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2021 DIGILAW 55 (JK)

Roop Kour v. State of J&K

2021-03-05

JAVED IQBAL WANI

body2021
Judgment Javed Iqbal Wani, J.—Upon joint request of learned appearing counsel for the parties, the instant petitions involving identical issues are taken up together for disposal. OWP No.758/2006 1. In the instant petition, petitioner prays for the following reliefs: - A) A writ of mandamus directing the respondents No. 1 & 2 to allot a suitable plot of land for residential purposes on development charges in the development colony directly comes under the control of respondent No. 3. B) A writ of mandamus directing the respondent no. 1 & 2 to allot a plot of land under Govt., order No. 171-UD of 1984 dated 21.04.1984 as well, as per the decision taken in 34th Board meeting held in the year 1984 by respondent no. 3 and further to comply with the direction passed by Hon’ble Single judge on OWP No. 1049/2001 dated 08.04.2002. C) Any other writ, order or direction which the Hon’ble court deem fit in the facts and circumstances of the case may also be granted in the interest of justice. 2. The reliefs aforesaid are being sought on the premise that the husband of the petitioner being a refugee from POK came into possession of land measuring 41 kanal 19 marlas at village Channi Rama, Jammu, covered under khasra Nos. 10, 34, 42 purported to have been allotted to the husband of the petitioner and is stated to have died on 09.09.2005. The said land is stated to have been acquired by the respondent No. 3. 3. It is being stated in the petition that the land so acquired came to be transferred by respondent No. 3 to the Northern Railways instead of utilizing the same for establishment of a Colony namely Trikuta Nagar Housing Colony. 4. It is being stated that prior to the acquisition of land by the respondent No. 3 in a Board meeting being 34th held on 31.03.1980 besides taking various decision it came to be resolved by the respondent No. 3, to allot 01 kanal of land to the ousters of the land for residential purposes followed by a Government order No. 171-UD of 1984 dated 21.04.1984 providing therein for allotment of land to the ousters ranging from 10 marlas to 04 marlas depending on their holdings and to be allotted on the payment of development charges. 5. 5. It is being stated that on account of aforesaid Board decision, as also Government order, petitioner became entitled to the allotment of 02 kanal of land on account of acquisition of 41 kanals and 19 marlas by respondent No. 3. 6. It is being further stated that despite the aforesaid decision and Government order, the petitioner’s allotment of land was denied during his life time despite the fact that the respondent No. 3 allotted plots to the similarly situated persons. 7. It is being next stated that on account of failure of respondents and non-consideration of the representations/requests made by the petitioner’s husband, the petitioner’s husband preferred a writ petition before this Court in the year 1997 which writ petition got dismissed on account of latches and delay vide order dated 08.04.2002, where after a second writ petition is stated to have been filed being OWP No. 1049/2001 claiming therein allotment of plot of land in terms of Government order dated 21.04.1984 on the ground that number of similarly situated persons have been allotted the same, either by respondent No. 3 itself or in compliance to the orders of this court passed in writ petition filed by such persons. 8. It is being further stated that in response to the aforesaid writ petitions the respondents contended that the petitioner stand duly compensated for the land acquired and that the petitioner was not entitled to any benefit in terms of Government order. 9. It is being next stated that the aforesaid writ petition came to be disposed of in terms of order dated 08.04.2002 directing the respondents to re-consider the case of the petitioner at their own level in the light of view expressed by the Supreme Court. 10. It is being further stated that despite passing of the order dated 08.04.2002, respondents did not comply with the same and the bona-fide claim of the petitioner was not granted by the respondents leaving thereby no option to the petitioner except to file the instant petition. 11. Per contra, objections stand filed by only respondent No. 3 in opposition to the writ petition wherein it has resisted and controverted the claim of the petitioner and sought dismissal of the writ petition on the premise that the issues involved in the instant petition stand already adjudicated upon in the earlier writ petitions being OWP no. 330/1997 and OWP no. 1049/2001. 12. 330/1997 and OWP no. 1049/2001. 12. It is being denied that entire land of the petitioner’s husband was acquired by respondent authority and that the land covered under Khasra No. 10 in Channi Rama was acquired by respondent authority for establishment of a Housing Colony and that land covered under Khasra No. 34 and 42 in fact came to be acquired by the Northern Railway, according to the records. 13. It is also being denied that any land acquired by the authority was transferred in favour of the Northern Railways. It is, however, being stated that decisions taken in 34th meeting of the Board of Directors is admitted and the said decision is stated to have been superseded by subsequent Board decisions. The application of Government order dated 21.04.1984 is denied to be applicable to the case of the petitioner on the ground that the petitioner does not fall/came within the definition of the beneficiary/Kamas and that the name of the petitioner’s husband did not figure in the list of Kamas/beneficiaries issued by the Government in this regard. 