Chief Judicial Magistrate Kathua has foiled the brazen attempt of Minister for Forest, Environment and Ecology, Ch Lal Singh to sell “Ghair Mumkin Khad” and observed that top brass of the Revenue Department instead of enforcing the provisions of J&K Water Resources (Regulation and Management) Act, 2010 and implementing the stay order of the High Court has maintained blind eye towards unabated issuance of Farads for sale of “Khads”.
Through this document, he sought to sell the land to one Ashwani Kumar, son of Sham Lal of Ward Number 12, Kathua against the consideration mentioned in the deed.
During perusal of documents, the CJM noticed that in the revenue extracts, which was in the shape of Jamabandi for the year 1968-69, the land has been depicted as “Ghair Mumkin Khad”. Furthermore, according to endorsement on the revenue extract, even though land in question is recorded as “Khad” till the year Kharief 1984 but on spot it does allegedly exist away from “Khad”.
It has also been mentioned in the endorsement that “Khad” has been channelized on the spot and a total of 59 kanals and 2 marlas of land has been shown as “Khad” in the copy of Jamabandi in Survey Number 2465/308 min and Khewat Number 119 and Khatta Number 346 min.
After deeply analyzing all the documents and revenue extracts, the CJM observed, “in terms of Section 2 of Water Resources (Regulation and Management) Act, 2010, “Khad” is a water source on account of being water course”, adding that apart, by virtue of Section 3 of the Act, ownership of every water source including “Khad” stands vested in Government by virtue of statutory fiction incorporated in the legislation by Section 3.
“Every water source in the State, therefore, is and shall remain the property of Government and proprietary/ ownership rights in respect of every such water source stand terminated by virtue of Section 3 of the Act, which is the extent of sweep of the legislation”, the CJM further observed, adding what needs to be candidly acknowledged is that as soon as Water Resources (Regulation and Management) Act, 2010 came into being, Ch Lal Singh (vendor) ceased to be owner of property under transaction on account of it being “Khad”, a water resource.
“To say that its nature stands altered subsequently is in my considered opinion nothing but an attempt to circumvent Section 3 of the Act in particular and to torpedo the spirit of the legislative mandate of the Act in question as a whole”, the CJM A S Langeh said, adding “the vendor is not the owner of property under transaction by virtue of Section 3 of the Act and an individual, therefore, who is not the owner of immovable property cannot conceive of legal capacity to sell it”.
“The document at hand, thus, is not the sale deed in law at all and therefore no imprimatur of legal sanctity by way of registration can be put on a document which is invalid abinitio”, the court said, adding “an executant must have legal capacity to execute a conveyance”.
About another critical aspect of the matter which cannot be overlooked, the CJM said that in Balbir Singh and Others Versus State of J&K and Others, High Court has stayed sale of land recorded in revenue records as “Khad” and the same order is in force till date. Because of stay order on the sale of “Khad”, revenue officials concerned ought to have taken note of it and not facilitated Ch Lal Singh to execute the sale deed by preparation of revenue extracts.
Keeping all these aspects in mind, the Sub-Registrar (CJM) has refused registration of document. However, before parting with order, the CJM observed, “it is required to be noted that issuance of Farads for sale of “Khads” despite existence of Water Resources (Regulation and Management) Act, 2010 and order of stay of High Court being in operation, only gives harrowing account necessitating thereby the indulgence of higher ups in the Revenue Department to take stock of situation”.
Keeping in view this order, the copy of which was furnished to Divisional Commissioner Jammu and Deputy Commissioner Kathua, the former two days back formally directed the latter to take action in the light of the decision and observations of CJM. The Divisional Commissioner has also directed the Deputy Commissioners of other districts to ensure that there is no violation to the stay order of the High Court and provisions of Water Resources (Regulation and Management) Act, 2010.
Source: Daily Excelsior