Jammu & Kashmir High Court
(Through Video Conferencing) vs State Of J&K And Others on 4 December, 2020
Bench: Chief Justice, Rajesh Bindal
Supplementary-1 List
Sr. No.203
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 1139/2016
IA Nos. 1 & 2/2016
CM No. 5381/2020
OWP No. 177/2007,
IA Nos.1/2018 & 287/2007
OWP No. 227/2009
IA No. 277/2009
OWP No. 439/2010,
IA No.596/2010
OWP No. 505/2010
IA No. 682/2010
CM No. 6312/2019
IA No. 1617/2010
OWP No. 1167/2010,
IA No. 1577/2010
CPOWP No. 28/2011
OWP No. 112/2011,
IA No. 118/2011
OWP No. 135/2011,
IA No. 152/2011
OWP No. 307/2011,
IA No. 547/2011
OWP No. 333/2011,
IA Nos. 2264/2013,
1956/2014& 1/2016
OWP No. 658/2012
IA No. 909/2012
IA No. 1055/2012
OWP No. 876/2014,
IA No. 1187/2014
OWP No. 1539/2014,
IA No. 2077/2014
OWP No. 1782/2014
IA No. 2294/2014
OWP No. 1589/2015
CM Nos. 6163/2020 &
6380/2020, IA Nos. 1/2015 &
1/2017, CM No. 2990/2020
CPOWP No. 146/2016
IA No. 1/2016
OWP No. 1465/2016
IA No. 1/2016
OWP No. 705/2017
IA No. 1/2017
OWP No. 897/2017
IA Nos. 1/2017 & 2/2017
OWP No. 62/2018
IA No. 1/2018
OWP No. 489/2018
2 OWP No.1139/2016 a/w
connected petitions
IA No. 1/2018
WP(C) No. 3506/2019
CM No. 7290/2019
(Through Video Conferencing)
Kuldeep Kumar and another ...Petitioner(s)
Through: Mr. K. S. Johal, Sr. Advocate with
Mr. Karman S. Johal, Advocate for
petitioner(s) in OWP No.439/2010,
CPOWP No.28/2011 &
OWP No.333/2011.
(On video conferencing from office at Jammu)
Mr. W. S. Nargal, Advocate for
petitioner in WP(C) No.1744/2020
(On video conferencing from office at Jammu)
Mr. Sachin Sharma, Advocate for
applicant in CM No.5381/2020 (in
OWP No.1139/2016)
(On video conferencing from office at Jammu)
v/s
State of J&K and others .... Respondent(s)
Through: M/s. Adarsh Sharma & Sachin
Dogra, Advocates for respondent
-JDA,
(On video conferencing from office at Jammu)
Ms. Monika Kohli, Advocate for
respondent-CBI.
(On video conferencing from office at Jammu)
CORAM:
HON'BLE THE CHIEF JUSTICE
(on Video Conference from residence at Jammu)
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
(on Video Conference from residence at Jammu)
ORDER
04.12.2020 OWP No. 135/2011 and 112/2011 List these petitions on 22nd December 2020.
OWP Nos. 177/2007, 227/2009, 439, 505 & 1167/2010, CPOWP No. 28/2011 OWP Nos. 307 & 333/2011 OWP No. 658/2012 OWP No. 1539 & 1782/2014 OWP No. 1589/2015 CPOWP No. 146/2016 3 OWP No.1139/2016 a/w connected petitions OWP No. 1465/2016 OWP No. 705 & 897/2017 OWP No. 489/2018 WP(C) No. 3506/2019
1. In WP(C) No.3506/2019, the petitioner in this case submits that he was granted lease under the Lease Grants Act and that he is seeking extension of the lease.
2. There is no govt. counsel appearing in this matter.
3. Let Secretary Revenue give a list of cases relating to this subject matter to the Registrar Judicial who shall club all such matters on the next date of hearing.
List these matters on 10th December 2020.
OWP No.876/2014 & OWP No.1139/2016
4. By way of OWP no. 876/2014, the writ petitioners have claimed that they are in occupation of 16 kanals 1marla of State land in Khasra No.746 min located at Village Gole Gujral, Tehsil and District Jammu. The petitioners claimed that they had sought vesting of ownership rights under the J&K State Lands (Vesting of Ownerships Rights to Occupants) Act, 2001 which was rejected by the order dated 02nd June 2014.
