Mohammad Ramzan Bhat vs State Of Jk And Ors

In OWP No.1294/2017, the Petitioner has sought the indulgence of this Court in granting him the following relief(s):

“a) By issuance of writ of Mandamus, respondents 5 and 7 be directed to immediately receive cost of the land measuring 6 Marlas and

15 sft, which has been regularized in favour of the petitioner vide letter No. Rev(NDK)/75/40 dated 12-6-1978 on the basis of the rate for

regularization fixed at that time @ Rs. 35904/- per kanal, what proportionately comes to be paid by the petitioner for 6 Marlas and 15 sft;

b) By issuance of Writ of Mandamus, respondents 5 and 7 be directed to decide between themselves who is entitled to receive payment and

accordingly issue demand notice in favour of the petitioner as cost of the regularized plot measuring 6 Marlas and 15 sft falling under

Survey no. 836;

c) By issuance of Writ of Certiorari, the assertions made by way of an excuse in compliance affidavit in Paras (a), (b), (c),

(e) and (f) be set aside and quashed because same are unsustainable and having no legal or factual justification;

d) By issuance of writ of Mandamus, respondents be directed to formally regularize petitioner’s land measuring 7 Marlas and 257 sft,

in same survey No. 836 on same analogy and terms and conditions which they have applied while regularizing other identical cases in the

Gogjibagh, Srinagar area as has been illustrated hereinabove;

e) Also any other appropriate writ, order or direction/ relief, which this Hon’ble Court may deem fit and proper in the facts and

circumstances of the case may be passed in favour of the petitioner against the respondents with costs.â€​

In the aforesaid Writ petition, in terms of order dated 14th of December, 2018, the Court, after hearing the learned counsel for the parties, passed

an interim order thereby directing the Respondents 5 and 7 to accept the proportionate cost of the land as fixed in terms of Government Order No.

Rev (NDK) 37 of 1981 dated 7th of February, 1981, without any further delay. As the aforesaid order of the Court was not implemented by the

Respondents 7 and 8, the Petitioner filed Contempt Petition, being CPOWP No. 06/2019, for seeking implementation of the same. Thereafter, the

Respondents, feeling aggrieved of the aforesaid order dated 14th of December, 2018, assailed the same in appeal bearing LPA No.194/2019. It is,

thus clear that all the three proceedings, viz. Writ Petition (OWP No.1294/2017); Contempt Petition (CPOWP No.06/2019); and Appeal (LPA

No.194/2019), arise out of one and the same subject matter, as such, same stand clubbed and were, accordingly, heard together for their decision, with

agreement of the respective counsel for the parties.

Before appreciating the arguments put forth by the counsel for the parties, we deem it appropriate to briefly refer to certain background facts

leading to the controversy involved in this litigation, hereunder.

The case of the Petitioner is that he, almost 50 years ago, migrated from Anantnag to Srinagar in connection with his livelihood and started residing

on a piece of waste land, which land belonged to the State, measuring 06 Marlas and 15 sfts comprised under Survey No. 836 Min situated in estate

Narsingh Garh, Gogjibagh, Srinagar. The said parcel of land, which belonged to the Nazool Department, is stated to have been in worst condition in the

form of a ditch, upon which considerable amount was spent by the Petitioner on earth filling and other things, so that the same becomes habitable.

After spending huge amount, the Petitioner is stated to have constructed a house to reside there along with his family. In the year 1973, Cabinet

Decision No. 38 dated 28th of January, 1973 was taken by the Government, pursuant to which Government Order No. Rev (NDJ) 461 of 1973 dated

28th of January, 1973 was issued and a scheme/policy was framed for transferring proprietary rights over encroached Nazool lands in favour of the

occupants in Jammu and Srinagar, in case the said encroached land was less than 10 Marlas, besides other conditions mentioned in the said

Government Order dated 28th of January, 1973. Thereafter, pursuant on Cabinet Decision No. 674 dated 23rd of December, 1976, the Government

issued Government Order No. Rev (NDJ) 4 of 1976 dated 23rd of December, 1976, whereby it was ordered that in modification of the earlier

Government Order dated 28th of January, 1973, encroachments on patches of Nazool land below 10 Marlas shall be regularized by way of transfer of

proprietary/freehold rights on the basis of payment of price, at market rate, along with penalty for such encroachment @ 25% of the price of the land.

The Petitioner, being fully eligible and qualified for the benefit of the said scheme/policy under the two Government Orders dated 28th January

1973 and and 23rd December 1976 (supra), applied for regularization and grant of proprietary/freehold rights with respect to his parcel of land

measuring 06 Marlas and 15 sfts, which was processed by the Respondents. Consequently, the Respondent No. 2 issued letter/communication/order

No. Rev (NDK) 75/40 dated 12th of June, 1978, conveying the approval of the Revenue Minister with regard to the grant of proprietary/freehold

rights in respect of the said parcel of land to the Petitioner, for which market rate was fixed at Rs. 35,904/- per Kanal, for the purpose of depositing

the price of the said parcel of land along with 25% of the price as penalty.

