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2022 DIGILAW 541 (JK)

Ramneek Singh v. State of Jammu & Kashmir

2022-09-30

RAJESH SEKHRI, RAJNESH OSWAL

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JUDGMENT Oswal, J. - The fate of OWP No. 1167/2010 is dependent upon that of OWP No. 177/2007. The facts in both these writ petitions are almost identical. The auction notice dated 09.02.2007 issued by the respondent Nos. 3 and 4 regarding piece of land measuring 5410 sq. ft. comprising khasra No. 665 min, situated at Janipur-Bantalab Road, Jammu has been impugned in OWP No. 177/07 whereas the auction notice dated 28.09.2010 with respect to same land has been impugned in OWP No. 1167/2010. 2. In fact, the petitioner embarked upon a journey in the year 2000 for regularization of his alleged possession over the land measuring 5410 sq. ft. comprising of khasra No. 665 min. situated at Paloura, Jammu, by challenging auction notice dated 28.09.2000 issued by respondent No. 3 and 4 for auction of abovementioned land. The writ petition bearing OWP No. 809/2000 filed by the petitioner was disposed of by the learned Single Judge in terms of order dated 11.12.2000 by directing the respondents to take a notice of the observations made by the Division Bench of this Court in LPA(OW) No. 298/2K, titled, 'M/s Aggarwal Steels vs State of J&K and others' decided on 23.11.2000. 3. The petitioner aggrieved of the order dated 11.12.2000 preferred intra-court appeal against the same but did not prosecute the same leading to the dismissal of LPA (OWP) No. 167 of 2001 vide order dated 20.07.2002. 4. Five years after the dismissal of LPA (OWP) No. 167 of 2001, the petitioner filed the writ petition bearing OWP No. 177/2007 for quashing of auction notice bearing No. JDA/Site/CA/236 dated 08.02.2007, whereby the land measuring 5410 sq. ft. comprising khasra No. 665 min. situated at Janipur-Bantalab Road, Jammu was being auctioned by the respondent Nos. 3&4 and a prayer was also made for regularizing/allotment of the same in the name of petitioner and also for not evicting the petitioner from the land in question. It is stated that the petitioner is in possession of 15 marlas of land comprising khasra No. 665 min. situated at Janipur-Bantalab Road, Jammu. He applied with the respondent No. 2 for allotment of 3 kanal 6 marlas of land comprising under khasra No. 665 min. at Paloura, Jammu for industrial purpose, as the petitioner was already in possession of 15 marlas of land. The respondent No. 2 vide communication dated 07.11.1978 sought 'No Objection Certificate? situated at Janipur-Bantalab Road, Jammu. He applied with the respondent No. 2 for allotment of 3 kanal 6 marlas of land comprising under khasra No. 665 min. at Paloura, Jammu for industrial purpose, as the petitioner was already in possession of 15 marlas of land. The respondent No. 2 vide communication dated 07.11.1978 sought 'No Objection Certificate? from respondent No. 4 pursuant to the application made by the petitioner for allotment of plot measuring 3 kanal 6 marlas comprising under khasra No. 665 min situated at Paloura for industrial purpose. The respondent No. 4 vide its communication dated 11.01.1979 intimated the respondent No. 2 that as per Master Plan, the land that is sought to be allotted is meant for residential purpose only and 'no objection? was given for 2 kanals of land for residential purpose. The petitioner claims to have moved another application before the respondents for allotment of said land for residential purpose but it is alleged that respondents did not take any action upon the application of the petitioner. It is also claimed by the petitioner that he has spent money for developing the said land which was initially in the form of nallah/khad and has also built/raised plinth over there in the year, 1978-79. The petitioner has also stated about the filing of earlier writ petition filed by the petitioner in the year 2000. It is further stated that after the decision of the writ petition and during the pendency of the case of the petitioner with the respondents for regularization/allotment of land, the Jammu and Kashmir State Land (Vesting of Ownership to Occupants) Act, 2001 (for short the Roshni Act) was enacted, whereby a scheme has been devised for regularization of the possession of the land in favour of the illegal occupants, on the payment of the cost of the land as prescribed by the competent authority. The petitioner further claims to have moved an application before respondent No. 3 for regularization of his possession of the land comprising khasra No. 665 min measuring 15 marlas as per the Roshni Act but instead of considering the case of the petitioner under the said Act, the respondent No. 3 again issued an auction notice dated 08.02.2007 for auctioning of the said land which