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2007 DIGILAW 63 (JK)

State Of J. &K. v. V. K. Pachnanda (Dr. )

2007-05-04

HAKIM IMTIYAZ HUSSAIN, NIRMAL SINGH

body2007
1. This appeal is directed against the judgment of learned Single Judge in OWP NO. 283/05 titled Dr. V.K. Pachnanda v. State of J&K & Ors. dated 10.5.2006 by means of which the Writ Court has directed the appellants to grant proprietary rights to the respondent in respect of land measuring 3 kanals 1 marla and 24 Sqft situated Ahata Kalan Telephone Exchange Road, Jammu. The brief facts relevant for the disposal of this appeal are as under:- 2. State land measuring 2 kanals and 14 marls and 54 Sft. were given on lease to one Dr. Ram Singh Pachnanda in the year 1942 on the payment of premium and ground rent. Later by means of a subsequent order an additional area of 6 marlas and 242 Sft was also given to him for commercial purposes. Thus land measuring 3 kanals and 1 marla and 24 Sft. came into the possession of Dr. Ram Singh Pachnanda under Wadiars Rules . After his death, the wasidars rights were transferred in favour of his wife Smt. Savitri Devi Pachnanda vide mutation No. 97 and on the death of Smt. Pachnanda, lease hold rights were transferred in favour of her son Dr. V.K. Pachnanda-the present respondent. In the year 1981 the Government vide order No. Rev/NDK/248 of 1981 dated 17.8.1981 ordered that the wasidars who have acquired Nazool land on lease basis shall have the opinion to acquire the land on proprietary basis on payment of price equivalent to half of the prevailing market price in the Estate. Smt. Pachnanda applied for the same but her application remained undecided till her death. After her death her son, the present respondent persued the matter and approached the concerned revenue authorities as well as the other Government functionaries for the purpose. It appears that the Government did not take any action in the matter which forced him to file a petition before this Court being OWP NO.283/05. This Court on 29.11.2001 while disposing of the said writ petition, directed the respondents to consider the claim of the petitioner and dispose of the same in accordance with law. The court further directed the respondents to take note of judgments in case titled Dr. Ved Khullar v. State of J&K & Ors. (OWP NO. 634/87 decided on 17.8.1981) and Manjit Singh and Ors. V. State of J&K & Ors. (OWP No. 933/95) decided on 17.4.2000. The court further directed the respondents to take note of judgments in case titled Dr. Ved Khullar v. State of J&K & Ors. (OWP NO. 634/87 decided on 17.8.1981) and Manjit Singh and Ors. V. State of J&K & Ors. (OWP No. 933/95) decided on 17.4.2000. The Court gave three months time to the respondents to consider the matter. The respondents again approached the State to comply with the directions. The matter was thereafter considered by the State but vide order No. Rev/NDJ 56 of 2003 dated 11.3.2003 the claim of the respondent was rejected on the ground that with the enforcement of Jammu & Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2002 the claim of the respondent had become infructuous as such could not be entertained. The State also found that there was no ground to grant ownership rights in favour of the respondent on the analogy of Dr. Ved Khullar as the application of Smt. Pachnanda was found to be antedated and fabricated. The Government, therefore, rejected the claim. 3. Feeling aggrieved of the same respondent-Dr. V.K. Pachnanda filed a petition (OWP No. 283/05) before this Court seeking a writ of certiorari quashing the said Govt. order on the ground that the same has not been passed in accordance with the law. Ld. Single Judge on consideration of the matter, has allowed the said writ petition through the judgment impugned holding that the petitioner was entitled to get the proprietary rights on the said piece of land. The court accordingly directed the State to grant proprietary rights to the respondents in respect of land measuring 3 kanals 1 marlas and 24 Sft situated at Ahata Kalan Exchange Road, Jammu at the rate of Rs. 10 lacs per kanal within a period of two months. 4. Aggrieved of the said judgment the State has filed the present Letters Patent Appeal on various ground inter-alia that the learned Single Judge has gone into disputed questions of fact has travelled beyond its jurisdiction. The appellants further state that the Honble Single Bench has not properly appreciated the pleas raised in the case as the Deputy Commissioner Jammu had found that the application of mother of the respondent was antedated and forged one. The appellants further state that the Honble Single Bench has not properly appreciated the pleas raised in the case as the Deputy Commissioner Jammu had found that the application of mother of the respondent was antedated and forged one. It is also stated that during the pendency of the matter the J&K State Land(Vesting of Ownership Rights to the Occupants) Act, 2002(Commonly known as Roshni Scheme) came into force in view of which the application of the respondents for conferment of proprietary rights had become infructuous. 