CHANNI HIMMAT GREEN BELT PARK CASE

DB quashes Single Bench order, remands back case to Single Bench

27/03/2017

JAMMU, Mar 26: The Judgment of the Division Bench of J&K High Court, Jammu came as a great relief Jammuities and morning and evening walkers of the Green Belt Park Channi Himmat Jammu i.e (Nanu-Dadu-Park) where the Order obtained by the writ petitioner Ravinder Sawhney was quashed by the Division Bench.
This significant Judgment was passed by Division Bench of J&K High Court Comprising of Justice Ramalingam Sudhakar (Acting Chief Justice) and Justice Tashi Rabstan in Letters Patent Appeal filed by J&K Housing Board, Jammu against Ravinder Sawhney .
The J&K Housing Board had filed the appeal and the residents of the areas too had filed an intervention/ impleadment application through Mr. A.K. Sawhney Advocate with Mr. Aseem Sawhney Advocate who appeared for prominent respondents of Channi Himmat those who have constituted a Welfare Committee to lookafter the Green Belt Park also known as "Nanu- Dadu" Park.
Mr. A.K. Sawhney Advocate while arguing before High Court submitted that the over entire land of Green Belt Park for which award was passed infavour of J&K Housing Board The Green Belt Park has already been developed and only for small portion the undue dispute being created by the Land Mafia and others under the quire of Roshni Act which is actually land vesting ownership Act which has been grossly misused since it does not apply to the lands of J&K Housing Board, JDA Lands or Land allotted to any deptt. Therefore, the single Bench direction to J&K Housing Board Jammu and Urban Deptt. J&K was illegal, without Jurisdiction and can't be enforced.
Mr. N.A. Choudhry standing counsel for J&K Housing Board too argued
vehemently that Roshni Act does not apply and it can't consider the case as per Single Bench Judgment.
Mr. Abhinav Sharma Advocate appeared for the non- appellant/ wtrit petitioner .
The L.P.A. of 2005 was decided in 2017 after 12years and writ petition litigation started in the year 2002 as it bears O.W.P. No. 43 of 2002 title Ravinder Sawhney V/S State & Ors. S.B. Judge decided on 15th March 2017. "Residents Joint Action" Committee Channi Himmat which was constituted of Mr. A.S. Wazir Retd. Chief Engineer PWD & Ex. M.D. J&K Housing Board, S. Jagtar Singh Retd. A.C. Mr. Ujjar Singh Retd. Dy. Manager SBI, and Apex Welfare Committee of Channi Himmat Mr. A.K. Sawhney Mr. Harbajan Singh fought untiringly to make the Green Belt Park a dream project of Channi Himmat Jammu which provides Lungs to Jammu city.
TheExtract of the Division Bench Judgment reads:
......" LPAOW No.4/2005
MP No.12/2005
c/w
WPPIL No.D-8/2008
Date of order: 15.03.2017
J&KHousing Board & Anr. Vs. Ravinder Sawhney & ors.
Channi Himmat Welfare Ass. & anr. Vs. State of J&K & ors.
Appearing counsel:
For the appellants(s): Mr. N.A Choudhary, Advocate.
Mr. D.K. Khajuria, Advocate.
For the respondents(s) Mr. S.S. Nanda, Sr. AAG.
Mr. Adarsh Sharma, Advocate.
M/s Avhinav Sharma, Pranav Kohli.
A.K. Sawhney & Aseem Sawhney
Advocates.
1. The appeal is filed by the Jammu and Kashmir Housing Board through its Managing Director challenging the order of Single Judge passed in OWP No. 43/2002 dated 15.10.2004. The issue that arises for consideration in the appeal is whether the directions issued by the Single Judge can be implemented by the appellant Housing Board and its officers to grant the benefit of Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001. The prayer in the writ petition is as under:
"i. Certiorari for quashing the notification dated 6th Sept,1993 issued by respondent no.3 under Sec. 4(1) of J&K Land Acquisition Act; and;
ii. Any other relief to which the petitioners are found entitled to in the present set of circumstances."
2. Besides this legal issue, the factual issue is as follows:
The respondent-writ petitioner claims to have purchased land measuring 5 kanals and 3 marlas by virtue of a Sale Deed of the year 1987. He claims that has occupied the adjoining land, which is a State land, in an extent of 4 kanals 10 marlas under Survey No. 256 min in Thangar, stating that it is State land as per revenue records.
3. The writ petition has been filed for relief of mandamus to direct the authorities to grant the benefit of Act XII of 2001.
