HIGH COURT OF JAMMU AND KASHMIR
V K Pachnanda
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(1.) DENIAL of equal treatment in similar circumstances relating to conferment of proprietary rights over the land measuring 3 kanals 1 marla
and 24 Sft. situated at Ahata Kalan, Exchange Road, Jammu in terms of
Govt. order of 1981forms the foundation of this writ petition. The order
out of which right is claimed to have flown may be noticed:
"GOVERNMENT OF JAMMU AND KASHMIR
Sub: Transfer of leases on proprietary basis
Ref: (i) Cabinet Decision No: 280 dated 22.6.1981
(ii) Cabinet Decision No. 356 dated 17.8.1981
Government Order No: Rev/NDK/248 of 1981
It is ordered that the Wasidars who have acquired Nazool land on
lease basis, shall have the option to acquire the said land on
proprietary basis on payment of price equivalent to half the prevailing
market price in the Estate (Mauza)
By order of the Government of Jammu and Kashmir.
Secretary to Government"
(2.) BEFORE adverting to the rival contentions of the parties it will be advantageous to give a brief narrative of admitted facts.
Initially lease hold rights over an area of 2 kanals 14 marlas and 54
Sft. came to be conferred on the petitioners father, late Dr.Ram Singh
Pachnanda in the year 1952 against payment of premium and ground rent. It
was followed by another allotment conferring similar rights but for
commercial purposes on an area of six marlas and 242 Sft. vide Government
Order No. Rev (NDJ)/267 of 1970 dated 03.07.1970 read with Corrigendum
No. Rev (NDJ)/65/102 dated 24.03.1981. The additional area being in
possession of the petitioner right from 1952 itself, the subsequent
allotment was made effective retrospectively from 22.10.1952 under the
Wasidari Rules. After the death of the petitioners father, the Wasidari
rights were transferred in favour of his wife, Smt. Savitri Pachnanda
vide mutation No. 97 and on her expiry, lease hold rights have been
transferred in favour of her son, the petitioner herein, consequently,
reiteration of claim for conferment of proprietary rights on the land
described hereinabove but of no avail, resultantly OWP 1037/2001 which
came to be disposed of by judgement dated 20 -11 -2001 extracted for
facility of reference hereunder:
"The short submission made by the learned counsel for the
petitioner is that he is entitled to be proprietary rights being
conferred on him vis -a -vis the land possession whereof has been
regularized in his favour. For this, reliance is being placed on two
judgments of this court given by this court in cases titled Dr. Ved
Khullar Vs State and Others (WP No: 634/1987) decided on 13.9.1990 and
Manjeet Singh and ors Vs State of J&K and others (OWP No: 933/1995)
decided on 17.4.2000. Copies of these judgments are annexures "N" and "O"
to the writ petition.
This petition is, accordingly disposed of with a direction to the
respondents to consider the claims of the petitioner and dispose them of
in accordance with law. The judgments referred to above would be taken
note of. Let this be done within a period of three months from the date a
copy of this order is made available by the petitioner to the respondents
as also to the counsel who has put in appearance today on behalf of the
Mr. B.S. Manhas Sr. AAG has put in appearance today on behalf of
the respondents. Petition admitted and is disposed of in the manner
(3.) IN pursuance of the said judgement the petitioners claim was considered but rejected vide Government vide order which reads:
"Government of Jammu and Kashmir Revenue Department.
Subject: Application of Smt. Savitri Pachnanda Wd/o Late Dr. Ram
Singh Pachnanda for grant of proprietary rights over t he Nazool Land
situated at Ahata Kalan Exchange Road Jammu.
Government Order No. Rev(NDJ) 56 of 2003
Whereas Nazool land measuring 3 kanals 1 marla and 24 Sqft
situated at Ahata Kalan, Exchange Road, Rehari Jammu was leased out to
Late Dr. Ram Singh Pachnanda in the year 1952 for a period of 40 years.