is under the possession of the petitioner for the last 29 years. It is also stated that the respondents have not complied with judgment dated 11.12.2000 passed by the learned Single Judge. It is further averred that the land in question is a Nazool land and the Jammu Development Authority (JDA) has no power to auction the abovementioned land. 5. The respondent No. 2 has filed the objections, wherein besides raising preliminary objections, it has been stated that Government order No. Rev(NDJ) 46 of 1973 dated 28.01.1973, provides that all the vacant and lease free Nazool lands situated in and around the cities of Jammu and Srinagar shall be transferred to the respective Development Authorities. Therefore, the respondent No. 2 after the above said Government order, has no control over the vacant lands and now it is the Jammu Development Authority, who is the authority to decide the allotment of land etc. It was also stated that 'No Objection Certificate? of Sub-committee, Nazool Department was not binding upon the JDA, which has all the powers to auction the above said land as per the Government order. 6. Respondent Nos. 3 and 4-Jammu Development Authority in their response have stated that the petitioner has concealed the material facts regarding the dismissal of LPA(OWP) No. 167 of 2001on 20.07.2002. It is also stated that the judgment passed in LPA(OW) No. 298/2000, titled, M/s Aggarwal Steels vs State of J&K and others is against the petitioner. It has also been stated that the petitioner has raised disputed questions of facts and further that the petitioner is out of the possession of land and the land is vacant on spot. The land was put to auction in the year 2000 but the auction process could not be completed because of filing of writ petition. It is further averred that the land in question was transferred to JDA by the Government in terms of Government order No. No. Rev(NDJ) 46 of 1973 dated 28.01.1973 read with SRO No. 263 of 2002, therefore, the Nazool Department has no control over the land and the same belongs to JDA. Filing of application for allotment does not by itself create any right, when the land is being put to public auction, where everyone can participate. The respondent Nos. Filing of application for allotment does not by itself create any right, when the land is being put to public auction, where everyone can participate. The respondent Nos. 3 and 4 have also annexed the copy of the khasra Girdhwari for Rabi 2000 in respect of khasra No. 665 of Village Paloura and report of the Director Land Management, which were filed along with counter affidavit by the JDA in the earlier writ petition filed by the petitioner. It is also stated that the Roshni Act is absolutely not applicable to the case of the petitioner because the JDA is in possession of the land and has issued auction notice in conformity with the Apex Court judgments and the petitioner has no concern with the JDA land. The respondents have also placed on record the copy of the judgment dated 20.07.2002 whereby LPA filed by the petitioner against the order of Single Judge dated 11.12.2000 was dismissed by the Division Bench. 7. The petitioner also filed the supplementary affidavit dated 01.08.2018 wherein he reiterated the submissions made in the writ petition and also brought to the notice of this Court that the respondent Nos. 3&4 have auctioned the land and allotted the same to some other person. 8. In response to the supplementary affidavit, respondent No. 3 filed the reply thereby stating that the JDA had issued the auction notice for auctioning commercial site of the land in question on 16.10.2000. Another auction notice was issued but the successful bidder failed to deposit the full auction money/bid money, as such, the possession could not be handed over to the successful bidder. It was also reiterated that the petitioner is not in possession of the said land on spot and due to unwarranted litigation initiated by the petitioner, JDA is suffering financial loss. 9. Ms. Meenakshi Salathia, learned counsel for the petitioner placed much reliance upon the communications dated 07.11.1978 and 11.01.1979 to demonstrate that the petitioner has been pursuing his case for regularization/allotment of Nazool Land ever since 1978 and till date the respondents have not considered his case but have been issuing the auction notices time and again. She further submitted that the petitioner is in possession of land measuring 15 marlas and has raised plinth over the same and further that the JDA could not have issued the auction notice as the land belonged to the Nazool Department. She further submitted that the petitioner is in possession of land measuring 15 marlas and has raised plinth over the same and further that the JDA could not have issued the auction notice as the land belonged to the Nazool Department. She has also filed the written submissions along with certain documents, those were never placed on record earlier. In her written submissions besides reiterating the oral submissions, it has been stated that Roshni Act is not applicable to the case of the petitioner and the petitioner was handed over possession of land in question by Nazool Department. 