Jammu & Kashmir High Court
Lt. Gen. Kuldeep Singh And Ors vs State Of J&K; & Ors. on 22 December, 2017
Equivalent citations: AIR 2018 (NOC) 525 (J.&K.)
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Dated:22.12.2017
OWP No.1819/2013
c/w COA(OW) No.12/2015
Lt. Gen. Kuldeep Singh Khajuria & ors. versus State of J&K & ors.
Coram: Hon'ble Mr. Justice Tashi Rabstan, Judge.
Appearing counsel
For petitioner(s) : Mr. Gagan Basotra, Advocate.
For respondent(s) : Mr. Ehsan Mirza, Dy. A.G.
i. Whether to be reported in Press/Media : Yes ii. Whether to be reported in Digest/Journal : Yes SWP No.1819/2013
1. Through the medium of present writ petition, the petitioners are seeking quashing of Communication No.DCJ/Roshni/2011-12/107 dated 30.05.2011 to the extent of treating the land of petitioners as one single unit and further declaring that the review application of petitioners has now become time barred. Petitioner are further seeking quashing of Eviction Notice No.Nazool/11- 12/250-52 dated 14.06.2011 issued by Tehsildar Nazool, Jammu, respondent No.5 herein. Petitioners are also seeking a direction to the respondents not to treat the land of petitioners as one single unit and determine the price of land as per the individual share of each petitioner as defined in the Partition Deed dated 04.12.1995.
2. The facts, as projected in the writ petition, are that the father of petitioners was an authorized occupant of nazool land, measuring 4 kanals 6 OWP No.1819/2013 Page 1 of 16 marlas and 96 sq. ft., i.e., plot Nos.19 and 20, situate near Custom Chowki, Paloura, Jammu, since 1950 and the last extension of lease was for a period of 40 years, which was granted by the Nazool Department on 21.02.1978. It is averred that the father of petitioner left for heavenly abode in the year 1986; accordingly, mutation of said land came to be attested in favour of petitioners herein. It is averred that by way of Partition Deed dated 04.12.1995, duly executed and registered before the Sub Registrar, Jammu on the said date, the said land came to be partitioned among the petitioners herein in equal proportion, i.e., 25% share of each petitioner, and this fact has also been intimated to Assistant Commissioner, Nazool, Jammu, respondent No.4 herein.
3. It is averred that in the year 2001 the Government of J&K promulgated an enactment, i.e., the Jammu and Kashmir State Lands (vesting of ownership to the occupants) Act, 2001 (hereinafter, for short, Roshani Act), for the purposes of vesting ownership rights in favour of occupants of the State land, so as to generate funds for power projects in the State. It is averred that in terms of the Roshani Act, petitioners herein also applied, and respondent No.4 herein vide Communication No.Nazool/07-08/1174-75 dated 20.07.2007 directed the petitioners to deposit Rs.85,87,443/- being the price fixed for the aforementioned land for vesting of ownership rights in their favour.
4. It is averred that the rates fixed for large sized plots were more than that of the smaller ones. Further, it is averred that while fixing the price of OWP No.1819/2013 Page 2 of 16 Rs.85,87,443/-, the respondents took the whole aforementioned land, i.e., 4 kanals 6 marlas and 96 sq. ft. as a single unit and applied the formula of big plot, i.e., lands having area of more than two kanals, which resulted into monetary loss to the petitioners, as in this way they have been forced to pay Rupees 20 lacs extra. Further, it is averred that as per Partition Deed, each of the petitioners are in occupation of 25% share of the whole land, i.e., each of them are in occupation of less than two kanals of land, as such they were required to pay less amount than what has been fixed by the Government, thereby not treating the whole land as a single unit. It is further averred that on 28.09.2007, i.e., within the period of limitation of 15 days, the petitioners also made a separate review application before respondent No.3 with a request to re-assess the rate of land by not taking the whole land as a single unit, rather re-assess on the basis of shares of land individually held by each of the petitioners. It is averred that respondent No.3 did not decide the review application within a period of 15 days from the date of filing of the same in terms of Rule 15 of the State Land (vesting of ownership to the occupants) Rules, 2007. Further, it is averred that when, despite sending many reminders, respondent No.3 did not decide the review application of petitioners, they were compelled to submit a request before the Governor of the State as also the Revenue Minister. Despite this, after more than four years of filing of the review application, respondent No.3 vide Communication No.DCJ/Roshni/2011-12/107 dated 30.05.2011, impugned herein, submitted a report to the then Revenue Minister OWP No.1819/2013 Page 3 of 16 recommending that the land of petitioners has to be treated as one unit, with a further recommendation that since the review petition filed by the petitioners has now become time barred, therefore, the petitioners have lost their right to deposit the amount. Thereafter, petitioners received impugned Eviction Notice No.Nazool/11-12/250-52 dated 14.06.2011 issued by respondent No.5 herein, directing the petitioners to surrender the possession of aforementioned property on the ground they were not entitled to hold the same in terms of Roshani Act and the rules framed thereunder. It is averred that the petitioners also submitted reply to the Show Cause Notice. Further, it is averred that compelled by the circumstances the petitioners have been forced to file the present writ petition.
