Jammu & Kashmir High Court
Manmohan Singh vs State And Others on 9 November, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on :01.11.2022.
Pronounced on: 09.11.2022.
OWP No.1539/2014 c/w
OWP No.333/2011
OWP No.897/2017
CPOWP No.28/2011
CPOWP No. 84/2014
CPOWP No.177/2014
CPOWP No. 26/2016
...Petitioner(s)
Manmohan Singh
Through:
Mr. K.S.Johal Sr. Advocate with Mr.Karman Singh
Johal Advocate.
V/s
State and others ...Respondent(s)
Through:-
Mr. Adarsh Sharma Advocate.
Mr. Sachin Dogra, Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Sanjeev Kumar, J.
1. The dispute in all these three petitions revolves around land measuring 8 kanals comprised in khasra No. 746 min situate at village Gole Tehsil and District Jammu ['the subject land']. The petitioner claims to be in occupation of subject land after the same was transferred in his favour by one Gurjeet Singh. Indisputably, the subject land claimably under possession of the petitioner is the State land and is recorded as such in the revenue records.
2. Apprehending his dispossession from the subject land by the Jammu Development Authority ['JDA'], the petitioner filed OWP No. 2 439/2010 wherein the petitioner, inter alia, sought a direction to the respondents not to forcibly dispossess him from the subject land. The said writ petition was resisted by the JDA. It was the categoric stand taken by the JDA that the subject land was a part of State land which was transferred to JDA by the Government vide its order No. Rev(NDS) 46 dated 28.01.1973. It was submitted that the subject land was never owned and possessed by Gurjeet Singh, nor did he have any right or title to transfer it to the petitioner.
3. During the course of hearing of OWP No. 439/2010, Mr. Johal learned Senior Counsel appearing for the petitioner fairly stated before the Division Bench that neither he, nor his predecessor-in -interest Gurjeet Singh was ever the owner of the subject land, but submitted that the petitioner being in settled possession of the State land cannot be thrown out, otherwise than by following due process of law. Mr. Johal also disputed the authority of JDA to dispossess the petitioner from the State land.
4. The Division Bench, which considered the matter, came to the conclusion that the subject land including land measuring 2235 kanals falling in khasra No. 746 min was not the land of any private person and that it was the land measuring 330 kanals and 13 marlas out of the aforesaid chunk of land that was transferred by the Government to the JDA. The Division Bench, however, declined to return any finding in respect of the possession of the subject land observing that, on the basis of material on record, it was not possible to establish as to which of the parties was in actual physical possession of the subject land. Leaving the question of possession as a disputed question of fact, to be determined by an appropriate forum, the Division Bench vide its judgment dated 27.04.2022 3 dismissed the petition (OWP No. 439/2010) filed by the petitioner. The petitioner was, however, given liberty to take appropriate remedy as may be advised in law for establishing and protecting his possession, if any, on the subject land. The decision of the aforesaid writ petition should have put a quietus on the dispute between the petitioner and the JDA and the petitioner as advised should have availed of an appropriate remedy available to him under law. As is brought to our notice, the petitioner has actually availed of remedy of filing a civil suit which is presently subjudice in the competent Court of civil jurisdiction at Jammu.
5. Be that as it is, while OWP No. 439/2010 was pending, the JDA made an allotment of land measuring 7.34 kanals under khasra No. 346 at Gole in favour of Samaj Kalyan Kendra Shahidi Chowk, Jammu. The land, as is apparent from the order of allotment and the subsequent communications including the communication indicating delivery of possession in favour of Samaj Kalyan Kendra, was shown to be falling under khasra No. 346 in village Gole, but, later on, the JDA corrected its mistake and by way of a corrigendum/clarification, it was provided that the land allotted in favour of Samaj Kalyan Kendra was out of khasra No. 746 min and not khasra No. 346.
6. The petitioner apprehending that in the garb of allotment of land made in favour of Samaj Kalyan Kendra, the JDA as well as respondent No.6 i.e Samaj Kalyan Kendra may throw him out of possession of the subject land, filed OWP No. 333/2011 seeking, inter alia, a writ of certiorari for quashing the order of JDA allotting 7.34 kanals of land in favour of Samaj Kalyan Kendra. The petitioner also prayed for a mandamus to the JDA and Samaj Kalyan Kendra, the respondent No.6 not 4 to raise any construction in the land aforesaid and disturb the possession of the petitioner.
