  vs
Financial Commissioner and ors.                              ..... Respondent(s)


                       Through: Mrs. Monika Kohli, Sr. AAG for R-1 to 3
                                Mr. P. C. Sharma, Advocate for R-4 to 13

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                   ORDER

05.03.2025

1. Assailed in this writ petition is the order dated 16.01.2019 passed by

respondent No. 1 in revision titled, ‘Satpal and ors. vs. State of J&K

and ors.’, whereby revision petition preferred by the respondent Nos.

4 to 13 has been accepted and the order dated 21.10.2016 passed by

respondent No. 2 has been set aside.

2. The official respondents have not filed reply but respondent Nos. 4 to

13 have filed reply thereby supporting the order dated 16.01.2019

passed by respondent No. 1.

3. Mr. RKS Thakur, learned counsel for the petitioner has argued that

even if it is assumed that order dated 11.06.2012 passed by the

respondent No. 3 has been passed by invoking the provisions of

Section 133 of Land Revenue Act, though reference has been made to
2 OWP No. 177/2019

Section 4 of Jammu and Kashmir Common Lands (Regulation) Act in

the same, still quashing of the order dated 21.10.2016 whereby order

dated 11.06.2012 was set aside by respondent No. 2, has resulted into

denial of opportunity of hearing, as respondent No. 1 while setting

aside order dated 21.10.2016 has directed the Tehsildar to continue the

proceedings of eviction and recovery of fine after making correction in

the notice dated 11.06.2012 by mentioning Section 133 of the Land

Revenue Act instead of Section 4 of Jammu and Kashmir Common

Lands (Regulation) Act.

4. Mr. P.C. Sharma, learned counsel for respondent Nos. 4 to 13 has

submitted that respondent No. 1 has rightly passed the order as the

petitioner had encroached the Shamilat land and that is why the

respondent No. 2 initiated the proceedings of eviction and recovery of

fine against the petitioner.

5. Heard learned counsel for the parties and perused the record.

6. A perusal of the record reveals that initially order dated 11.06.2012

was issued by respondent No. 3 against the petitioner and proforma

respondent No. 14 for vacating the land measuring 12 Kanals

comprising Survey No. 193 min situated at Village Jib and for

recovery of fine. The said order was assailed by the petitioner before

respondent No. 2 and respondent No. 2 vide order dated 21.10.2016,

set aside the order passed by the Tehsildar. The order dated

21.10.2016 was assailed by predecessor in interest of some of the

respondents and other respondents in revision petition before

respondent No. 1 and respondent No. 1 while setting aside the order
3 OWP No. 177/2019

dated 21.10.2016, returned a finding that order dated 11.06.2012

passed by respondent No. 3 was not under the provisions of Jammu

and Kashmir Common Lands (Regulation) Act but the same was

passed by invoking the provisions contained in Section 133 of J&K

Land Revenue Act.

7. It is contended by the petitioner that even if the order passed by

respondent No. 1 is right, still it has resulted into denial of opportunity

of hearing to the petitioner since respondent No. 1 has directed the

respondent No. 3 to proceed ahead with the eviction and recovery of

fine from the petitioner. It is borne from the record that no opportunity

of hearing was afforded to the petitioner by Tehsildar before passing

order dated 11.06.2012. Learned counsels appearing for the parties are

also unanimous in their submission before this Court that no

opportunity was afforded to the petitioner by Tehsildar before passing

order dated 11.06.2012. The order dated 11.06.2012 passed by

Tehsildar is penal in nature and at least petitioner was required to be

afforded due opportunity of hearing before passing of any such order.

8. Accordingly, the order dated 16.01.2019 passed by respondent No. 1 is

modified to the extent that order dated 11.06.2012 passed by the

Tehsildar is set aside and the Tehsildar shall initiate afresh

proceedings and shall afford due opportunity of hearing to all the

interested parties before passing any order. At this stage, Mr. P. C.

Sharma, learned counsel for the private respondents submits that the

private respondents be directed not to change the nature of the land.

This Court is not inclined to pass any order in this respect, however
4 OWP No. 177/2019

leaves the private respondents free to approach the Tehsidar concerned

with any such prayer.

9. Disposed of.

(RAJNESH OSWAL)
JUDGE

Jammu
05.03.2025
Neha-II
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No

NEHA KUMARI
2025.03.10 13:22
I attest to the accuracy and
integrity of this document