Dharindra & Ors. v. State & Ors.

1. The petitioners are the legal heirs of the original lessee namely. Raibahadur Deewan Badri Nath. The then ruler of the State of J&K (Maharaja Partap Singh) under Ailan No. 10 dated 7th Bhadoon. 1976 (Bikremi) granted lease hold rights in his fa­vour in respect of the land specified blow. The grant was communicated vide Chief Minister's letter No. 11582 dated: 18-03-1909. The lease was governed by the rules framed un­der the said Ailan and are called "Rules for Grant of Lands in J&K for Building Purposes", (hereinafter referred as the Rules). After the death of the lessee, the lease hold rights were granted in favour of his wife Smt. Vidyawati. On her death, the lease in her favour deter­mined on 13-04-1968 and Mst Susheela Devi her daughter stepped into her shoes. The lease was extended in her favour. The petitioners are the legal heirs of Smt. Susheela Devi and vide Govt. Order No. Rev (NDK) 32 of 1974 dated: 27-01-1974. they were granted lease hold rights. The grant was for a period of twenty years which expired on April 12, 1988. Before the expiry of the lease, the petitioners had applied under the provisions of the Lands Grants Act 1960 be­fore the Dy. Commissioner, Srinagar for its extension. The subject matter of the lease is Nazool land measuring twenty one kanals, thirteen marlas and 86 Sft. situated in Es­tate Kothi Bagh Tehsil Khas (Srinagar) which comprises of 4 Kanals 10 Marias & 112 Sft. from survey No. 406; 14 marlas & 34 Sft from survey No. 403 Min; 3 Marias 12 Sft. from survey No. 7 Min; 14 Kanal and 15 Marias from survey No. 10/9 Min. 1 Kanal and 1 Maria from servey No 10/1 Min.

2. The petitioner through the me­dium of this writ petition have prayed for the grant of relief in the nature of writ of mandamus commanding the respondents to extend the lease period in accordance with the provisions of the Land Grants Act of 1960 (hereinafter referred to as the Act) and prohibit them from interfering with their possession in respect of above said land in­cluding the buildings/structures constructed thereon.

3. The petitioners had made the application for the extension of lease before Deputy Commissioner, Srinagar who for­warded the same for examination to the Assistant Commissioner Nazool, Srinagar. The latter reported in favour of extension in the period of lease for a further period of 20 years from the expiry date of the lease. Upon this report, the Dy. Commissioner vide his letter No. 391/NB dated: 09-01-1992 rec­ommended the extension in the lease pe­riod and submitted the application to the Di­visional Commissioner, Srinagar. The Divi­sional Commissioner, Srinagar vide his let­ter No. Div-Com/87/812-13 dated: 17-01-1992 requested respondent No. 1 for the extension of lease hold rights in favour of the petitioner in equal shares for a further period of 20 years on usual terms and con­ditions and enhanced ground rent as recommended by the Dy. Commissioner, Srinagar (Annexure-F).

4. Respondents did not accept all these recommendations and passed resump­tion order No. Ill Rev (NDK) of 1992 dated: 26-08-1992. Accordingly, the land under lease was resumed and show cause notice for eviction was issued. The above said order .of resumption has been challenged on the given below grounds :-

i). The petitioner were given no oppor­tunity of being heard before the order was passed and it is in violation of the principles of natural justice. They had not changed the land use but temporar­ily migrated from Srinagar to Kanpur (U.P). The migration was forcible as a result of compelling abnormal law and order situation prevailing in the valley. Their stay in Kanpur is not of perma­nent nature but temporary. They are there to earn livelihood and save their lives. They have kept a chowkidar to look after the land and buildings in ques­tion.

ii). The land use have not been changed from residential to commercial purposes by sub-letting it. No building or any struc­ture standing thereon has been sub-let,

iii). The impugned order is discriminatory as lease-hold rights have been extended in favour of other similarly situated les­sees.