5. Heard. We have considered the matter. We have gone through the writ record. Mr. A.H. Qazi appearing for the State has raised two main pleas to assail the judgment of Ld. Single Judge; firstly that the application allegedly moved by the mother of the respondent was antedated and fabricated and has therefore, rightly been rejected by the State, secondly that with the implementation of the "Roshni Scheme" the application of the respondent for grant of proprietary rights in respect of the said piece of land, was not maintainable. 6. To substantiate the first argument Mr. Qazi referred to various applications filed by Smt. Pachnanda for extension of the lease hold rights. The learned counsel would argue that the contention of the respondent that Smt. Pachnanda filed an application for grant of proprietary rights in compliance to Govt. order No. 248 of 1981 dated 17.8.1981cannot be taken as correct as in the subsequent applications filed by her she has nowhere made a mention of her application for grant of proprietary rights. This, according to the learned counsel indicates that the respondent has managed to place the application for grant of proprietary rights on the record of the department and it was due to this fact that the Deputy Commissioner found that the application was ante dated and fabricated one. 7. This issue has been specifically dealt with by the learned single Judge. The Court has examined the relevant record and has also reproduced the report of the Additional Commissioner Jammu who has conducted the enquiry into the matter. 7. This issue has been specifically dealt with by the learned single Judge. The Court has examined the relevant record and has also reproduced the report of the Additional Commissioner Jammu who has conducted the enquiry into the matter. On examination of the record the learned Single Judge has found as under:- "It transpires that on a comprehensive examination of the entire record it was found by the respondents that the signature of Shri Raj Paul Sharma, the then Assistant commissioner Nazool on the application of Smt. Savitri Pachnanda, tallies in all respect with his signatures borne on the official files. The said officer happened to be the custodian of the record at the relevant point of time and in his statement he has admitted that the application does bear his signatures. As regards allegation of manipulation of the application, it is the brain child of the Additional Secretary who had no proof to observe so, excepting his own impression which stands dispelled by a findings of fact recorded by the enquiry officer in the inquiry initiated and conducted by the authorities at the helm on their own and without associating the petitioner. The conclusion of the enquiry recorded by the Additional Commissioner on the basis of evidence being crystal clear on the score that application was actually filed by Smt. Savitri Pachnanda which does form part of the official record produced by the respondents, coupled with the fact that there is no evidence even worth the name on the record to the contrary, it emerges that the impugned order emanates from a unilateral and grossly unreasonable exercise of power suggesting discharge of public duty in a whimsical and arbitrary manner." 8. We have examined the record and find that the learned Single Judge has come to a right conclusion and has made correct observations on the issue. The matter, as is evident from the record, has been enquired into by the Additional Commissioner, Jammu who has found that Smt. Pachnanda had filed the application on 20.11.1981 in the office of Assistant Commissioner Nazool and that the application was duly received by the Assistant Commissioner Nazool Shri Raj Paul Sharma who was holding the charge of the post at that time. It was the Deputy Commissioner, Jammu who in the year 2000 found that the application dated 20.11.1981 of the respondents mother was not genuine as such cannot be considered. It was the Deputy Commissioner, Jammu who in the year 2000 found that the application dated 20.11.1981 of the respondents mother was not genuine as such cannot be considered. He on finding that the applicant (respondent) has remained silent for 14 long years asked the Assistant Commissioner (Nazool) Jammu to verify the factual position. The Assistant Commissioner on verification found that the respondent could not produce the original/attested copy of the documents from which he concluded that `the application dated 20.11.1981 does not appear to be genuine and as such cannot be considered. The case was thereafter referred by him to the Divisional Commissioner. The matter was later on got enquired into by the Additional Commissioner, Jammu who while verifying these facts found and observed as under:- "As regards marking of the application presented by Smt. Savitri Pachnanda on 20.11.1981 in the office of Assistant Commissioner (Nazool) it has been found that Shri Raj Paul Sharma was holding the charge of Assistant commissioner (N) on that date and it is he