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2020 DIGILAW 61 (JK)

Jammu Development Authority v. Beant Kour

2020-02-10

SANJEEV KUMAR

body2020
JUDGMENT OWP No. 1625/2013. 1. The order dated 28 th June, 2013 passed by the Joint Financial Commissioner (AR) with the powers of Financial Commissioner (Revenue), J&K, Jammu in Revision Petition, i.e., File No. 250/Jt./FC-AP titled Jammu Development Authority Vs. Smt. Beant Kour and others, is subject matter of challenge in this writ petition filed by the Jammu Development Authority. By virtue of impugned order, the Financial Commissioner (Revenue), Jammu has dismissed the Revision Petition filed by the petitioner and has upheld the order dated 08.06.2007 passed by the Divisional Commissioner, Jammu. 2. The case has a chequered history and, therefore, it would be necessary to briefly trace the course of events that have led to the filing of the instant petition. The petitioner is a statutory authority established under the Jammu and Kashmir Development Act, 1970 (hereinafter referred to as the Act of 1970?). The petitioner is a body corporate and is empowered inter alia to acquire, hold and dispose of both moveable and immoveable properties. The allotment of land measuring 39 Kanals and 2 Marlas comprising Kh.No.328 min situated in village Channi Ramma, Jammu in favour of the respondent No.1 is the bone of contention between the petitioner and the respondent No.1. The petitioner claims that the land aforesaid is vested in it, and therefore, could not have been made subject matter of allotment in favour of the respondent No.1 by the Provincial Rehabilitation Officer, Jammu. The petitioner claims that Khasra No.328 of revenue village Channi Ramma, Tehsil Jammu is a big chunk of land measuring 432 Kanals and 11 Marlas and was originally the State land recorded as 'Mehkama Shikar-Gah'. Vide Government Order REV (NDJ) 46 of 1973 dated 28.01.1973, land measuring 274 Kanals and 11 Marlas out of the aforesaid land was transferred by the State/Nazool Department in favour of the petitioner authority. It is the allegation of the petitioner that respondent No.1 in connivance with PRO, Jammu got a chunk of land measuring 39 Kanals and 2 Marlas out of the land vested in the petitioner authority, allotted in her favour on the plea that her originally allotted evacuee land situated in village Gole Pattan and Chattha Gujjran, Tehsil Jammu had been washed away. This was done by the PRO, Jammu vide its order bearing No.658/92-93 dated 22.12.1992. This was done by the PRO, Jammu vide its order bearing No.658/92-93 dated 22.12.1992. The Jammu Development Authority, it is asserted, felt aggrieved of the allotment made in favour of the respondent No.1 and took up the matter with the PRO, Jammu. On being apprised that the allotted land was the land vested in the petitioner, the PRO, Jammu invoked suo moto powers of review and cancelled the allotment of the respondent No.1 vide its Order No. 250-54/93-94 dated 14.08.1993. 3. Aggrieved, the respondent No.1 challenged the order of cancellation of allotment in a Revision Petition filed before the J&K Special Tribunal, Jammu. The order of cancellation dated 14.08.1993 (supra) passed by the PRO, Jammu was set aside by the Tribunal vide its order dated 06.06.1996. The petitioner assailed the order of Tribunal in OWP No. 1072/1996 before this Court. The writ petition was disposed of by this Court vide its judgment dated 04.02.2000 and the direction was issued to the State/Revenue Department to earmark the area/land which had vested in the Jammu Development Authority. This court further held that any observation made by the Tribunal with regard to the ownership of the petitioner qua the land in question would not be taken as a final expression of opinion. Being not satisfied with the judgment of the learned Single Judge, the respondent No.1 filed Letters Patent Appeal bearing LPA(OW) No. 333/2000, which was later on dismissed by the Division Bench of this Court as withdrawn vide its judgment dated 06.05.2003. This way the judgment passed by the learned Single Judge of this Court on 04.02.2000 (supra) attained finality. 