5. By way of OWP No. 876/2014, following reliefs have been prayed:
"i) Petition under Article 226, of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for the issuance of writ, of certiorari for quashment of order bearing No. DCJ/Roshni/Agri/ 117-118 dated 02-06-2014 passed by the respondent No.3 whereby the case of the petitioners for grant of Ownership rights under the J&K State Lands (Vesting of Ownership Rights to Occupants) Act, 2001 has been rejected.
AND
ii) For the issuance of writ of mandamus directing the respondents to grant ownership rights to the petitioners in term of the aforesaid Act.4 OWP No.1139/2016 a/w
connected petitions AND ALSO
iii) For the issuance of any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may also be granted in favour of the petitioners and against the respondents alongwith cost."
6. When the writ petition came up for consideration on 13 th June 2014, while issuing notice to the respondents, the court granted ad interim stay of the impugned order No. DCJ/Roshni/Agri/117-118 dated 2nd June 2014. Clearly in view of our judgment dated 9th October 2020 passed in IA No. 48/2014 (in PIL No 19/2011, Prof. S. K. Bhalla v. State of J&K and others), the prayer made in this petition and the applications has to be rejected. It is shocking state of affairs that the matter has not been even listed after 13th June 2014.
7. It appears that after the filing of this writ petition, these very writ petitioners filed applications being CM Nos. 101 & 102/2014 in PIL No. 19/2011 seeking interim orders against the Jammu Development Authority claiming possession of this very land and seeking interim protection against the Jammu Development Authority.
We are informed by Mr. Adarsh Sharma that no interim orders were granted to the applicants and instead by the order dated 13 th May 2014, the Jammu Development Authority was directed to proceed further against the applicants /above petitioners.
8. It is most unfortunate that concealing the order dated 13th May 2014, these writ petitioners in respect of this very land had filed OWP No.1139/2016 seeking the following prayers:
"(i) Mandamus, commanding and directing the respondent No.2 (Jammu Development Authority) not to undertake any type of development/construction activity in the land of the petitioners measuring 16 Kanals-01 Marla, situated at Gole Gujral, Tehsil & 5 OWP No.1139/2016 a/w connected petitions District Jammu, under Survey No. 746, which is in peaceful possession of the petitioner's father/petitioners for the last over 30 years.
(ii) Prohibition, restraining the respondents Jammu Development Authority from undertaking any type of construction/ development activity in the land of the petitioners measuring 16 Kanals-01 Marla, situated at Gole Gujral, Tehsil & District Jammu, under Survey No.746, which is in peaceful possession of the petitioners' father/petitioners for the last over 30 years.
(iii) Any other writ, command, order or direction, which this Hon'ble Court may consider just and fair in the facts and circumstances of the case."
9. The writ petition came up for consideration on 29th July 2016 when the court while issuing notice passed interim order restraining the Jammu Development Authority respondent no.2 "undertaking any type of construction activity in the land belonging to the petitioners measuring 16 kanals 1 marla situated at Gole Gujral".
10. We may note that the ld. Single Judge while recording the order dated 29th July 2016 had erred in noting that the land belong to the petitioners. This was not the petitioners claim.
11. The objections filed by the Jammu Development Authority disclose a sordid state of affairs. In the preliminary submissions, the JDA discloses as follows:
i) That the instant writ petition is liable to be dismissed on the sole ground that the petitioners has not come with clean hands before this Hon'ble Court, as the petitioners are guilty of concealment of very material facts, with regard to the facts that petitioners have already approached this Hon'ble Court by filing CMA No.101 and 102 of 2014 in WPPIL No. 19 of 2011 titled Prof. S.K. Bhalla V/s State of J&K & Ors. with regard to same subject matter, which are pending disposal before the Hon'ble Division Bench of this Hon'ble High Court. It is pertinent to mention over here, that the answering respondent authority has filed the detail objections to the above referred CMAs i.e. CMA No. 101 and 102 of 2014. The above titled CMAs, thereafter listed numbers of times before the Hon'ble Division bench of this Hon'ble Court, but no relief/order passed in favour of petitioners. That instead of this the Hon'ble Division Bench of this Hon'ble High Court specifically directed the answering respondent authority vide order dated 13-05-2014 passed in CIMA No. 101 of 2014 in WPPIL No. 19 of 2011 titled Prof. S.K. 6 OWP No.1139/2016 a/w connected petitions Bhalla V/s State of J&K Ors. i.e. "meanwhile, JDA shall proceed further against the petitioners in accordance with law". Accordingly, answering respondent authority proceeded further in the matter got the land retrieved and thereafter fenced the said land. Layout the colony/plots and auction the same in favour of successful allottees. The answering respondent authority had brought all this facts before the Hon'ble Court by filing the detailed objection to above referred CIMAs.
