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2013 DIGILAW 602 (JK)

Kanwar Sein Anand v. State Of J&K

2013-10-06

TASHI RABSTAN

body2013
1. Vide Lease Deed dated 23.12.1976, land measuring 02 Kanal 05 Marlas and 120 sft. comprised in Khasra No. 330 min situated at Denis Gate, Jammu was leased out to the father of the petitioners for a period of forty years. The lease period commenced with effect from 01.10.1974 and the same is valid up to 01.10.2014. During the subsistence of the lease deed, father of the petitioners died. The lease property, thereafter, devolved upon the petitioners herein in their capacity as his sons. 2. The petitioners, under Section 5 of the Jammu and Kashmir State Lands (Vesting of ownership Rights to the Occupants) Act, 2001 (hereinafter referred to as "the Act") applied for conferment of the ownership rights of the land mentioned hereinabove. The respondents vide Communication No. Nazool/07-08/2016-17 dated 16.08.2007 considered the case of the petitioners for conferment of the vesting of the ownership rights under "the Act", and price of the land was approved at the rate of Rs. 1.25 crore per kanal. The respondents, accordingly, asked the petitioners to deposit an amount of Rs. 85,20,228/- for commercial use in their capacity as authorized occupants. 3. The petitioners vide representation dated 07.12.2007 approached the Assistant Commissioner (Nazool) Old Secretariat, Jammu thereby seeking permission to deposit the amount in accordance with communication dated 16.08.2007 in equal installments, within a period of one year. Meantime, in accordance with building permission order issued by the Senior Town Planner, Municipal Corporation, Jammu vide No. 21/BS/11 dated 6.4.2011, the petitioners have accordingly raised the construction and further vide order No. 205/BS/12 dated 22.05.2012, they were permitted to raise construction on the fifth storey as well. The petitioners, in pursuance to the communication dated 07.12.2007 requested respondent No. 3 to take liberal view, but, the respondents have not intimated with respect to the request of the petitioners. The petitioners further approached the Divisional Commissioner, Jammu vide representation dated 30.08.2010 requesting therein that the total amount called for, could not be deposited forthwith because of their younger brother, Mr. Vijay Sein Anand, who is co-owner in the said land, is settled outside the country and could not arrange the funds within the time stipulated. The petitioners further approached the Divisional Commissioner, Jammu vide representation dated 30.08.2010 requesting therein that the total amount called for, could not be deposited forthwith because of their younger brother, Mr. Vijay Sein Anand, who is co-owner in the said land, is settled outside the country and could not arrange the funds within the time stipulated. The said representation was forwarded to the Assistant Commissioner (Nazool), who, in response to the note/directions of the Divisional Commissioner, Jammu, reported to the Deputy Commissioner, Jammu vide communication No. Nazool/10-11/1291-92 dated 06.09.2010, the proceedings initiated under "the Act", notice of deposit of the amount as also the position existing on spot regarding the possession of the petitioners over the land. The Assistant Commissioner (Nazool), Jammu recommended to the Government to take decision in this regard and, accordingly, the Assistant Commissioner (C) with Divisional Commissioner, Jammu vide communication No. 502/1056/09-10/Roshni/3045 dated 24.09.2010 called upon Deputy Commissioner, Jammu to furnish the requisite report and the Additional Deputy Commissioner Nazool), Jammu vide communication No. DC/ACR/1010-11/2000 dated 29.11.2010 requested the Divisional Commissioner, Jammu to take up the matter with the Government on the subject. The Divisional Commissioner, Jammu, in response to the report of the Assistant Commissioner (Nazool) vide letter No. 502/1056/09-10/Roshni/J/ 5425-26 dated 17.01.2011, directed him to submit the details of the similar other such cases so that a policy decision in the matter could be taken to dispose of the case of the petitioners in light of the provisions of the Jammu and Kashmir State Lands (Vesting of Ownership to occupants) Act, 2001. 4. The petitioners approached the concerned authority time and again and made representations on several occasions. Even, the Divisional Commissioner, Jammu vide letter No. 502/1056/09-10/Roshni/J/4796-4801 dated 02.01.2012 addressed to the Commissioner/ Secretary to Government, Revenue Department, J&K Civil Secretariat narrated the details about the case of the petitioners and recommended to the Government to formulate a policy to settle the cases such like the petitioners, but, instead of the recommendations and the representations made by the petitioners, the respondents have failed to communicate any decision in this respect. 5. 