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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
J.P. Singh, J.
Pushpa Devi -Appellant
Versus
State Of J&K & Ors. -Resopndent
OWP No. 115-2002
Decided On : 16-09-2010
Land Dispute - Jammu and Kashmir Land Grants Act, 1960 - Section 4, 10, General Clauses Act - Section 21 - Summary of Acts and Sections: The court discussed the Jammu and Kashmir Land Grants Act, 1960, particularly focusing on Sections 4 and 10, and the General Clauses Act, Section 21. The court emphasized the government's absolute power to grant land or any interest therein, except by lease, based on policy guidelines and orders issued by the government. It also highlighted the permissible review of administrative orders under the General Clauses Act, Section 21.
Fact of the Case:
The dispute involved the transfer of leasehold rights of a shop on government land. The petitioner's possession was regularized by the state government, but a review petition by the widow of the original tenant led to the setting aside of the regularization order.
Finding of the Court:
The court found that the petitioner, and her predecessor-in-interest, were never in possession of the shop, and thus not entitled to proprietary rights. The court also determined that the order granting proprietary rights to the petitioner was purely administrative and subject to review under the General Clauses Act, Section 21.
Issues: The main issue was whether the order granting proprietary rights to the petitioner was administrative or quasi-judicial, and whether it was open to review.
Ratio Decidendi: The court held that the order granting proprietary rights was purely administrative and subject to review under the General Clauses Act, Section 21. It also emphasized that the petitioner's lack of possession rendered her ineligible for the benefits conferred by the government order.
Final Decision: The court dismissed the writ petition, upholding the review jurisdiction of the government and affirming the setting aside of the order granting proprietary rights to the petitioner.
2. The Deputy Commissioner, Jammu, recommended the transfer of Lease Hold Rights in favour of Sunder Dass-tenant as he had agreed to pay Rs.8000/- to Bishan Dass who had purchased the Shop from Sadhu Ram, Wasidar, paying him this amount.
3. The matter was pending consideration with the Government, when, in the meanwhile, Bishan Dass expired in the year 1970.
4. As the petitioner’s husband had not been paid the amount which Sunder Dass had agreed him to pay, so the petitioner approached the Deputy Commissioner for transfer of the Lease Hold Rights of the Shop in her favour. Her case was recommended to the Financial Commissioner by the Deputy Commissioner, Jammu.
5. The State Government regularized the unauthorized occupation of the petitioner over the Shop on payment of Rs.4838.54, determining the cost of the land @ Rs.40,000/- per kanal with 25% penalty. She deposited the amount and a Mutation was recorded in her favour in this respect.
6. Sunder Dass having died, in the meanwhile, Smt. Sadhro Devi, his widow, filed an application before the Revenue Minister seeking Review of the Government Order whereby the Lease Hold Rights in the land underneath the Shop in her occupation had been transferred in favour of the petitioner.
7. The Revenue Minister, accepted the Review Petition setting aside Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979 whereby petitioner’s unauthorized possession had been regularized conferring her with the proprietary rights in the land.
8. The order was questioned by the petitioner by her Writ Petition OWP No. 340/1986 which was allowed on 25.05.1995, sustaining her plea of malafides projected against the Minister, who had passed the order in Review. The Review Petition was, however, directed to be heard afresh by the Advisor to the Governor, Revenue Department (Minister Incharge).
9. The order passed in the petitioner’s Writ Petition attained finality with the dismissal of the respondents’ Letters Patent Appeal against the order.
10. The petitioner’s Review Petition was thereafter re-heard by the Minister for Revenue, Relief and Rehabilitation, who vide his Order of January 30, 2002, allowed the Review Petition upholding the view which his predecessor had taken in setting aside Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979.
11. The reasons given for allowing the Review Petition are reproduced hereunder, for facility of reference:-
"It is undisputed that the original lessee violated the terms and conditions of Land Grants Act, 1960, while transferring the Shop No. 1122 and 1123 in favour of Chhaju Ram and Bishan Dass without prior permission of the Government for some consideration therefor. It is also admitted fact that Bishan Dass was not in possession of shop No. 1123 at the time of transfer. It is evident from the records that Government has conferred Property Rights over Shop No. 1123 as he was in actual possession at the time of passing of order. While as, Smt. Pushpa Devi was never in possession still the benefit under Order No. 46 of 1973 was conferred on her vide Government Order No. Rev (NDJ) 288 of 1979 dated 16.10.1979. It is also admitted fact that Bishan Dass, the husband of Pushpa Devi, had agreed to sell the Shop No. 1123 to sunder Dass for a sum of Rs.8000/- that she did not agree. The counsel for the Respondent has challenged the revie
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