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2002 DIGILAW 237 (JK)

Nawab Manzoor Hussain v. State

2002-07-29

SYED BASHIR-UD-DIN

body2002
Eight kanals of land in survey Nos. 1317 and 1318 min situated at Rajbagh, Srinagar was leased by Government to one S.Baldev Singh Samyal in June 1937 for a period of 40 years. The lessor in possession of this land constructed a residential house on one portion of this land. The ground floor of the house is on rent with Gulmarg Winter Sports Project. The lessor S. Baldev Singh died in 1982. Thereafter lease was not renewed. Deceased lessee S. Baldev Singh was survived by his widow, Kuldeep Singh and Jagdeep Singh and by some other daughters whose particulars are not given. Petitioner claims to have entered into agreement to sell the property in question and pursuant to the deal petitioner is allowed to occupy the portion of the building for residential purposes. However, it may be noted that apart from the question whether an enforceable agreement can come into existence thereto, this factual assertion is not supported by any material whatsoever on record. In fact the petitioner even asserted so in the earlier writ petitions, where also this plea was not found supported by any material/documents. The petitioner also alleges and claim to be attorney holder of one S. Jagdeep Singh Samyal alleged spoken as the "lone survive legal heir of S.Baldev Singh", though record speaks that he is not the lone surviving legal heir. Copy of power of attorney Annexure-A is on record which shows that petitioner has been authorised to collect rent from the period December 1989 to March 1992 from Gulmarg Winter Sports Project occupant of the building in question. Besides he has been also authorised to spent named portion of the amount from the collected rent, on repairs and to cut the 4 willow trees in the compound and utilize this wood in repairing the building. Additionaly for the purpose he has been authorised to do all things as may be necessary thereto He has been authorised in line to continue to live at first floor of the building . It may be recorded even in power of attorney the petitioner is stated some official of (and as per respondents a clerk in) Gulmarg Winter Sports Project. This power Of attorney dated 12.3.1991 is made the basis of, laid claim to the property and possession thereof, as also to claimed lease-hold rights from the original lessee late S. Baldev Singh Samyal. This power Of attorney dated 12.3.1991 is made the basis of, laid claim to the property and possession thereof, as also to claimed lease-hold rights from the original lessee late S. Baldev Singh Samyal. The said Jagdeep Singh Samyal who allegedly executed above attorney is also stated to be dead soon thereafter. Petitioners application for lease was processed and there has been communication and correspondence interse respondents 2 to 5 on the subject. One Sita Devi daughter-in-law of original leases as his heir also applied for extention of lease. Petitioners apprehension that his case is not receiving consideration at the hands of respondents 4 and 5 received attention of court in (OWP No. 557/98). This petition was finally disposed of on 31.5.1998 with direction to State Government and Divisional Commissioner to consider the petitioners claim and pass appropriate orders within four months (Annexure-F). While the matter was under consideration of the respondents petitioner sensing that communications and correspondence interse the respondents are loaded against him, filed OWP No. 286/2000 to prevent adverse orders against him. However this petition was dismissed as pre-mature on 24.7.2001 (Annexure-G). Against the judgement petitioner filed LPA 170/01. The LPA alongwith OWP No. 288/01 filed by Nawab Manzoor (appellant) and OWP No. 102/2001 filed by Sita Devi were disposed of by order dated 23-08-01 (Annexure-H). After up-holding impugned order of dismissal of the writ petition (OWP No. 286/2000) as premature, it disposed of appeal alongwith above two matters(writ petitions) in terms as under:-- "Respondent No. 1 is directed to dispose of the matters pending before the appropriate authority within a period of three months from the date of receipt of this order. Till the disposal of the matter by the appropriate Government within the stipulated time, the status-quo as on today shall be maintained with regard to the property in dispute. We make it abandantly clear that this status-quo order shall automatically lapse after the Government takes a final decision. Copy of this order be placed on each file." Pursuant to the above direction of the court in the above matters, the Government vide order dated 06-02-2002 on coming to the conclusion that petitioner has no right for allotment of the lease, rejected his application for lease (Annexure-1). Copy of this order be placed on each file." Pursuant to the above direction of the court in the above matters, the Government vide order dated 06-02-2002 on coming to the conclusion that petitioner has no right for allotment of the lease, rejected his application for lease (Annexure-1). This order is impugned in this petition on grounds that the petitioner is in possession of first floor of the building and has been permitted to continue in possession by above referred attorney. The Tehsildar and Assistant Commissioner have made recommendations in his favour which have been ignored. In the garb of rejection of his case respondents were in-fact considering Sita Devis case and at the end without any reason have jumped just to reject his case. Being in