Copies of the above referred CIMAs, copies of reply filed to the said CMAs as well as copies of the Hon'ble Court order whereby the Jammu Development Authority is directed to proceed further against the petitioners in accordance with law are annexed here with for perusal and ready reference of this Hon'ble Court and marked as Annexure "RI, RII, RIII",RIV & RV"
ii) That the writ petition is superfluous, redundant and hence required to be dismissed.
iii) That there is no violation of any right of the petitioner much less the fundamental rights of the petitioner, as such the writ petition is not maintainable in the present form.
iv) That the writ petition is also liable to be dismissed on the ground that the land measuring 784 kanals and 17 marlas falling under Khasra No. 746 situated at Gole, Tehsil Jammu has been transferred to the Jammu Development Authority out of the total land measuring 2235 kanals falling in the Khasra No. 746. Out of 784 kanals and 17 marlas of transferred land, 333 kanals and 13 marlas of land stood transferred to Jammu Development Authority from the Nazool Department vide Govt. Order No. Rev(NDJ)46 of 1973 dated 28-01-
1973 and the possession of the same has been handed over to Jammu Development Authority,
v) That in compliance to the Hon'ble Court Order dated 18-03- 2014 passed in WPPIL No. 19/2011, the answering respondent authority initiated the process of eviction of unauthorized occupants in Village Cole. Though the eviction, process was initiated in compliance to the Hon'ble High Court directions, even then the procedure prescribed under law i.e. under Public Premises (Eviction of Unauthorized Occupants) Act 1988 has been followed/carried out in letter and spirit. It is pertinent to mention over here that time granted in the notices issued under Public Premises (Eviction of Unauthorized Occupants) Act 1988 expired on 15-04-2014 and thereafter again public notice was issued which was published in the leading newspaper whereby all the unauthorized occupants including the petitioners were asked to remove their encroachment.
vi) That the writ petition is also liable to be dismissed on the ground that the land referred above stands transferred to Jammu Development Authority and handed over after due demarcation by the revenue authority strictly and in accordance with the Tatima Shajra and the encroachment over the land in question already stands removes and 7 OWP No.1139/2016 a/w connected petitions now the land referred above has been duly fenced by the answering authority and after due procedure allotted the plots over the said land to the successful allottees. The Jammu Development Authority at present is in a process of laying the basic infrastructure over the said land for the allottees of the colony.
vii) That the writ petition is also liable to be dismissed on the ground that J8&K State (Vesting of Ownership Right to the Occupants) Act, 2001 is not applicable on the land of Jammu Development Authority."
(Emphasis supplied)
12. Despite the above position, this writ petition is languishing in this court.
13. This writ petition has been listed before the court thereafter on 29th July 2016. No counsel has bothered to appear in the matter, even though the case has been listed on 5th August, 2016; 2nd December 2019; 18th February 2020; 22nd July 2020; 23rd October 2020 and 26th November 2020.
There is no appearance even today.
14. We are informed that the appearance of Mr. K. S. Johal, Senior Advocate has been erroneously recorded on the 22 nd July 2020 as he appears in some other connected matters.
15. The filing of OWP No. 1139/2016 is clearly an abuse of the process of law. It is an act of judicial adventurism and an abuse of process of law. The petitioner is clearly in illegal and unauthorised occupation of public land over which he had no right, title or interest. He has been able to perpetuate illegal occupation under the shield of interim order obtained dishonestly. Such a practice deserves to be deprecated in the most strictest of terms.
16. Under the J&K High Court Rules, a person filing a writ petition is required to disclose full details with regard to the same property or adjudication whereof would have a bearing on the writ petition which is being filed. While filing OWP No.1139/2016, these writ petitioners have concealed the fact that 8 OWP No.1139/2016 a/w connected petitions they have filed CM Nos. 101/2014 and 102/2014 in PIL No. 19/2011 which are pending and OWP No. 876/2014.
