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2001 DIGILAW 152 (JK)

Nawab Manzoor Hussain v. State

2001-07-24

SYED BASHIR-UD-DIN

body2001
One Thakur S. Baldev Singh Samyal came in possession of the land referred in pleadings of parties at Rajbagh, Srinagar on allotment, on lease hold basis way back in June, 1937 for a period of 40 years. The said lessor S. Baldev Singh died in 1982 leaving behind his heirs. Residential house of S. Baldev Singh is on portion of this land. The ground floor of the house is with Gulmarg Winter Sports Project on rent. Despite the lease not being renewed and as per petitioner original lessor or his heirs not having applied for the same, it continues to be held over by succession-in-interest of S. Baldev Singh. Petitioner claims that he entered into an agreement with legal heir of said S. Baldev Singh for sale of the property in question and it was on this footing that the petitioner was allowed to occupy first floor of the residential building though this factual para 5 of the writ petition is refuted by respondents in reply. It is however, stated that Jagdev Singh the lone surviving legal heir of S. Baldev Singh, gave a power of attorney to petitioner for the purposes specified there and authorised petitioner to live in the first floor of building. However, Jagdeep Singh died thereafter. As the original lessor S. Baldev Singh is not succeeded by any heir or person in-interest, petitioner laid claim to allotment of the land on charge of premium and ground rent, he applied thereto. Again the plea that the original lessor S. Baldev Singh left no heir behind is refuted by respondents and respondent No.6 in his counter has specifically and in unequivocal terms contended that original lesee S. Baldev Singh was succeeded by his only son Sukhdev Singh and widow respondent No.6. Sukhdev Singh had two sons Jagdeep Singh and Randeep Singh, grand children of respondent No.6, both of whom died in a vehicular accident in 1991. The original lessor as also thereafter his heirs including respondent No.6 have applied for renewal of the lease. Petitioner is in fact a clerk (UDC) in the Gulmarg Winter Sports Project occupier of ground floor of the building and he is taking advantage of this employment to press his case for allotment of the premises. The original lessor as also thereafter his heirs including respondent No.6 have applied for renewal of the lease. Petitioner is in fact a clerk (UDC) in the Gulmarg Winter Sports Project occupier of ground floor of the building and he is taking advantage of this employment to press his case for allotment of the premises. The permission given to him to live in portion of the house by said deceased Jagdeep Singh has come to an end with Jagdeep Singhs death, in as much as an attorney holder he cannot claim any authority after the death of the principal. 2. Petitioners case/ presentation for allotment was recommended for 2 Kanals 14 Marias and 102 Sft. by Assistant Commissioner Nazool (respondent No.4) vide Annexure-B. However, the matter was sent back by Dy.Commissioner, Srinagar Respondent No.3 to Nazool Department. Tehsildar Nazool respondent No. 5 again recommended allotment to petitioner on 20-5-1998 (Annexure-D) which was forwarded to Dy. Commissioner respondent No.3. Respondent No. 3 allegedly failed to take action and process the matter, therefore, petitioner filed OWP No. 557/98 titled Nawab Manzoor Hussain v. State of J & K and ors. (Annexure-G). The Court finally disposed of this petition, after admitting it to hearing, (on agreement of parties). The operative portion of the order reads as under. 3. "Respondents 1 and 2 are directed to consider the respective claims of the parties and take a decision with regard to the renewal of the lease or otherwise with respect to the land in dispute within four months from the receipt of this order under rules and law governing the subject matter. Till then status quo be maintained." 4. The above judgment is yet to be complied with and orders issued thereto for taking a decision with regard to the lease in question is yet to be implemented, notwithstanding the time period specified for taking a decision in the matter, which has been extended thereafter for specified periods (Annexures H J K). 5. While this matter of taking a decision on the "renewal of the lease or otherwise with regard to the land In dispute", is still under process and pending with the State Government and its officials. 5. While this matter of taking a decision on the "renewal of the lease or otherwise with regard to the land In dispute", is still under process and pending with the State Government and its officials. Petitioner felt apprehensive of the communication dated; 4-12-1999 annexure-L (where petitioners case for renewal is adversely commented upon by the Assistant Commissioner Nazool, respondent No.4 while communicating his view and recommendations in the matter to respondent No. 3) and reference of the matter to Divisional Commissioner, by the concerned Minister on presentation of the petitioner and Dy. Commissioner, Srinagar respondent No.3 (annexures Tl and T2). He has filed this writ petition challenging these letters and communications and seeking certiorari for quashment of Annexures L, Tl and T2 and mandamus for the concerned authorities to Act only on earlier recommendations Annexures C.D. & E on record, in which petitioners case is recommended. 