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2010 DIGILAW 293 (JK)

Raman Sethi v. State

2010-05-14

MOHAMMAD YAQOOB MIR

body2010
1. In exercise of powers under Section 6 of Land Grants Act, 1960 and Rule 7 of the Land Grant Rules, resumption of land measuring 2 kanals 15 marlas 56 sft. Under Khasra No.62 and 63-min and 2 marlas under Khasra No. 66-min situated in Maisuma Estate Tehsil & District Srinagar, has been ordered pursuant to Govt. order impugned dated 4.4.2001. Aggrieved thereof instant petition has been filed. 2. Noticing of factual backdrop will be useful for proper adjudication:- 3. Land admittedly belongs to Nazool department. Initially land covered under survey No.62-min and 63-min measuring 2 kanals, 16 marlas and 56 sft. was granted on lease on 14.2.1935 and the land under survey No. 66-min was granted on lease for 40 years on 20.5.1914, thereafter was renewed for 20 years with effect from 23.8.1954. The period expired on 22.8.1974. The said grant was in favour of predecessor in interests of the petitioners. On the expiry of the grant, the petitioners in terms of Rule 7 of the Land Grants Rules had moved an application for renewal of the lease. Respondent No.4 (Assistant Commissioner, Nazool) in his letter dated 2.8.1975 has mentioned that the leasehold rights of both the areas have expired on 14.2.1975 and 22.8.1974 respectively. The lessees have paid the ground rent till the date of expiry and now prayed for the renewal of leasehold rights vis-a-vis land which is under their possession. By the said letter clearance has been sought from the Chief Executive officer, Srinagar Development Authority. When the papers for renewal were in process, one Ranjit Singh Sahai succeeded in getting regularization or land measuring 4 marlas under survey No.62, 63 in his favour for a period of 20 years. Same was challenged by the petitioners by medium of writ petition (OWP) No.378/2000, which has been decided on 27.12.2005. The Government order No. 167 of 1999 dated 24.11.1999 was alleged to be a fake order, which has been accepted to be so, therefore, while disposing of OWP NO.378/2000, various directions including action through Crime Branch, have been passed. The said Govt. order has been ignored. 4. The case of the petitioners for renewal of leasehold rights was in progress and the Assistant Commissioner Nazool finally on 9.1.2001 prepared a detailed report and recommended for obtaining sanction of the Administrative Department for resumption of the said land. The said Govt. order has been ignored. 4. The case of the petitioners for renewal of leasehold rights was in progress and the Assistant Commissioner Nazool finally on 9.1.2001 prepared a detailed report and recommended for obtaining sanction of the Administrative Department for resumption of the said land. Base for such recommendation as mentioned in the letter/report dated 9.1.2001 is that the lessees have violated the terms and conditions of the lease by sub-letting it to Fancy Fabrics and Nitco Roadways Limited and furthermore in terms of an agreement, third party interest has been created in favour of Shri K. D. Sethi. Copy of the said report has been sent to Financial Commissioner Revenue, Commissioner/Secretary to Government Revenue and Divisional Commissioner, Kashmir. Petitioners have filed detailed representation before the Divisional Commissioner so as to controvert the position as referred to in the letter and to seek renewal of lease. Before the Divisional Commissioner could take any decision, the Government has issued the order impugned. 5. While challenging the validity of the resumption order impugned, it has been contended that so far Fancy Fabrics is concerned, the building was constructed by the predecessor in interest of the petitioners on 2 marlas and 132 sft. The grant was for "trade or shop". The grant was commercial in nature as is reflected in the records of the Nazool Department. So far as NITCO Roadways is concerned, no part of the property has been sublet to them. 6. Next it is contended that the another point made base for the resumption is the agreement with one K.D. Sethi on 28.8.2000 which has been termed as an agreement to sell so as to create third party interest, when the same is far from truth. Perusal of the agreement would indicate that it is a contingent agreement. No transfer at all is contemplated therein. It is also contended that the petitioners have not violated any condition or any rule. Same position would have been explained had the petitioners been given an opportunity of being heard, when in terms of Rule 7 of the Land Grants Rules, the petitioners have a vested right of getting renewal of lease for a further period of 40 years with effect from 1974. 7. Same position would have been explained had the petitioners been given an opportunity of being heard, when in terms of Rule 7 of the Land Grants Rules, the petitioners have a vested right of getting renewal of lease for a further period of 40 years with effect from 1974. 7. It is also contended that in terms of clause (f) of Rule 3 of Land Grants Rules, in case of resumption, the petitioners were entitled to the compensation vis-a-vis buildings and other structures. The action of the government in issuing the order impugned is visited by extraneous circumstances, resultant effect is the injustice to be perpetuated by such action. 8. While considering the submissions, in essence what emerges is that the order impugned has been passed in violation of principles of natural justice. Adherence to the principles of natural justice has got no substitute. Deprivation of right of hearing in the peculiar facts and circumstances of the case renders the order impugned as illegal. Petitioners in fact have been pursuing the matter before the Divisional Commissioner and admittedly the Government before passing the order has not given any chance to the petitioners to controvert as to what was stated by the Assistant Commissioner Nazool in the communication dated 9.1.2001 which in fact was sent to Deputy Commissioner and copy was send to the Divisional Commissioner. 9. The renewal or resumption of land in dispute is the domain of the government but the action in determining such matters shall have to be transparent. The upsetting of the order impugned on the sole count of non-adherence to the principles of natural justice has become indispensable. No one can be condemned unheard. Without commenting on the merits of the case, while weighing the order impugned on the touchstone of the settled principles of law, more particularly the principles of natural justice, the only conclusion as can be drawn is that the order impugned is unsustainable. 10. For the stated reasons, petition is allowed. Order impugned dated 4.4.2001 is quashed. As a necessary corollary, the matter has to be got examined. While doing so, petitioners are required to be given reasonable opportunity of being heard and to produce all documents and other material in their possession so as to support their case of renewal. 10. For the stated reasons, petition is allowed. Order impugned dated 4.4.2001 is quashed. As a necessary corollary, the matter has to be got examined. While doing so, petitioners are required to be given reasonable opportunity of being heard and to produce all documents and other material in their possession so as to support their case of renewal. The authority as may be authorized by the Government to consider the case of the petitioners for renewal or otherwise of the lease, shall initiate proceedings and thereafter to take decision as shall be permissible strictly in accordance with the provisions of Land Grants Act and Land Grants Rules and the other relevant enabling provisions with reasonable dispatch. 11. Petition accordingly succeeds and is disposed of on aforesaid terms.