4. It may be pertinent to note that while the LPA was subjudice in this Court, the respondent No.1 got the mutation of ownership attested from the respondent No.2. The respondent No.2 vide Mutation No.1562 dated 31.05.2001 conferred proprietary rights upon respondent No.1 purportedly in terms of the Government Order No. 254-C of 1965. It is, thus, abundantly clear that the respondent No.1 withdrew the LPA filed by her only after she had been conferred the ownership rights qua the subject land in terms of Mutation No.1562 dated 31.05.2001 attested by the respondent No.2. The petitioner assailed the Mutation No.1562 dated 31.05.2001 (supra) before the Divisional Commissioner, Jammu by way of Revision Petition. It is, thus, abundantly clear that the respondent No.1 withdrew the LPA filed by her only after she had been conferred the ownership rights qua the subject land in terms of Mutation No.1562 dated 31.05.2001 attested by the respondent No.2. The petitioner assailed the Mutation No.1562 dated 31.05.2001 (supra) before the Divisional Commissioner, Jammu by way of Revision Petition. The Divisional Commissioner, Jammu, however, vide its order dated 08.06.2007 dismissed the Revision Petition and upheld the order of mutation. The petitioner was not satisfied with the order of Divisional Commissioner, Jammu and therefore, filed further Revision Petition before the Joint Financial Commissioner (AR) Jammu with the powers of Financial Commissioner (Revenue), Jammu. While the Revision Petition before the Financial Commissioner (Revenue) was pending adjudication, the Government constituted a High Level Committee headed by the Chief Secretary of the State to deliberate on the issue. The Committee held its meeting dated 24.06.2010 and took several decisions including the one to identify the Officer, who had attested the mutation subject matter of challenge before the Financial Commissioner (Revenue), Jammu. The Revision Petition came up for consideration before the Financial Commissioner (Revenue), Jammu, who vide its judgment dated 28.06.2013, which is impugned in this petition, dismissed the Revision Petition and upheld the order of Divisional Commissioner, Jammu dated 08.06.2007. This is how the mutation attested in favour of respondent No.1 came to be upheld by the revenue authorities. 5. The petitioner is aggrieved of the impugned order passed by the Financial Commissioner (Revenue), Jammu and seeks to challenge the same inter alia on the following grounds:- (i) That the impugned orders passed by the Divisional Commissioner, Jammu and Financial Commissioner (Revenue), Jammu are not sustainable in law and deserve to be quashed for the reason that the respondent No.2 could not have attested the mutation qua the subject land until the land vested in the petitioner had been demarcated in terms of the judgment of this Court passed in OWP No.1072/1996; (ii) That both the revenue authorities, i.e. Divisional Commissioner, Jammu and Financial Commissioner (Revenue), Jammu failed to appreciate that the allotment of the JDAs land in favour of the respondent No.1 was nullity in law and, therefore, no mutation conferring proprietary rights on the respondent No.1 on the basis of illegal allotment could have been attested by the respondent No.2. (iii) That the order of allotment made by PRO, Jammu in favour of the respondent No.1 was without jurisdiction and in violation of the ban imposed on such allotment vide Government Order No.Reh-9/GR of 1990 dated 13.03.1990; (iv) That both the revenue forums below failed to appreciate that no mutation could have been attested by respondent No.2 in favour of respondent No.1 purportedly under Govt. Order No.254-C of 1965 with respect to the land belonging to the petitioner authority and that the conditions laid down in Govt. Order were not fully satisfied; (v) That the Divisional Commissioner, Jammu totally misdirected itself in appreciating the controversy and came to an erroneous conclusion that pursuant to the demarcation done, the area/land vested in the Jammu Development Authority had been earmarked. The Divisional Commissioner, Jammu did not appreciate that so called demarcation reports relied upon by the respondent No.1 had emerged after the attestation of the mutation impugned; and (vi) That both the revenue forums below also failed to appreciate that no mutation could have been attested by the respondent No.2 in favour of respondent No.1 while the matter was subjudice before the Division Bench in LPA No.333/2000. 6. Apart from raising the aforesaid specific grounds of challenge, the petitioner also asserts that the allotment of the land in favour of respondent No.1, who has since transferred it by way of Sale Deeds to different persons, and conferment of the proprietary rights in terms of the Mutation No.1562 dated 31.05.2001 is, in essence, a fraud played by the respondent No.1 in connivance with the Revenue Authorities to squander the State/JDA land and which action of the respondents cannot be countenanced. 7. Before proceedings further, it would be necessary to note that the State is not aggrieved either by the allotment of the land made in favour of the petitioner authority or subsequent mutation of conferment of proprietary rights on the respondent No.1, attested by the respondent No.2. The Jammu Development Authority is before this Court to assail the orders of the Divisional Commissioner, Jammu and Financial Commissioner (Revenue), Jammu primarily on the ground that the subject land, which has been allotted and subsequently mutated in favour of respondent No.1 is the JDAs land and, therefore, could neither be made subject matter of allotment nor the proprietary rights qua the said land could be conferred on the respondent No.1. This is how the petitioner authority justifies its locus to file this petition despite the fact that the State/Revenue Department has chosen not to contest the allotment or conferment of proprietary rights in favour of respondent No.1. 