authorised possession, petitioner has a right to continue in possession and respondents are under obligation to regularise his possession. Reasons are not given to reject his claim and he cannot be thrown out in the manner he is being thrown out. Not only impugned order is sought to be quashed but even directions are sought not to evict the petitioner and to confer ownership rights on him as he claims that under provisions of J&K State Lands (vesting of Ownership to the Occupants) Act, 2001, rights, title and interest of this State land has vested in petitioner as occupant thereof. Non-consideration of the matter under J&K State Land (Vesting of ownership to the Occupants)Act,2001 vitiates the impugned order. Respondents in their objections have averred that the power of attorney dated 12.3.1991 given by Late Jagdeep Singh Samyal merely authorises petitioner to look after the property, collect rent from Gulmarg Winter Sports Project and cut four willow trees and make necessary repairs to allow petitioner to occupy the first floor of the house. The executant Jagdeep Singh Samyal had in the first instance no power without concurrence of co-heirs of the original lessee and the lessor to execute the attorney. If for polemic purpose Jagdeep Singh had any such right to execute the attorney to bring about the relationship of principal & agent between petitioner and Jagdeep Singh, same too has come to an end with the death of Jagdeep Singh Samyal in 1992 (the factum of his death is even admitted by the otherside in pleadings). If for polemic purpose Jagdeep Singh had any such right to execute the attorney to bring about the relationship of principal & agent between petitioner and Jagdeep Singh, same too has come to an end with the death of Jagdeep Singh Samyal in 1992 (the factum of his death is even admitted by the otherside in pleadings). Under the attorney, petitioner was put in occupation of the first floor of the building and his occupation in the facts and circumstances of the case cannot be said to be possession. Under the provisions of Land Grants Act and Rules framed thereunder, fresh allotment can be made only by public auction. Exception being the renewal of the lease in favour of original lessee. Even in a case where the lease is not to be renewed, the State Govt./Competent authority is to resume possession and pay compensation to the ex-lessee for construction raised before the property is put to public auction. In such circumstances the lessee could not have leased out the property as claimed. Again petitioners case for allotment of property under J&K State Land (Vesting and Ownership to the Occupants) Act 2001 could not also be acceded to for the reason that apart from fulfilment of criteria for entitlement of vesting of the Land in occupier/possessor, the Act was not in force, when the impugned order was passed on 6.2.2002. The Act came into force from Ist March, 2002 and therefore, petitioners case on this count is without merit. On agreement of parties the main petition as also the interim application(s) for stay and vacation of provisional stay order(s) on record was heard at this pre-admission stage. The counsel for the parties addressed arguments in detail and were heard in full. Matter considered. In this case petitioners challenge to order is almost on same factual premises as in series of writ petition filed by petitioner and by now disposed of. Petitioner avers since there was no other legal heir of Late S. Baldev Singh in existence and the petitioner was already in possession of the first floor of the building and the ground floor thereof was in possession of Gulmarg Winter Sports Project, therefore, an application was filed by the petitioner with the respondents for leasing out the land to him, after charging the premium and ground rent as prescribed under existing rules. It is not correct to say that S. Baldev Singh was the only legal heir of the original lessee when in fact other heirs are also mentioned in para 3 of the petition and one of the heirs not mentioned namely Sita Devi has filed writ petition No. 102/2001 for renewal of the lease. The petition was disposed of alongwith LPA and another writ petition (288/01) filed by writ petitioner. Petitioners claim of being already in possession of the first floor of the building is not supported by any document or by the original lessee or his legal heirs. The photostat copy of power of attorney on record given by Jagdeep Singh one of heirs of the original lessee to petitioner inter-alia speaks of petitioners continuance to live at first floor of building. Obviously petitioner is an agent of said Jagdeep Singh who as per petitioner has died soon after the execution of the power of attorney. Obviously relationship of principle and agent as also the power of attorney has come to an end with the death of executant said Jagdeep Singh. There is no proof of petitioner, an employee of Gulmarg Sports Organisation alleged tenant in the ground floor of the building in question of original lessee, being in possession of first floor of the building earlier to or independently of said power of attorney. Petitioner moved applications and his case was processed. There are communications, feed back reports, comments and recommendations of the various officers up and down the line on the subject, available as part record. Respondents have on affidavit pleaded that the petitioner is an unlawful occupant having no right to seek renewal of the lease, petitioner cannot seek renewal lease as he is neither a heir nor successor-in-interest of the original