5. Objections have been filed on behalf of Deputy Commissioner, Jammu, respondent No. 3 herein, averring therein that the land-in-question has been leased in favour of father of petitioners since 1950 as one piece of land and has to be taken as single entity for the purposes of determining the fee applicable for conferring ownership rights of the same. Further, it is averred that no separate lease deeds were ever executed by the respondents in favour of petitioners, therefore, they cannot be said to be in possession of land-in-question in individual capacity on the basis of Partition Deed dated 04.12.1995, i.e., each having 25% share in the land-in-question. Further, it is averred that the Partition Deed has been executed by the petitioners without the consent and knowledge of respondents.
OWP No.1819/2013 Page 4 of 16
6. I have heard learned counsel appearing for the parties, considered their rival contentions and perused the file.
7. The petitioners herein have sought two fold prayers - first, quashing of Communication No.DCJ/Roshni/2011-12/107 dated 30.05.2011, whereby it has been recommended to treat the land of petitioners as one single unit and further declare that the review application of petitioners has now become time barred and, second, quashing of Eviction Notice No.Nazool/11-12/250-52 dated 14.06.2011 issued by Tehsildar Nazool, Jammu, whereby they have been directed to surrender the possession of land-in-question.
8. As regards the first prayer, the challenge is to Communication No.DCJ/Roshni/2011-12/107 dated 30.05.2011, whereby the Deputy Commissioner, Jammu has recommended to the then Revenue Minister that the file of petitioners herein has now become time-barred and they have lost their right to deposit the amount in terms of the Roshani Act for confirmation of vesting of ownership rights in their favour with respect to the land-in-question, as, in terms of the Roshani Act, the amount was to be deposited within a period of two years from the date of order dated 20.07.2007.
9. Now the question arises for consideration is: as to whether the petitioners herein had actually failed to deposit the amount within the period, as prescribed under the Roshani Act, for confirmation of vesting of ownership rights in their favour with regard to the land-in-question, or, it was the respondents on whose OWP No.1819/2013 Page 5 of 16 lapse the petitioners could not be able to deposit the amount and have been made to suffer till date.
10. Before proceeding further, it would be relevant to reproduce Rule 15 of J&K State Lands (vesting of ownership to the occupants) Rules, 2007 (for short, Rules of 2007) hereunder:
"15. Review by officers.- An officer exercising powers under this Act may either of his own motion or on the application of any party interested, review, modify, reverse or confirm, any order passed by himself or any officer predecessor in office within a period of 15 days from the date of issuance of such order."
11. A bare perusal of this rule reveals that it is silent about the time frame under which an application is to be filed by any interested party regarding review, modify or reverse of any order passed by the competent authority under the Roshani Act, rather it mandates the competent authority under this Act to review, modify, reverse or confirm any order passed by himself or any officer predecessor in office, either on the application of any party interested or on his own motion, within a period of 15 days from the date of issuance of such order. In any case if an application is filed by any party interested in terms of the said rule, the competent authority is required to decide the same either within a period of 15 days from the date of issuance of such order or not later than 15 days from the date of filing of such application.