4. The Housing Board on notice claim that it is owner of land in question pursuant to acquisition of the year 1981 and the connecting documents thereto. Therefore, the plea of land measuring 4 kanals 10 marlas in Survey No. 256 min, being owned by the State and in the unauthorized occupation of respondent-writ petitioner does not arise. In the pleadings, it was stated by the appellant that acquisition proceeding were completed as per the law. However, the learned Single Judge was of the view that record establish that there was no proper acquisition.
5. Be that as it may, the Housing Board also stated that they acquired a large extent of land and the present land in issue in Survey No. 256 min Thangar in an extent. 4 Kanals and 10 marlas is also included in the acquisition proceedings. The Single Judge however rendered a finding that the Housing Board has not shown sufficient material as to whether the land in dispute was actually acquired by the Housing Board. Admittedly, certain documents were not placed before the Single Judge. They have now have been produced before this Court in the appeal. It is specifically pointed out that as per Exhibit. R-7 that the land in dispute has been acquired.
6. The issue that was adjudicated by the learned Single Judge is whether the petitioner has the right to claim the benefit of Act XII of 2001 in contradiction to the claim of the Housing Board pleading that it continues to be the owner of land in question and that the land does not vest with the State.
7. In the appeal a new twist has come to fore by the statement made by Financial Commissioner in his affidavit dated 6th of December 2016 where-under in paragraphs Nos. 7 and 13(VI) he would state as follows:
"7. That the land in question was sold to different hands at different times and finally it was purchased by respondent No. 1, 2 and 3. Respondent No. 1 to 3 raised some construction in the land in question and applied for permission to Jammu Development Authority which was denied on the ground that the land in question stands transferred to the Jammu Development Authority.
8. That Financial Commissioner, Revenue, J&K vide order dated 09.03.2012, after hearing both the parties and going through the report of Assistant Commissioner Nazool dated 09.01.2006 and the provisions of Sub-Section 4 of Section 18 of the J&K Development Act 1970, Section 25(A) of J&K Evacuees (Administration of Property_ Act Samvat 2006 and Section 5 of the J&K Alienation of Land Act, 1938 accepted the reference made by the Ld. Divisional Commissioner, Jammu titled "JDA through Vice Chairman v/s Mohammad Anwar & others" (wherein Ravinder Sawhney) was one of the respondent n the following grounds:
i) the disputed land falling in Khasra No. 256 (old) stood physically transferred to JDA in 1972 as per the report of the Assistant Commissioner (Nazool) dated 09.01.2006.
ii) That the Revenue Department had passed Govt. order NO. 197-Rev(LB) of 1985 dated 24.06.1985 in complete violation of Sub Section (4) of Section 18 of the J&K Development Act 1970 and was, therefore, untenably/unsustainable in the eyes of law being void ab-initio.
iii) that under Govt. Order No. 197-Rev(LB) of 1985 dated 24.06.1985, a "Ghair Mumkin Khud" had been restored in exchange of land falling in village Makwal which is miles away from the village Thanger whereas it is the agricultural land allotted /restored for cultivation purposes only that too either in the same or nearby village and not in a village which is miles away from the original native village of the evacuee.
iv) that the mutation NO. 246 dated 30.07. 1985 had
been attested without summoning JDA, in their absence, behind their back incomplete vilation of principles of natural justice. Even prominent members of the village body like Nambardar, Chowkidar of the village were not present andonly three persons namely:
a) Mr. Kaka Ram S/o Sain R/o Channi Himmat
b) Mr. Shamsher Singh S/o Chittar Singh R/o Thanger
c) Mr. Nazir Ahmad S/o Alam Din R/o Chowhala Jammu.
have been shown to be present at the time of attestation of mutation and only Mr. Shamsher Singh was from village Thanger and the other two persons were from other villages.
v) That mutation NO. 246 dated 30.07.1985 had been attested on he basis of Govt. order dated 24.06.1985 which was illegal and void ab-initio. Moreover, the mutation had been attested without handing over physical possession on the ground.
vi) That private respondents No. 1 to 10 had sold the restored land without obtaining prior permission from the Government as required under Section 25(A) of J&K Evacuees (Administration of Property) Act Samvat 2006 and that too without handling over physical possession of the restored land to the vendees on the ground as the possession continues to be with the JDA till date. Since sale was illegal, accordingly, no title vested in the subsequent buyers including respondent No. 12 (Ravinder Sawhney) and his family members.
vii) Further the land had been sold by the private respondents No. 1 to 10 incomplete violation of provisions contained in Section 5 of J&K Alienation of Land Act 1985 (1938 A. D). therefore, respondent. No. 12 could never get a Valid title in the land as the sale by the respondents No. 1 to 10 had been made in complete violation of provisions of various laws quoted above.