who has marked this application in the office which has been ascertained from the initial of Sh Raj Paul Sharma on the record maintained in the office of Asstt Commissioner (N) and in the office of Dy Controller Weights and Measures as he had also held the charge of Dy. Controller, Weights and Measures Jammu for some period. Copy of the Acquaintance Roll signed by Shri Raj Paul Sharma in the capacity as Dy Controller Weights and Measures is also enclosed. Moreover Shri Raj Paul Sharma then Asstt Commissioner (N) has also given in writing on 23.6.2001 that the application was marked by him as it bears his signatures. It is pertinent to mention here that vide Govt. order No. Rev (NDJ) 184 of 1996 dated 28.10.1996 sanction has been accorded to the renewal-cum-transfer of lease hold rights over Nazool land measuring 03 kanals-01 Ml and 24 Sqft (02 Kls 14 Mls) and 54 Sqft for residential and 06 Mls 242 Sqft (for commercial) covered by item No. 371 of wasidari registered situated at Ahata Kalan Exchange Road, Jammu in favour of Shri V.K. Pachnanda S/o Late ram Singh Pachnanda for a further period of 20 years from the date the term of law expired viz 21.10.1962 and 1312.1992 AD. In view of the aforementioned facts, I am desired to request that necessary sanction to the grant of proprietary rights over Nazool land measuring 03 Kanals-01 Mls and 24 Sqft situate at Ahata Kalan Exchange Road, Jammu may kindly be accorded in favour of Dr. V.K. Pachnanda on payment of full market price of the land @ Rs. 10,00 (Rupees ten lacs) per kanal in term of Govt. order No. Rev. (NDJ) 309 of 1985 dated 24.9.1985 as recommended by the Deputy Commissioner, Jammu." 9. The finding of the Additional Commissioner has not been contested by the State. Not only that the material on record goes against to what Mr. Qazi says but we find that such a plea is not available to the State at this stage at all. This Court has considered the grievances of the petitioner in an earlier writ petition (WP No. 1037/01),where the issue involved was principally the same as in the present petition i.e. the grant of proprietary rights in favour of the petitioner. That the respondent had applied for such a right was specifically pleaded in the said petition but the State did not raise any objection to it on the ground of genuineness of the application filed by the respondent-mother in the case. If what Mr. Qazi pleads is correct, such a plea was available to the State even at that time so it should have been raised in the said petition. Once the State failed to raise such a plea it is estopped, on the well settled principles of law to raise such a plea in the present petition now . 10. The plea whether the respondents right to claim proprietary rights got destroyed with the enforcement of ("Roshi Scheme")has also been considered in detail by the learned Single Judge. The Court has rejected the plea by observing as under:- "Here arises a question as to which order should be applied to the case of the petitioner for the purposes of settlement of the price. Dealing with the question Mr. Qazi contended that price cannot be as was prevalent on the date of application but should be as per " Roshni Scheme". To bring home the point reliance is placed on the judicial decisions in State of Bihar Vs. Commissioner Prashad (AIR SCW 2000 SC 2389). Dealing with the question Mr. Qazi contended that price cannot be as was prevalent on the date of application but should be as per " Roshni Scheme". To bring home the point reliance is placed on the judicial decisions in State of Bihar Vs. Commissioner Prashad (AIR SCW 2000 SC 2389). The facts of the said decision reveal that a claim was laid for counting the officiating, service towards seniority on an analogy held impermissible in law. Writ petition in hand does not represent a situation where benefit is sought on analogy of a policy which runs contrary to law, therefore, judgment is not attracted. Reliance is also placed by him on Union of India vs. International Trading Company (AIR 2003 SC 3938) which has dealt with refusal to extend the lease to operate Foreign Deep Sea Fishing Vessels in terms of the Maritime Zone of India (Regulation of Fishing by Foreign Vessels) Act 1981, emanating from change int eh policy, whereas in the case on hand there is no denying that the policy envisaging conferment of proprietary rights is in vogue and benefits on the basis of Government policy have flown to several persons, conversely, in the case relied upon by Mr. Qazi policy of renewal was virtually said goodbye by the Government. Thus non-existence of the policy of renewal makes the judgment distinguishable and inapplicable. Reference was also made to New Delhi Municipal Committee Vs. State of Punjab (AIR 1995 SC 1). The case involved a controversy relating to procedure for allotment of flats. It was held that mere drawal of lots does not vest indefeasible right in the allottee in respect of the price prevailing on the date of drawal of lots. It is apposite to notice here that a clause exists in the scheme itself relied upon in the judgment