12. Here, the petitioners claim that for the first time on 15.09.2007 they came to know about the issuance of Communication No.Nazool/07-08/1174-75 dated OWP No.1819/2013 Page 6 of 16 20.07.2007, when it came to be delivered at their address, directing the petitioners to deposit Rs.85,87,443/- being the price fixed for the aforementioned land for confirmation of vesting of ownership rights in their favour. Even, Deputy Commissioner, Jammu, at paragraph-6 of impugned communication dated 30.05.2011 has admitted that the petitioners herein received communication dated 20.07.2007 on 15.09.2007. Since, the petitioners were of the view that the amount fixed was on higher side, they made a review application before Deputy Commissioner, Jammu on 28.09.2007 in terms of Rule 15 of the Rules of 2007, i.e., well within 15 days with effect from 15.09.2007 when they came to know about the said communication.
13. Since the petitioners had made a review application on 28.09.2007 before the competent authority, i.e., Deputy Commissioner, Jammu, in terms of Rule 15 of the Rules of 2007, disputing the amount fixed, it was the competent authority who was expected to decide the same within a period of next 15 days, i.e., not later than 12.10.2007, and only thereafter the petitioners had to deposit the amount. Whereas, in terms of Rule 14 of the Rules of 2001, the petitioners had the option to deposit the amount fixed within a period of two years, i.e., between 20.07.2007 to 19.07.2009.
14. The writ record reveals that the Deputy Commissioner, Jammu on the review application of petitioners itself wrote a note to Tehsildar, Nazool, Jammu on 16.11.2007 with a direction to prepare the case under rules and put OWP No.1819/2013 Page 7 of 16 up in one week. However, when the respondents did not decide the review application of petitioners for a considerable period, the petitioners sent a reminder on 15.03.2008 and the Deputy Commissioner, Jammu again wrote a note on the same to Additional D.C., Jammu to examine and submit views/comments within three days. However, when nothing happened, petitioners again sent reminders and also brought the matter to higher authorities on 12.09.2009 and 23.11.2009. Even, as per writ file, the petitioners also made representations to the Governor of State on 22.04.2011. Ultimately, the Deputy Commissioner, Jammu vide Communication No.DCJ/Roshni/2011- 12/107 dated 30.05.2011 submitted his report to the then Revenue Minister recommending that the land of petitioners be treated as one single unit and it be further declared that the review application file of petitioners has now become time barred, therefore, they have lost their right to deposit the amount.
15. In the meantime, Tehsildar Nazool, Jammu also issued Eviction Notice No.Nazool/11-12/250-52 dated 14.06.2011 asking the petitioners herein to surrender the possession of land-in-question.
16. However, even after submitting of report by the Deputy Commissioner, Udhampur, no formal orders either accepting or rejecting the review application of petitioners was issued by the competent authority. Therefore, the petitioners again made representations on 28.06.2011, 17.11.2011 and 05.05.2012. Thereafter, the petitioners also made a representation to the then Revenue OWP No.1819/2013 Page 8 of 16 Minister on 19.06.2012 with the prayer to take a decision on the review applications filed by them. Even the respondents have also not controverted these facts in their objections. However, when the respondents failed to decide the review application, the petitioners approached this Court on 30.12.2013 by way of present writ petition.
17. This Court while issuing notice on 30.12.2013, directed the Deputy Commissioner, Jammu to decide the review application of petitioners within a period of four weeks. When the respondents even then did not decide the review application of petitioners, they filed contempt petition, COA(OW) No.12/2015 on 10.02.2015. On 07.05.2016 learned counsel for respondents sought two weeks' time to decide the review application.
18. Ultimately, Deputy Commissioner, Jammu, under the directions of this Court, issued Order No.DCJ/Legal/256-A dated 16.03.2016, whereby the review application of petitioners came to be rejected on the ground that the lease under which the petitioners herein claim to be authorized occupants, came to be executed in favour of their father in respect of entire land-in-question as a single unit, therefore, the same has to be treated as a single unit for the purposes of determination of market price under the Roshani Act.