lessee. Extention or renewal of the lease can be in favour of original lessee at his option or his lawful heirs and successors-in-interest under the J&K State Lands Grants Act and Rules framed thereunder and that too on terms and conditions prescribed therefor. The petitioners case does not answer the description of statutorily prescribed persons who can claim renewal or extention of lease granted to original lessor S. Baldev Singh. Therefore, petitioners case can at the most be considered for grant of fresh lease. The petitioners case does not answer the description of statutorily prescribed persons who can claim renewal or extention of lease granted to original lessor S. Baldev Singh. Therefore, petitioners case can at the most be considered for grant of fresh lease. The available land for being leased out under the Act and Rules can be given on public auction as prescribed and on compliance with the procedure prescribed by the Act and Rules framed thereunder. Obviously petitioner can apply and offer his bid as and when the land, is out on public auction for lease. The impugned order holding that petitioner has no right for allotment of the land by rejecting his application is supported by history, backgraound and facts of the case. Besides reasons too are given. The Govt. through Principal Secretary to Government Revenue Department has based its order on all the facts and circumstances appearing in the case though briefly referred in the order. The impugned order itself says that the order has been passed after examining the record and report of the feed back agency The order also speaks of the petitioner being illegal occupant on the basis of record and report available from the feed back agency to the Government. The record and the report in terms of pleadings and annexures shows that all the material, communications, feed back reports, recommendation etc. have been available with the competent authority taking the decision in terms of the impugned order. The decision taken as represented by impugned order appears on due consideration of the matter, a wholestic view of the competent authority. In the impugned order only because subject reference speaks of renwal of the lease in favour of the Sita Devi, it cannot be said that order deals with the case of Sita Devi when in fact the whole body of the order adverts to the case of the petitioner. The name of Sita Devi appears to have crept, in as much as, she as heir of the original lessee has applied for renewal of lease. Petitioner as well as Sita Devi are both claiming lease and obviously the Govt./Competent authority is to deal with the matter in an appropriate manner depending on the facts and circumstances of this case within the para-meters of law including Land Grants Act and Rules framed thereunder. Petitioner as well as Sita Devi are both claiming lease and obviously the Govt./Competent authority is to deal with the matter in an appropriate manner depending on the facts and circumstances of this case within the para-meters of law including Land Grants Act and Rules framed thereunder. If respondents are dealing with the case of Smt. Sita Devi as legal heir and successor-in-interest of original lessee respondents have committed no wrong. In the official heirarcy, Administrative department and the Govt. at the apex of the ladder has right not to accept the recommendations or disagree with or reject proposed action of any official down the line. On this count it cannot be said that at the intermidiatory level of administrative ladder recommending and dealing with petitioners case in a particular manner, cannot be undone by the officers/officials at the higher level and above all the Govt. No legal or fundamental right of the petitioner has been violated. In the back-ground of series of petitions filed by the petitioner, tell-tale facts and circumstances narrated by the petitioner in the writ petitions and reference to multitude of communications, it cannot be said that the petitioner has not been associated with the proceedings or that he has not been given an opportunity of being heard in the matter. The impugned order does not appear vitiated on this count. The last contention advanced is that .petitioner `s case has not been dealt with under the provisions of J&K State Lands (Vesting of Ownership to the Occupants) Act 2001, though petitioner had filed an application under the Act (Annexure-K). By failing to take note of the legal provisions and the application filed by the petitioner, the impugned order is legally bad. This plea and submission could not render the impugned order bad for the reason that as per the submission of Mr. H.I.Hussain as even pleaded by respondents on objection on affidavit that the J&K Lands (Vesting of Ownership to the Occupants) Act, 2001 came into force only on 01-03-2002 whereas, the impugned order has been passed earlier on 06-02-2002. As the Act was not in-force at the time when the order was passed, therefore, consideration of petitioners case apart from question whether the case at all falls within the sweep of the Act does not arise. As the Act was not in-force at the time when the order was passed, therefore, consideration of petitioners case apart from question whether the case at all falls within the sweep of the Act does not arise. Unless an Act is in-force, no relief can be claimed or granted on provisions thereof even if such an Act is found on statute Book. Even otherwise Act itself contains scheme providing for confirment of ownership rights to occupant of State Land for purpose of generating funds, to