Jammu & Kashmir High Court
Jammu Development Authority vs Beant Kour & Ors on 5 February, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
LPA No.121/2020
CM No. 6214/2020
Reserved On: 2nd of February, 2021
Pronounced On: 5th of February, 2021
Jammu Development Authority
.....Appellant(s)
Through: -
Mr Adarsh Sharma, Advocate.
V/s
Beant Kour & Ors.
.....Respondent(s)
Through: -
Mr Vishal Goel, Advocate for R-1;
Mr S. S. Nanda, Sr. AAG for R-2 to 5;
Mr Sunil Sethi, Senior Advocate with Mr Ravi Abrol, Advocate for R-6;
Mr Z. A. Shah, Senior Advocate with Mr Jagpal Singh, Advocate for R-7 & 8;
Mr P. N. Raina, Senior Advocate with Mr J. A. Hamal, Advocate for R-9 to 11 & 13; and
Mr S. S. Ahmed, Advocate for R-12.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
(JUDGMENT)
{Per Magrey; J}:
01. This intra Court appeal, under Clause 12 of the Letters Patent,
is directed against the judgment dated 10th of February, 2020, passed by the
learned Single Judge in OWP No.1625/2013, whereby the petition of the
appellant/ petitioner authority stands dismissed alongwith two other Writ
petitions, being OWP Nos. 1619/2013 and 1793/2013.
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LPA No. 121/2020
CM No. 6214/2020
02. The brief facts leading to the filing of the instant appeal, as
come to the limelight from the perusal of the pleadings on record, are that
the appellant/ petitioner authority claims that the land measuring 39 Kanals
and 02 Marlas, comprising Kh. No. 328 Min and situated in Village Channi,
Ramma, Jammu, 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 appellant/ petitioner authority
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". In terms of
Government Order No. REV (NDJ) 46 of 1973 dated 28th of January, 1973,
out of the aforesaid land, 274 Kanals and 11 Marlas was transferred by the
State/Nazool Department in favour of the appellant/ petitioner authority. The
appellant/ petitioner authority alleged that respondent No.1, in connivance
with the Provincial Rehabilitation Officer, Jammu, got a chunk of land
measuring 39 Kanals and 02 Marlas out of the land vested in the appellant/
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 Provincial
Rehabilitation Officer, Jammu, vide its order bearing No.658/92-93 dated
22nd of December, 1992. Feeling aggrieved thereby, the Jammu
Development Authority took up the matter with the Provincial Rehabilitation
Officer, Jammu and, accordingly, the Provincial Rehabilitation Officer,
Jammu invoked suo moto powers of review and cancelled the allotment of
the respondent No.1 in terms of order No. 250-54/93-94 dated 14th of
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LPA No. 121/2020
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August, 1993. Thereafter, the respondent No.1 challenged the order of
cancellation of allotment by medium of a Revision Petition filed before the
J&K Special Tribunal, Jammu, wherein the order of cancellation dated 14th
of August, 1993 (supra) passed by the Provincial Rehabilitation Officer,
Jammu was set aside by order dated 6th of June, 1996. The appellant/
petitioner authority assailed the order of the Tribunal in OWP No.
1072/1996, which petition was disposed of by the learned Single Judge vide
judgment dated 4th of February, 2000 with the direction to the
State/Revenue Department to earmark the area/land which had vested in the
Jammu Development Authority. It was further ordered by the learned Single
Judge that any observation made by the Tribunal with regard to the
ownership of the appellant/ petitioner authority qua the land in question
would not be taken as a final expression of opinion. Being aggrieved of the
judgment of the learned Single Judge, the respondent No.1 filed Letters
Patent Appeal, being LPA(OW) No. 333/2000, which was dismissed by the
Division Bench as withdrawn vide judgment dated 6th of May, 2003. During
the pendency of the aforesaid LPA, the respondent No.1 got the mutation of
ownership attested from the respondent No.2 and the respondent No.2, in
turn and vide Mutation No.1562 dated 31st of May, 2001, conferred
proprietary rights upon respondent No.1 purportedly in terms of the
Government Order No. 254-C of 1965, thereby making it axiomatic 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 31st of May, 2001 attested by the respondent No.2. The
appellant/ petitioner authority challenged the Mutation No.1562 dated 31st of
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May, 2001 (supra) before the Divisional Commissioner, Jammu by way of
Revision Petition and the Divisional Commissioner, Jammu, however, in
terms of order dated 8th of June, 2007, while maintaining the order of
mutation, dismissed the Revision Petition. Against this order of the
Divisional Commissioner, the appellant/ petitioner authority preferred
further Revision Petition before the Joint Financial Commissioner (AR)
Jammu with the powers of Financial Commissioner (Revenue), Jammu. It is
worthwhile to mention here that 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 24th of June, 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.