7. On this petition (OWP No. 333/2011) coming up for consideration, this Court, while issuing notice to the respondents, also directed, by way of an interim arrangement, that petitioner's possession over subject land at village Gole shall not be interfered with by the respondents. The said petition is resisted by the official respondents as well as the Samaj Kalyan Kendra, the respondent No.6. A clear stand is taken by the respondents that the land, subject matter of allotment made in favour of respondent No.6, is not the land claimably under possession of the petitioner. It is submitted that the land in question, which has been leased out in favour of respondent No.6 is a separate patch of land, though falling in the same khasra i.e Khasra No. 746 min which otherwise is a State land validly transferred to the JDA vide order dated 28.01.1973 (supra). The respondents also denied that the petitioner has any right even over the subject land which is claimed to be in his possession.
8. While this petition (OWP No. 333/2011) was pending adjudication, Tatima Shajra obtained by the petitioner from Patwari Halqa Gole-I on 10.09.2014 was withdrawn by the Tehsildar Jammu as null and void. The petitioner feeling aggrieved by the withdrawal of Tatima Shajra prepared by the Patwari in his favour on 10.09.2014 filed OWP No. 1539/2014 seeking quashment of the order passed by the Tehsildar on 15.09.2014.
9. While the petitions taken note of hereinabove were pending adjudication of this Court, the Executive Engineer, Division No.II invited tenders for construction of concrete fencing at Gol Gujral Housing Colony, Jammu. Apprehending that the JDA while, fencing its land, may encroach 5 upon and fence the subject land claimably under possession of the petitioner, the petitioner filed OWP No. 897/2017 seeking quashment of the NIT in so far as it pertained to the subject land under his possession. The said petition too is resisted by the respondents. The stand taken by the respondents is that the JDA is fencing the land which has been validly transferred to it by the Government and that the petitioner has no right, title or interest to occupy the subject land which, indisputably, is State land having been transferred in favour of the JDA.
10. Heard learned counsel for the parties and perused the material on record.
11. Indisputably, the main writ petition i.e OWP No. 439/2010 whereby the petitioner was seeking protection of his possession over the subject land has been dismissed by this Court vide its judgment dated 27.04.2022. The Court has, thus, declined to issue any injunction or restrain order against the JDA in respect of the subject land claimably under possession of the petitioner. The Court has also declined to return a finding as to the factum of possession of the petitioner. While dismissing the said petition, the Court has reserved a liberty in favour of the petitioner to take appropriate remedy as may be advised in law. As a matter of fact, the petitioner has availed of the remedy of filing a civil suit civil before the competent Court of jurisdiction at Jammu.
12. Whether the petitioner is in possession of the subject land or not; whether the possession of the petitioner over the subject land, if any, is settled possession; and, whether the petitioner is entitled to the protection of law to preserve and protect his possession over the subject land, are all disputed complicated questions of law which may require oral as well as documentary evidence for their determination. This Court, while deciding 6 OWP No. 439/2010, has rightly declined to go into all these questions and relegated the petitioner to the remedy under civil law.
13. As observed above, the disposal of OWP No. 439/2010 should have put a quietus on the entire controversy. However, at the time of disposal of the said writ petition, the writ petitions i.e OWP Nos. 333/2011, 1539/2014 and 897/2017 were pending adjudication.
14. From the proceedings of the Court, it transpires that, at one point of time, all these writ petitions were clubbed together, but, later on, somehow the above three writ petitions came to be segregated and listed separated.
15. It is vehemently contended by Mr. Adarsh Sharma and Mr. Sachin Dogra, learned counsel appearing for the JDA that the fate of OWP Nos. 333/2011, 1539/2014 and 897/2017 was dependent on the determination of controversy raised in OWP No. 439/2010. Since this Court has already dismissed OWP No. 439/2010, as such, all the aforesaid writ petitions also deserve to be dismissed in light of the judgment passed in OWP No. 439/2010.
16. Per contra, it is the contention of Mr. Johal, learned Senior Counsel appearing for the petitioner that the writ petitions under discussion are based on a separate cause of action and for the different reliefs and, therefore, would survive even in the face of dismissal of OWP No. 439/2010.