5. In reply to the writ petition re­spondent No. 4 has admitted the renewal of the grant of lease in favour of Smt. Vidayanwati and its subsequent extension in favour of his daughter Smt. Susheela Devi and after her in favour of the petitioners. It is also admitted that before the lease could expire on 12-04-1988, the petitioners had applied for its extension. Their request was not accepted and vide order No. Ill Rev. (NDK) of 1992 dated: 26-08;1992 the lease was terminated and land in question re­sumed. The concerned authorities had di­rected respondent No. 4 to evict the petitioners from the premises in question after following the procedure prescribed under sec­tion 6 of the Land Grants Act. Accordingly, notice U/s 4 of J &k Public Premises (un-au-thorised occupants) Act of 1959 was issued and the possession of the vacant land as well as structures raised thereon was taken over on 02-09-1992. Executive Engineer Con­struction Divn. Srinagar was requested to as­sess the value of the structures standing thereon. The writ petition is not maintain­able.

6. Petitioner Virendra Jeet Singh filed rejoinder to this reply and denied that in persuance of Govt. order No. Ill Rev (NDK) of 1992 dated: 26-08-1992 possession of the land and the structures raised thereon was taken on 02-09-1992. He denied the receipt of any notice issued by the respondents. He is categorical in-admitting that petitioners are in possession of the lease land including all the structures raised thereon. They are pay­ing electricity charges till date. Petitioner had applied for the extension of lease in terms of Rule 7-A of the Nazool rules and the maxi­mum period of lease has been fixed for 99 years. No order for resumption of land could be passed without following the procedure as contained in Rule 7-A. He denied the allega­tion that petitioners have permanently aban­doned their living in the premises in question. It is pleaded that the impugned order was passed not on merits but at the behest of some influential persons who want to grab the land and the buildings standing thereon. Sub let­ting of any of the portion is denied.

7. Written arguments of the coun­sel of the parties perused. The counsel Mr. Z.A. Shah has argued that the petitioners did not sub-let any portion of the leased premises and this fact has been admitted by respondent No. 4 in his report dated: 02-01-1992. The possession of the petitioners over the leased premises and the structures standing thereon has been shown in the rev­enue record of the year 1990. The impugned order was passed without following the prescribed procedure. The apex court in AIR 1963 Sc 395 has laid down that an order has to be communicated to the affected party who is bound to be effected by it. The order in question has been passed without giving the petitioner any opportunity of being heard so it violates the basic principles of natural jus­tice of audi-alteram-partem and liable to be quashed.

8. Mr. Rafiq Fida, GA has taken the plea that grant of extension in the lease period is purely a disrectionary matter for the Govt. and any recommendations made for extension in period by its subordinate of­ficer has no value. The impugned order has been passed on merits and does not suffer from any illegality or infirmity. The petition­ers were in possession of the premises in ques­tion as unauthorised occupants and the pos­session was taken back on 02-09-1992 by following the prescribed procedure. The premises are situated in high security zone of the city of Srinagar. The petitioners could easily reside there without nay threat to their lives. Their continued absence shows that they have abandoned residence. Notices of the proceedings initiated against them were sent to them on their address where they were residing. Besides that, a copy was also pasted at a conspicuous place of the premises in question. Once copy of the notice was des­patched to the Manager Govt. press for its publication in the Govt. Gazette. The peti­tioners have leased out a portion of the premises standing on the leased land in fa­vour of Central Bureau of Investigation which is a wing of a Department of the Central Government and thus this is a case of sub­letting. In this way, the terms and condi­tions of the lease in question have been vio­lated and there could be no renewal in the lease period. Rule 7-A could be of no help for the extension of lease period. The writ petition is not maintainable because there are disputed questions of fact which require determination.

9. The arguments have been considered.

10. Impugned-government order (No. Ill Rev) NDK of 1992 dated: 26-08-1992) was issued under section 6 of the j&k land grants act, 1960. The Government has decided to pay compensation for the value of the structures standing on the leased premise under Rule 7 (M) of the Lands Grants Rules. The petitioners had also approached the respondents for the extension of the lease period under the provisions of J&K Land Grants Act, 1960 (hereinafter to be referred as Act). A bare perusal of Section 13 of the Act makes it clear that provisions of the said Act and the rules made thereunder do not govern the extension or termination of lease which has been granted in favour of the pred­ecessors in interest of the premises under Ailan No. 10 dated: 7th Bhadoon 1976. Section 13 of the Act is a saving provision and ex­cludes the leases/allotments made under the rules/Ailans mentioned therein. Section 13 is reproduced and it runs:-

