IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
V.K. Jhanji,Syed Bashir-ud-Din, JJ.
Jammu Development Authority - Appellant
Versus
Bhag Din & Ors. - Respondent
LPA (OW) No. 03/2003, LPA (OW) No. 107/2003 And LPA (OW) No. 109/2003
Decided On : 02 December, 2003
In the instant case the petition came up before Ld. vaccation judge on 14th January 2003 and interim order passed on the same date and even bailable warrants issued in case of non-compliance of interim orders. On 17th of January inspite of non execution of bailable warrants, non bailable warrants were issued and matter ordered to be listed on 24th of January 2003. The matter listed on 27th January 2003 and writ petition was treated as contempt petition and respondents were directed to file compliance report on or before 30th of January 2003. The procedure adopted in disposal of writ petition within a period of 18 days held to be irregular and against writ proceeding rules. (Para 31,32)
(B) Writ Proceeding Rules 1997:
Permission granted to take dusti notice does not mean that the usual course of effecting service is altogether to be bye-passed unless specifically directed by the court. Even so, when dusti notice is taken, the party effecting dusti service is required to swear an affidavit in support of factum of effecting service on the concerned. Mere return or production of copies with intials of unidentified and undisclosed persons cannot be taken as a substitute for due service of notice on respective respondents. (Para 29)
(C) Constitution of India Art- 226.
Cotempt proceedings to enforce Govt. orders.
Contempt juridiction is of a special nature to be used sparingly to uphold the dignity of the court and to keep the administration of justice pure and clean. It is not to be used for execution of a court order or for the benefit of a private litigant, not to speak of a govt. order. ( Para 35)
(D) Constitution of India Art 12.
JDA - Whether Government Department?
Jammu Development Authority is a "State" within the meaning of Art 12 of the Constitution of India but it is not a Govt. Deparment. (Para 38)
(E) Constitution of India Art 226
Jurisdiction of Writ Court: Court cannot take upon itself the Govenremntal fuction, nor it is the jurisdiciton of the Court to direct execution of order issued by Govt. in a specific manner.
(Para 34)
(F) Jammu & Kashmir Devleopment Act 1970. Sec 18. Nazool Lands:
Once the land in question is placed at the disposal of the Development Authority in terms of Sec. 18(1), the Govt. Cannot exercise any part thereof without recource to Sec. 18 (4) of Dev. Act See 18 of the Act does not envisage transfer of Nazool land to the Development Authority in ownership rights.(para 42, 44)
(G) Evidence Act Sec. 17:
Admission:
Admission made by party or a counsel will not override or annul legislative enactment.
Justice hurried is justice burried. This is an old legal maxim which, over and above court practices and procedures, has served, and should serve, us as a guiding caution in the process of dispensation of justice. It would be apt to the context to recall to ourselves that we, as Judges, have plentitude of judicial power in all matters concerning the general administration of justice. This power enables us to exercise control over process by regulating proceedings, by preventing abuse of process and, if necessary, by compelling observance of the process. Such jurisdiction, as a Court of Justice, may be invoked or exercised not only in relation to parties in pending proceedings, but in relation to any one, whether a party or not. We are supposedly immune from committing errors, mistakes or wrongs. We, as judges, know our absolute privileges: we have a freedom from action and question.
2. All this -the jurisdiction, the plentitude of powers the immunity and above all the freedom- not much for our sake as for the sake of the public; for advancement of justice: so as to be free in thought and the process of judgment making, that is, administration of justice. When we talk of dispensation or administration of "justice"; the word partakes and embraces the broad principles of providing a fair, reasonable and just opportunity of hearing and of defending, i. e., observance of principles of natural justice. After all, we are entrusted with the most onerous task of hearing and determining the issues before us. And when facts are in issue, the cardinal principle of justice is that no man should be condemned on mere suspicion, presumptions and, above all, without affording him an opportunity of being heard. Given the plentitude of powers, the privileges, immunity, and the freedoms, it legally behooves of us not to give to a person or a litigating party a cause to urge before a higher forum, by insistent reference to dates of proceedings, the proceedings conducted in a case and culmination of the process within a short span of period of less than a month, more so during vacations in one case and in twelve days in other case and concerning public property valuing Crores of rupees, to put across, though mincingly, that process was hurriedly burried, shrouded in mystery and, that too, without reasonable and fair opportunity of hearing. Proceedings in question may be referred to. Writ petition, titled Bhag Din and Anr. v. State of J&K and Ors. and registered as OWP No. 11/2003, was presented before the Registry of this Court during winter vacation on 14th January, 2003. The Petition came up before the learned Vacation Judge on 14th January, 2003 itself and the following order came to be passed:
" Mr. Gagan Basotra, Advocate, for the petitioners.
Vide judgment of the court dated 22.5.1995 delivered in OWP No. 421/94, State was directed to allot alternate land in exchange or to pay compensation to the petitioners for the land restored to them, situate at Top-Sherkhanian, Jammu possession of which could not be delivered to the petitioners. Judgment was appealed by means of LPA (W) No. 291/95 which came to be dismissed on 30.8.2000. Respondents vide Govt. Order No. Rev(LB) 183 of 2002 dated 17.9.2002 have accorded sanction for transfer of 15 Kanals of Sarkar Land comprising Survey No. 533 situated in village Paloura Tehsil Jammu to the petitioners. Learned counsel for the petitioners has submitted that the respondents are not delivering the possession to the petitioners in implementation of the judgment of the court on the pretext that Nishandei is required to be conducted. The judgment of the court cannot be avoided on this pretext and is required to be implemented. Registry to issue bailable warrants in a sum of Rs. 1000 of respondents No. 3 to 5 to be present before the court to explain their conduct as to why the judgment of the court has not been complied with. In case compliance report is filed, they need not to appe
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