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2016 DIGILAW 161 (JK)

PAWAN KUMAR DUBEY v. STATE OF J&K

2016-03-31

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

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JUDGMENT : Bansi Lal Bhat, J. The instant petition is segregated from OWP No. 1280/2004 and is taken up separately. 2. Petitioners' case is that in terms of Government Order No. Rev(NOJ) 314 of 1985, dated 13.09.1985, Government accorded sanction to transfer of leasehold rights in respect of 25 kanals and 4 marlas comprising Khasra No. 332 and 17 kanal 8 marlas comprising Khasra No. 334/min situated at Jammu Khas in favour of petitioners in terms of provisions of the Jammu and Kashmir Land Grants Act, 1960. This was followed by execution of lease deed dated 28.04.1986. It is claimed that the petitioners were put in possession of the aforesaid land and they continued to be in peaceful possession to the extent of their shares. It is further averred in the petition that the land in question was to be used for building and cultivation purposes. Since leasehold rights of original lessee-Bhagat Ram Raina were to expire on 23.02.1955, the lease deed executed between the petitioners and the Government provided for transfer of leasehold rights in favour of petitioners for remaining period of nine years and three months, i.e. up to 23.02.1995. It is further averred in the petition that in terms of lease agreement, petitioners were provided the option of renewal of leasehold rights for further period not exceeding 20 years. Petitioners had constructed few rooms for watch and ward of the land in question with a house comprising of six rooms and the remaining land was used for agricultural purposes. It was before the expiry of period of lease that all the petitioners separately applied for extension of period of lease before Assistant Commissioner, Nazool Jammu who sought NOC from JDA after a period of seven years and the JDA conveyed its NOC vide letter No. 747, dated 07.08.2002 from Chief Town Planner. The land, thus, continued to be in possession of petitioners. However, JDA entered into the premises with proposed plan of making parking area in the aforesaid land. Petitioners came to know that in terms of communication dated 21.07.2006, Assistant Commissioner Nazool had proposed transfer of 13 kanals and 7 marlas comprising Khasra No. 334/min situated at Jammu Khas for construction of parking stand of JDA Jammu. However, JDA entered into the premises with proposed plan of making parking area in the aforesaid land. Petitioners came to know that in terms of communication dated 21.07.2006, Assistant Commissioner Nazool had proposed transfer of 13 kanals and 7 marlas comprising Khasra No. 334/min situated at Jammu Khas for construction of parking stand of JDA Jammu. Petitioners claim to have learnt that the Deputy Commissioner had directed transferring of vacant Government land to JDA but never informed the Hon'ble Division Bench of this Court in PIL that the said land was in possession of petitioners. The action of respondents is alleged to be arbitrary and suffering from non application of mind. Petitioners claim to have applied for conferring of ownership rights in their favour in terms of provisions of Jammu and Kashmir Land (Vesting of Ownership to the Occupants) Act, 2001. 3. Respondent Nos. 1 to 5 have filed their reply contesting the petition on the ground that the land in question situated between Exhibition Ground and Jogi Gate Bye-pass road adjacent to Christian Graveyard was initially leased out to one Bhagat Ram Raina for a period of 40 years and upon the death of Bhagat Ram Raina, his son Shri Kant applied for transfer of leasehold rights to petitioners. The Government transferred leasehold rights of 13 kanals 7 marlas of land situated at Below Gummat Jammu held by Shri Kant Raina in favour of petitioners for building and cultivation purposes and the lease period has expired in February, 1995. It is pleaded that though the lessee had applied for the renewal of the lease but it was never renewed in his favour. The land under reference is Nazool land lying vacant on spot. It is further pleaded that after expiry of lease, the land reverted back to the State and the possession thereof was delivered to JDA on 04.10.2006 for developing of parking lot. It is further pleaded that the petitioners have not applied for vesting of ownership rights under the Amended Act. Moreover, the land used is for public purpose and no ownership rights can be conferred in terms of provisions of Section 8(d) of the Jammu and Kashmir Land (Vesting of Ownership to the Occupants) Act, 2001. 4. It is further pleaded that the petitioners have not applied for vesting of ownership rights under the Amended Act. Moreover, the land used is for public purpose and no ownership rights can be conferred in terms of provisions of Section 8(d) of the Jammu and Kashmir Land (Vesting of Ownership to the Occupants) Act, 2001. 4. Respondent No. 6 has filed objections pleading that after expiry of lease in 1995, the land in question became vacant and in view of Government Order dated 28.01.1973, the vacant lease free Nazool land situated in and around the cities of Jammu and Srinagar was to be transferred to the respective development authorities. Since the lease had not been extended in the instant case, the subject of lease stood transferred to JDA which came to be in physical possession of land on 17.10.2006 after proper transfer was made in its favour. 5. Petitioners have placed on record some additional documents in the nature of judicial orders passed from time to time in various public interest litigations relating to congestion in general bus-stand, provision for parking lots and regulation of traffic in Raghunath Bazar. 6. Heard the rival sides and perused the record. 7. The documents including the extracts from register of allotment of State Land bring it to fore that in respect of land in question, leasehold rights were granted in favour of one Bhagat Ram Raina S/o Pt. Ram Chand Raina for a period of 40 years commencing from 05.02.1955. It further emerges from these documents that lessee Bhagat Ram Raina expired and the leasehold rights were transferred in favour of his son Shri Kant Raina in terms of mutation Order No. 45 dated 05.11.1974. Subsequently in terms of Government Order dated 03.09.1985, leasehold rights in respect of land measuring 25 kanal 4 marlas comprising Khasra No. 332 (7 kanals 16 marlas) and 334/min (17 kanals 8 marlas) situated Below Gummat, Jammu came to be transferred in favour of petitioners for building and cultivation purposes under provisions of Jammu and Kashmir Land Grants Act, 1960 and Rules framed thereunder. The leasehold rights extinguished on 05.02.1995. Admittedly, after determination of lease by efflux of time and extension of lease at the instance of petitioners - lessees not having found favour with the respondents, lesser had a right to re-enter upon the subject of lease. The leasehold rights extinguished on 05.02.1995. Admittedly, after determination of lease by efflux of time and extension of lease at the instance of petitioners - lessees not having found favour with the respondents, lesser had a right to re-enter upon the subject of lease. Petitioners' application for conferment of ownership rights in terms of provisions of Jammu and Kashmir Land (Vesting of Ownership to the Occupants) Act, 2001 is stated to be not conforming to the amendment Act of 2004. Such land, being the State Land, falling within the territorial limits of Jammu Development Authority accordingly stands transferred to JDA. JDA is stated to have been put into physical possession of the land in question on 04.10.2006 for developing of parking lot and same parking lot is said to have come up on the aforesaid land. Vesting of ownership rights in State land, irrespective of its permissibility or otherwise in view of its use for public purpose, does not fall within the domain of writ Court. Such powers are vested with the authority constituted under the Jammu and Kashmir Land (Vesting of Ownership to the Occupants) (Amendment) Act, 2004. The Petition is not maintainable and the same is accordingly dismissed.