6. The Court at Initial notice stage has issued a direction of status-quo to the parties. This direction is not in tune with judgment and final order passed in the earlier writ petition No.557/98 on 31-5-1999. Government of J & K and its functionaries and officials even from Nazool Department, have on affidavit in their objections in the context of communications in question of Assistant Commissioner Nazool and Dy. Commissioner, Srinagar respondents Nos.3 and 4 averred: - "In this regard it is submitted that the Assistant Commissioner Nazool or the Dy. Commissioner are not competent to take a final decision for renewal or allotment of the lease land. The observations made in these communications are of recommendatory nature and the respondent No. 1 has yet to apply its mind and take a decision in the matter. The respondent No. 1 will consider the whole record and shall take a decision after proper application of mind without any delay." 7. Obviously the Government/competent authority has open mind on the issue. It has placed on record that while taking a final decision for renewal or allotment of the lease, as directed by this Court vide judgment dated 31-5-1999, all material/documents and other record shall be taken into consideration. It is also averred that correctness or otherwise of the factual averments made by petitioner and respondent No.6 claiming adversely to each other shall also receive consideration of the competent authority. It is also averred that correctness or otherwise of the factual averments made by petitioner and respondent No.6 claiming adversely to each other shall also receive consideration of the competent authority. The decision as to leasing out the land is a matter for the appropriate authority to be taken at the appropriate stage. As and when such a decision is taken (on said consideration of the available material and documents), the petitioner in case wronged can pursue remedies available to him under law. 8. The case put-forth by petitioner and counter case put-forth by respondent No.6 as to existence/non-existence of legal heir (s) of the original lesse, in terms of the pleadings of the parties is a matter which in the totality of facts and circumstances is hardly required to be commented upon, in its present form, in view of the above referred Court decision dated 31-5-1999. It is for the Govt./Compentent authority to consider the respective claims of the parties after addressing the question and taking into account the feed back reports, comments and recommendations of the officers down the line, documents/material etc. It is on overall consideration and wholestic view that competent authority is to take a decision in the matter regarding renewal of the lease or allotment of the lease, within the parameters of applicable laws and rules. Merely because recommendation/report/office note is adverse to one party or benefits other party, is no ground to challenge such feed back which are to be considered along with other material by the competent authority before arriving at a decision. What petitioner in effect seeks in my view is that the reports of Assistant Commissioner or Dy. Commissioner in which petitioner is adversely commented or his case is not recommended should not be considered by competent authority and the reports/views of may be same of other officers, in which petitioners case is favourably commented upon alone should be considered by the competent authority while arriving at decision in the matter of renewal or allotment of the lease in question. 9. In such circumstances neither certiorari nor mandamus can be issued. 9. In such circumstances neither certiorari nor mandamus can be issued. As to which of the provision of law including Land Grants Act or Rules framed thereunder is applicable to this case is not a matter that is to arise before this Court at this stage when the accord of consideration and process of decision making in accordance with the applicable law and rules as directed by this said Court judgment is on and decision is yet to be taken by the Govt. /competent authority. The impact of various provisions of Land Grants Act on the facts and circumstances of this case, is a matter presently to be considered by the Govt. After all for all these matters it is quite inchoate stage before this Court. There is no force in the contention that the communications/letters referred in the petition including annexures L, Tl & T2 intere se the respondents 5 to 2 are in excess of powers or without jurisdiction. Administrative directions by or recommendations or views at different stages of the concerned officers in the ladder is just a routine affair. The Govt. acts only through its officers. Unless the Govt./competent authority is fed with the material/reports/views etc. by its officers, how can Government/competent authority take fair and reasonable decisions. It is essentially for the Govt. to make just and reasoned decision. The Courts role is restricted to examination of the question, if Govt. takes into account relevant aspects of the matter, Court can interfere in proper case only when the Govt. over-looks any material consideration or is otherwise influenced by any extraneous or immaterial consideration. Unless the Govt. or the competent authority exercise its powers or discretion, where is the occasion for the Court to pronounce on such exercise of discretion or power. Thus seen, this writ petition is too early and obviously pre-mature. Dismissed in limine. Petition dismissed.