It is also the case of the Petitioner that Respondent No.2, vide Government Order No. Rev (NDJ)-37 of 1981 dated 7th of February, 1981, on the

basis of the aforementioned two Government Orders dated 28th January 1973 and 23rd December 196 (supra), issued formal orders of regularization

and grant of proprietary/freehold rights in favour of other similarly circumstanced persons, namely, Abdul Hafiz Malik, on the same market rate,

pursuant to which land measuring 09 Marlas and 261 sfts was regularized in his favour, which is adjacent to the parcel of land belonging to the

Petitioner. Again, on the basis of aforementioned Government Orders dated 28th January 1973 and 23rd December 1976 (supra), another Government

Order No. Rev (NW)-152 of 1981 dated 9th of June, 1981 was issued, whereby, in the same Survey Number, another adjacent piece of land

measuring 05 Marlas and 24 sfts was regularized and proprietary/freehold rights were granted in favour of Sheikh Ghulam Rasool, who, later retired

as Chief Secretary of the State of Jammu and Kashmir (now Union Territory).

However, in case of the Petitioner, the Assistant Commissioner, Nazool Srinagar, in terms of his communication No. 183-184-AC/Estt-628 dated

1st of July, 1982, informed the Vice-Chairman, Srinagar Development Authority that since the parcel of land of the Petitioner had been regularized,

therefore, on the basis of market rate fixed by the Government @ Rs. 35,904/-per Kanal, the amount payable for the parcel of land measuring 06

Marlas and 15 sfts may be assessed and recovered from the Petitioner, under intimation to his office. Thereafter, the Petitioner claims that since his

case remained pending before the authorities for a considerable period of time and no progress was shown thereon except issuance of inter se

communications between the Respondent authorities, he exhausted all means to get his case settled, including issuance of legal notice, representations

to Revenue Minister from time to time, but as fate had it for him, those, too, did not yield any result.

During the interregnum, the Petitioner claims that adjacent to the aforesaid parcel of land, a ditch comprising of 07 Marlas and 257 sfts was

causing health hazard to his family, which was, therefore, also filled up by him after spending huge amount and is in possession of the Petitioner from

the year 1980. With respect to this additional parcel of land measuring 07 Marlas and 257 sfts, the Petitioner is stated to have applied before the

concerned authorities for its regularization, but the request of the Petitioner was not considered and remained pending, compelling the Petitioner to

knock at the portals of this Court through OWP No.1534/2012. The said petition was, in terms of 30th of September, 2013, disposed of by the Court

directing the Respondents to consider the case of the Petitioner However, in the said order of the Court, a typographical error had crept in qua

mentioning of consideration of the case of the Petitioner in relation to land measuring 06 Marlas and 15 sfts covered under Survey No. 836 min

situated at Estate Narsingh Garh, Gogjibagh, instead of land measuring 07 Marlas and 257 sfts under the same Survey number. Accordingly, the

Petitioner filed a review petition, which came to be disposed of providing that the expression ‘land measuring 06 marlas and 15 sfts’ be read as

’07 Marlas and 257 sfts’ in the aforesaid order dated 30th of September, 2013. Thereafter, the Petitioner is stated to have filed contempt

petition, being Contempt No. 413/2014, for seeking implementation of the aforesaid order of this Court dated 30th of September, 2013 read with order

dated 13th of February, 2014, wherein the Respondents filed their compliance report rejecting the claim of the Petitioner. On the basis of the

compliance report so filed, the Court hearing the contempt petition dismissed the contempt petition filed by the Petitioner, giving liberty to the Petitioner

for seeking redressal of his grievances under law. Faced with this position, the Petitioner has filed the Writ Petition, being OWP No.1294/2017 for the

afore stated relief(s).

Objections stand filed on behalf of the Respondents in opposition to the Writ Petition filed by the Petitioner.

In their objections, the Respondents 1 and 6 have stated that as per the records available, in pursuance of Cabinet Decision No. 38 dated 28th of

January, 1973, the Government issued the Government Order No. Rev (NDJ) 46 of 1973 dated 28th of January, 1973 (“1973 Government

Orderâ€), whereby it was ordered that all vacant and lease free Nazool lands situated in and around the cities of Jammu and Srinagar shall be

transferred to the respective Development Authorities immediately, and that the earlier Government Order No. 446 of 19th of October 1972 shall

stand modified to the extent that patches of Nazool land measuring 10 Marlas and above within and around the two cities of Jammu and Srinagar,

which are encroached upon, shall be handed over to the respective Development Authorities after the encroachments are removed by the Revenue

Department. It was, as stated, further ordered by the Government in the 1973 Government Order that the patches of Nazool land below 10 Marlas

encroached upon by private individuals and not required for any public purpose shall be sold off by transfer of proprietary/freehold rights to the

encroachers on payment of price, at market rate prevailing in the locality to be fixed by the Revenue Minister on the recommendations of the

concerned Deputy Commissioner, except in cases where market rates of a certain prices of land is either less or more than at prevailing rate in the

locality and that, in such cases, market rates shall be fixed with concurrence of Finance Department. The said 1973 Government Order also stated

that the sale proceeds of all such lands shall be credited to the account of respective Development Authorities and that the Deputy Commissioner

concerned shall be competent to execute necessary documents of transfer.

