Jammu & Kashmir High Court
Puspa Devi vs Institute Of Social Welfare on 16 September, 2010
Author: J. P. Singh
Bench: J. P. Singh
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 115 OF 2002 Puspa Devi. Petitioners State of J&K & ors Respondent !Mr. L.K.Sharma, Advocate ^M/s A.H.Qazi, AAG, S.D.Sharma and Vipin Gandotra, Advocates. HONBLE Mr. Justice J. P. Singh, Judge Date: 16.09.2010 :J U D G M E N T :
The subject matter of dispute between the parties to this Writ Petition pertains to land situated at Upper Gumat Bazar, Jammu over which Shop No. 1123 has been constructed. The land belonged to the Nazool Department of the State Government. Sunder Dass was a tenant in the Shop at a monthly rent of Rs.4.25 paisa under Sadhu Ram, the Wasidarlease holder of the Nazool Department. Sadhu Ram sold the Shop to Bishan Dass, the petitioners husband, for a consideration of Rs.8000/- vide Sale Deed registered on 07.07.1966. Bishan Dass thereafter approached the Nazool Department seeking transfer of the Lease Hold Rights of Sadhu Ram in his favour.
The Deputy Commissioner, Jammu, recommended the 2 transfer of Lease Hold Rights in favour of Sunder Dass-tenant as he had agreed to pay Rs.8000/- to Bishan Dass who had purchased the Shop from Sadhu Ram, Wasidar, paying him this amount.
The matter was pending consideration with the Government, when, in the meanwhile, Bishan Dass expired in the year 1970.
As the petitioners husband had not been paid the amount which Sunder Dass had agreed him to pay, so the petitioner approached the Deputy Commissioner for transfer of the Lease Hold Rights of the Shop in her favour. Her case was recommended to the Financial Commissioner by the Deputy Commissioner, Jammu.
The State Government regularized the unauthorized occupation of the petitioner over the Shop on payment of Rs.4838.54, determining the cost of the land @ Rs.40,000/- per kanal with 25% penalty. She deposited the amount and a Mutation was recorded in her favour in this respect. Sunder Dass having died, in the meanwhile, Smt. Sadhro Devi, his widow, filed an application before the Revenue Minister seeking Review of the Government Order whereby the Lease Hold Rights in the land underneath the Shop in her occupation had been transferred in favour of the petitioner. The Revenue Minister, accepted the Review Petition 3 setting aside Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979 whereby petitioners unauthorized possession had been regularized conferring her with the proprietary rights in the land.
The order was questioned by the petitioner by her Writ Petition OWP No. 340/1986 which was allowed on 25.05.1995, sustaining her plea of malafides projected against the Minister, who had passed the order in Review. The Review Petition was, however, directed to be heard afresh by the Advisor to the Governor, Revenue Department (Minister Incharge). The order passed in the petitioners Writ Petition attained finality with the dismissal of the respondents Letters Patent Appeal against the order.
The petitioners Review Petition was thereafter re-heard by the Minister for Revenue, Relief and Rehabilitation, who vide his Order of January 30, 2002, allowed the Review Petition upholding the view which his predecessor had taken in setting aside Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979.
The reasons given for allowing the Review Petition are reproduced hereunder, for facility of reference:-
It is undisputed that the original lessee violated the terms and conditions of Land Grants Act, 1960, while transferring the Shop No. 1122 and 1123 in favour of Chhaju Ram and Bishan Dass without prior permission of the Government for some consideration therefor. It is also admitted fact that Bishan Dass was not in possession of shop No. 1123 at the time of transfer. It is evident from the records that Government has 4 conferred Property Rights over Shop No. 1123 as he was in actual possession at the time of passing of order. While as, Smt. Pushpa Devi was never in possession still the benefit under Order No. 46 of 1973 was conferred on her vide Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979. It is also admitted fact that Bishan Dass, the husband of Pushpa Devi, had agreed to sell the Shop No. 1123 to sunder Dass for a sum of Rs.8000/- that she did not agree.
The counsel for the Respondent has challenged the review jurisdiction of the Government.
