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2020 DIGILAW 291 (JK)

Kuldeep Raj v. State of J&K

2020-07-06

VINOD CHATTERJI KOUL

body2020
ORDER : 1. Heard learned counsel for the parties and considered the petition as well as the record attached with it. 2. Objections to this writ petition have not been filed. Mr. S. S. Nanda, learned Senior AAG representing respondent Nos. 1, 3 and 4 and Mr. Adarsh Sharma, learned counsel representing respondent No. 2 submit that this writ petition is not maintainable and without filing their objections, same can be considered on the basis of the record attached with the case file. It is submitted by them that the petitioner has already filed a writ petition and claimed same relief which has been claimed in the instant petition and the earlier writ petition has been decided by this Court and in view of said decision, this petition is not maintainable because fresh writ petition cannot be filed by the petitioner on the same plea and same relief as claimed in the earlier writ petition. They have referred to Annexure-VIII attached with the writ petition to demonstrate that filing of this writ petition is abuse of process of law and is not maintainable. The filing and disposal of the earlier writ petition is not disputed by the learned counsel for the petitioner. He has himself placed on record a copy of the judgment passed in that writ petition as Annexure-VIII in this writ petition. 3. This petition has been filed by the petitioner with the following relief: (i) “allow the writ petition; (ii) Issue a writ of Mandamus commanding the respondents not to demolish the structure raised by the petitioner and not to dispossess the petitioner from the said land (iii) Issue a writ of mandamus commanding the respondents to consider the case of the petitioner for the purpose of regularization as was done by the respondents in pursuant to the order passed in OWP No. 30/2007 in case titled “Parkash Sharma vs. State of J&K and Ors.” (iv) Commanding the respondents to adhere the directions passed by this Hon’ble Court in OWP No. 1981/2007. (v) Any other writ, order or direction which this Hon’ble Court deems fit may kindly be granted in favour of the petitioner.” 4. (v) Any other writ, order or direction which this Hon’ble Court deems fit may kindly be granted in favour of the petitioner.” 4. The aforesaid reliefs have been claimed by the petitioner on the ground that he is running a small dhaba on a small portion of land at Railway Station, Jammu, which was allotted to him by the Railway Authorities in 1980 and on the backside of the said dhaba there is a small piece of State land which is less than 01 marlas which is in his possession since 1980. On the said piece of land, he has established workshop and sitting arrangement for the customers. 5. It is submitted by the petitioner that he moved an application/representation before the respondent-Jammu Development Authority for regularization of the land in question under the Roshni Act in the year, 2010 but the said representation has not been decided. 6. In the year, 2003, respondent-Jammu Development Authority demolished some khokhas/shops at the Railway Station, Jammu, the affected persons filed a writ petition bearing OWP No. 30/2007 in this Court and vide order dated 12.01.2007, this Court directed the respondents to rehabilitate the affected persons. Pursuant to the said direction, khokhas/shops were allotted to all the affected persons, who were dispossessed by the respondent-Jammu Development Authority. 7. The petitioner further submitted that his case is squarely covered by the said judgment but the respondents instead of deciding his representation for regularization of his land, are hell bent to demolish the structure raised by him and he is threatened of being dispossessed from the land in question, which is in his actual possession for the last more than 39 years. 8. Prior to this writ petition, the petitioner, as is clear from the judgment dated 17.05.2018 passed in OWP No. 1981/2017 on record as Annexure-VIII, also filed a similar petition. In the instant writ petition, respondents are same as were in the earlier writ petition and the reliefs claimed by the petitioner are also same in both the writ petitions. 9. In the earlier writ petition, following reliefs were claimed by the petitioner: (i) “Issue a writ of Mandamus commanding the respondents not to demolish the structure raised by the petitioners and not dispossess the petitioners from the said land. 9. In the earlier writ petition, following reliefs were claimed by the petitioner: (i) “Issue a writ of Mandamus commanding the respondents not to demolish the structure raised by the petitioners and not dispossess the petitioners from the said land. (ii) Issue a writ of mandamus commanding the respondents to consider the case of the petitioners for the purpose of regularization as was done by the respondents in pursuant to the order passed in OWP No. 30/2007 in case titled, Parkash Sharma vs. State of J&K and others. (iii) In the alternative directing the respondents to consider the case of the petitioners for regularization of the said land under the Jammu and Kashmir State Land (vesting of ownership to the occupants) Act, 2001.” 10. The relevant portion of the judgment dated 17.05.2018 is reproduced as under: “The facts giving rise to the filing of this writ petition briefly stated are that the petitioner is running business of a Dhaba on the land admeasuring 17.01 Sq. Mtr. allotted to him by the Railway Authorities in the year 1980 by virtue of the allotment letter dated 26.09.1980 issued by the Divisional Engineer, Northern Railway, Jammu Tawi. The petitioner has submitted a representation before the Jammu Development Authority for regulation of the said Dhaba, however, the same has not been decided till today. It is further submitted that petitioner is entitled to the allotment of the land in question in terms of provisions of the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001. On the other hand, Mrs. Monika Kohli, learned counsel for the respondent-Jammu Development Authority submitted that land in question is in possession of one Lt. Col. Daljit Singh, as such, the petitioner has no locus to maintain the writ petition. The aforesaid submission is elementary opposed by the learned counsel for the petitioner and submitted that the petitioner is the owner in possession of the land in question. Be that as it may, I deem it appropriate to dispose of this writ petition with a direction that in case the petitioner is dispossessed from the shop/Dhaba in question, the same shall be strictly in accordance with law.” 11. Be that as it may, I deem it appropriate to dispose of this writ petition with a direction that in case the petitioner is dispossessed from the shop/Dhaba in question, the same shall be strictly in accordance with law.” 11. It is clear from the said judgment that plea raised and the relief claimed by the petitioner in the subsequent writ petition is same as was raised and claimed in the writ petition which has been decided on 17.05.2018. The pleas raised by the petitioner have already been considered by this Court and writ petition has been disposed of. So far as the regularization of the said land measuring one marlas is concerned, the provision of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 (for short the Act) as claimed by the petitioner in his representation, is not available to him as the Act has been repealed vide Governor’s Act No. XXXII of 2018 dated 07.12.2018. 12. In view of the repealment of the Act by the Act of 2018, relief as sought for regularization is not available to the petitioner, even this relief was also claimed by the petitioner in his earlier writ petition. 13. Since the plea raised and the relief claimed has been considered and disposed of in the earlier writ petition, therefore, a similar plea and similar relief cannot be granted in subsequent writ petition. 14. Considering the aforesaid facts, this petition is not maintainable and the same is dismissed being without any merit.