It is further submitted by Respondents 1 to 6 that the Government, by another Government Order vide No. REV (NDJ) 4 of 1976 dated 23rd of

December, 1976, issued on the basis of Cabinet Decision No. 674 dated 23rd of December, 1976 (“1976 Government Orderâ€), ordered that the

encroachments on patches of Nazool land below 10 Marlas shall be regularized after payment of price for the land fixed at the market rate, plus 25%

thereof as penalty for such encroachment.

In this behalf, it is further submitted by Respondents 1 to 6 that the records reveal that vide letter/communication/order No. Rev (NDK) 75/40

dated 12th of June, 1978, consequent upon the approval of the Revenue Minister of the market rate of Rs. 35,904/- per Kanal in estate Narsingh Garh,

Gogjibagh, the Petitioner’s possession over a piece of land measuring 06 Marlas and 15 sfts, comprising Khasra No. 836 situated in estate

Narsingh Garh, Gogji Bagh, Srinagar, was ordered to be regularized by grant of proprietary/freehold rights in his favour, at the above said market rate

plus 25% thereof as penalty, in terms of para (6) of the said 1973 Government Order read with the 1976 Government Order (supra). In addition, the

letter/communication/order No. Rev (NDK) 75/40 dated 12th of June, 1978 is also stated to have envisaged that further action in the matter may be

taken as per para (7) and (8) of the 1973 Government Order read with 1977 Government Order referred to above, and that the sale proceeds shall be

credited to the account of Srinagar Development Authority, besides obtaining State Subject from the applicant before executing registration of

documents. It is further submitted that the then Assistant Commissioner, Nazool, Srinagar, vide communication No. 183-184 E/AC/1st 628 dated 1st of

July, 1982, apprised the Vice-Chairman, Srinagar Development Authority, Srinagar that the regularization and grant of proprietary/freehold rights of

the said parcel of land measuring 06 Marlas and 15 sfts falling under Khasra No. 836 min situated in estate Narsingh Garh, Gogjibagh, Srinagar had

been approved by the Government at the market rate of Rs. 35,904/- per Kanal (for the purpose of recovering the price of the said parcel of land from

him along with 25% thereof as penalty) and requested the Vice-Chairman that price of the land (and penalty) may be assessed and recovered from

the Petitioner accordingly, under intimation to his office.

Thereafter, it is submitted by Respondents 1 to 6, that the Petitioner approached the Revenue Minister requesting him to direct the concerned

department to receive the cost of land, who marked the same to the Deputy Commissioner, Srinagar for examination of the matter as warranted under

law. It is further submitted that as per the spot verification conducted by Tehsildar, NT and subordinate Revenue agency, the Petitioner was found in

possession of land having measuring 09 Marlas in addition to the already encroached land measuring 06 Marlas and 15 sfts falling under Khasra No.

836 min as per the revenue records. It is stated that the Petitioner moved another representation before the Revenue Minister on 21st of December,

2011 which was forwarded to Divisional Commissioner, Kashmir with the direction to do the needful and expedite the case, on which report was

sought, and in pursuance thereof, the Srinagar Development Authority has written to the Assistant Commissioner (C) that the authority has no

objection if his department regularizes the possession of the said parcel of land in favour of the Petitioner and confers ownership rights on him under

the J&K State Lands (Vesting of Ownership to the Occupants) Act, 2001-2007, subject to payment of an amount which would be payable in respect

of Nazool land measuring 06 Marlas and 15 sfts, situated at Wazir Bagh, Srinagar.

Consequently, the Respondents 1 to 6 have stated that they, in these circumstances, have not taken any illegal action/omission against the

Petitioner as alleged in the Writ petition, therefore, the Writ Petition deserves to be dismissed.

Respondent 7, the Srinagar Development Authority, have also filed their objections, stating therein that since the Petitioner failed to pay the

approved rates and requested for revision of rates before the then Chief Minister, the Administrative Department did not issue formal orders of

regularization of and grant of proprietary/freehold rights of the land of the Petitioner.

Mr B. A. Bashir, the learned Senior counsel, representing the Petitioner, submitted that the impugned action and inaction on the part of the

Respondents not only amounts to misuse of authority, but also colourable exercise of power on the part of the Respondents. It is further submitted that

the stand taken by the Respondents in the compliance report filed before the Court in the earlier contempt petition No.413/2014 filed by the Petitioner

is purely a result of vengeance instead of discharge of official obligation, which the Respondents, in law, are obliged to discharge. It is contended that

the stand of the Respondents in based on frivolous excuses with the design in mind to unnecessarily drag the Petitioner. The learned Senior Counsel

pleaded that the parcel of land measuring 06 Marlas and 15 sfts stands already regularized in favour of the Petitioner about 40 years ago for which

only payment of price is to be received either by the Srinagar Development Authority or by the Nazool Department, as per the market rate already

fixed @ Rs 35,904/- per Kanal (along with 25% thereof as penalty). However, the two departments are not able to decide among themselves as to

whom the Petitioner should pay, resulting in the Petitioner clamouring for paying the amount for more than three decades.

It is further submitted by Mr Bashir, learned Senior Counsel, that in terms of the Jammu and Kashmir State Lands (Vesting of Ownership to the

Occupants) Act, 200l, as amended in 2004 and the Rules made thereunder (“Roshni Act/Rulesâ€), as was in vogue at the relevant point of time,

the Petitioner has the right of getting ownership rights over an additional patch of land measuring 07 Marlas and 257 sfts covered under Survey No.