10. Per contra, Mr. Sachin Dogra, learned counsel for the respondents- Jammu Development Authority, vehemently argued that the petitioner is filing the successive writ petitions thereby claiming same reliefs. He first filed writ petition in the year 2000 that was disposed of learned Single Judge vide judgment dated 11.12.2000 and the said judgment was impugned by the petitioner in LPA bearing LPA(OWP) No. 167/2001 and the same was dismissed on 20.07.2002. Thereafter, the petitioner filed the present writ petition on same grounds and the learned Single Judge in the present writ petition never stopped the auction process and in fact permitted the auction process but the same was made subject to outcome of the writ petition and it was further ordered that the petitioner be not dispossessed except in due course of law. Mr. Dogra laid much stress that the petitioner is not in possession of any land and also no documentary evidence has been placed on record by the petitioner so as to demonstrate that the petitioner was ever in possession of the land and rather in the revenue record, the land has been shown to be in possession of Jammu Development Authority. 11. Heard and perused the record. 12. The case of the petitioner as projected in the writ petition is primarily based upon the application stated to have been filed by the petitioner in the year 1978 for allotment of land measuring 3 kanals and 6 marlas comprising khasra No. 665 min at Paloura Jammu, though subsequently, he has restricted his claim to 15 marlas of land. It needs to be noted that the application was filed by the petitioner for the purpose of establishing Industrial Unit and later, the intended use was changed from Industrial purpose to residential purpose. It needs to be noted that the application was filed by the petitioner for the purpose of establishing Industrial Unit and later, the intended use was changed from Industrial purpose to residential purpose. It is not in dispute that the land in question is a prime land having high market value as is evident from the bid accepted earlier by the respondent No.3. The issue that arises for consideration of this court is whether merely pursuant to the application filed by the petitioner, the land can be allotted to him. Hon?ble Supreme Court in Akhil Bhartiya Upbhokta Congress vs. State of M.P., (2011) 5 SCC 29 , examined the action of Executive to allot the land to particular organization without issuing any advertisement and inviting similar organizations to participate in the process of allotment and held the said action of allotment as violative of article 14 of the Constitution of India, being arbitrary in nature. Apex Court held as under: '65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and nonarbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.' 13. Further in Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 , the Apex Court has held as under: '94. There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim. 95.This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest. 96. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.' 14. What can be discerned from the law laid down by Apex Court as mentioned above is that the State largesse cannot be distributed in an arbitrary manner resulting into nepotism and favouritism. What can be discerned from the law laid down by Apex Court as mentioned above is that the State largesse cannot be distributed in an arbitrary manner resulting into nepotism and favouritism. In the instant case, there was no advertisement for allotment of land and the petitioner on his own applied for the allotment of land and the Sub-Committee of Nazool Department too seems to have entertained and processed the application filed by the petitioner particularly when the land stood already transferred to JDA vide Government order mentioned above. We are of the considered view that merely filing of an application for allotment of the land in the absence of any advertisement so as to enable other similarly situated persons to participate in the allotment process and the subsequent processing of the said application without further resulting into allotment of the land in the name of petitioner does not confer any right upon him to seek allotment of the land in his favour. 