supra which among other things provides that the estimated price mentioned in the brochure is illustrative and is subject to revision/modification depending upon the exigencies of lay out, cost of construction etc. (See para 8 of the judgment supra). No such condition is stipulated in the order which forms basis of the petitioners claim. More so, escalation in the cost of material is irrelevant to the writ petition because neither lay out nor construction does have any relevance to the case on hand which makes a world of difference between the two sets of facts. No such condition is stipulated in the order which forms basis of the petitioners claim. More so, escalation in the cost of material is irrelevant to the writ petition because neither lay out nor construction does have any relevance to the case on hand which makes a world of difference between the two sets of facts. Dissimilarity being manifest judgment does not apply." 11. Almost a similar plea was raised before a Division Bench of this Court in LPA 933/02 titled State of J&K & Ors. V. Manjit singh & Ors. In that case the plea raised was that with the enforcement of Government Order No. 309 of 1985, the Govt. Order No. 248 of 1981 has lost its force. Learned Single Judge rejected the argument on the ground that since the proprietary rights were not given to the respondents (writ petitioners in that case) though they had applied in time under the Government Order dated 17.8.1981, they had no option to file writ petition.On an appeal a Division Bench of this Court observed as under: - "After hearing the learned counsel for the parties and going through the record, we are of the view that the learned Single Judge has committed no error in law in directing that the respondents be granted proprietary rights in terms of Govt. order dated 17.8.1981. Respondents had applied in time for the grant of proprietary rights. Other lessees similarly situated were granted proprietary rights but the application of the respondents was not decided and kept pending for the reasons best known to the appellants. The right which had accrued to the respondents during the currency of the Govt. order dated 17.8.1981 cannot be allowed to be defeated and that too on account of the lapse on the part of the appellants in not passing order on the application filed by the respondents. Considering the situation prevailing in the Valley, we are of the view that the proprietary rights should have been conferred upon the lessees like respondents so that they may feel safe and are able to settle in the valley. Circumstances of this case do not call for any interference with the view of learned Single Judge. Therefore, the appeal is dismissed."(emphasis supplied) 12. Circumstances of this case do not call for any interference with the view of learned Single Judge. Therefore, the appeal is dismissed."(emphasis supplied) 12. Government Order No. 248 of 1981 dated 17.8.1981, which was based on two Cabinet decisions No. 280 of 22.6.1981 and No. 356 of 17.8.1981 gave right to the lease holders to ask for proprietary rights on the Nazool land held by them on payment of half of the market price in the Estate. Later by means of Government Order No. 309 of 1985 dated 24.9.1985 the price was raised to full market price and it was ordered that the lessees who are interested in converting the lease into free holder rights, may do so after payment of full market price. Thus both the orders vested a right in the occupants of Nazool land to ask for proprietary rights over such land. As has rightly been observed by the learned Single Judge, the difference between the two orders is that the former (order of 1981) provided conferment of proprietary rights on payment of half the market price, whereas the latter (order of 1985) envisages the same benefit but on full market price. 13. The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 was enacted in the year 2001 to provide proprietorships rights to the occupants (authorized/unauthorized) of the state land on certain terms and conditions. The Act was enforced in the State w.e.f. 1.3.1002 vide SRO 94 dated 1.3.2002 except in Ladakh and Kargil districts. By means of various amendment Acts particularly Act No. XVI of 2004 and Act No.III of 2007, the Act was drastically amended. On going through the various provisions of the Act, we find that not only other State land but even land which falls under the Land Grants Act (which is commonly known as Nazool Land) has been brought within the preview of the Roshni Scheme. Section 5 of the Act dealt with filling of application by the occupants of State land for grant of ownership rights and sections 6 to 8 dealt with the procedure regarding vesting of such rights. Section 8 of the Act provides as under:- 8. Vesting of rights. Section 5 of the Act dealt with filling of application by the occupants of State land for grant of ownership rights and sections 6 to 8 dealt with the procedure regarding vesting of such rights. Section 8 of the Act provides as under:- 8. Vesting of rights. -- (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of this Act, all rights, title and interest in any State land shall vest in the occupant or head of the family in case of two or more occupants belong to a family subject to the following conditions, n<<8!