I am of the view that Sadhu Ram, original lessee, has illegally transferred the Shop No. 1122 and 1123 as under rules no prior permission of the government had been obtained. Therefore, such sale of state land has been without any authority, competence and jurisdiction. This action on the part of the lessee is void ab-initio. A void order or action is robbed off all the benefits it is seeking to bestow on the transferee. The benefit given to Pushpa Devi under Govt. Order No. 46 of 1973 is illegal for it has never been the purpose of the order of 1973. The order of 1973 provides to confer proprietary rights upon those who are in illegal possession of land to the extent of less than 9 Marlas. Pushpa Devi has never been in physical possession of the said land. It is true that in any intensive form of government, the government cannot function without the exercise of some kind of discretion. Absolute discretion is a ruthless master. The government cannot exercise its discretion in such a way that it can ignore the rules of natural justice and fair play. In administrative discretions one has to choose amongst the various available alternatives but with reference to the rules of reason and justice. This kind of discretion has to be legal and according to the established norms. The rightful claim of Sadhri Devi cannot be simply brushed aside while conferring the property rights over shop No.1122 in favour of the Chhaju Ram who is similarly situated.
I do not agree with the argument of the Respondent, that no review power is available in the administrative matters. In that situation even ordinary wrongs willful or inadvertent, apparent on the face of those have to perpetuate uncorrected. Happily the statute book provides a viable remedy. The learned counsel appearing on behalf of Smt. Pushpa Devi has ignored the provisions of the General Clauses Act, besides the order 47 and Section 151 and 153-A, of Code of Civil Procedure Act. The powers under review cannot be restricted by any hard and fast rule. It will differ from case to case. The error can be rectified if the authority is satisfied that there is an error patent on the face of record. Therefore, conferring the property rights to defendant namely Pushpa Devi vide Govt. No. Rev. (NDJ) 288 of 1979 dated 16.10.1979 was not in conformity with the provision order No. 46 of 1973 that enable the government to grant proprietary rights and has rightly been cancelled, as she was not in actual possession of the property. Issued with an objective to uphold the principle of natural justice the Government Order No. 3-GR (NDJ) of 1986 dated 13.3.1986 has held the scales of justice evenly and has thus afforded justice to the aggrieved party, therefore, I find no reason to disturb the reasoned order. Hence, the same is restored. The petitioner has invoked the extra ordinary Civil Writ Jurisdiction of the Court seeking quashing of the Revenue 5 Ministers Order of January 30, 2002.
According to the petitioners learned counsel, the Government Order vesting proprietary rights in the land, in question, in the petitioner, being quasi judicial, the Revenue Minister had no jurisdictional competence to set it aside, in that, the Jammu and Kashmir Land Grants Act, 1960 did not vest any power of Review as such, in the Government, to Review the orders issued under the Act. Nothing has, however, been urged on the merits of the case on which the Review was allowed.
M/s S.D.Sharma, Vipin Gandotra & A.H.Qazi, AAG appearing for the respondents, on the other hand, contended that Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979, was an administrative order and the Minister was competent to exercise power of Review in view of the provisions of Section 21 of the General Clauses Act, 1977 (1920 A.D) and the Writ Petition was thus without any substance.
I have considered the submissions of the learned counsel for the parties and gone through the case law cited at the Bar. The order vesting proprietary rights in the land in question, in favour of the petitioner, has been set aside, on Review, on the ground that neither the petitioners Predecessor-in-interest, Bishan Dass, nor the petitioner, were 6 ever in possession of Shop No. 1123 and they were not, thus, entitled to proprietary or any other right(s) in the property in question. Another ground which had weighed with the learned Minister in reviewing the order was that Sadhu Ram, the original lessee had violated the terms of the Lease, in illegally transferring the Shop without obtaining prior permission of the Government therefor and the action being void abinitio, the petitioner or his predecessor-in-interest were not entitled to any right(s) in the property.
It is not disputed that the petitioner or for that matter her husband were not in possession of the Shop. Petitioner and her husbands claim to proprietary rights in the land, was, thus, based only on the plea that the petitioners husband had purchased the super-structure of the Shop from the original Wasidar, which entitled him/her to seek proprietary rights in the land.