Whereas after the death of Dr. Ram Singh Pachnanda the Wasidari
rights were transferred in favour of Late Smt Savitri Devi wife of late
Ram Singh and mother of Dr. V. K. Pachnanda.
Whereas vide Govt. order No: Rev (NDJ) 184 of 1996 dated
28.10.1996, the lease hold rights of the lease have been renewed -cum -transferred in favour of Dr. V. K. Pachnanda son of the
deceased lessee Dr. Ram Singh in respect of the following area for a
further period of 20 years from the date the term of last leases expired
viz 21.10.1992 and 13.12.1992 respectively.
i. 2 kanals 14 marlas 54 Sfts Residential purpose
ii. 6 Marlas 242 Sft Commercial purpose
Whereas Dr. V. K. Pachnanda represented that his mother had
applied for ownerships rights of lease land on 20.11.1981 to the Asstt.
Commissioner Nazool Jammu in terms of Govt. Order No: Rev (NDK) 248 of
1981 dated 17.8.1981 (which had provided option to the lessees to acquire the said land on proprietary basis on payment of price equivalent to half
the prevailing market price in the estate.
Whereas the said Govt. order No. Rev (NDK) 248 of 1981 dated
17.08.1981 was rescinded vide Govt. order No: Rev(NDK) 106 of 1984 dated 19.6.1984 which was subsequently withdrawn vide Government Order No. Rev(NDJ) 34 of 1985 dated 21.1.1985. Further the said Government order
No. Rev (NDJ) 34 of 1985 dated 21.1.1985 was modified vide Government
order No. Rev (NDJ) 309 of 1985 dated 24.9.1985 to the effect that the
lessees who are interested in converting their leases into free hold
rights may do so after payment of full market price.
Whereas in the year 2001 the petitioner(Dr.V. K.Pacnhanda) filed
writ petition OWP No: 1037/2001 before Honble High Court at Jammu praying
for grant of free hold rights on aforesaid land.
Whereas the said writ petition was disposed of by the Honble High
Court vide its order dated 20.11.2001 with direction to consider the
claims of the petitioner and dispose them off in accordance with law.
Whereas Shri Pachnandas has represented that he may be given
proprietary rights of the leased land on the analogy of Dr.Ved Khullar
who has been granted proprietary rights of lease property on payment of
price equivalent to half of the prevailing market rate vide Govt. Order
No: Rev (NDJ) 69 of 1993 dated 22.04.1993 with specific clause that
rights confirmed under this order cannot be construed a precedent
precedence for other cases.
Whereas the Government has passed the J&K State Land (Vesting of
Ownership Rights to the occupants) Act 2002 known as "Roshni Act" which
allows lessees (with leased in fora) to apply for grant of proprietary
rights on payment of 75% of the market value of the land other wise
against full market value of the land if the lease is not inforce.
Whereas the request of the applicant has been considered in the
light of Court direction and it has been established that there is no
ground to grant ownership rights in favour of the petitioner on the
analogy of Dr. Ved Khullar issued under Government Order No. Rev (NDK)
248 of 81 dated 17.08.1981. The application of the lesses mother has been found to be antidated and fabricated and is therefore rejected.
By Order of the Government of Jammu and Kashmir
Secretary to Government
Being aggrieved of the aforementioned Govt. order, (impugned order for short) a writ is sought for quashing the same with a further
prayer to command the respondent -State to confer proprietary rights on
the petitioner on payment of price equivalent to half the market price
prevalent on 20 -11 -1981, the date when his mother had exercised the
option to acquire the land which is sought to be defeated by the
respondent -State for the reasons spelt out in the last three paras of the
impugned order summarized hereunder:
(i) That the Government has passed the J&K State Land (Vesting of
Ownership Rights to the Occupants) Act 2002 known as " Roshni Scheme"
(ii) There is no similarity between Dr. Ved Khullar and Petitioner;
(iii) The application of the petitioner has been found ante dated
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