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2008 Supreme(J&K) 335
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
J.P. Singh, J.
Jammu Metchem Pvt. Ltd. - Appellant
Versus
State Of J&K & Ors. - Respondent
OWP No. 178/2008, CMP No. 248/2008
Decided On : 10 October, 2008
Advocate For Appellant: S.K. Shukla
Advocate For Respondent: A.H. Naik
Advocate For Respondent: A.H. Qazi
The laws in force in the State of Jammu and Kashmir do not prohibit lease of immovable property in favor of Non-Permanent Residents of the State.
Headnote:
Transfer of Property Act - Lease of Immovable Property - Section 139, Section 140 - The court held that the laws in force in the State of Jammu and Kashmir do not prohibit lease of immovable property in favor of Non-Permanent Residents of the State.
Fact of the Case:
The petitioner, a Private Limited Company, sought quashing of a communication informing the petitioner to get land on lease through SICOP/SIDCO for Permanent Registration of its unit and a writ of mandamus commanding the respondents to accord Permanent Registration to its unit.
Finding of the Court:
The court found that the petitioner had succeeded in establishing a case for issuance of command to the respondents to consider according it Permanent Registration because the respondents had failed to discharge their legal duty in refusing to consider registration of petitioner's Unit.
Issues: The main issue was whether there exists any law in the State of Jammu and Kashmir which prohibits Lease of immovable property in favor of Non-Permanent residents of the State.
Ratio Decidendi: The court held that the laws in force in the State of Jammu and Kashmir do not prohibit lease of immovable property in favor of Non-Permanent Residents of the State.
Final Decision: The petition was allowed with costs quantified at Rs. 10,000/-, quashing the communication directing the petitioner to get a lease deed executed with SICOP/SIDCO for seeking Permanent Registration of its Unit. A command was issued to the respondents to consider according Permanent Registration to petitioner's Unit within a period of one month.
2. The petitioner-company says that allured by the Jammu and Kashmir Industrial Policy 2004 promulgated by the State of Jammu and Kashmir vide its Government Order no. 21-Ind of 2004 dated 27th January 2004, it contemplated setting up a Small Scale Industrial Unit for manufacturing Mettalic Stearate, Antimony Triacetate and PVC Stabilizer including Zinc Oxide and Zinc Alloys, and for this purpose obtained Provisional Registration of the Unit from General Manager District Industries Centre Kathua which was valid until 28.10.2010.
3. In order to set up the Unit, land measuring 10 kanals 10 marlas comprised in Khasra nos. 717 and 725 situated at village Logate Tehsil and District Kathua was acquired by it on lease from the owner thereof. It completed all requisite formalities including securing its registration under various laws in force in the State. Jammu and Kashmir State Pollution Board too issued its consent order no. 731 of 2007 dated 24th July 2007 for establishment of the Unit.
4. Completing all post provisional registration requisites, the petitioner applied to respondent no. 2 for according Permanent Registration to its Unit which is stated to have been completed after spending an amount of about one crore rupees.
5. Respondent no. 3, informed the petitioner vide its communication no. DICK/Dev/4132 dated 19.09.2007 that in order to seek Permanent Registration of its Unit, it will have to obtain registration of the lease deed through SICOP/SIDCO and for that purpose the lease of land was required to be executed with SICOP/SIDCO.
6. Aggrieved by respondent no. 3s aforementioned communication, the petitioner has invoked this Courts extra ordinary civil writ jurisdiction to seek reliefs mentioned at the threshold.
7. Respondents contest the petitioners writ petition and oppose the grant of relief to it on the solitary ground that land acquired by the petitioner on lease was impermissible as lease of land being transfer of immovable property cannot be acquired by a non-State Subject in the State of Jammu and Kashmir and being a non-State Subject, the petitioner could seek Permanent Registration of its Unit only after approaching the Government and seeking allotment of land through S1DCO if it was available with it.
8. Respondents, therefore, justify their refusal to accord Permanent Registration to the petitioners Unit on the ground that being a non-State Subject, it cannot acquire immovable property on lease in the State of Jammu and Kashmir.
9. Petitioners counsel, Mr. Shukla submitted that respondents plea that land obtained by the petitioner, a non-State Subject, on lease, was in violation of the provisions of the Transfer of Property Act, was untenable in view of the law settled by this Court in Estate Officer v. K. K. Amla reported as 1989 SLJ, 105 and respondents refusal to accord Permanent Registration to petitioners Unit was unjustified besides being arbitrary and discriminatory, in that, they had allowed Permanent Registration to Jammu and Kashmir Pigments Limited, a similarly situated Non-State Subject which had obtained Provisional Registration along with the petitioner and had obtained land on lease hold basis, like the petitioner, from the private owners.
10. Projecting respondents case that the petitioner was not entitled to seek Permanent Registration for its Unit which had been established on immovable property which it had acquired on lease from private persons, which was
