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2003 DIGILAW 154 (JK)

Habib Allaie v. State

2003-05-24

SYED BASHIR-UD-DIN

body2003
Petitioners have prayed for following reliefs :- (a) Certiorari for quashing Government order No. 331/HUD/LSG of 1989 dated 20-10-1989. (b) Mandamus commanding the official respondents to settle and determine the compensation case of the petitioners qua the land measuring 2 kanal 15 marlas covered by survey No. 189 situated Goripora Rawalpora. (c) Mandamus commanding the respondents in general and respondent No. 6 in particular not to change the nature and character of the land in question by any mode, manner or method whatsoever. (d) The Honble court may pass any other order or direction which it deems just and proper under the fact and circumstances of the case." These reliefs are claimed on pleaded facts and grounds that the petitioners and their predecessors are title holders and possessors of land measuring 2 kanals and 15 marlas in survey No. 189 situated at Mouza Rawalpora Budgam. This land was given by petitioners predecessors in interest to Rural Development Department of the J&K State verbally. Though the date and order when it was so given and taken is not given but all the same the land was managed and looked after by the petitioners. The Rural Development Department and State Government constructed a Panchayat building and installed a tube well on the land. Petitioners have not been paid any compensation for the land. Petitioners have not been paid any compensation for the land. Petitioners and their predecessors in interest made representation. But the question of payment of compensation is pending. Some time back the land has been taken over by Srinagar Municipality. Petitioners approached even the Municipality authorities for settlement of their claim for compensation but there has been no response. However, recently petitioners came to know that the land has been allotted to respondent No. 6 on lease by the Srinagar Municipality Committee. This allotment of land by the State Authorities, even though land is voluntarily given to State Authorities without consideration, is unreasonable and unfair. It is opposed to public policy, It is further stated that the petitioners could not approach the court as they were given to understand that their grievance would be redressed which has not been the case so far, 2. Srinagar Municipality Committee and its officers as also the lessee respondent to this petition have filed reply. It is opposed to public policy, It is further stated that the petitioners could not approach the court as they were given to understand that their grievance would be redressed which has not been the case so far, 2. Srinagar Municipality Committee and its officers as also the lessee respondent to this petition have filed reply. The respondents case is that the land has been given Rural Development Department and the Panchayat some 50 years back and Panchayat is recorded in possession of this land from 1954. Panchayat Ghar is constructed by Panchayat Committee of the village and a tube well is also installed by the Panchayat Committee on spot, Vide Govt. Notification SRO 242 dated 19. 6. 1978 different parcels of land including this land within the municipality limits Srinagar (Annexure D1), after the same was published in the Government Gazette and objections were invited, petitioners or their predecessors in interest have not come-forth to file objections and it was only thereafter that under the enabling powers under Section 5(3) of Municipal Act, the Govt. included the land within the Srinagar Municipal Limits Vide SRO 342 dated 19.6.1978 the land with Panchayat Ghar is and has been in possession of Panchayat Committee and its successor Municipality althrough. This property at no point of time is looked after and managed by the petitioners or their predecessors as alleged. The land has been voluntarily donated to the Village Panchayat which came in possession of the land and constructed the Panchayat Ghar and installed the tube well much earlier to the land coming SMC in 1978, as above. No claims for compensation has been ever raised. No representation has been ever received as alleged. Petitioners have no right or interest as claimed in the land. The allotment of land to respondent No. 6 on lease for 40 years has been way back in 1989 under the impugned order. The lesser respondent No. 6 is in possession of this land since October, 1989 after he paid the premium and ground rent. The respondent is within his rights to utilize the land for any purpose authorizes under the lease and law. Petitioners are neither owners nor in possession of the land. Even after the issuance of said notification of allotment of land on lease to respondent No. 6 on 20.10.1989 vide Govt. order No. 331/HUD/LSG/ of 1989 dated 20-10-1989. The respondent is within his rights to utilize the land for any purpose authorizes under the lease and law. Petitioners are neither owners nor in possession of the land. Even after the issuance of said notification of allotment of land on lease to respondent No. 6 on 20.10.1989 vide Govt. order No. 331/HUD/LSG/ of 1989 dated 20-10-1989. It took respondents over 15 years to challenge this order not to speak of throwing a challenge to any action of the Rural Development Department for that matter of Panchayat since 1954. 