Ultimately, the Revision Petition came up for consideration before the
Financial Commissioner (Revenue), Jammu, who in terms of judgment dated
28th of June, 2013, dismissed the Revision Petition and upheld the order of
the Divisional Commissioner, Jammu dated 8th of June, 2007. The appellant/
petitioner authority, feeling aggrieved of the order passed by the Financial
Commissioner (Revenue), Jammu, challenged the same through the medium
of Writ petition bearing OWP No.1625/2013, which petition, alongwith two
other petitions (OWP Nos. 1619/2013 and 1793/2013), came to be dismissed
by the learned Single Judge in terms of judgment dated 10 th of February,
2020. This judgment of the learned Single Judge is under challenge before
us in the instant appeal.
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LPA No. 121/2020
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03. Learned counsel for the appellant submitted that the impugned
judgment has been passed by the learned Single Judge without appreciating
the controversy involved in its true and proper perspective. It is submitted
that the respondent No.2 could not have attested the mutation qua the
subject land until the land vested in the appellant/ petitioner authority had
been demarcated in terms of the judgment of the learned Single Judge in
OWP No.1072/1996. It is pleaded that the allotment of the land belonging to
the appellant/ petitioner authority in favour of the respondent No.1 was a
nullity in the eyes of law and, therefore, no mutation conferring proprietary
rights on the respondent No.1 on the basis of the illegal allotment could have
been attested by the respondent No.2. It is further contended that the learned
Single Judge failed to appreciate the fact that no mutation could have been
attested by the respondent No.2 in favour of the respondent No.1 purportedly
under Government Order No.254-C of 1965 with respect to the land
belonging to the appellant/ petitioner authority and that the conditions laid
down in Government Order were not fully satisfied. It is also averred by the
appellant/ petitioner authority that, firstly, the revenue authorities
misdirected themselves in appreciating the controversy and thus, came to an
erroneous conclusion that pursuant to the demarcation done, the area/land
vested in the Jammu Development Authority had been earmarked and,
secondly, the learned Single Judge, even though having been apprised of the
actual facts, also did not find favour with the submissions urged by the
appellant/ petitioner authority.
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04. Learned counsel appearing on behalf of the respondents, in
unison, submitted that the controversy involved in the instant matter stands
settled by the revenue authorities and, thereafter, confirmed by the judgment
passed by the learned Single Judge, that is impugned herein this appeal. It is
submitted that the appellant/ petitioner authority has no locus standi to call
in question either the allotment made by the Provincial Rehabilitation
Officer, 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 by
medium of the writ petition as has been rightly held by the learned Single
Judge, moreso, when the State is not aggrieved either by the allotment of the
land made in favour of the appellant/ petitioner authority or subsequent
mutation of conferment of proprietary rights on the respondent No.1,
attested by the respondent No.2. It is averred 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 appellant/ petitioner
authority, has been upheld by all the forums including the learned Single
Judge. It is, thus, submitted that once the 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 Government Order No.254-C of 1965. It is also
contended that after conferment of the proprietary rights, the respondent
No.1 has sold the subject land to different persons by executing as many as
19 sale deeds, which are duly registered before the competent registering
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authority and that she has already delivered the vacant possession of the land
in favour of the Vendees, therefore, the Writ petition was fait accompli. It is
next pleaded that the subject land was allotted to the respondent No.1 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 appellant/
petitioner authority before the different Revenue Forums and, ultimately, the
challenge of the appellant/ petitioner authority failed.
05. We have heard the learned counsel for the parties, perused the
pleadings on record and considered the matter.
06. The sole ground on which the petition of the appellant/
petitioner authority stands dismissed by the learned Single judge in terms of
the impugned judgment is that the appellant/ petitioner authority was found
to be without any locus standi to maintain the Writ petition. In this
backdrop, we, in this appeal, are only called upon to test the validity of the
impugned judgment passed by the learned Single Judge.