5. Aggrieved by the inaction of the respondents on the representations of the petitioners as well as the recommendations of the Divisional Commissioner, Jammu, the petitioners have come up with writ petition on hand on the strength of the averments made in it, and sought the following relief: "It is, therefore, most respectfully prayed that for the reasons stated hereinabove and those to be urged at the time of hearing, by issuing an appropriate writ, direction or order in the nature of writ of mandamus the respondents be commanded to receive and accept the amount determined by the Price Determination Committee viz. Rs. 85,20,228/- and give rebate @2% in terms of the decision taken as communicated by the respondent No. 4 vide No. Nazool/07-08/2016-17 dated 16.08.2007 for conferment of vesting of ownership rights under the Jammu and Kashmir State Lands (Vesting of Ownership Rights to the Occupants) Act, 2001 for the land measuring 2 kanals 05 marlas and 120 Sft (total 12920 sft) comprising of Khasra No. 330 min situated at Denis Gate, Jammu Tehsil and District Jammu. AND Further by issuing an appropriate writ, direction or order in the nature of writ of mandamus the respondents be commanded to provide the documents of ownership of the land afore-stated to the petitioners. AND Further by issuing an appropriate writ, direction or order in the nature of writ of prohibition the respondents be commanded not to take any decision to the interest of the petitioners or in any manner depriving the petitioners of the ownership rights conferred under the provisions of Jammu and Kashmir State lands (Vesting of Ownership Rights to the Occupants) Act, 2001 as conveyed vide communication No. nazool/07-08/2016-17 dated 16.8.2007 WITH Such other additional or alternative relief as this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents". 6. On notice, the respondents have filed counter-affidavit and raised some preliminary objections by which they have stated that the provisions of "the Act" do not permit to accept payment after expiry of the period so prescribed. 6. On notice, the respondents have filed counter-affidavit and raised some preliminary objections by which they have stated that the provisions of "the Act" do not permit to accept payment after expiry of the period so prescribed. Relevant part of the objections raised by the respondents is reproduced as under:- "a) That the present writ petition is not maintainable in absence of any challenge to Section 13 of the Jammu and Kashmir State Lands (Vesting of Ownership to Occupants) Act, 2001 [Refer JKS Soft JKS/1828] read with rule 14 of the rules framed under the said Act. It is submitted that State Government has provided conferment of ownership rights in the State/Nazool land in terms of the Jammu and Kashmir State lands (Vesting of ownership rights to the occupants) Act, 2001 as amended by the Act of 2007, [Refer 2007 (5) JKS JK-89 : JKS Soft JKS/2034] and has also framed rules vide SRO 64 dated 5th of march, 2007 [Refer 2007 (5) JKS JK-128 : JKS Soft JKS/2764]. Section 8 of the Act provides for vesting of rights, Section 13 provides for eviction, Section 12 provides for determination of price and Section 13 provides disposal of land. The rules framed in terms of SRO 64 of 2007 also provide payment of the price in lump in terms of Rule 11, Clause 4. Rule 14 further provides incentives and penalty for payment of price fixed. It is submitted that in terms of Rule 14, payment has to be made within two years from the date of service of notice as fixed by the Committee for conferment of rights along with inbuilt rebates/penalties. The first notice to deposit the amount in lump was served upon the petitioner on 22.8.2007. The said notice was received by the petitioner where it was clearly mentioned that they are required to make the payment in terms of Clause 14 of Rule 9 but despite receipt of the said notice, petitioner submitted the representation on 15.12.2007. It is submitted that the scheme of the Act and Rules thereunder does not allow any exception to the payment of amount in lump sum or to the taking of any lenient view as suggested by the petitioner. It is submitted that the scheme of the Act and Rules thereunder does not allow any exception to the payment of amount in lump sum or to the taking of any lenient view as suggested by the petitioner. The provisions of the act and the Rules provide as under: (i) Making of payment in lump within a period of two years inbuilt rebates of incentives; (ii) In case the amount as determined by the Committee is not paid within the prescribed period of two years, the occupant is liable for eviction and no relaxation is provided in the act and Rules for depositing the amount in installments or taking any liberal view as suggested by the petitioner; In view of the aforesaid legal position, the plea made by the petitioner is contrary to the provisions of Jammu and Kashmir State Lands (Vesting of Ownership to Occupants) Act, 2001 and rules framed thereunder particularly Section 9, Section 13 read with rule 8, 11 and other provisions in this regard. Respondents-State submit that all the recommendations made in this regard cannot be considered especially when petitioners were granted sufficient opportunity of two years to make the payment, which the petitioners did not avail. Hence the present petition is liable to be dismissed." 7. It is further contended that the High Court under Article 226 of the Constitution of India cannot issue a writ of mandamus to formulate a specific policy or to legislate in a particular fashion. They also contended in the objections that the recommendations made by the Divisional Commissioner, Jammu are not binding on the Government and it is the Government which has to act as per the Statute. 