836 min situate at Narsingh Garh, Gogjibagh, Srinagar, which the Respondents have been doing, after passing of the Roshni Act/Rules, in thousands of

similarly situated cases, but the inaction of the Respondents qua the Petitioner has subject him to hostile discrimination.

It is further averred by Mr. Bashir, learned Senior Counsel, that the pleas raised by the Respondents are factually and legally incorrect because

neither the Ribbon Development Act is applicable nor stadium being in the vicinity is any excuse for non-consideration of the case of the Petitioner

and that, had it been so, regularization would not have been done in cases of Abdul Hafiz Malik and Sheikh Ghulam Rasool, whose plots of land are

adjacent to the parcel of land of the Petitioner bearing the same Survey number. Mr Bashir also submitted that the excuse put forth by the

Respondents that the Petitioner has constructed any building without permission is ex-facie illegal and incorrect inasmuch as the Petitioner has only

repaired the existing structure in terms of Government Orders issued in this behalf after the devastating floods of September 2014. It is argued that

had the Petitioner committed any violation against Municipal laws, then the Municipality would have certainly taken action against the Petitioner. Mr

Bashir has further proceeded to state that inaction on the part of the Respondents in depriving the Petitioner from conferment of proprietary/freehold

rights in tune with the application of the scheme/policy of the Government notified in terms of the 1973 Government Order read with the 1976

Government Order (supra), besides being arbitrary, is also discriminatory in nature, thereby violative of the mandate of Article 14 of the Constitution of

India.

While elaborating this contention, Mr Bashir referred to the benefit given to the similarly situated two persons, namely, Abdul Hafiz Sheikh and

Ghulam Rasool in terms of the said scheme/policy in he 1973 Government Order read with the 1976 Government Order (supra). He contended that

not only those two persons but the Government has, in accordance with similar schemes/policies, vested proprietary/freehold/ownership rights in

favour of various persons, inter alia, Dr. Ved Khullar, Manjit Singh, Gulam Hassan etc. whose details are given in the judgment rendered by this Court

in case of Dr. V. K. Pachnanda v State of J&K and others, in OWP No. 283/2005; decided on 10th of May, 2005 and reported as 2006(3) JKJ (HC)

281, who, too, was denied the benefit of conferment of proprietary/freehold rights over the land situated at Ahata Kalan, Exchange Road, Jammu,

under Government Order No. Rev (NDJ) 309 of 1985 dated 24th September, 1985. The judgement of the learned Single Judge of this Court was,

subsequently, upheld by the Division Bench in LPA No. 59/2006; decided on 4th of May, 2007 and reported as 2007 (2) JKJ (HC) 222.

Mr. Bashir, learned Senior Counsel for the Petitioner, also relied on the judgements of this Court in the case of Dr. Ved Khullar vs State of J&K

and others, in OWP No. 634/87, dated 13th September, 1990; the judgement of this Court in the case of Manjit Singh vs State of J&K and others,

dated 17th April, 2000 in OWP No. 933/1995, as upheld by the Division Bench of this Court in the case State of J&K and others vs Manjit Singh by

the judgement dated 13th February, 2002 rendered in LPA (OW) No. 39/2002. According to Mr. Bashir, these cases relate to lessees/petitioners

whose applications for grant of proprietary/freehold rights had been processed by the Respondents’ recommending authorities (including Deputy

Commissioner concerned and other revenue authorities) and even the conversion price had been fixed under the then prevalent Scheme/Government

Order in force, but the Respondents had wrongfully denied/defaulted in conferment of proprietary/freehold rights on the lessees/petitioners, without

any legally sustainable grounds. Accordingly, this Court granted proprietary/freehold rights to such lessees/petitioners.

On the other hand, Mr B. A. Dar, the learned Senior Additional Advocate General, assisted by Mr Mohammad Rais-ud-Din Ganai, learned

Government Advocate, representing the Respondents, submitted that in terms of letter/communication/order No. Rev(NDK) 75/40 dated 12th of June,

1978, approval of the Revenue Minister was conveyed for regularization and grant of proprietary/freehold rights over the parcel of land measuring 06

Marlas and 15 sfts falling under Khasra No.836/Min situated in estate Narsingh Garh, Goghjibagh, Srinagar, in favour of the Petitioner on the basis of

payment of price, as per market rate which was fixed @ Rs.35,904/- per Kanal , along with 25% of the price of such land as penalty. However, since

the Petitioner failed to pay the approved amount and requested for revision of the said rate before the Chief Minister, no formal orders were issued for

the regularization and grant of proprietary/freehold rights in respect of the said land. It is further submitted that the Survey No.836 in Estate Narsingh

Garh is recorded in Revenue records as State Maqbooza Stadium and the said parcel of land measuring 06 Marlas and 15 sfts under said survey

number is adjacent to Bakshi Stadium, as such, para (6) of the Government Order No. Rev(NDK) 46 of 1973 dated 28th of January, 1973 has been

violated. Hence, no action was taken under the provisions envisaged in paras (7) and (8) of the said Government Order of 28th January, 1973, which

has resulted in the said parcel of land not being regularized and proprietary/freehold rights not being granted in favour of the Petitioner. Mr Dar has

also submitted that even the provisions of the Ribbon Development Act have been violated by the Petitioner by erecting a commercial complex on the

portion of land adjacent to the main road leading to Gogji Bagh, Jawahar Nagar as the land is required for public purposes in accordance with section

8 (d) of the Roshni Act/Rules.