8. From the statement of Financial Commissioner as above, it is evident that the land in question has been transferred to Jammu Development Authority by virtue of a Government order No. 649/1972 dated 26.10.1972.
9. However, Mr. Choudhary points out in paragraph No. 16 of the said affidavit that the State land is under the possession of Housing Board. Paragraph No. 16 of Annexure 3 reads as follows:
16)- As per the report received from Divisional Commissioner, Jammu vide his letter dated 01.12.2016 has stated that as per revenue records, Khasra No. 256 (old), 206 (new) measuring 102 Kls-09. Mls situated at village Thanger, Tehsil Bahu & District Jammu is recorded as "State Land under the possession of Housing Board Colony". The revenue records alongwith reports of field agency as received from Divisional Commissioner, Jammu are enclosed as Annexure 3"
10. The affidavit of the Financial Commissioner clearly establishes contradictions on facts as to whether the land is in possession of Housing Board or is in possession of JDA. Thereafter the question of unauthorized occupation by the writ petitioner arises. Admittedly, this confusion arose because the Revenue Department was not a party respondent in the writ petition.
11. Section 5 of Act XII of 2001 provides for application for vesting or transfer of State land.
Article 5 reads as follows:
"5. Application for vesting or transfer of State land
(I ). Any occupant of the State land may within the period specified in clause (ii) of sub -section (1) of section 4 apply in the prescribed form to the territorial Tehsildar for having such land vested in or transferred to him under the provisions of this Act.
(2) The application under sub-section (1) shall be accompanied by
(a) Documentary proof to the effect that he is an occupant of a particular category of the State land in question;
(b) Extract of [Girdhawari];
(c) Shajra Kat (Tatma Shajra) of such land;
(d) A certificate by an officer not below the rank of Naib-Tehsildar that he has verified the Tatma-Shajra with reference to the position obtaining at the spot; and
(e) An affidavit to the effect,
(i) That he is an occupant of a particular category of the State land in question]; and
(ii) That he shall neither be entitled to such land nor to refund of the cost paid in case any averment made in is found incorrect or false.
Therefore, the prayer in the writ petition is to the Housing Board who are not the competent authority.
12. In this view of the matter, the finding rendered by the learned Single judge that the land belongs to the State without hearing the Revenue Department cannot be countenanced. Moreso when there are enough and more contradictions in the records. The contradictions have to be clarified by the Competent- authority namely the Revenue Department.
13. We agree with the stand taken by Mr. Choudhary that the Housing Board is not competent to accord consideration as directed by the learned Single Judge as in terms of Section 5 of the Act XII of 2001, the Tehsildar is alone competent.
14. We are, therefore, inclined to set aside the order of learned Single Judge and remand it for fresh consideration allowing the respondent- writ petitioner to implead the necessary parties namely the State of Jammu and Kashmir Revenue Department so that the issues can be effectively adjudicated on merits based on the rival stand taken by the parties.
15. The appeal is allowed by way of remand. We also notice that the first Bench of this Court on 18.03.2011 passed the following interim order:
"Coram:
"Hon'ble Mr. Justice F.M. Ibrahim Kalifulla Judge.
Hon'ble Mr. Justice Hasnain Massodi, Judge
Mr. Abhinav Sharma, Advocate for applicants/respondents
Mr. N.A.Choudhary, Advocate for appellants
Mr. A.K. Sawhney, Advocate for applicants
Mr. Adarsh Sharma, Advocate for JDA
CMP No. 22/2011
1. Mr. A.K. Sawhney, learned counsel for the applicants has moved this application for impleadment of 5 applicants, mention of which is made in the application as party appellants.
2. For the reasons cited in the application, prayer is allowed and the applicants are arrayed as party respondents in the main appeal. 3. Registry to make necessary entries in the cause title of the case.
4. CMP stands disposed of.
CMP No. 18/2011
1. The contesting respondents who were writ petitioners have come forward with this application seeking a direction against the non-applicants/ appellants for maintaining status quo ante as it existed before 10.01.2011, (wrongly typed as 10.01.2004) by allowing the applicants to raise boundary wall on land pleasuring 09 kanals and 13 marlas falling under Khasra No. 258, 266 and 256 min situated at Village Thanger, Tehsil and District Jammu.