19. As per own admission of respondents, communication dated 20.07.2007, regarding depositing of amount for confirmation of vesting of ownership rights, came to be received by the petitioners on 15.09.2007 and within a period of 15 OWP No.1819/2013 Page 9 of 16 days, i.e., on 28.09.2007 the petitioners made a review application in terms of Rule 15 of the Rules of 2007. In terms of said Rule, the respondents were expected to decide the review application of petitioners within a period of 15 days from the date of order. Since as per own admission of respondents, petitioners received the said communication on 15.09.2007 and they made the review application on 28.08.2007, therefore, respondents were expected to decide the same within a period of next 15 days, i.e., not later than 12.10.2007. However, it is very strange that Deputy Commissioner, Jammu took about eight years and six months in deciding the review application, thereby rejecting the same on the ground that the land-in-question has to be treated as a single unit. For such a small issue, the respondents took eight and a half years to decide the same, which they were expected to decide by or before 12.10.2007. Even as on today the respondents would not have decided the said issue had the petitioners not filed the present writ petition before this Court followed by the contempt petition. Thus, respondents have decided the review application only on the directions of this Court.
20. Thus, from the above sequence of events, it is crystal clear that the petitioners were not at fault, as they had the right to file the review application in terms of Rule 15 of the Roshani Act, if there was any confusion in depositing the amount-in-question. Whereas, the respondents instead of following the provisions of Rule 15 of the Rules of 2007, have flouted the same. The fault, therefore, solely lies on the respondents, on whose laxity and incompetence the OWP No.1819/2013 Page 10 of 16 petitioners have been made to suffer for such a long period of more than eight years. Further, in terms of Rule 14 of the Rules of 2007, if the petitioners would have deposited the amount fixed within three months with effect from 20.07.2007, they would have entitled to 25% rebate, and, within one year, they would have gotten 2% rebate, which opportunity now the petitioners have lost, as the respondents did not decide the review application within the time frame of 15 days.
21. Further, communication impugned dated 30.05.2011 as well as order dated 16.03.2016, both have been issued by the same authority, i.e., Deputy Commissioner, Jammu, taking two contradictory stands. Vide communication dated 30.05.2011 it has been recommended that the review file of petitioners has now become time-barred and they have lost their right to deposit the amount in terms of the Roshani Act; meaning thereby, as per said recommendation, the petitioners have been debarred from claiming any right over the land-in- question and that is why Eviction Notice No.Nazool/11-12/250-52 dated 14.06.2011 came to be issued by the Tehsildar concerned with a direction to surrender the possession of said land. Whereas, vide order dated 16.03.2016, the review application of petitioners came to be rejected on the ground that the lease under which the petitioners herein claim to be authorized occupants, came to be executed in favour of their father in respect of entire land-in-question as a single unit, therefore, the same has to be treated as a single unit for the purposes of determination of market price under the provisions of Vesting of Ownership OWP No.1819/2013 Page 11 of 16 to Occupants Act, 2001; meaning thereby, as per this order, the petitioners were required to deposit the amount taking the land as a single unit for the purposes of confirmation of vesting of ownership rights in their favour. Even in the objections, which came to be filed on 25.11.2016, the respondents have not disputed the title of petitioners over the land-in-question, in which they have clearly averred that the petitioners derived right to hold the plot from their father.
22. It seems the respondents were not willing to decide the review application of petitioners and wanted to stop the petitioners from depositing the amount, so as to debar them from claiming any right over the land in question. I am saying so because the respondents first did not decide the review application of petitioners for so many years and, thereafter, only under the directions of this Court in the writ as well as contempt petition, issued the order of rejection on 16.03.2016, but they did not produce the same before the Court while the writ petition along with contempt petition came to be listed on 07.05.2016, 18.07.2016 and 09.08.2016. Even, on 07.05.2016 learned counsel for respondents sought time to file the compliance report, when the fact of the matter was that the respondents had already issued the order of rejection on 16.03.2016.
23. However, during the pendency of writ petition, petitioner No.1 filed an affidavit before the Court on 11.10.2017 deposing that the petitioners are ready OWP No.1819/2013 Page 12 of 16 to deposit an amount of Rs.85,87,443/- with the Office of Deputy Commissioner, Jammu.
24. Therefore, in view of above, I deem it proper to allow the first prayer of petitioner seeking quashment of Communication No.DCJ/Roshni/2011-12/107 dated 30.05.2011 of Deputy Commissioner, Jammu.