It is argued that that the judgments rendered in Dr. Ved Khullar’s Case, Manjit Singh’s Case and Dr. V. K. Pachnanda’s Case

(supra), as relied upon by the learned Senior counsel representing the Petitioner, are not applicable to the facts of the case of the Petitioner on the

simple ground that the petitioners in those cases were lessees (or legal heirs/successors-in-interest of lessees) , who had claimed rights under different

Government Orders which provided for grant of proprietary/freehold rights on lessees; which are different from the 1973 Government Order and 1976

Government Order, the benefit of which is being claimed by the Petitioner in this case. According to the next limb of this argument, it is submitted that

the principles laid down in the judgements of this Court in Dr. Ved Khullar’s Case, Manjit Singh’s Case and Dr. V. K. Pachnanda’s Case

(supra) cannot be relied upon by the Petitioner in view of the decision of the Division Bench of this Court, dated 9.10.2020, in PIL No. 19/2011, in the

case of S. K. Bhalla (Prof.) vs State o J&K and others.

Having heard the learned counsel for the parties, perused the pleadings on record and having considered the matter, we feel that the Petitioner in

OWP No.1294/2017, in nutshell, is seeking two-fold relief: (i) directing the Respondents to receive the price of the parcel of land measuring 06 Marlas

and 15 sfts comprising under Survey No.836 situated at Estate Narsingh Garh, Gogji Bagh, Srinagar, which land has been regularized in favour of the

Petitioner vide letter/communication/order No. Rev(NDK)/75/40 dated 12th of June, 1978, on the basis of the market rate fixed at that time @

Rs.35,904/- per Kanal, along with 25% thereof a penalty; (ii) directing the Respondents to regularize the Petitioner’s additional parcel of land

measuring 7 Marlas and 257 sfts in same survey number on the same analogy and terms/ conditions, which they applied while regularizing other

identical cases in Gogji Bagh, Srinagar area under Roshni Act/Rules, but no action was initiated by the Respondents on the application of the Petitioner

in respect of this additional parcel of land measuring 07 Marlas and 257 sfts.

In terms of Government Order No. REV(NDJ) 46 of 1973 dated 28th of January, 1973, which was issued as a corollary to the Cabinet Decision

No.38 dated 28th of January, 1973, the Government ordered as under:

“1. All vacant and lease free Nazool lands situated in and around the cities of Jammu and Srinagar shall be transferred to the respective

Development Authorities immediately.

Government order No. 649 of 1972 dated 26.10.1972 issued in pursuance of Cabinet Decision No. 446 of 19th Oct. 1972 shall be modified to the

extent that patches of Nazool Land measuring 10 marlas and above within and around the two cities of Jammu and Srinagar which are encroached

upon shall be handed over to the respective Development Authorities after the encroachment are removed by the Revenue Department.

The survey of all Nazool land especially within the two cities of Sringar and Jammu which have been encroached upon shall be completed as early

as possible.

The work of identification of Nazool lands encroached upon by private individuals but required for any public purposes, regardless of their size, shall

be completed by the Chief Executive Officer of the respective Development Authority on the nishandehi of Assistant Commissioner Nazool or his

nominee within a period of one month after completion of survey work.

Patches of Nazool lands below ten marlas encroached upon but required for any public purposes shall be transferred by the Revenue Department

to the respective Development Authorities after removal of encroachment therefrom.

Patches of Nazool lands below 10 marlas but encroached upon by private individuals and not required for any public purpose shall be sold off in

proprietary rights to the encroachers on payment of price at market rate prevailing in the locality to be fixed by the Revenue Minister on the

recommendations of the concerned Dy. Commissioner, except in cases where market rates of a certain piece of land is either less or more than that

prevailing in the locality. In such cases market rates shall be fixed with concurrence of Finance Department.

Sale proceeds of all lands mentioned at Para 6 above shall be credited to the Account of respective Development Authorities.

Deputy Commissioner concerned shall be competent to execute necessary documents of transfer.â€​

Thereafter, the Government, on the basis of the Cabinet Decision No. 674 dated 23rd of December, 1976, issued another Government Order No.

REV(NDJ) 4 of 1976 dated 23rd of December, 1976, whereby and whereunder it was ordered as under:

In modification of Government order No. REV(NDJ) 46 of 1973 dated 28th of January, 1973 issued under Revenue Department

endorsement No. Rev(NDJ) 72/27 dated 2nd of February, 1973, it is ordered that the encroachments on patches of Nazool land below 10

marlas shall be regularized after payment of price at the market rate plus 25% thereof as penalty for such encroachments.â€​

In consequence to the aforesaid 1973 Government Order read with 1976 Government Order, coupled with the fact that the Petitioner was in

possession of Nazool land measuring 06 Marlas and 15 sfts comprising under Khasra No.836 situated in Estate Narsingh Garh, Gogji Bagh, Srinagar,

the Petitioner applied for seeking regularization and grant of proprietary/freehold rights with respect to the said parcel of land in his favour, in terms of

the scheme/policy of Government in force, as formulated vide the aforesaid 1973 Government Order read with the 1976 Government Order.

