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2023 Supreme(J&K) 461
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
N. KOTISWAR SINGH, MOKSHA KHAJURIA KAZMI, JJ.
Inhabitants of Village Dambra Mahanpura Kathua – Petitioner
Versus
UT of J&K and Others – Respondents
L.P.A. Nos. 185, 186, 187 of 2023, C.M. No. 6125 of 2023
Decided On : 01-11-2023
Advocate Appeared:
For the Petitioner: Karan Sharma.
For the Respondent: Monika Kohli.
Headnote:
Transfer of Shamlat Deh (Mehfooz Kacharai) Land - Land Transfer - Government Order No. 36-JK (Rev) of 2022, Circular No. FC-LS/Misc-3744/2010 dated 09.12.2010 - The court examined the transfer of Shamlat Deh (Mehfooz Kacharai) land to the Prisons Department for the construction of a High Security Prison. The court found that the transfer was done in accordance with the orders and rules applicable in the UT of Jammu and Kashmir and was approved by the Administrative Council, the highest decision-making authority in the UT. The court also noted that there were precedents where similar transfers had been allowed for public purposes. The court held that the transfer was valid and dismissed the appeals.
Fact of the Case:
The appeals were filed against the dismissal of three writ petitions challenging the transfer of Shamlat Deh (Mehfooz Kacharai) land to the Prisons Department for the construction of a High Security Prison in Dambra Village, Tehsil Mahanpur, District Kathua.
Finding of the Court:
The court found that the transfer of land was done in accordance with the orders and rules applicable in the UT of Jammu and Kashmir and was approved by the Administrative Council. The court also noted that there were precedents where similar transfers had been allowed for public purposes. The court held that the transfer was valid and dismissed the appeals.
Issues: The principal grounds taken in the writ petitions were that the transfer of the land was illegal and in violation of various judgments of the Hon’ble Supreme Court relating to protection and preservation of the environment and orders issued by the State authorities putting a bar on transfer of Shamlat Deh (Mehfooz Kacharai) land for other purposes.
Ratio Decidendi: The court held that the transfer of Shamlat Deh (Mehfooz Kacharai) land to the Prisons Department for the construction of a High Security Prison was valid and done in accordance with the orders and rules applicable in the UT of Jammu and Kashmir. The court also noted that there were precedents where similar transfers had been allowed for public purposes.
Final Decision: The court dismissed all the appeals, finding that the transfer of land was valid and done in accordance with the orders and rules applicable in the UT of Jammu and Kashmir and was approved by the Administrative Council, the highest decision-making authority in the UT.
ORDER :
1. The present appeals, LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 have been preferred against the common judgment and order dated 11.08.2023 passed in WP (C) No. 671/2022, WP (C) No. 1668/2022 and WP (C) No. 269/2023 by which the learned Single Judge has dismissed all the three petitions. Accordingly, these appeals are heard together and disposed of by this common judgment.
2. The three petitions were filed by the same petitioners, namely, the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua, through their representatives, challenging the act of the State in transferring certain Shamlat Deh (Mehfooz Kacharai) land located in village Dambra, Tehsil Mahanpur, District Kathua to the Prisons Department for setting up of a High Security Prison in Dambra Village.
3. The first writ petition WP (C) No. 671/2022, out of which LPA No. 185/2023 has arisen, was filed by the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua through their representatives challenging the Order No. 36 JK(Rev) of 2022, dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department by which Shamalat Deh (Mehfooz Kacharai) falling under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) at Village Dambra, Tehsil Mahanpur, District Kathua in favour of the Prisons Department, Jammu and Kashmir for construction of a High Security Prison, and by the same order, State land measuring 160 Kanals 04 Marlas under Khasra No. 1873 (73 Kanal 02 Marlas) Khasra No. 2597-2325 (78 Kanals) and Khasra No. 2598-2325 (09 Kanals 02 Marlas) situated at Village Dambra, Tehsil Mahanpur, District Kathua was transferred to the village Dambra to be used as Shamlat Deh (Mehfooz Kacharai).
4. The said transfer order dated 02.03.2022 was preceded by identification of the land which was duly communicated by the concerned Assistant Commissioner, Kathua to the Government vide his letter under No. 502/4388/Jail/Dambra/Kth/2696 dated 29.12.2021 which was also challenged along with the aforesaid land transfer order dated 02.03.2022 in the said writ petition, WP (C) No. 671/2022.
5. The second writ petition, WP (C) No. 1668/2022 out of which LPA No. 186/2023 has arisen, was also filed by the same petitioners, the Inhabitants of Village Dambra Tehsil Mahanpur, through their representatives seeking quashing of the Government order No. Home-258 of 2022, dated 27.07.2022 issued by Commissioner Secretary Revenue Department, Civil Secretariat Jammu/Srinagar, by virtue of which sanction was accorded by the Government to the project of construction of High Security Prison at village Dambra. Further, the Notice Inviting Tender issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 26 of PHC Jammu Div/2022-23 dated 27.07.2022 for construction of the prison was also challenged.
6. In the third writ petition i.e. WP (C) No. 269/2023, out of which LPA No. 187/2023 has arisen was filed by the same petitioners, in which the petitioners have challenged another NIT issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 42 of PHC Jammu Div/2022-23 dated 12.11.2022, relating to the construction of the High Security Prison and for directing restoration due to damages caused in the village land because of the construction of the said High Security Prison.
7. Thus, from the above, it is evident that the three writ petitions were filed being aggrieved by the transfer for use of Shamlat Deh (Mehfooz Kacharai) land for the purpose of establishing of a High Security Prison and other connected and consequential actions i.e. notice inviting tender etc.
8. The principal grounds taken in these writ petitions in challenging the aforesaid actions are that the respondent authorities had illegally transferred the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department of Jammu and Kashmir (J&K) in violation of a number of judgments of the Hon’ble Supreme Court relating to protection a