14. It is being also stated that the petitioner’s husband did not ever approached the answering respondent for allotment of plot of land and he was not entitled to plot of land. It is however admitted by the respondents that the land of the petitioner’s husband which came to be acquired by the respondents, full and final compensation thereof had been paid and received by the petitioner’s husband. 15. Heard learned counsel for the parties and perused the record. 16. The grievances projected in the instant petition seemingly is identical to the grievance projected in OWP No. 1049/2001 supra wherein this court in the light of Apex Court judgement passed in case titled as “State of UP Vs. Smt Pista Devi and Ors., reported in AIR 1986 SC (2025)” directed respondents to re-consider the issue at their own level notwithstanding the dismissal of the earlier writ petition being OWP No. 330/1997 of the petitioner on the ground of delay and latches. The instant petition in essence seeks compliance of the order passed in the OWP No. 1049/2001 supra. 17. Perusal of the record in general and the objections of the respondents in particular ex-facie suggest that the respondents no. The instant petition in essence seeks compliance of the order passed in the OWP No. 1049/2001 supra. 17. Perusal of the record in general and the objections of the respondents in particular ex-facie suggest that the respondents no. 3 has taken the stand consistent with, it had taken in the earlier writ petition in respect of the claim of the petitioner’s husband but the fact remains that respondents have not re-considered the matter at their own level as was required to be done pursuant to the order of this court dated 08.04.2002 passed in OWP No. 1049/2001 supra. 18. Since the petitioner has been litigating in the instant petition with the respondents right from the year 2006 and earlier to that her husband right from the year 1997, it would be inappropriate to dismiss the instant writ petition at this stage expressing any opinion about the merits of the case, lest it may prejudice the rights of the petitioner and in view of the fact that the grievances of the petitioner have remained unattended by the respondents, therefore in the interest of justice, it would be appropriate in the facts of the case to direct the respondents to re-visit and re-consider the claim of the petitioner pending before them strictly in accordance with law and Rules and keeping in mind the order dated 08.04.2002 passed by this court in writ petition being OWP No. 1049/2001, within a period of 8 weeks from the date a copy of this order is served upon them, decision whereof be conveyed to the petitioner within two weeks. Orderly accordingly. 19. It is made clear that this court did not express any opinion or determined any issue about the entitlement of the petitioner to the plot of land as claimed by her in the petition. 20. Disposed of along with IAs. OWP No.761/2006 1. In the petition, petitioner prays for the following reliefs: - a) A writ of mandamus directing the respondent No. 2 and 3 to comply with the order dated 26.12.1991, 16.3.1994 and 31.08.1995 to treat the petitioner on the same analogy as the respondents followed in numerous of ousters from whom the land was acquired from the same vicinity and to charge only the development charges instead of Rs. 860,000/- b) A writ of mandamus directing the respondent no. 860,000/- b) A writ of mandamus directing the respondent no. 2 & 3 not to consider the case of the petitioner as fresher and to charge only development charges by treating the case of the petitioners regarding the allotment subject to acquisition of land. c) Any other relief which this Hon’ble court deems fit in the present circumstances may kindly also be granted in the interest of justice equally and fair play. 2. This petition initially came to be filed by the husband of the petitioner namely Vasdev Singh Jamwal, whereupon on his death the widow wife of the petitioner came to be substituted as petitioner in terms of order dated 19.10.2010 passed by this court. The facts those emerge from the petition are that the petitioner’s land measuring 03 kanal covered under khasra No. 16 situated at Channi Rama is stated to have been acquired for residential colony namely Trikuta Nagar Jammu by the respondents. 3. It is being stated that pursuant to a decision taken in the 34th Board meeting of the respondents, 01 kanal of land was directed to be allotted to the person for residential purposes from whom the land stand acquired on the actual development charges and that the petitioner became entitled to 01 kanal of plot of land thereto on the analogy of similarly situated ousters who were allotted the land pursuant to the decision of the 34th Board meeting and that the petitioner however, was not granted the said plot of land and that upon failure to allot such plot of land in favour of the petitioner, a writ petition being WP No. 338/1991 came to be filed thereof by the petitioner and in terms of order dated 17.04.1991 passed by this court, a plot of land measuring 40’x80’ was directed to be kept vacant at Trikuta Nagar, Jammu and that subsequently in terms of final order passed in the said writ petition dated 26.12.1991, respondents were directed to allot one plot of land measuring 40’x80’ in Trikuta Nagar Colony, or in any other its Colony to the petitioner. 