Accordingly, after processing the case of the Petitioner for regularisation and grant of proprietary/freehold rights, the Revenue Department issued

letter/communication/order No. Rev(NDK)75/40 dated 12th of June, 1978 addressed to the Assistant Commissioner, Nazool, Srinagar, thereby

directing him to regularize the possession of the Petitioner over the aforesaid parcel of land measuring 06 Marlas and 15 sfts at the approved market

rate of Rs.35,904/- per Kanal, along with 25% thereof as penalty, in tune with the mandate of 1973 Government Order read with the 1976

Government Order. Besides, it was also made clear that further action be taken as envisaged in paras (7) and (8) of the 1973 Government Order, by

crediting the sale proceeds to the account of the Srinagar Development Authority as well as obtaining State Subject certificate of the Petitioner before

executing necessary documents. Despite this clear stand of the Revenue Department qua regularization and grant of proprietary/freehold rights over

the Nazool land measuring 06 Marlas and 15 sfts in possession of the Petitioner, no formal steps for regularization and grant of proprietary/freehold

rights (or complying with other consequential formalities) have been taken by the Respondents in this behalf despite lapse of considerable period of

time. The Petitioner has been, time and again, making requests before the concerned authorities for doing the needful in terms of

letter/communication/order dated 12th of June, 1978, however, all his requests have fallen on deaf ears. The Petitioner has placed on the record of the

file all these requests/representations that he has made before the Respondents for accepting payment and completing the formalities for regularization

and grant of proprietary/freehold rights over the said parcel of land measuring 06 Marlas and 15 sfts in his possession, which was directed to be

regularized by the Revenue Department vide letter/communication/order dated 12th of June, 1978. The materials placed on record reveal that the

Petitioner has been made to run from pillar to post, for years together, for no legally justifiable reason, only for accepting payment in terms of the

letter/communication/order dated 12th June, 1978.

The aforesaid course of action adopted by the Respondents in the case of the Petitioner has not only defeated the very purpose of the

scheme/policy so formulated by the Government in terms of the 1973 Government Order read with the 1976 Government Order, but has resulted in

subjecting the Petitioner to hostile discrimination. The explanations put forward by the Respondents before this Court to justify their omission are

flimsy and afford no justification for their inaction. Firstly, after a formal decision taken by the Government by the letter/communication/order No.

Rev(NDK)75/40 dated 12th of June, 1978 there was no occasion for the Respondents to raise such issues and objections. The Respondents were

required to only comply with the formalities mentioned in the said letter/communication/order No. Rev(NDK)75/40 dated 12th of June, 1978.

Secondly, in any event, had there been any substance in any such reason or objection sought to be now relied upon before us, nothing prevented the

Respondents from rescinding the letter/communication/order No. Rev(NDK)75/40 dated 12th of June, 1978 and rejecting the case of the Petitioner for

the parcel of land measuring 06 Marlas and 15 sfts in his possession, after complying with principles of natural justice i.e., affording him an opportunity

of being heard after issuing a proper notice. Based on our review of the entire record placed before us by the parties in this case, it is our considered

view that these reasons and explanations have only been used by the Respondents to drag their feet with respect to the case of the Petitioner, without

any legally justifiable basis.

Further, upon perusal of the pleadings on record, we find that the Respondents have already issued regularization orders and granted

proprietary/freehold rights in favour of various similarly situated beneficiaries who were in possession of the Nazool land adjacent to the land of the

Petitioner, e.g., Abdul Hafiz Malik (vide Government order No. 37 of 1981 dated 7th of February, 1981), Sheikh Ghulam Rasool (vide Government

order No. REV(NDK) 152 of 1981 dated 9th of June, 1981) upon acceptance of payment; and have competed all consequential formalities. In such

circumstances, the Respondents cannot be allowed to adopt the method of pick and choose in relation to implementation of a scheme/policy of the

Government. The Respondents were/ are supposed to implement the aforesaid scheme/policy notified by the Government at the relevant point of time

vide Government Orders (supra) strictly according to the intent and purpose, which has been stipulated by the Government in terms of the

scheme/policy itself.

Importantly, this is not a case where the Petitioner’s application for regularization and grant of proprietary/freehold rights under the 1973

Government Order read with the 1976 Government Order had simply remained pending. On the contrary, in this case, the application was processed

and the conversion price was also assessed/fixed, yet the applicant was denied regularization and grant of proprietary/freehold rights because of

wrongful default on the part of Respondents, without any legally sustainable basis.