8. The writ petition is resisted vehemently by the respondent No.1. In the objections filed, the respondent No.1 has taken a preliminary objection with regard to the maintainability of the writ petition at the instance of the petitioner. It is submitted that the mutation, which was subject matter of challenge before the Division Bench and Financial Commissioner (Revenue), Jammu was nothing, but, an offshoot of the allotment made in favour of the respondent No.1. The allotment of the respondent No.1, which was challenged by the petitioner authority, has been upheld by all the forums including this Court. It is, thus, submitted that once this Court has not held the allotment in favour of the respondent No.1 bad, no fault can be found with the mutation attested by the respondent No.2 to confer proprietary rights on the respondent No.1 in terms of Govt. Order No.254-C of 1965. It is also contended by the respondent No.1 that after conferment of the proprietary rights, she has sold the subject land to different persons by executing as many as 19 sale deeds, which are duly registered before the competent registering authority. She, however, submits that she has already delivered the vacant possession of the land in favour of the Vendees, and therefore, writ petition has become fait accompli. Apart from raising preliminary objections with regard to the maintainability of the writ petition, the respondent No.1 has vehemently defended that her allotment as also mutation conferring proprietary rights on her. On merits, it is stated that subject land was allotted to her in lieu of the land allotted to her as a displaced person, which land had got washed away. The allotment was made subject matter of challenge by the petitioner before the different Revenue Forums and ultimately challenge of the petitioner authority failed. This Court while disposing of the OWP No. 1072/1996 only directed the State to earmark the area/land that had vested in the petitioner authority. It is, thus, submitted that this Court settled the controversy by providing that the land, which had vested in the petitioner authority alone was required to be earmarked and demarcated. This Court while disposing of the OWP No. 1072/1996 only directed the State to earmark the area/land that had vested in the petitioner authority. It is, thus, submitted that this Court settled the controversy by providing that the land, which had vested in the petitioner authority alone was required to be earmarked and demarcated. This Court, however, did not comment upon the legality or otherwise of the allotment of the land made in favour of respondent No.1. The other respondents, who have purchased the subject land from the respondent No.1 have merely stepped into the shoes of the respondent No.1 and reiterate the stand taken by the respondent No.1 in her objections. 9. Having heard learned counsel for the parties and perused the record, I am of the considered view that the instant writ petition filed by the petitioner authority is without any locus standi and, therefore, cannot be held maintainable. 10. Indisputably, the allotment of the subject land made by the respondent No.2 in favour of the respondent No.1, which was subsequently cancelled by the respondent No.2 in exercise of suo moto powers of review, has remained intact. The cancellation of allotment ordered by the respondent No.2 was set aside by the J&K Special Tribunal, Jammu in Revision Petition filed by the respondent No.1. The order of J&K Special Tribunal was further assailed by the petitioner in OWP No.1072/1996 and the writ petition was disposed of on 04.02.2000 by holding as under :- 'It be seen that this a matter which should be sorted out interdepartmentally between Jammu Development Authority and the Revenue Department of the State Government. Therefore, the direction is given to earmark the area which has been given to the Jammu Development Authority. This would be done by the State in presence of the respondent No.2. Let this be done at the earliest. Any observation made by the Tribunal with regard to the ownership of the Jammu Development Authority would not be taken as a final expression of opinion.' 