15. More so, the petitioner claims to be in possession of 15 marlas of land comprising khasra No. 665 at Paloura Jammu. In the written submissions, it is stated that the possession of the land mentioned above was handed over to him by Nazool Department but in the petition, it is nowhere pleaded that he was given the possession of the land by Nazool Department. In fact there is no pleading in the writ petition as to how the petitioner got the possession of the land. The desperation of the petitioner to get the land is evident from the fact that initially he sought 3 kanals and 6 marlas of land for establishing Industrial Unit and on finding that the permissible use is residential only, he restricted his claim to 15 marlas for residential purpose. The petitioner has primarily based his case on two communications dated 07.11.1978 and 11.01.1979. In both these communications, there is no whisper that the petitioner is in possession of even an inch of the land out of total land measuring 3 kanal 6 marlas comprising khasra No. 665 min situated at Paloura, Jammu. Rather the khasra Girdawari (revenue record) for Rabi 2000, placed on record by the respondent Nos. In both these communications, there is no whisper that the petitioner is in possession of even an inch of the land out of total land measuring 3 kanal 6 marlas comprising khasra No. 665 min situated at Paloura, Jammu. Rather the khasra Girdawari (revenue record) for Rabi 2000, placed on record by the respondent Nos. 3 and 4 demonstrate that the land measuring 9 kanal and 10 marlas comprising khasra No. 665 min and land measuring 24 kanal and 15 marlas comprising khasra No. 665 is in possession of JDA. Though the issue of possession is a disputed questions of fact but there is documentary evidence on record to demonstrate that respondent No. 3-JDA is in possession of land comprising khasra No. 665 min. Except the bald assertion made by the petitioner that he is in possession of 15 marlas of land comprising under khasra No. 665 min without demonstrating as to how he got into possession of the land, there is no documentary evidence to substantiate the same. The information obtained under Right to Information Act annexed with the written submissions is of no help to the petitioner. Therefore, we are of the considered view that the petitioner has miserably failed to demonstrate his possession over the land measuring 15 marlas comprising under khasra No. 665 min situated at Paloura, Basant Vihar, Jammu. 16. Further, in the written submissions, the petitioner has admitted that Roshni Act is not applicable in his case and the said submission has been made contrary to the pleadings made in the writ petition and also the supplementary affidavit filed in the year 2018. Roshni Act has been repealed and even his case could not have been considered under the said Act being out of possession. Otherwise also no one can encroach a public property and then seek regularisation of one?s illegal possession as a matter of right because of the reason that if such acts are allowed, then it would lead to absolute anarchy. 17. It is also the claim of the petitioner that the respondents have not considered the claim of the petitioner in terms of judgment of the Division Bench in 'Aggarwal Steels vs State of J&K and others'. It needs to be noted that the petitioner remained a mute spectator after the passing of judgment in the year 2000 till 2007 and it was only when the respondent Nos. It needs to be noted that the petitioner remained a mute spectator after the passing of judgment in the year 2000 till 2007 and it was only when the respondent Nos. 3 & 4 issued auction notice in the year 2007, the petitioner rose from his deep slumber and filed this writ petition. He never approached the court for compliance of order passed in the year 2000, rather filed the fresh writ petition on the same grounds. More so, the judgment of the Division Bench of this Court in 'Aggarwal Steels vs. State of J&K and others', does not support the case of the petitioner, rather negates his claim. The petitioner even did not disclose the fact of filing appeal against the order passed by learned Single Judge in OWP No. 809/2000 and dismissal of the same by Division Bench vide order dated 20.07.2002. The judgments relied upon by the petitioner in the written submissions, more particularly in cases titled 'Mohammed Ramzan Bhat & Ors. vs. State & Ors' reported in 2021(3) JKJ 141 and 'Jammu Development Authority vs. Bhag Din & Ors.' reported in 2004(1) JKJ 1 are not applicable in the present case, having been rendered in different facts and circumstances. 18. In view of what has been said and discussed above, this Court is of the opinion that there is no merit in the present writ petition. As the petitioner has abused the process of law by filing successive writ petitions for the same relief, therefore, we dismiss this writ petition with costs of Rs. 50,000/. As a natural corollary, the writ petition bearing OWP No. 1167/2010 is also dismissed.