07. At the very outset, what requires to be stated is that 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 the J&K Special Tribunal was further assailed
by the appellant/ petitioner authority in OWP No.1072/1996 and the Writ
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petition was disposed of on 4th of February, 2000 by directing the State to
earmark the area which has been given to the Jammu Development
Authority in presence of the respondent No.2. This order of the learned
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 6th of May, 2000. The order of the learned Single
Judge dated 4th of February, 2000 passed in OWP No.1072/1996, thus,
attained finality. This order, however, 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 appellant/ petitioner authority by virtue of
Government Order No. REV (NDJ) 46 of 1973 dated 28th of January, 1973
and, thus, proceeded to direct the Revenue Department to earmark the land,
which is vested in the appellant/ 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
Government Order REV No. (NDJ) 46 of 1973 dated 28th of January, 1973,
the allotment in favour of the appellant/ petitioner authority qua the subject
land was to go. In this context, from the perusal of the pleadings it is
axiomatic that in compliance to the judgment of the learned Single Judge 4th
of February, 2000 passed in OWP No. 1072/1996, the demarcation has been
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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 appellant/ petitioner
authority in terms of Government Order No. REV(NDJ) 46 of 1973 dated
28th of January, 1973. The demarcation reports have not been assailed either
by the Jammu Development Authority or by the Department of Revenue of
the State. The genuineness or otherwise of the allotment of the State land
made by Provincial Rehabilitation Officer, Jammu in favour of respondent
No.1 and the mutation attested by respondent No.2 in favour of respondent
No.1 in terms of Government Order No. 254-C of 1965 does not fall within
the domain of the appellant/ petitioner authority, 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 appellant/ petitioner authority in terms of the Government Order
No. REV(NDJ) 46 of 1973 dated 28th of January, 1973. It is only in the
event the appellant/ petitioner authority establishes, by cogent material on
record, that the subject land was a part of chunk of land, which was
transferred in favour of the appellant/ petitioner authority by the State in
terms of Government Order No. REV(NDJ) 46 of 1973 dated 28th of
January, 1973 that it would get locus standi to challenge the allotment as
also the mutation. The appellant/ petitioner authority failed to demonstrate
the aforesaid aspect not only before the learned Single Judge, but also before
this Court and, thus, cannot be said to have any locus standi to challenge
the allotment and mutation or the order of Financial Commissioner
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(Revenue), Jammu, whereby the mutation attested in favour of the
respondent No.1 has been upheld.
08. True it is that when the mutation was attested by the respondent
No.2 conferring 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 4th of February,
2000 had taken place, but, it is admitted fact that later on, after withdrawal
of the LPA by the respondent. No.1, the demarcation was undertaken to
earmark the land belonging to the Jammu Development Authority, wherein
it was found that the subject land, which has been allotted in favour of the
respondent No.1 and later on mutated, was, in fact, not a part of the chunk of
the land transferred to the appellant/ petitioner authority by the State in
terms of Government Order No. REV(NDJ) 46 of 1973 dated 28th of
January, 1973. Thus, with the actual demarcation having been made by the
State, no fault can be found with the order of mutation, particularly, at the
instance of the appellant/ petitioner authority. The allotment of the land
made by the Provincial Rehabilitation Officer, Jammu in favour of
respondent No.1 and subsequent attestation of the mutation of ownership by
respondent No.2, purportedly in terms of Government 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, the appellant/ petitioner
authority, in no circumstances, could have any locus standi in the matter to
file the Writ petition.
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09. Apart from the above, the pleadings on record also establish it
beyond any shadow of doubt that the demarcation had been conducted
multiple times, wherein it was found that the land of the respondent no.1 was
outside the land of the Jammu Development Authority and, as such, the
appellant/ petitioner authority had no locus standi to file the Writ petition. In
this behalf, the decision of the Board of Directors of the appellant/ petitioner
authority, taken in its 80th meeting, further clinches the issue, wherein it was
resolved that in view of the order of the High Court resulting in demarcation
of the land in question on four occasions, the Jammu Development
Authority has no claim.
10. In the light of the above discussion, we do not find any
illegality or perversity in the impugned judgment passed by the learned
Single Judge as would warrant its interference from this Court. That being
the position, this appeal fails and shall stand dismissed as such alongwith all
connected pending CMs. Interim directions, if any, subsisting as on date,
shall stand vacated.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
JAMMU
February 5th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
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