11. The aforesaid order of the Single judge was challenged in LPA(OW) No. 333/2000 by the respondent No.1, but, later on the aforesaid LPA was withdrawn and the same was, accordingly, dismissed on 06.02.2000 by this Court. The judgment of the Single judge, therefore, attained finality. The aforesaid order of the Single judge was challenged in LPA(OW) No. 333/2000 by the respondent No.1, but, later on the aforesaid LPA was withdrawn and the same was, accordingly, dismissed on 06.02.2000 by this Court. The judgment of the Single judge, therefore, attained finality. The judgment of Single judge, the operative portion whereof is reproduced herein above, if understood in proper perspective and in the context it had been rendered, would help in better understanding the controversy raised in this petition by the petitioner authority. The J&K Special Tribunal had set aside the order of cancellation of allotment passed by the respondent No.2 purportedly in exercise of suo moto powers of review, thus, restored the allotment of subject land in favour of respondent No.1. The writ petition filed before this Court against the order of Tribunal has neither been allowed nor dismissed. This Court instead of returning a finding on the issue of legality or otherwise of the allotment has disposed of the controversy by assuming that the dispute with regard to the allotment raised by the Jammu Development Authority is one primarily of identification of subject land. The Court appears to have presumed the land allotted by the respondent No.2 in favour of respondent no.1 may be a land different from the one, i.e., vested in the petitioner authority by virtue of Govt. Order REV (NDJ) 46 of 1973 dated 28.01.1973. The Court, thus, proceeded to direct the Revenue Department to earmark the land, which is vested in the petitioner authority. The order does not say anything further, but, as a necessary corollary, if upon demarcation, it was found that the land allotted in favour of respondent No.1 is a part of the land, which is vested in the Jammu Development Authority in terms of Govt. Order REV(NDJ) 46 of 1973 dated 28.01.1973, the allotment in favour of the petitioner qua the subject land was to go. Order REV(NDJ) 46 of 1973 dated 28.01.1973, the allotment in favour of the petitioner qua the subject land was to go. There is ample evidence brought on record of this Court by both the sides, which clearly indicates that in compliance to the judgment of this Court dated 04.02.2000 passed in OWP No. 1072/1996, the demarcation has been carried on more than one occasion and it has been found that the land, which is subject matter of allotment and mutation attested in favour of respondent No.1 is not a part of chunk of land transferred to the petitioner authority in terms of Govt. Order REV(NDJ) 46 of 1973 dated 28.01.1973. The demarcation reports have not been assailed either by the Jammu Development Authority or by the Department of Revenue of the State and, therefore, are required to be taken as correct. Whether or not the allotment of the State land made by PRO, Jammu in favour of respondent No.1 and whether or not mutation attested by respondent No.2 in favour of respondent No.1 in terms of Govt. Order 254-C of 1965 are legally sustainable is none of the business of the petitioner authority. Moreso, when it has been established that the land allotted and mutated in favour of respondent No.1 is a State land and different from the land, which has been transferred by the State to the petitioner authority in terms of the Govt. Order REV(NDJ) 46 of 1973 dated 28.01.1973. The petitioner authority, however, would get locus standi to challenge the allotment as also mutation only if it establishes by cogent material on record that the subject land was a part of chunk of land, which was transferred in favour of the petitioner authority by the State in terms of Govt. Order REV(NDJ) 46 of 1973 dated 28.01.1973. The petitioner authority having failed to demonstrate the aforesaid aspect cannot be said to have any locus standi to challenge the allotment and mutation or the order of Financial Commissioner (Revenue), Jammu whereby the mutation attested in favour of the respondent No.1 has been upheld. It is true that when mutation was attested by the respondent No.2 conferring the ownership rights upon the respondent No.1, the matter was subjudice before the Division Bench in LPA No.333/2000 and no demarcation in terms of the judgment of Single Bench dated 04.02.2000 had taken place. It is true that when mutation was attested by the respondent No.2 conferring the ownership rights upon the respondent No.1, the matter was subjudice before the Division Bench in LPA No.333/2000 and no demarcation in terms of the judgment of Single Bench dated 04.02.2000 had taken place. But, it is equally true that later on after withdrawal of the LPA by the respondent. No.1, the demarcation was undertaken to earmark the land belonging to Jammu Development Authority and it was found that the subject land, which has been allotted in favour of the respondent No.1 and later on mutated was not a part of the chunk of land transferred to the petitioner authority by the State by virtue of Govt. Order