2. In the case at hand, the main appeal arises out of the order passed by a learned Single Judge in OWP Nct.43 / 2002, which relates to the land measuring 4 Kanals and 10 Marias out of survey No. 256 min, and therefore, we are confining ourselves to the aid land. In the said writ petition the applicants herein prayed for a direction to the revenue authorities to consider their claim for regularization of possession of the said land falling in survey No. 256 min, on the ground that they are in possession of the land right from the year 1985 and, therefore, they are entitled for its regularization under Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act. 2001. By order dated 15th October, 2004 after considering the claims of the applicants/respondents herein as well as that of the J&K Housing Board who were made respondents in the writ petition, directed the concerned authorities to consider the claim of the appellants for regularization of their possession over the land measuring 4 Kanals 10 Marlas falling tinder survey NO. 256 min, under the Jammu and Kashmir State Lands (Vesting or Ownership to Occupants) Act, 2001 within a period of three months from the date a copy of the order is made available.
3. We heard learned counsel for the applicants/respondents as well as learned counsel appearing on behalf of the Housing Board and also the newly added respondents, who claims to be the local residents. At the outset it was pointed out that the claim of the applicants was prima facie found to be with some basis and that the stand of the Housing Board, that the land was acquired in the year 1985, was not supported by any documentary evidence. It was also found that subsequently, the proceedings initiated for acquisition also lapsed. The learned Single Judge noted that there was a certificate issued by the Collector J&K Housing Hoard dated 6.02.2002, which stated that the applicants/respondents were in possession of the land measuring 5 Kanals 03 Marias under survey No. 258, 266 min since the year 1987 that the land measuring 4 kanals 10 Marlas falling under survey. No. 256 which belonged to the State was in their illegal possession. It was on the above said findings, of fact, ultimately a direction was issued to the concerned authorities to consider the case of the prayer of the applicant for regularization.
4. The newly impleaded respondents contended that during the pendency of the writ petition an order of status quo was granted and the said order granted by the learned Single Judge was set aside by a Division Bench of this Court in LPA(OW) 218/2002 and, therefore, as on today there cannot be any valid right in favour of the applicants/respondents to seek for the prayer made in this application.
5. We find that the Division Bench while setting aside interim order of the learned Single Judge, directed the learned Single Judge to pass fresh orders after taking into consideration the submissions made by the J&K Housing Board and the writ-petitioners- applicants here-in. The Division Bench also stated that till such time, the matter is finally decided, if the writ petitioners- applicants herein are found in possession of the land in question, they shall not be dispossessed but they should, however, be restrained from raising any structure or changing the nature of land.
6. The learned counsel for the newly added respondents also stated that this and was legally earmarked as 'Green Belt' and since the land has been lying vacant, and open, lot of filth and garbage is getting accumulated, there by poses a health and environmental hazard for the residents.
7. Learned counsel for the Housing Board in his submissions contended that there was an earlier order passed by the learned Single Judge of this Court in CIMA 142 of 2002 decided on 11.10.2002, by which the rights of the respondent applicants have been rejected. But when we perused that order dated 11.10.2002, we find that in the said order learned Single Judge has specifically directed that respondents herein, namely, present- applicants should not be dispossessed from the land which was subject matter of OWP No. 214/1999, which indisputably pertains to the land which is the subject matter of this application.
8. In the above said background, we are of the view that neither the applicants-respondents nor non-applicant-Housing Board or any third party should be allowed to meddle with the land in any manner in order to ensure that the rights of the applicants-respondents as well that of Housing Board is decided in one way or the other in the appeal itself. In the meantime, no change in the nature of the land can be allowed to made. Therefore, the respondent No. 5, namely, Jammu Development Authority can be directed to take custody of the land and also ensure that no filth/ garbage is accumulated in the said land in order to ensure that no environmental hazard is caused by keeping the land vacant till the disposal of the appeal.
9. With that view, we direct appellant-housing Board as well as the applicants not to meddle with the land in question namely land measuring 4 kanal 10 marlas under survey No. 256 min situate in Village Thangar Tehsil Jammu. The Chairman, Jammu Development Authority, shall take control of the said land and keep it in its custody till the disposal of the appeal.
10. CMP disposed of.
11. Registry is directed to post the appeal in the first week of April, 2011 for hearing."
16. The parties agree that the said order shall continue pending disposal of the writ petition. However, time for compliance by respondent-writ petitioner for amendment is four weeks on receipt of this order. Thereafter four weeks' time is granted to respondents as well as newly impleaded respondents to file response. If writ petitioners do not comply the direction as above within the time stipulated, the writ petitions shall stand closed without further reference to the Court.
17. In view of the above, the PIL also stands disposed of giving liberty to the Jammu Development Authority or Jammu Municipal Corporation to maintain the area properly including area around the disputed portion for a good environment.
18. Appeal and PIL stand disposed of as above.

Sd/- Hon'ble Sd/- Hon'ble
(Tashi Rabstan) (Ramalingam Sudhakar)
Jammu Chief Justice (A)

Jammu:
Sunita
15.03.2017....."

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