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2017 DIGILAW 396 (JK)

Banti Devi v. Lochan Singh

2017-07-20

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. In both the appeals, the appellants have assailed the validity of the judgment dated 07.12.2001 passed in OWP No.942/2001 by which the learned Single Judge has disposed of the writ petition preferred by the respondent No.1 by issuing the directions which are contained in concluding part of the judgment. In order to appreciate the appellants’ challenge to the impugned judgment, few facts need mention which are stated infra. 2. The land admeasuring two kanals and one marlas forming part of the Khasra No.750/720/ 393 & 553/720/ 393 situate at Village Manda, Tehsil Akhnoor was held by one M/s Rakha and Shafi sons of Labhu and Ghisitu S/o Mukham Din as occupancy tenants. It is an admitted fact that the aforesaid persons were not personally cultivating the land as the same was recorded in possession of one Chetu, the father of deceased appellant in LPA No.26/2002. Sometime in the year 1985-86, the land in question was declared as evacuee property because of migration of occupancy tenants. The aforesaid fact came to the notice of the Custodian of Evacuee’s Property, he filed an application under Section 7 of the J & K Restitution of Mortgaged Properties Act, 1976 for redemption of the mortgage which was allowed on 30.11.1989. The deceased appellant challenged the aforesaid order of redemption before the appellate authority. However, the appeal preferred by the deceased/appellant was dismissed by the appellate authority on 23.08.1990 and the revision preferred by the deceased by the J and K Special Tribunal on 11.03.1991. The deceased appellant challenged the aforesaid orders in OWP No.226/1991 in which inter alia learned Single Judge held that admittedly the deceased appellant’s father was in cultivating possession of the land in question as a protected tenant. It was further held that the deceased appellant having become protected tenant by operation of law could not have been evicted from the land even as evacuee and therefore, the question of eviction of the deceased appellant from the land in question does not arise. Accordingly, the writ petition was allowed and the order passed by the appellant authority as well as Tribunal were quashed. The aforesaid order was upheld by the Division Bench of this Court in LPAOW No.193/1999 vide order dated 11.10.1999. Eventually, the aforesaid order was upheld by the Supreme Court vide Order dated 16.08.2000 as the Special Leave Petition was dismissed in limine. The aforesaid order was upheld by the Division Bench of this Court in LPAOW No.193/1999 vide order dated 11.10.1999. Eventually, the aforesaid order was upheld by the Supreme Court vide Order dated 16.08.2000 as the Special Leave Petition was dismissed in limine. Thus, it is evident that after the dismissal of the SLP by the Supreme Court, the rights of the appellant as protected tenant qua the land in question were crystallized. 3. Thereafter the respondent No.1 filed a writ petition namely OWP No.942/2001 in which inter alia he had sought a direction that the land in question be put to auction. The aforesaid writ petition has been allowed by the learned Single Judge vide impugned judgment and inter alia a direction has been issued that a public notice be issued inviting tenders and the land be allotted to the tenderer who is the highest bidder. In the aforesaid factual backdrop, the aforesaid appeals have been filed before this court. 4. Learned Senior Counsel for the appellants while inviting the attention of this Court to the judgment dated 26.02.1999 passed by the learned Single Judge in OWP No.226/1991 as well as order dated 11.10.1999 passed in LPA No.193/1999 and the order passed by the Supreme Court dated 16.08.2000 by which the SLP between the parties namely the deceased appellant and respondent No.1 and 5 was dismissed in limine submitted that the deceased appellant had acquired rights as protected tenants has attained finality and is binding on the parties and therefore, in the subsequent round of litigation, the impugned directions could not have been issued by the learned Single Judge as the same have been passed in contravention of the order passed by the learned Single Judge in previous round of litigation which was upheld up to the Supreme Court. 5. Learned counsel for the respondents 3 and 4 was unable to dispute the aforesaid submission. However, it was pointed out that the land in question has been allotted to the deceased appellant subject to payment of premium of Rs.4,92,000/- and the annual rent of Rs.1,025. It is further submitted that the aforesaid process of allotment was subject matter of challenge in the second round of litigation which was initiated by the respondent No.1. 6. However, it was pointed out that the land in question has been allotted to the deceased appellant subject to payment of premium of Rs.4,92,000/- and the annual rent of Rs.1,025. It is further submitted that the aforesaid process of allotment was subject matter of challenge in the second round of litigation which was initiated by the respondent No.1. 6. At this stage, learned senior counsel for the appellants submits that the premium which was demanded by the respondents No.3 and 4 has been deposited by the deceased appellant. 7. We have considered the submissions made by the learned counsel for the parties. Admittedly, the deceased appellant was held to be protected tenant in respect of the property in question. The aforesaid finding has attained finality and has been even upheld by the Supreme Court. Therefore, the respondents 3 and 4 in purported exercise of powers under Section 9 of the J & K Evacuees (Administration of Property) Act, Svt. 2006 read with Rule 13-C of the J&K State Evacuees (Administration of Property) Rules, Svt. 2008 had no option but to allot the land to the deceased appellant who was in possession of the same as protected tenant and could not be evicted from the land in question in view of the directions issued by the learned Single Judge which were upheld by the Division Bench of this Court as well as Supreme Court. 8. Relevant extracts of Section 9 and Rule 13-C reads as under: “Section 9. Powers and duties of the Custodian generally.-(1). 8. Relevant extracts of Section 9 and Rule 13-C reads as under: “Section 9. Powers and duties of the Custodian generally.-(1). [Subject to the provisions of any rules that may be made in this behalf by the Government, the Custodian may ] take such measures as he considers necessary or expedient for the purpose of administering, [imposing], preserving and managing, and evacuee property [and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act] and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto.” Rule.13-C. Fixation of premium and rent in respect of vacant land -(1) Notwithstanding, anything contained in Rule 13, the Custodian shall put to an open auction lease of any evacuee vacant land for a period not exceeding 40 years for determination of premium to be charged from the lessee to whom such land is leased out or may charge the premium and ground rent annually after taking into consideration the market value of such land of the locality in which it is situate. The different rates of premium and ground rent shall be fixed for the lands put to use for residential, commercial, or industrial, as the case may be: Provided that the ground rent shall be enhanced by 100% at the time of renewal of lease: Provided further that the total period of the lease shall not exceed 99 years: Provided also that the premium shall be charged again at the time of fresh allotment/lease of such land and the ground rent fixed afresh annually on enhanced rates: Provided also that the allotment/lease of such vacant land shall be made in favour of permanent residents of State only: Provided also that no allottee shall change the use for which it is allotted without prior permission of the Custodian. The Custodian shall also obtain approval of the Custodian General before permission is granted by him.” 9. Thus allotment in favour of the deceased appellant has been made in view of the aforesaid statutory provisions and in view of the facts recorded in the previous round of litigation that he is a protected tenant in respect of the land in question and cannot be evicted from the same. Thus allotment in favour of the deceased appellant has been made in view of the aforesaid statutory provisions and in view of the facts recorded in the previous round of litigation that he is a protected tenant in respect of the land in question and cannot be evicted from the same. However, the learned Single Judge while passing the impugned judgment has not taken into consideration the aforesaid relevant provisions of law in purported exercise of which the land in question was allotted in favour of the deceased appellant. Besides that, the learned Single Judge has also not taken into account the directions issued by the learned Singe Judge in the previous round of litigation which were upheld by the Division Bench of this Court as well as Supreme Court. 10. In view of preceding analysis, the impugned judgment dated 07.12.2001 passed in OWP No.942/2001 cannot be sustained in the eye of law. It is accordingly, quashed and set aside. In the result, both the appeals are allowed.