The Petitioner’s case is squarely covered by judgement of the learned Single Judge of this Court in the case of Dr. Ved Khullar vs State of

J&K and others, rendered in OWP No. 634/87, dated 13th September, 1990, which held as follows:

“5. The Government issued first order no. 248 of 1981 on August 17, 1981 requiring Wasidars who had acquired Nazool land on lease basis, to

exercise the option to acquire the said land on proprietary basis on payment of price equivalent to half the prevailing market price in the estate. The

petitioner in order to have the benefit of this order filed application before Assistant Commissioner (Nazool), who recommended the same and after

that Director Land Records made recommendation in favour of the petitioner, but before any order could be passed by the Government another Govt.

order no. 105 of 1984 came into existence rescinding the earlier order of 1981. The Government again withdrew the order of 1984 and issued another

Govt. order no. 34 of 1985 on January 21, 1985, on the same lines as earlier order of 1981, was issued. The Petitioner again moved the authorities for

grant of proprietary rights under the said order of 1985. Shri N. L. Bakshi, the then Director Land Records and Consolidation of Holdings Jammu

under his letter dated 5.9.1985 recommended the Secretary to Govt. of J&K Revenue Department, Srinagar, for conferring proprietary rights to the

petitioner in view of Govt. order of 1985. The Government under Order No. Rev (NDJ) 198 of 1982 dt. 21.7.1982 accorded sanction to the transfer of

proprietary rights in favour of Shri Sat Paul Aggarwal son of Shri Badri Nath resident of City Chowk, Jammu, on payment of Rs 1750 per marla

representing half of the prevalent market rate. Similar treatment was given to Smt. Padma Devi Mahey wife of Shri Vishwa Mitter vide Govt. Order

No. Rev (NDJ) 157 of 1985 dt. 26.4.1985. Despite representations made by the authorities in favour of the petitioner, no order was passed by the

Government in her favour, thus denying the equal treatment to her when she was fulfilling all the conditions as per the letters of the Director Land

Records. By denying such equal treatment the petitioner has certainly been discriminated which is against the mandate of our Constitution and that

cannot be permitted.

For the aforesaid reasons, the present petition of the petitioner is allowed and direction is given to the respondents to perform their duty in granting

proprietary rights to the petitioner over land measuring 3 kanals comprising Khasra No. 721/min Rehari Mohalla Ahata Kalan on payment of half the

market price prevailing at a time when Govt. order No. Rev (NDJ) 34 of 1985 dated 21.1.1985 was issued and the recommendation was made by the

Director Land Records vide his letter dated 5.9.1985.â€​

(Underlining supplied)

Again, this principle was reiterated by the judgement of the learned Single Judge of this Court dated 17th April, 2000, rendered in OWP No.

933/1995 in Manjit’s Singh vs State of J&K and others. Thereafter, the judgement of the learned Single Judge was upheld by the Division Bench

of this Court by the judgement dated 13th February, 2002 rendered in LPA (OW) No. 39/2002 titled State of J&K and others vs Manjit Singh. Even

the SLP (CC) No. 8183/2002 filed by the State of J&K against the judgement of the Division Bench of this Court dated 13 February, 2002 in the case

of State of J&K and others vs Manjit Singh was dismissed by the Hon’ble Supreme Court by its order dated 28th October, 2002.

Following the respective judgements of the learned Single Judge and the Division Bench delivered in Dr. Ved Khullar’s Case and Manjit

Singh’s Case, the learned Single Judge of this Court, while rendering judgement, dated 10th May, 2005, in the case of Dr. V. K. Pachnanda vs

State of J&K and others, in OWP No. 283/2005, reported as 2006(3) JKJ (HC) 281, again reiterated this principle and held as follows:

“10. … … …As is seen the petitioner’s claim is contested because of the introduction of Roshni Scheme also but while dealing dealing with

the claim of Shri Gulam Hassan in the year 2003, Roshni Scheme of 2001 did not work as an impediment for the beneficiary, for, as his case was

pending prior to Roshni Scheme, rightly so because that makes no difference as ruled in Manjit Singh’s case but what is disturbing is that when

State could appreciate the legal position correctly in case of Shri Gula Hassan, what prevented it to apply same standard to the petitioner’s case.

Even this sole instance speaks volumes.â€​

… … …

“19. It is evident from the communication aforementioned that the Deputy Commissioner had disagreed to the entitlement of the petitioner under

the said Government order and instead made a recommendation for transfer of proprietary rights under Govt. order of 1985. The recommendation

dates back to 1999, obviously, from 1999 it was not only within the knowledge of the petitioner but he has been expecting transfer of proprietary rights

in terms of the said recommendation which is based on the Govt. order of 1985 envisaging conversion of lease into free hold rights but on payment of

full market price which stands determined by the committee of Collectors in its meeting on 20-02-1995 at the rate of rupees ten lacs per kanal. The

recommendation so made by the Deputy Commissioner received approval of the Divisional Commissioner as also of the Financial Commissioner again

within the knowledge of the petitioner but neither determination of the price by the committee of Collectors nor [sic] the recommendation was

represented against which makes it clear that he was quite satisfied both in respect of conferment of rights in terms of Govt. order of 1985 as also

settlement of price, therefore, estopped by acquiescence to turn around.

