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2022 DIGILAW 733 (JK)

Manjit Singh v. State (now UT) of J. & K.

2022-12-22

M.A.CHOWDHARY

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JUDGMENT : 1. Petitioner through the medium of this Writ Petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir prayed following reliefs: I) Mandamus commanding the respondents to immediately remove the unauthorized occupation of the property viz land measuring 6 kanals 8 marlas and 212 sft. covered by survey Nos. 46 and 213/min situate at Bund, in estate Kothibagh, Srinagar and take over the possession of the property from the unauthorized occupants and thereafter hand over the same to the petitioner. II) Mandamus commanding the respondent not to allow any person or persons to raise any kind of construction, temporary or otherwise upon the aforesaid property, in any manner whatsoever. III) Mandamus, commanding the respondents to make entries into the revenue records as per Government Order dated 08.07.2009. IV) Mandamus commanding the respondents to make transfer of lease holding rights of the share of the petitioner’s brother Manjit Singh, in case there is any legal impediment of making transfer in favour of the legal heirs of the petitioner’s brother because of they being citizens of USA. V) Mandamus commanding the respondents to give the vacant possession of the property of the petitioner to him as per the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sale) Act, 1997 and thereafter the petitioner be allowed to make use of the aforesaid property by allowing him to raise the construction upon the aforesaid land, in accordance with law. 2. Petitioner has pleaded that after entering into protracted litigation, the Government of Jammu & Kashmir, finally issued an order bearing No. 74-Rev/NDK of 2009 dated 08.07.2009 by virtue of which proprietary rights of the Nazool land measuring 06 kanals 8 marlas and 212 Sft. Comprising of khasra No. 146 and 213/min situated at Bund, Srinagar initially leased out in favour of the petitioner’s father vide Govt. Order No. 2365 dated 02.09.1937 for a period of 40 years which was renewed from time to time. Petitioner claims to have become migrant because of disturbed conditions in the Kashmir Valley and he under J&K Migrant Immovable Property ( Preservation, Protection and Restraint on Distress Sales) Act, 1997 is entitled to his property. Order No. 2365 dated 02.09.1937 for a period of 40 years which was renewed from time to time. Petitioner claims to have become migrant because of disturbed conditions in the Kashmir Valley and he under J&K Migrant Immovable Property ( Preservation, Protection and Restraint on Distress Sales) Act, 1997 is entitled to his property. Since the petitioner was involved in the litigation for purpose of getting the proprietary rights of the property, it appears that during this period certain persons had illegally and unauthorizedly entered into the property and had taken possession of certain portion thereof. 3. It has been further pleaded that in the meantime the petitioner obtained the judgment for grant of proprietary rights of the petitioner and he requested District Magistrate Srinagar and Divisional Commissioner Kashmir in this behalf, however despite depositing the amount before official respondents, he was not given proprietary rights, as such, he moved this petition. 4. Pursuant to notice respondents 7 to 9 have filed reply to this petition, wherein, it has been stated that the land has vested in equal shares between the petitioner and the legal heirs of his brother Inderjeet Singh. It is also stated that they were settled in United States of America and have obtained nationality and citizenship of that country and they are permanent resident of the J&K State (now UT of J&K). It is further stated that in terms of order dated 08.07.2009 proprietary rights in respect of land measuring 06 kanals, 08 marlas and 212 sqfts. Covered by survey Nos. 146 and 213/min situated in Estate Kothibagh, Srinagar have been granted in favour of the petitioner and answering respondents including Amarjeet Singh, another son of Inderjeet Singh in equal shares on payment of price equivalent to half of the market price of Rs. 18,00,000/- per kanals as was prevalent in the year 2000, when the judgment was passed by this Court. After issuance of order dated 08-07-2009, respondent No. 2 addressed letter dated 05.06.2010 to the petitioner as well as the answering respondents (7 to 9) asking them to deposit the cost of land as per description given in the letter. 