REV(NDJ) 46 of 1973 dated 28.01.1973. The plea of the learned counsel for the petitioner authority that pending LPA and without actual demarcation, the respondent No.2 could not have attested the mutation and conferred the ownership rights may be technically correct, but, with the subsequent event, i.e., actual demarcation having been made by the State, no fault can be found with the order of mutation, particularly, at the instance of the petitioner authority. The allotment of the land made by the PRO, Jammu in favour of respondent No.1 and subsequent attestation of the mutation of ownership by respondent No.2 purportedly in terms of Govt. Order No. 254-C of 1965 if in violation of the law could be taken care of by the State by invoking appropriate remedy if available, but, surely and definitely, the petitioner has no locus standi in the matter. The petitioner, however, if feels dissatisfied with the reports of the demarcation prepared by the concerned Revenue Agencies will be within in its rights to challenge the demarcation in accordance with law. 12. The petitioner, however, if feels dissatisfied with the reports of the demarcation prepared by the concerned Revenue Agencies will be within in its rights to challenge the demarcation in accordance with law. 12. There is another important aspect, which cannot be lost sight of and that is the decision of the Board of Directors of the petitioner authority taken in its 80 th meeting in which the issue was considered by the Board of Directors as Agenda item No. 80.06 and in which it was concluded that in view of the fact that the demarcation had been conducted four times and on all four occasions, it was found that the land of respondent no.1 was outside the land of the Jammu Development Authority and therefore, the petitioner authority had no locus standi to contest the case before the Court. For facility of reference the decision in the aforesaid agenda item is reproduced as under:- 'In view of the Honble High Courts order regarding demarcation and Deputy Commissioner, Jammu having got the demarcation done four times, resulting into no claim of the Jammu Development Authority in the matter and BOD directed the VC, Jammu Development Authority to place facts before the Honble Court to end unnecessarily litigation.' 13. In the face of the aforesaid decision of the Board of Directors, it is not understandable as to who has taken the decision to contest this writ petition. It has been brought to my notice that there has been subsequent rethinking on the issue and the Board of Directors of the petitioner authority in its 83 rd meeting discussed this issue as Agenda item No.83.10 for revisiting the decision taken by the Board of Directors in its 80 th meeting, but, no decision could be taken and the matter was desired to be placed in the next meeting. No decision has been brought in my notice by the petitioner authority, which would indicate that the decision taken by the Board of Directors in its 80 th meeting has been revisited. 14. Be that as it may, nothing prevents the Board of the Directors of the petitioner authority to revisit and review its earlier decision and take fresh decisions, which are sustainable in law. 14. Be that as it may, nothing prevents the Board of the Directors of the petitioner authority to revisit and review its earlier decision and take fresh decisions, which are sustainable in law. They are well within their rights to assail the demarcation report and avail appropriate remedy as may be permissible in law, but, as on date the position is clear and unequivocal that the land, which was subject matter of allotment made by the PRO, Jammu in favour of respondent No.1 has not been found to be the land belonging to the JDA and therefore, the JDA has no locus standi to call in question either the allotment made by the PRO, Jammu in favour of respondent No.1 or the mutation of ownership rights attested by the respondent No.2 in favour of respondent No.1. 15. In the premises, this Court finds that this writ petition is not maintainable at the instance of the petitioner authority and the same is, accordingly, dismissed. Be it noted that this Court has not expressed any opinion on the validity of the allotment made by the PRO, Jammu, in favour of the respondent No.1 and mutation attested by the respondent No.2 in favour of respondent No.1 purportedly in terms of the Govt. Order No. 254-C of 1965. This petition has been dismissed purely on the legal point that in the given facts and circumstances, the petitioner authority has no locus standi to maintain this petition. Interim direction, if any, shall stand vacated forthwith. OWP No. 1619/2013, OWP No.1793/2013 In view of the decision rendered in OWP No. 1625/2013, nothing requires to be considered in these petitions. Accordingly, the same are disposed in the above terms along with connected CM(s).