4. It is being stated that order dated 26.12.1991, came to be challenged by the respondents in LPA, which is stated to have got dismissed in terms of order dated 16.03.1994, directing the respondents to comply with the directions passed by the Single Judge in the order dated 26.12.1991. 5. 4. It is being stated that order dated 26.12.1991, came to be challenged by the respondents in LPA, which is stated to have got dismissed in terms of order dated 16.03.1994, directing the respondents to comply with the directions passed by the Single Judge in the order dated 26.12.1991. 5. It is being next stated that despite repeated requests and representations, the order passed in the aforesaid writ petition was not complied with resulting into institution of a contempt petition wherein upon its disposed vide order dated 31.08.1995 respondents were directed to comply with the court order in letter and spirit. 6. It is being further stated that on account of directions passed in contempt petition, the respondents got offended and issued a back date letter of allotment i.e. dated 30.08.1994 requiring the petitioner to deposit 90% of the cost of the land i.e. Rs. 8,60,000/- being the market value of the plot, which according to the petitioner is arbitrary inasmuch as violation of the Policy decision taken by the respondents in the 34th Board meeting which provided that the allottee has to incur development charges in respect of the allotted plot of land. The respondents therefore, are stated to have not complied with the order dated 26.12.1991 passed in the earlier petition read with order passed by the LPA bench as also in contempt petition dated 31.08.1995. 7. It is being thus, prayed that the respondents are required to be directed to comply with the aforesaid orders treating the case of the petitioner similarly situated with persons who have been allotted plot of land and charged only development charges in respect of the plot of land allotted. 8. Per Contra, respondents have filed objections in opposition to the writ petition wherein the contentions raised and grounds urged in the writ petition are being resisted and controverted on the premise that the issues involved in the petition stand already settled in the earlier writ petition filed by the petitioner and the Board decision referred to stands already superseded by the subsequent Board decisions while considering all aspects including the Board decision. It is being stated that while considering all aspects of the case of the petitioner including the court order dated 26.12.1991 requiring respondents to allot 12 marlas plot of land to the petitioner either in Trikuta Nagar Jammu, or any other Colony in accordance with the price fixed by the Jammu Development Authority, the respondents allotted a plot of land to the petitioner at the cost of usual premium i.e. Rs. 8,60,000/- despite the fact that the cost of land was much higher at that point of time. 9. It is being next stated that the cost price of plot of land in question has been fixed by the respondents pursuant to the directions passed by this court on 26.12.1991, in the earlier petition filed by the petitioner, which order has assumed finality and that the petitioner cannot reopen the settled issue in the instant petition. 10. Heard learned counsel for the parties and perused the record. 11. The admitted position emerging from the record manifestly suggest that the issues being raised in the instant petition in principal are identical to the issues raised in the earlier writ petition being WP No. 338/1991 and that this court while considering the said issues therein the said writ petition and after hearing the parties in terms of order dated 26.12.1991, directed as under: - “Considering to all above said facts and circumstances, the petition is allowed and it is directed that one plot of the size of 12 marlas shall be allotted to the petitioner by the J.D.A respondent No. 3 either in Trikuta Nagar or in any other its colony in accordance with the price fixed by J.D.A” 12. Perusal of the record further reveals that said order stand upheld by the Division Bench in OLPA (w) No.36 of 1992 filed by the respondents herein. 13. The contention of the petitioner, that the order dated 26.12.1991 passed in WP No. 338/1991 supra required respondent No. 3 to allot 12 marla of plot of land to the petitioner either in Trikuta Nagar or any other colony in accordance with the price fixed by the Jammu Development Authority while charging developmental charges only in terms of the 34th Board decision is misconceived and factually incorrect. The order in explicit and specific terms directed the respondent No. 3 herein to allot plot of land in favour of the petitioner in accordance with the price fixed by the Jammu Development Authority and not in terms of aforesaid 34th Board decision. The petitioner seeks to introduce a new case in the instant petition, misinterpreting the order dated 26.12.1991 supra. The petitioner thus, in law cannot reopen the issue that stands settled and having assumed finality and again fallback upon the decision of 34th Board decision. 14. In view of above thus, writ petition is grossly misconceived both on facts as well as in law entails dismissal, dismissed accordingly. 15. Record of the cases be returned back to Mr. Adarsh Sharma learned counsel for the respondents.