5. The answering respondents further pleaded that they including Amarjeet Singh deposited an amount of Rs. 28,97,537/- with Dy. Commissioner, Srinagar as half of the price of the land measuring 03 kanals, 04 marlas and 106 sqft. 5. The answering respondents further pleaded that they including Amarjeet Singh deposited an amount of Rs. 28,97,537/- with Dy. Commissioner, Srinagar as half of the price of the land measuring 03 kanals, 04 marlas and 106 sqft. Learned counsel for the respondents submitted that the petitioner also deposited the cost of land through cheque with respect to the extent of his share on 23.08.2010 that thereafter Deputy Commissioner Srinagar passed an order directing that the proprietary rights of land measuring 03 kanalas 04 marlas and 106 Sqft covered by survey no. 146 and 213/min situated in Estate Kothibagh are vested in favour of the answering respondents including Amerjeet Singh brother of respondents 8 and 9. 6. Respondents also claimed that in terms of of Mutation Order No. 482 dated 30.07.2010 the land measuring 3 kanals 4 marls and 106 Sft. had been mutated in favour of the answering respondents. 7. Learned counsel for the respondents submits that against the mutation order dated 30.07.2010, a complaint was filed with the Dy. Commissioner, Srinagar by the Shopkeepers of Lumbert Land alleging therein that the answering respondents are not permanent resident of J&K State. On receipt of the complaint, the Dy. Commissioner directed the shopkeepers to furnish evidence/proof in support of their complaint and also asked the Tehsildar (South) to keep the mutation order No. 482 in abeyance till further orders. The shopkeepers failed to produce any kind of proof/evidence as such, on the recommendations of the Tehsildar (South) the Dy. Commissioner restored the mutation Order No. 482 vide his order dated 5.5.2011 and directed the Tehsildar (South) to take further action accordingly. In terms of two irrevocable power of attorneys registered on 02.07.2010 have authorized their attorney to represent them to move applications before the competent authorities for seeking permission to alienate the land of their share in terms of Section 3 of the J&K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. The Attorneys have filed an application before the Divisional commissioner for grant of permission to alienate the answering respondents’ land to Riyaz Ahmad, Mushtaq Ahmad and Choudhary Mohammad Razak. The Divisional Commissioner has forwarded the said application to the Dy. Commissioner, Srinagar for appropriate necessary action. The Dy. Commissioner has forwarded the said application to Tehsildar (South) who has referred the matter to Naib Tehsildar concerned for verification report. The Divisional Commissioner has forwarded the said application to the Dy. Commissioner, Srinagar for appropriate necessary action. The Dy. Commissioner has forwarded the said application to Tehsildar (South) who has referred the matter to Naib Tehsildar concerned for verification report. When the Naib Tehsildar was about to send his report to the Tehsildar the petitioner produced a copy of the order dated 24.09.2012 before him, as result of which, he stopped further proceedings in the matter. The petitioner is entitled to safeguard the rights and interest of his portion of land and not to claim any right or interest in the land of the answering respondents, therefore, respondents prays for dismissal of the writ petition. 8. Mr. Chopra learned senior counsel for the petitioner at the very outset of his arguments stated that the petitioner abondons all other reliefs except relief No. 3 with regard to mandamus commanding the respondents to make entries into the revenue record as per Govt. Order dated 08.07.2009. 9. Learned counsel for the official as well as private respondents on the other hand, submits that the petitioner has unnecessarily engaged the respondents in litigation since 2012 and it does not lie in his mouth today to abandonee all the reliefs and make a submission to this court for a mandamus commanding the respondents who are statutory authorities to make entries into the revenue record as per Govt. Order dated 08.07.2009. They have further argued that after such inordinate delay the petitioner has been trying to use this court to record entries with regard to ownership in the revenue records which he could simply do by moving an application before the concerned statutory authorities. 