"Repeal and savings.- The Rules for the Allotment of Building Sites in Srinagar and Gulmarg Svt. 1962, the Rules for Grant of Lands in Jammu and Kashmir for Building Purposes (Ailan No. 10 dated: 7th Bhadoon, 1976) and the Rules for Grant of Land at Gulmarg and Pahalgam in Kashmir for Building Pur­poses are hereby repealed. But noth­ing herein contained shall, except as oth­erwise provided in this Act, affect any terms or incident of any lease granted under any of the aforesaid Rules."

11. This proposition of law came for consideration in LPA No. 249/92 decided on 22-10-1998 (titled State of J&K & Anor. Vs. Davinder Singh Khorana) but was left open for decision. In the present case, the appli­cability of the provisions of Ailan No. 10 is directly involved. After giving anxious con­sideration to the issue involved I am of the opinion that section 13 of the Act does not effect any terms or incident of any lease granted under (i). The Rules for the Allotment of Building Sites in Srinagar and Gulmarg Svt. 1962; (ii) the Rules for Grant of Lands in Jammu and Kashmir for Building Purposes (Ailan No. 10 dated: 7th Bhadoon, 1976) and (iii) the Rules for Grant of Land at Gulmarg and Pahalgam in Kashmir for Build­ing Purposes. Having regard to the said pro­vision of the Act, the lease of the petitioners shall continue to be governed by the provi­sion of Ailan No. 10 except to the extent as otherwise provided by the provision of the Act.

12. It appears from the record that the extension in the lease periods has been granted in favour of the petitioners by the Govt. after the Act was made applicable. Having regard to the findings that the case of the petitioners was to be dealt with under the provisions of Ailan No. 10 mere label­ling the order of extension to be under the Act will not by itself alter the legal position. Government under Ailan No. 10 as also under the provisions of the Act is alone com­petent to grant extension of lease. The ex­tension of lease period in this case was done by the competent authority but the method, the mode and the period for which exten­sion was required had to be governed by the provisions of Ailan No. 10. Since this as­pect of the matter has not been taken notice of so the respondents committed illegality. Needless to State, while considering the ques­tion of extension in lease period or resump­tion of lease property, the respondents are required in law to exercise their jurisdiction strictly in accordance with the mandates of the statute under which the power is so ex­ercised. If such is not done, the exercise is vitiated and not sustainable under law.

13. Be that as it may, the factual matrix of the case also discloses the legal infirmities from which the impugned order suffers and they are:-

i). No notice was issued to the petition­ers prior to resumption of the lease property and in this manner rules of natural justice were not followed. Mere temporary shifting of residence because of the abnormal prevailing law and or­der situation in the Kashmir Valley would not have deprived the petitioners the right of being heard. The conclusion of the respondents in the impugned order is that the petitioners, "settled outside the State" is based on no material. There is no cogent material on the record to estab­lish that the petitioners had permanently abandoned their residence from the premises in question, ii). By not following the rules of natural justice the petitioners were denied the opportunity to demonstrate that the property in question was being used for residential purpose and not for a pur­pose other than for which the lease was granted. In fact, there is found official record in the form a communication ad­dressed by respondent No. 4 to respond­ents No. 3 in which the former has clearly stated that when he visited the spot on 02-01-1992 he found the main residen­tial house not being used by a tenant ex­cept two rooms of chowkidar which were occupied by the security forces for secu­rity purposes. In this communication re­spondent No. 4 had clearly stated that there was no violation of any of the pro­visions of law.

14. For the foregoing discussion or­der bearing No. Ill (Rev) NDK of 1992 dated: 26-08-1992 has been found passed without jurisdiction and not following the prescribed provisions of law. In this view of the matter, the petition is accepted and after setting aside the impugned order and the proceedings preceding thereto respondents are com­manded by issuing writ of mandamus to con­sider the case of the petitioners afresh for the extension of lease period in accordance with the relevant provisions of law. The proc­ess of consideration be completed within six months form the date the copy of this order is served upon them.

Srinagar: 28-09-2000.