8. The petitioners have filed re-joinder contending therein that the scheme of the Act and the Rules framed under the Jammu and Kashmir State Lands (vesting of ownership rights to the occupants) Act, 2001, does not, anywhere state that the payment cannot be accepted after two years from the date of the demand. It is further contended by the petitioners that they cannot be evicted from the premises because the premises in question is on lease, the period of which is yet to expire. Therefore, Sub-Section 5 of Section 8 of the Jammu and Kashmir State Lands (Vesting of ownership rights to the Occupants) Act, 2001 is not applicable to the present case. It is further contended by the petitioners that they cannot be evicted from the premises because the premises in question is on lease, the period of which is yet to expire. Therefore, Sub-Section 5 of Section 8 of the Jammu and Kashmir State Lands (Vesting of ownership rights to the Occupants) Act, 2001 is not applicable to the present case. It is further contended by the petitioners that the stand of the respondents, particularly, the Divisional Commissioner, Jammu's recommendations made in this regard cannot be considered and binding upon the Government, in fact, is contrary to the interim order passed by this Court on 15.06.2012, wherein this Court has ordered that the respondents shall ensure decision on the recommendations as made by the Divisional Commissioner, Jammu vide Communication dated 02.01.2012. It is relevant to reproduce para 6 of rejoinder as under:- "Contents of para no. 6 of the counter affidavit are not correctly stated. The same, therefore, are denied. It is not correct on the part of the respondents to state that `No objection' certificate was not obtained from the Nazool Department before the grant of permission for raising the construction by the Municipal Corporation. However, after the permission has been granted, the respondents were within their right to have challenged such permission before the appropriate forum and got the appropriate orders against the petitioners. This having not been done, the respondents cannot justify comment against the permission granted by the Municipal Corporation for raising the construction." 9. The petitioners have further contended that since the respondents have not taken any decision on the recommendations made by the Divisional Commissioner, Jammu till date, which is clear violation of the order passed by this Court on 15.06.2012. 10. I have considered the submissions made by learned counsel for the parties and perused the records. 11. It is admitted case that the petitioners have applied for conferment of their right of ownership on the land vested in terms of the Jammu and Kashmir State Lands (Vesting of Ownership Rights to the Occupants) Act, 2001. In response thereto, respondents vide Communication dated 16.08.2007 issued Demand Notice to the petitioners. Therefore, the terms and conditions contained in Demand Notice are binding upon the petitioners. In response thereto, respondents vide Communication dated 16.08.2007 issued Demand Notice to the petitioners. Therefore, the terms and conditions contained in Demand Notice are binding upon the petitioners. The price has also been fixed as per the Price Determination Committee constituted under Rule 9 of the Rules, which the petitioners have not disputed but have failed to deposit the same within the prescribed period in terms of Rule 14 which does not prescribed for relaxation in terms of extension of period for deposit of price. Therefore, case of the petitioners is strictly covered under the provisions of the Jammu and Kashmir State Lands (Vesting of Ownership Rights of the Occupants) Act, 2001, the Rules framed thereunder. 12. Thus, in absence of any challenge to the relevant provisions of the said Act and the Rules framed thereunder, writ petition cannot be entertained. Even otherwise also, the respondents vide Communication No. Rev/NDJ/76/PF dated 18.11.2011 addressed by the Technical Officer, Government of Jammu and Kashmir, Civil Secretariat, Revenue Department to the Divisional Commissioner, Jammu, wherein it is provided that the General Administration Department vide U.O No. GDC-65/CM/2011 dated 10.10.2011 has returned the case with the following observations: "Returned. No relaxation of rules is permissible in such a case. It has to be dealt with by the Statutory Authorities in accordance with the provisions of Statute/Act. Since the land is presently with the lessee on a valid lease, the provision in the Roshni Act for dispossessing the persons will not arise. Further, the lessee can also apply for extension of the lease under the relevant laws governing the same." 13. It is clearly evident from the above observations so made by the General Administration Department that case of the petitioners was considered and rejected. In absence of challenge of said communication, no relief can be granted to the petitioners at this stage. 14. In the given circumstances, writ petition is dismissed. However, dismissal of writ petition shall not come in the way of respondents to consider the recommendations made by Divisional Commissioner, Jammu or the representation, if any, filed by petitioners in accordance with law.