10. Heard and considered. 11. Factual matrix of the case is that vide Govt. Order No. 2365 dated 02-09-1937, land measuring 6 kanals 8 marlas and 212 Sft under survey No. 146 and 213 min situated in Estate Kothibagh Tehsil and District Srinagar was leased out to one Dr. Balwant Singh for a period of 40 years w.e.f. 02.09.1937 and subsequently after his death renewed from 08-01-1977 for 10 years in favour of his successors in interest Smt. Pritam Kour ( Widow) and three sons namely S. Kulwant Singh, S. Inderjeet Singh and S. Manjit Singh (petitioner herein). 12. Vide Govt. Balwant Singh for a period of 40 years w.e.f. 02.09.1937 and subsequently after his death renewed from 08-01-1977 for 10 years in favour of his successors in interest Smt. Pritam Kour ( Widow) and three sons namely S. Kulwant Singh, S. Inderjeet Singh and S. Manjit Singh (petitioner herein). 12. Vide Govt. Order No. Rev./NDK/248 of 1981 dated 07.08.1981, it was ordered that the Wasidars who have acquired Nazool land on lease basis, shall have the option to acquire the said land on proprietary basis on payment of price equivalent to half the prevailing market price in the estate (Mouza). Dy. Commissioner Srinagar, vide communication dated 24.12.1983 in terms of the aforementioned Govt. Order recommended to the Revenue Department that necessary order with regard to the grant of proprietary rights in respect of lease hold area, in favour of the lessees may kindly be conveyed on payment of Rs. 2.00 lacs per kanal. 13. However, while this matter was pending, the Govt. vide Order No. Rev/NDK/106/84 dated 19.06.1984 withdrew earlier Order No. Rev/NDK/248 of 1981 dated 17.08.1981. The lease in favour of the petitioner was renewed for a period of 20 years purusuant to the direction of this court in OWP NO. 488 of 84. 14. The Govt. of J&K again in the year 1985 restored Govt. Order No. Rev/NDK/248 of 1981 dated 17.8.1991 vide Govt. Order No. Rev. NDK/34/85 dated 21.01.1985 whereby the payment of full market price by the lessee to acquire proprietary rights over land leased to them was provided. 15. In WP No. 933/1995 titled Manjit Singh & Ors. v. State & Ors. this Court gave directions to the respondents to grant proprietary rights to the petitioner in terms of Govt. Order dated 17.8.1981 within a period of two months. However, this direction was challenged in LPA No. 39/2002 before a Division Bench of this Court which was dismissed with the direction that the right which had accrued to the petitioner during the currency of Govt. Order dated 17.08.1981 cannot be allowed to be defeated on account of lapse on the part of the respondents. SLP No. 8183/2002 was filed by the State Government before the Hon’ble Supreme Court of India which was dismissed. 16. Thereafter another round of litigation started with filing of contempt petition No. 32/2003 and this Court vide order dated 16.12.2004 observed that respondent cannot demand more than Rs. SLP No. 8183/2002 was filed by the State Government before the Hon’ble Supreme Court of India which was dismissed. 16. Thereafter another round of litigation started with filing of contempt petition No. 32/2003 and this Court vide order dated 16.12.2004 observed that respondent cannot demand more than Rs. 2.00 lacs per kanal for grant of proprietary rights in favour of the petitioner. The State of J&K filed an intra Court appeal LPA No. 21/2005 against the interim order dated 16.12.2004 which was allowed in favour of the State and the order dated 16.12.2004 of the Ld. Single Judge was set aside vide order dated 26.03.2008. 