(a) (a) that he is a permanent resident of the State; (b) that he has applied, or he applies, in the prescribed manner for transfer of vesting of such land within such period as the Government may, from time to time specify; (c) that he pays the price as is determined in the prescribed manner for such land to the Govt. (cc) that the land shall be used in conformity with the;provisions of the Master Plan, wherever existing, and if there is no Master Plan for any area, it shall be put to prescribed land use, if any; and (d) that the land is not required for any public purpose. (2) The total land in possession of any person or a family including the land vested in such period or a family under sub-section (1) shall not exceed the limits of hundred kanal. Explanation: -- The expression " family" and "head of the family" in this section shall have the same meaning as are assigned to these in the Jammu and Kashmir Agrarian Reforms Act, 1976. (3) The occupant shall, within such period as may be prescribed deposit the price as determined and notified, with the District Collector concerned against the proper receipt who shall thereupon issue a formal order conferring owner ship rights upon the said occupant. (4) The Tehsildar shall attest mutation in favour of such occupant, on payment of a mutation fee of rupees twenty per kanal in rural areas and rupees fifty in urban areas, conferring upon him the ownership rights in respect of such land within one month from the date the occupant produces receipt of the money deposited with the District Collector. (4) The Tehsildar shall attest mutation in favour of such occupant, on payment of a mutation fee of rupees twenty per kanal in rural areas and rupees fifty in urban areas, conferring upon him the ownership rights in respect of such land within one month from the date the occupant produces receipt of the money deposited with the District Collector. (5) Any occupant who fails to deposit the price of land under sub-section (3) shall be evicted from such land by the Assistant Commissioner (Revenue/Nazool) within two months from the date the period for its payment expires and report to the District Collector forthwith. (6) On receipt of a report under sub-section (5), the District Collector shall cause such land to be put to auction by the Committee." 14. Thus what was in principle provided by the Government orders of 1981 and 1985 has now been provided in much broarded way by the Roshni Act. Roshni Act has thus not destroyed the right of a leasee to get ownership rights but only extended it to unauthorized occupants and has provided a proper machinery to process and dealt with such matters. In such circumstances the claim of the respondent to get proprietorship rights cannot be denied only on the ground that a more elaborate law, providing the same right which was available to him under the earlier orders, has been provided. As is verified by the Additional Commissioner, Jammu respondents mother Smt. Pachnanda filed application for grant of proprietary rights on 20.11.1981 i.e. immediately after the order of 1981 was made but no action was taken on it by the concerned authority. No action was taken on it even after promulgation of order of 1985. Now with the enactment of Roshni Act the State cannot take advantage of the inaction of its own officers and cannot deny the benefit to the respondent on the ground that the matter remain pending for all these years. 15. Thus in view of the principles adopted by the Division Bench of this Court in Manjit Singh case (supra) we find the argument of Mr. Qazi cannot stand. 16. On perusal of the judgment impugned we find the learned Single Judge has gone into the pleas arising in the petition, in detail. 15. Thus in view of the principles adopted by the Division Bench of this Court in Manjit Singh case (supra) we find the argument of Mr. Qazi cannot stand. 16. On perusal of the judgment impugned we find the learned Single Judge has gone into the pleas arising in the petition, in detail. He has referred to various Government Orders passed on the subject and has on due consideration of the matter found the respondent entitled to the relief prayed by him. The Court has also gone to the question as to whether the respondents were entitled to get the proprietorship of the land on half of the market value or full market value of the land. 17. On going through the findings arrived at by the writ court we find a due application of mind, proper appreciation of the facts and correct application of law as such we do not find any ground to interfere with the judgment of the learned Single Judge impugned in the present petition. We find the learned Single Judge has not committed any legal or jurisdictional error while allowing the writ petition. The result is that this appeal cannot stand and is hereby dismissed. Order accordingly.