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2010 DIGILAW 127 (JK)

Jammu Municipal Corp. v. Krishan Chand

2010-03-10

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2010
1. Admit. 2. By consent, the appeal is taken up for hearing. 3. The land in question, as appears from the judgment of the Division Bench, rendered in LPA(W) no. 36/1989 (Chaju Ran and anr v. State of J&K and ors), a copy whereof was in the file containing the application of the writ petitioner-respondent seeking permission to construct the first and second floor over the shop in question, as produced by learned counsel appearing for the Municipality before this Court in terms of an earlier order of this Court, was given by way of grant of June 28, 2009 by the State of Jammu and Kashmir for construction of a Dharmshalla. The said judgment depicts that later on the trustees of the said Dharamshalla granted lease of part of the said land to various persons for periods as long as twenty years and those leassees raised 2 to 5 storied constructions thereon. A complaint to that effect having been received, the Government acted and by an order dated July 22, 1976, directed resumption of the land. This order of the Government was the subject matter of challenge in the writ petition, which was dismissed, and against the order of dismissal the aforementioned appeal was preferred. The appeal was allowed and the respondents in the appeal, namely the State Government, was directed not to evict the appellants, i.e., Dharamshalla, from the property in question except in accordance with law including by taking recourse to provisions contained in the Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act, 1959. 4. The records thus produced by learned counsel for the appellants and the records of the case before us do not show that subsequent to the said judgment of the Division Bench, any step had been taken by the State Government for eviction of the Dharamshalla. The only ground upon which the appellants refused to entertain the application of the respondent-writ petitioner was that Dharamshalla was not the owner of the land, but it was the State Government who was owner of the land, though the said ground was not disclosed until filing of objection to the writ petition, which in turn had been filed to uphold deemed sanction. 5. 5. It is true that the State Government is the owner of the land, but it having granted the land for user to Dharamshalla, the Dharamshalla is entitled to use the usufructs thereof in the manner it deems fit and proper. In the event, while using such usufructs, Dharamshalla breaches any condition of the grant, it exposes itself for resumption but that cannot be a ground for the appellant-Municipality not to permit the Dharamshalla to use the usufructs of the land. In the instant case, Dharamshalla has duly authorized the writ petitioner-respondent to make the subject construction. On the ground that land belongs to State, the Municipality could not refuse to consider the application so made by the respondent-writ petitioner. 6. In the circumstances, there is practically no scope of interference with the judgment and order under appeal, but in public interest, it would be proper on our part to direct the Municipality to consider the application of the respondent-writ petitioner seeking permission to construct first and second floor over the shop in his possession and to verify whether the same is in accordance with the other provisions of the Municipal Rules and Building Rules. In the event, the same is in conformity with such rules, let Municipality issue a sanction after accepting appropriate sanction fees in respect thereof as quickly as possible but not later than one month from today. In the event sanction applied for violates any of the existing rules, within one month from today, respondent-writ petitioner should be informed in regard thereto so as to enable the respondent-writ petitioner to amend the application soon thereafter. Upon such amendment, the matter shall once again be considered by the Municipality in the light of directions above. 7. The construction made or to be made must be in accordance with the sanction to be granted in terms of the directions as above. 8. It is made clear that in respect of the matter pending before the Tribunal, this Court has not applied its mind and, accordingly, the Tribunal shall be entitled to proceed with the matter in accordance with law. 9. File is returned back to the learned counsel for the Municipality.