3. The petitioners have suppressed the material facts, in as much as, they have filed the civil suit for injunction before the court of Sub-Judge Municipal Magistrate, Srinagar which is pending. In this suit Municipality as also the respondent No. 6 are arrayed as party defendants. Petitioners have obviously taken re-course to an alternative remedy of the suit, therefore, writ petition is not maintainable even on this count. 4. Perusal of the record reveals that the petitioners are out of possession for last over 50 years. Even in November 1974 the land is recorded in possession of Panchayat since 1971 (Annexure A). As to how the land came in the hands of panchayat, petitioners own case is that it was given voluntarily to Panchayat and Rural Development Department by the predecessor-in-interest of petitioners without consideration. For carrying out its activities, Panchayat Committee constructed a Panchayat Ghar and installed tube well on this land. Annexure-A also shows that this Panchayat Ghar has been constructed as early as in 1962 and that the trees on the land have been also planted by the Panchayat. It also shows that the possession of Panchayat and SMC is since 1954. The land was managed by the Panchayat when it had kept Chowkidar to look after the land. In June 1978 this land alongwith many other parcels of land in different khasra Nos. was included in the limits of SMC. The land with Panchayat Ghar structure and tube well was with the SMC since 1978 which look after and managed it. Only in 1989 the land was allotted on lease to respondent No. 6 vide impugned Govt. order. In June 1978 this land alongwith many other parcels of land in different khasra Nos. was included in the limits of SMC. The land with Panchayat Ghar structure and tube well was with the SMC since 1978 which look after and managed it. Only in 1989 the land was allotted on lease to respondent No. 6 vide impugned Govt. order. The allegation/plea is that the petitioners represented to the Rural Development Department and the State Government and also SMC in the matter for being paid the compensation or allotment of some alternative land appears more to bolster petitioners projected case. Petitioners hardly appear to have conviction in the plea as a fact. (Annexure-C) styled as notice of demand of justice addressed to Administrator SMC bears date as 18.3.02. While as another application for compensation again addressed to SMC bears date as 11.2.01. There is nothing on record to show that petitioners after voluntarily surrendering/donating the land to Rural Development Department, ever put up a claim for compensation to official respondents in any case before December, 2001, these tell tail facts and circumstances, do show that the petitioners are motivated by the temptation to get some money or benefit from State Govt. and the Municipality, once they find that the land is fetching a sizeable amount and benefit to the SMC Srinagar. It is the monetary temptation that appears to have propelled the petitioners to take plung in litigation, in such a hopelessly state and time-lost claim, in the backdrop of land having been voluntarily donated to the Rural Development Department decades and decades back. 5. Petitioners have failed to approach the court all along for last over five decades. Not only so even after the land was allotted to respondent No. 6 in October 1989, the petitioners came to challenge the same by this petition in July, 2002 after a period over 12 years. No satisfactory explanation is on record for delayed action. The petition suffers from delay and laches. If the petitioners have been so indolent and not vigilant enough to approach the court at the earliest, they are not entitled to claim the relief as the petition would be deemed to suffer on account of delay and laches. 6. In Scooters India v. Vijaie V. Eldred, (1998 SC (6) 549). It is observed:- ".... If the petitioners have been so indolent and not vigilant enough to approach the court at the earliest, they are not entitled to claim the relief as the petition would be deemed to suffer on account of delay and laches. 6. In Scooters India v. Vijaie V. Eldred, (1998 SC (6) 549). It is observed:- ".... That apart, the writ petition was filed more than six years after the date on which the cause of action is said to have arisen and there being no cogent explanation for the delay, the writ petition should have been dismissed on the ground of laches alone...." There is yet another aspect of this case. From documents presented by the counsel for the Municipality, which are taken on record, it is seen that the petitioners have also filed a suit for permanent injunction in respect of land which also includes the land in question before Sub Judge, Municipal Magistrate, Srinagar. The SMC and its Administrator and other officials as also the private respondent to this petition are party defendants to the civil suit No. 446/N/02 on the file of Sub Judge, Municipal Magistrate, Srinagar. The relief prayed on the pleaded facts in the suit is a decree for injunction to restrain the allottee respondent No. 6 from raising any construction on the land. The suit is pending. Respondents are also contesting the suit. The matter of interim injunction is pending for orders before the trial court. All this has not been stated and mentioned by petitioner in the writ petition. These facts are suppressed. In that view matter petitioners cannot be said to have approached the court with clean hands. In any case, petitioners have opted for an alternative remedy. On above view of the matter, in the facts and circumstances of this case in my opinion there is no merit in this writ petition for admittance to hearing. Dismissed.