finance Power Project of State on conditions and terms provided under the Act. The eligibility is to be determined and appropriate orders to be passed by the competent authority. Even appeals are provided therein for the orders passed under the Act. Suffice to say that the application alleged to have been moved under the Act (Annexure-J) cannot be said to have been moved unnder the Act, in as much as, the Act was not in-force and that the application does not conform to prescribed form address to territorial Tehsildar to be moved within stipulated time period. The assailing of the order on this ground is rejected. The authority S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 cited by Mr. M.A. Qayoom does not interms apply to facts and circumstances of the case as scanned and discussed above. Their Lordships in SLP 417 of 1984 filed against the order of Delhi High Court dismissing the writ petition, while examining the legality of the impugned order in the backdrop of the challenge by Chief Army confirming finding and sentence, as also the confirment order passed by Central Government, observed and emphasised to the validity of the order passed that the requirement to record reasons as an essential facet of principle of natural justice in administration action cannot be gain said. The rules of natural justice as such not being embodies rules depend in their application upon the statutory frame work within which the jurisdiction is exercised by the administrative authority. Equally important the requirement also depends on facts and circumstances of each cases. The exclusion of application of the rules made some time be in public interest. The rules of natural justice as such not being embodies rules depend in their application upon the statutory frame work within which the jurisdiction is exercised by the administrative authority. Equally important the requirement also depends on facts and circumstances of each cases. The exclusion of application of the rules made some time be in public interest. Having regard to the solitary purpose for recording reasons of minimising chances of arbitrariness and assuring some degree of fairness in the process, recording of the reasons, is not a rule of universal application devoid of the legal frame work whereunder jurisdiction is exercised, public interest and facts and circumstances of a case. But whatever the case, it is not a requirement of law that the reasons have to be elaborate as in the case of decision by court of law. Their Lordship in para 35 of the Judgement S.N. Mukerjee v. Union of India (Supra) observed, "the extent of nature and reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy." The impugned order in this case conforms to the standards and norms as laid down by law as regards recording of reasons for rejecting petitioners application for allotment after finding that he has made out no case/right for the allotment. Before concluding notice is taken of the fact that petitioner is after the Nazool (State Govt. Land)right from 1991. He has been taking off and on proceedings against Govt. and Nazool Department. He has even filed number of writ petitions. This is possibly the 3rd round of litigation. He has busied himself with the litigation. The successive litigation are built up on all most similar facts, communication, reports, feed back a and inter-se official correspondence, petitioners occupation of first floor by dint of power of attorney has since seized to be a document after the death of executant. He has been pursuing the matter in the court(s) in one way or the other with the hope that he may get chance of success. He is obviously taking advantage as a clerk /Official of Gulmarg Winter Sports Organisation in occupying the portion of the building, the ground floor of which is on rent with the Gulmarg Winter Sports Project. He has been pursuing the matter in the court(s) in one way or the other with the hope that he may get chance of success. He is obviously taking advantage as a clerk /Official of Gulmarg Winter Sports Organisation in occupying the portion of the building, the ground floor of which is on rent with the Gulmarg Winter Sports Project. He has been persisting with the matter, notwithstanding that even as attorny his occupation will be deemed to be on behalf of Jagdeep Singh Samyal the executant claiming to be heir of original lessee (Both having died since) and legally the possession will be deemed of original lessee notwithstanding the mediate possession claimed by petitioner. The LPA Bench while disposing of the appeal arising out of judgement given in OWP 286/2000 alongwith two other writ petitions OWP No. 102/01 filed by Sita Devi and OWP No. 288/01 filed by the petitioner directed the Govt. to dispose of the matter within the prescribed time and to maintain status-quo till such time the Government takes final decision in the matter. When the Government took the decision on 06-02-2002 the petitioner again came to the court to challenge the decision and the order rejecting his claim for allotment. He has even succeeded to obtain status-quo order though provisionally on day to day basis which even militates against the direction of Division Bench in the above judgement of 23.8.2001. Obviously petitioner tireless as he appears to be cannot gain anything by share litigative perservance, so long there is no merit in the petition(s). In the above view of the matter, the writ petition is accordingly dismissed at this pre-admission stage alongwith interim matters. Interim direction, if any, shall be no more in force.