17. This concealment is in fact not only contumacious and renders the petitioners liable but it tantamounts to deliberate concealment and misrepresentation.
18. In the para 17, there is no mention of the necessary and material details. In the body of the applications, vague reference to the applications and the petitions have been made without disclosing the order dated 13th May 2014 of the court.
19. The Supreme Court of India has repeatedly said that such attempts must be discouraged and quashed in most stringent terms.
20. Certainly, the Jammu Development Authority and the applicants in CM No. 5381/2020 cannot be compensated for the loss which has enured by the illegal Occupation of valuable land measuring 16 kanals and 1 marla. This has not only caused loss to the JDA but also the applicants in CM No. 5381/2020.
21. Having obtained the interim order, the petitioner is arrogantly stay away from the court confident that his illegal activities would go undetected.
22. Such conduct renders the petitioners liable for appropriate action for committing criminal contempt under the Contempt of Court Act. Since we are imposing costs on the petitioners, we are not proceeding under the Contempt of Court Act.
23. In view thereof, we dismiss these writ petitions with costs which are quantified at Rs.5,00,000/-. The costs shall be paid to the Jammu Development Authority.
9 OWP No.1139/2016 a/w
connected petitions
24. The costs imposed shall be paid within a period of two months from today. In case the costs are not paid, all the consequences that we have noted above shall flow.
OWP Nos. 876/2014 & 1139/2016 are dismissed.
CM No. 5381/2020 in OWP No. 1139/2016
25. This application has been filed by the seven persons namely (i) Yash Pal,
(ii) Harvinder Kour, (iii) Parmod Kumar, (iv) Sheetal Khajuria, (v) Aman Badyal, (vi) Seema Rani and (vii) Amit Verma, seeking intervention in the above titled petition by way of their impleadment as party respondents.
26. The averments of the Jammu Development Authority are supported by the averments made by the seven applicants who have filed CM No. 5381/2020 disclosing as follows:
"2. That in the year 2014 and more particularly on 15/7/2014, the applicants came across a notification in the daily news paper, whereby the JDA invited applications from residents of the then State of J&K for allotment of plots in various colonies duly advertised by the JDA, including that of Gole Gujral Housing Colony, Kot Bhalwal Housing Colony and Birpur Housing Colony, by way of draw of lots. That it is matter of fact that numerous applications were filed by many number of deserving persons and accordingly, the persons therein were allotted various plots of various sizes in these housing colonies by the JDA including to the Gole Gujral Housing Colony after adopting due process of selection by way of draw of lots. That in the said process of allotments of plots by way of draw of lots, the applicants herein also became successful and were allotted various plots of various sizes in the said Gole Gujral Housing Colony, Jammu. That In lieu thereof, the JDA took huge amount of Rs. 14,10,000/- from each applicant No. 1,3, 4, 5 and 7 who has been allotted a plot size of 30 X 60 and an amount of Rs. 28,00,000/- from the applicants No.2 and 6 who has been allotted plot size of 40X75 and that too way back in the year 2015-2017. Copies of the lease deeds/possession letters/letters of intend executed/issued by the JDA in favour of the applicants, from time to time are collectively enclosed herewith as Annexure-I for the kind perusal of the Hon'ble Court.
3. That despite all above and despite the fad that the JDA has already undertaken a tedious Job of allotment by way of draw of lots to n number of people and have already taken huge amount of hard earned money from the applicants ranging from 10 lakhs to 28 lakhs, arid that 10 OWP No.1139/2016 a/w connected petitions too way back in the year 2015-2018, the applicants have been deprived of the fruits of the aforesaid allotments, on one pretext or the other and especially on the pretext of the pendency of the above titled writ petition, whereby the Hon'ble Court vide its order dated 29/7/2016 has retrained the respondent JDA from undertaking any type of construction activity in the land belonging to the petitioners allegedly comprised under Khasra No. 746 situated at Gole Gujral, Jammu. Copy of order dated 29/7/2016 is enclosed herewith as Annexure-II for the kind perusal of the Hon'ble Court."
27. In view of the orders passed in these writ petitions, none of the applications survive for adjudication and the same are disposed of.
(RAJESH BINDAL) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Jammu
04.12.2020
Raj kumar
RAJ KUMAR
2020.12.07 17:25
I attest to the accuracy and
integrity of this document