17. Petitioner filed SLP against the Division Bench order dated: 26.03.2008 before Apex Court and the Hon’ble Apex Court vide judgment dated 28.11.2008 passed the following directions: “Having heard learned counsel on both sides, we are of the view that the LPA filed by the respondent-State against the order of the Ld. Single Judge adjourning COA (OW) No. 32/2003 was not maintainable. In the circumstances we set aside the impugned judgment of the Division Bench of the Hon’ble High Court and restore COA(OW) 32/2003 which shall be disposed of by the Ld. Single Judge in accordance with law uninfluenced by any observation on the merits of the case. We keep all contentions on both sides on merits expressly open.” 18. On receipt of this order passed by the Hon’ble Supreme Court the official respondents sought fresh advice from Law Department who on 26.03.2009 gave its advice. The law Department advised official respondents to state before the Court that Govt. is ready to implement the judgment of the Hon’ble Supreme Court and confer the proprietorship over the piece of land in accordance with the Govt. Order dated 17.08.1981 in favour of the applicant subject to the condition that the ownership rights shall be granted on the market rate as prevalent on the date of judgment of the Hon’ble Single Judge. After law department’s opinion the official respondents verified rates from Dy. Commissioner Srinagar, the prevailing market rate for the year 2000 i.e. the date of judgment for the area in reference who intimated that market rate was Rs. 18.00 to 22.00 lacs per kanal during the year 2000. 19. The case was processed with the recommendation that the proprietary rights at the rate of Rs. Commissioner Srinagar, the prevailing market rate for the year 2000 i.e. the date of judgment for the area in reference who intimated that market rate was Rs. 18.00 to 22.00 lacs per kanal during the year 2000. 19. The case was processed with the recommendation that the proprietary rights at the rate of Rs. 18.00 lacs per kanal be granted in favour of the applicant(s) read with Govt. Order No. Rev./NDK/248 of 1981 dated 17.08.1981 and the competent authority asked to “proceed as per the department’s opinion”. The Secretary to Govt. Revenue Department vide Govt. Order No. 74-Rev/NPK of 2009 dated 08.07.2009 accorded sanction to the grant of proprietary rights in terms of Govt. Order No. Rev/NDK/1248 of 1981 dated 17.08.1981, in favour of the petitioner Manjeet Singh (petitioner herein) and S/Shri Anoop Singh, Aniljeet Singh and Amarjeet Singh (sons) and Smt. Mohinder Kour W/O Late Inderjeet Singh (private respondents) on Nazool land measuring 06 kanals 08 marlas and 212 Sft bearing khasra No. 146 and 213 min situated in Estate Kothibagh, Tehsil and District Srinagar on payment of price equivalent to half of the market price of Rs. 18.00 lacs per kanal as was prevalent in the year 2000. 20. On perusal of the aforementioned Govt. Order dated 08.07.2009 it is clear that the land leased out initially in favour of Dr. Balwant Singh predecessor-in-interest and thereafter his widow and sons was given in proprietary rights to petitioner herein besides Shri Anoop Singh, Aniljeet Singh and Amarjeet Singh sons and wife Mohinder Kour of his brother Inderjeet Singh, in equal shares. All these persons are stated to have deposited the amount worked out for payment of the price of the land within stipulated period. Therefore, the petitioner and the private respondents had become owners of the land in question, as such, they were entitled for their entries in the revenue records as per the Govt. Order dated 08.07.2009. 21. Mutation has been attested in favour of private respondents with regard to their share on 30.7.2010 by Tehsildar South Srinagar, however no such entry was recorded in favour of the petitioner. 22. In view of not pressing and abandoning all other reliefs except relief of mandamus commanding the respondents to make entries as per Govt. Order dated 08.07.2009. 21. Mutation has been attested in favour of private respondents with regard to their share on 30.7.2010 by Tehsildar South Srinagar, however no such entry was recorded in favour of the petitioner. 22. In view of not pressing and abandoning all other reliefs except relief of mandamus commanding the respondents to make entries as per Govt. Order No. 74- Rev/NDK of 2009 dated 08.07.2009, I am of the opinion that the petitioner has made out a case for issuance of writ of mandamus and accordingly the petition is disposed of for the afore-stated reasons with the following directions: “The respondent Dy. Commissioner is commanded through writ of mandamus to make entries in the revenue records i.e. attestation of mutation subject to the legal requirements, in favour of the petitioner in terms of Govt. Order No. 74- Rev/NDK of 2009 dated 08.07.2009.” 23. Petition is thus disposed of. No costs.