The respondents case, in response to the petitioners claim, on facts, is that being not ever in possession of the Shop and having purchased the super-structure, in violation of the terms and conditions of the Lease, the petitioner was not entitled to any right(s) in the Shop which was in possession of the tenant validly inducted as such by the Wasidar-lessee. Before dealing the Petition on facts aforementioned, the main issue, which has been projected with vehemence by the 7 learned counsel for the parties, as to whether the order granting proprietary rights to the petitioner in respect of the Suit Property was an Administrative or Quasi Judicial Order, open to Review, needs to be addressed and for that purpose, regard needs to be had to the policy of the State Government for Grant of land and the Procedure prescribed therefor, as contained in the provisions of the Jammu and Kashmir Land Grants Act, 1960, to determine the complexion of the order which the petitioner terms as quasi judicial whereas, according to the respondents, it was a purely administrative order. Section 4 of the Act empowers the Government to determine the extent of land available with it for its Grant on lease for building purposes. Sections 5, 6 & 7 deal with the powers of the Government to recover the dues, enhance the ground rent, besides its right of re-entry into the leased property. Section 10 of the Act, as it stood before its repeal by Act No. XXX of 2002, recognized Governments, otherwise, absolute power to transfer its land or any interest therein otherwise than by a lease under the Act.
Whereas the rules framed under Section 9 of the Act do prescribe procedure for lease of Government land, there is no provision in the rules to regulate the power of the Government to Grant or otherwise transfer land or any interest therein, otherwise than by lease, in any manner whatsoever.
8Perusal of the provisions of the Act and rules framed thereunder, therefore, indicate vesting of absolute power in the Government to grant, by transfer, or otherwise, the Government land, or any interest therein, except by lease, which is governed by the provisions of the Act and rules framed thereunder; meaning thereby that the grant of land or any interest therein, otherwise than by lease, depended on the policy of the State Government.
In such view of the matter, when the grant of land or interest therein, except by way of lease, was not controlled by any prescribed procedure under the Act or the Rules, the discretion vested in the Government, was exercisable, based on Policy Guidelines and the Orders issued in this respect by the Government.
The provisions of the Land Grants Act do not indicate any duty on the State to act judicially before considering the grant of land and in the absence of any regulatory or supervisory control on the power of the Government to sanction grant, there does not appear any scope for construing the power of the Government, otherwise than, purely administrative in nature which cannot, by any stretch of reasoning, be termed as quasi judicial because while exercising the power of grant, the Government has not to adjudicate any right before considering ones entitlement thereto.
9Indian National Congress(I) vs. Institute of Social Welfare and ors. reported as AIR 2002 SC 2158, referred to by the petitioners learned counsel may not thus support the petitioners contention in view of the position, which emerges from the perusal of the provisions of the Land Grants Act that the Governments power to sanction grants, otherwise than by lease, was dictated by the policy and expediency, And not by any rules, requiring determination of rights of the parties as to their entitlement or otherwise to the grant of rights in the land. Thus the power exercised by the Government in conferring proprietary rights of the land in question in the petitioner, being purely administrative, its Review was permissible in terms of the provisions of Section 21 of the General Clauses Act, 1977 (1920 A.D.), in terms whereof, where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes the power, exercisable in the like manner and subject to the like situation and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. The star plea raised by the petitioners learned counsel that the order impugned in the Writ Petition was void abinitio as the Government had erred in exercising jurisdiction of review which did not vest in it under the Land Grants Act, therefore, fails and is, accordingly, rejected.
1 0 Coming to the facts of the case and the admitted position, on facts, that neither the predecessor-in-interest of the petitioner nor the petitioner were ever in possession of the shop, in question, the petitioner was not entitled to seek benefit of Government Order No.46 of 1973 dated 28.01.1973 which permitted regularization of the possession of only those who were in actual occupation thereof. The petitioner being out of possession, was thus not entitled to claim benefit under the aforesaid Government Order. The order issued by the Government, regularizing her possession and conferring proprietary rights was thus an error apparent on the face of records.
The order dated 30.01.2002, impugned in the Writ Petition, passed in exercise of review jurisdiction, setting aside Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979 does not, therefore, warrant interference. Found without merit, this Writ Petition is, accordingly, dismissed.
(J. P. SINGH) JUDGE JAMMU 16.09.2010 Pawan Chopra