17. We have given anxious consideration to the rival contentions and we are of the opinion that in view of the clear stand taken by the JDA in OWP No. 333/2011 and OWP No. 897/2017, there remains nothing much to be adjudicated in these petitions. The apprehension of the petitioner in OWP No. 333/2011 seems to be without any substance in the 7 face of clear stand taken by the JDA in the reply affidavit. The petitioner apprehends that the subject land under his occupation has been transferred by the JDA in favour of respondent No.6 i.e Samaj Kalyan Kendra, whereas as the respondent-JDA has made it emphatically clear that the land allotted in favour of respondent No.6 though falling in khasra No. 746 min at village Gole is not the part of subject land claimably under possession of the petitioner.
18. In view of the clear taken by the respondents, we find no reason or justification to quash the allotment made by the JDA in favour of respondent No.6. The writ petition (OWP No. 333/2011) is based on misconceived apprehension of the petitioner and the same, therefore, deserves to be dismissed. So far as, OWP No. 1539/2014 is concerned, the short grievance projected by the petitioner is that there was a Tatima Shajra issued by the Patwari in his favour on 10.09.2014 which the Tehsildar Jammu vide order impugned order dated 15.09.2014 has withdrawn and treated as null and void. So far as the challenge to the impugned order dated 15.09.2014 is concerned, suffice it to say that the Land Revenue Act provides complete mechanism for enforcement of rights and liabilities arising under the Act. The order impugned dated 15.09.2014 has been passed by the Tehsildar Jammu in the exercise of his powers as Revenue Officer and the same, therefore, is appealable as well as revisable under the Land Revenue Act. The petitioner cannot challenge the order of a Revenue Officer passed under the Land Revenue Act directly before this Court bypassing the statutory remedies available under the Land Revenue Act, that too, by invoking extraordinary writ jurisdiction of this Court. This petition (OWP No. 1539/2014) is, therefore, not maintainable and the same 8 also deserved to be dismissed with a liberty to the petitioner to avail of the alternative statutory remedy available under the Land Revenue Act. 19 Coming to OWP No. 897/2017, the grievance of the petitioner, to put it briefly, is that the respondent-JDA intends to provide concrete fencing to the land falling in khasra No. 746 min and in the process, is likely to take in possession the subject under occupation of the petitioner as well. The respondents have denied the right of the petitioner to occupy even an inch of State land duly transferred in favour of the JDA. 20 During the course of arguments, Mr. Adarsh Sharma, learned counsel appearing for the JDA fairly stated that the JDA shall not, for the time being, fence the land claimably under the possession of the petitioner by dispossessing him forcibly and without adopting due course of law. He, however, disputes that the petitioner is in possession of even an inch of land in khasra No.746 min.
21 In view of nature of controversy involved, and having regard to the rival contentions, we have arrived at the conclusion that the petitioner who is in unauthorized occupation of the State land has no right to seek a mandamus against the JDA to restrain it from fencing the land which is legally vested in it. The petitioner, if in possession of the subject land, has to establish it before the Civil Court where a civil suit filed by him is stated to be pending. The protection, if any, required by the petitioner to protect his possession over the subject land, if any, can also be given by the civil Court seized of the matter. This Court has already declined to afford any protection to the petitioner while disposing of OWP No. 439/2010 and, therefore, there is no point in issuing fresh directions to protect the interest of the petitioner qua the subject land in this petition. We, therefore, find no merit in this petition. Accordingly, OWP 9 No. 897/2017 is dismissed. The respondent-JDA may go ahead with the fencing of the subject land, but in the process, shall not evict the petitioner if in possession of the subject land, otherwise than by following due process of law.
22 For the foregoing reasons and the discussion made above, all the petitions i.e OWP Nos. 333/2011, 1539/2014 and 897/2017 are dismissed. The petitioner shall have liberty to avail alternative remedy of appeal/revision under the Land Revenue Act if he is aggrieved of the withdrawal of Tatima Shajra by the Tehsildar.
With the dismissal of the aforesaid writ petitions and the judgment rendered hereinabove, all the contempt petitions i.e CPOWP No.28/2011, CPOWP No. 84/2014, CPOWP No.177/2014 and CPOWP No. 26/2016 arising from interim orders passed in the aforesaid writ petitions from time to time are rendered infructuous. The proceedings in all these contempt petitions are, therefore, closed.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
Jammu
09 .11.2022
Sanjeev.
Whether the order is reportable : Yes