25. Now, as regards the second prayer of petitioners seeking quashment of Eviction Notice No.Nazool/11-12/250-52 dated 14.06.2011 issued by the Tehsildar Nazool, Jammu, it has been stated by the Deputy Commissioner, Jammu himself in his order dated 16.03.2016 that the lease executed in favour of father of petitioners is valid upto 20.02.2018. Even, the respondents in their objections have also averred that the petitioners have derived right to hold the plot from their father. Here, I would like to quote the relevant portion of Paragraph-8 of the objections filed by the respondents on 25.11.2016 hereunder:
"8. That the contents of para 8 are denied. It is submitted that land in question was leased in favour of father of petitioners as a single unit. The petitioners have derived right to hold the plot from their father. No separate lease deeds were ever executed by the respondents in favour of the petitioners. ........."
26. Further, it is not the stand of respondents that the petitioners are unauthorized occupants or that the petitioners are not the legal heirs of their father, in whose favour the land-in-question came to be leased in the year 1950. It is also not the stand of respondents that the petitioners had ever refused to deposit the amount for confirmation of vesting of ownership rights or that the OWP No.1819/2013 Page 13 of 16 lease hold rights cannot devolve upon the legal heirs. Even the Deputy Commissioner, Jammu in his impugned communication dated 30.05.2011 has admitted in paragraph-7 thereof that the petitioners have been paying rent jointly to the Nazool Department. Therefore, once the respondents have themselves admitted that the lease period was upto 20.02.2018 and that the petitioners have derived right to hold the plot from their father, as also they have been paying rent to the Nazool Department, in my view there arises no question to issue the impugned eviction notice, that too when the respondents had yet to take a decision on the review application filed by the petitioners.
27. Further, Communication No.Nazool/07-08/1174-75 dated 20.07.2007 reveals that the same was issued for "confirmation of vesting of Ownership Rights under J&K State (Vesting of Ownership Rights to the Occupant) Act, 2001"; meaning thereby the respondents have themselves deemed the occupants of such lands to be having ownership rights under the lease agreements and only confirmation was to be accorded in their favour for vesting of such rights on deposit of the amount so fixed under the said Act. Therefore, the impugned eviction notice too does not survive in the eyes of law and the same requires to be quashed.
28. Therefore, in view of what has been discussed hereinabove, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed and Communication No.DCJ/Roshni/2011-12/107 dated 30.05.2011 of Deputy OWP No.1819/2013 Page 14 of 16 Commissioner, Jammu is hereby quashed and set aside. Consequently, Order No.DCJ/Legal/256-A dated 16.03.2016 issued by the Deputy Commissioner, Jammu shall also stand quashed. Eviction Notice No.Nazool/11-12/250-52 dated 14.06.2011 issued by Tehsildar Nazool, Jammu too is hereby quashed.
29. Since, in terms of Clause 14 of Rule 9 framed under the Roshani Act, the petitioners were entitled to 25% rebate if they deposit the amount within a period of three months with effect from 20.07.2007, 15% rebate within a period of six months, 5% rebate within a period of nine months and 2% rebate within a period of one year with effect from 20.07.2007, which opportunity the petitioners have failed to avail only because of the lapse of respondents in deciding the review application of petitioners within a period of 15 days from the date of its filing on 28.09.2007, rather they took about eight years and six months in deciding the review application, that too on the repeated directions of this Court. Therefore, on one hand the petitioners have to face loss on account of getting rebate, however, taking into consideration the fact that petitioners could not deposit the amount only because of the lapse on the part of respondents but during this period the amount-in-question remained with the petitioners, as such they are directed to deposit an amount of Rs.85,87,443/- along with 2% simple interest per annum with effect from 20.07.2008 till the whole amount is deposited by the petitioners before the Deputy Commissioner, Jammu. Let the whole amount along with interest as directed be deposited by the petitioners before Deputy Commissioner, Jammu within a period of eight OWP No.1819/2013 Page 15 of 16 weeks from today. Connected miscellaneous petition(s), accordingly, stands disposed of.
30. Contempt petition(OW) No.12/2015 shall also stand discharged.
Jammu (Tashi Rabstan)
Dated:22.12.2017 Judge
(Anil Sanhotra)
OWP No.1819/2013 Page 16 of 16