Considering the matter in totality of the circumstances I am of the opinion that the ends of justice would be met by subjecting the petitioner to the

price settled by Committee of the Collectors constituted for the purpose. Accordingly the respondents are directed to grant proprietary rights to the

petitioner in respect of land measuring 3 kanals 1 marla and 24 Sft. Situated at Ahata Kalan, Exchange Road Jammu @ of rupees ten lac per kanal

within a period of two months.â€​

(Underlining supplied)

Thereafter, the Division Bench of this Court, by its detailed and lucid judgement dated 4th May, 2207 rendered in LPA No. 59/2006, titled State of

J&K and others vs Dr. V. K. Pachnanda, reported as 2007 (2) JKJ (HC) 222, upheld the judgement of the learned Single Judge. Some relevant

extracts of the judgement of the Division Bench of this Court are reproduced below:

“14. Thus what was in principle provided by the Government orders of 1981 and 1985 has now been provided in much broader way by the Roshni

Act. Roshni Act has thus not destroyed the right of a leasee to get ownership rights but only extended it to unauthorized occupants and has provided a

proper machinery to process and dealt with such matters. In such circumstances the claim of the respondent to get proprietorship rights cannot be

denied only on the ground that a more elaborate law, providing the same right which was available to him under the earlier orders, has been provided.

As is verified by the Additional Commissioner, Jammu respondents mother Smt. Pachnanda filed application for grant of proprietary rights on

20.11.1981 i.e. immediately after the order of 1981 was made but no action was taken on it by the concerned authority. No action was taken on it

even after promulgation of order of 1985. Now with the enactment of Roshni Act the State cannot take advantage of the inaction of its own officers

and cannot deny the benefit to the respondent on the ground that the matter remain pending for all these years.â€​

“16. On perusal of the judgement impugned we find the learned Single Judge has gone into the please arising in the petition, in detail. He has

referred to various Government Orders passed on the subject and has on due consideration of the matter found the respondent entitled to the relief

prayed by him. The Court has also gone to the question as to whether the respondents were entitled to get the proprietorship of the land on half the

market value or full market value of the land

On going through the findings arrived at by the writ court we find a due application of mind, proper appreciation of facts and correct application of

law as such we do not find any ground to interfere with the judgement of the learned Single Judge impugned in the present petition. We find the

learned Single Judge has not committed any legal or jurisdictional error while allowing the writ petition.

The result is that this appeal cannot stand and is hereby dismissed.â€​ (Underling supplied)

We are in complete agreement with the principles declared by the judgement of the learned Singh Judge in Dr. Ved Khullar’s Case (supra)

and the judgements of the learned Single Judge and the Division Bench in Dr. V. K Pachnanda’s Case (supra); and we reaffirm the same.

It is not disputed that the aforesaid judgments passed by the learned Single Judge and the Division Bench in Dr. Ved Khullar’s Case and Dr.

V. K. Pachnanda’s Case, have, thereafter, attained finality and were duly implemented by the Respondents contemporaneously by granting

proprietary/freehold rights to the lessees/petitioners, more than 15 to 30 years ago, as mandated by these judgements.

In fact, our view is fortified by the view taken by the Division Bench of Allahabad High Court (comprising Justice Pankaj Mithal and Justice Vipin

Chandra Dixit) in the case titled Mata Deed Bhagwan Dass and others vs State of UP and others, reported as (2020) 138 ALR 580, in Writ (c ) No.

30353 of 2014, by its judgement dated 10th January, 2020. Some relevant extracts are reproduced below:

“26. The contention that the petitioners never accepted for grant of freehold rights on the prevailing circle rate or on the higher rate is neither here

nor there as the respondents never issued any demand notice to the petitioners demanding any amount at any rate much less the prevailing circle

rate.â€​

…………

“34. In the case at hand, we do not find that the petitioners were in any way responsible for the delay in consideration of their application for

freehold rights. There application was complete in all respect. It was not rejected or even treated to be rejected as the 25% amount deposited by the

petitioners were never offered to be returned. There is no allegation anywhere that the petitioners were not taking interest and have delayed the

proceedings.

In view of the aforesaid facts and circumstances, we are of the opinion that there is an inordinate and unexplained delay on part of the

respondents in dealing with the application of the petitioners for grant of freehold rights. Since the respondents have executed freehold deed in favour

of Ganpat Rai Moti Ram Charitable Trust that has purchased a small portion of the aforesaid plot from the petitioners on 19.03.2012, the petitioners

are also entitled for freehold rights as on the aforesaid date and at the rate on which the rights were so conferred upon the said trust or in the

alternatively to pay damages to the petitioners at the rate of difference between the circle rate prevailing as on date and that which has been applied

for grant of freehold rights to the aforesaid trust.

Accordingly, we issue a writ in the nature of mandamus commanding the respondents to issue a demand note to the petitioners by applying the

same rate that had been applied for grant of freehold rights to the aforesaid Trust or the rate prevailing as on date within a period of one month from

today and on the petitioners depositing the said amount to execute the sale deed within a further period of one month from the date of deposit of the

amount by the petitioners. In the event, the circle rate prevailing today is applied the respondents shall compensate the loss to the petitioners by paying

damages as observed above.â€​

(Underlining supplied)

Significantly, the challenge to the same by the State of U. P. was also dismissed by the Hon’ble Supreme Court of India(Justice Sanjay

Krishan Koul, Dinesh Maheswari and Hrishikesh Roy) by its order dated 22 January, 2021 in SLP (c) No. 15720/2020.

Even in the case of Union of India and others vs Dev Raj Gupta and others, reported as (1991) 1 SCC 63, the Hon’ble Supreme Court held

that in the absence of any deficiency or default on the part of the applicant, the date with reference to which conversion charges have to be counted is

the date on which a complete application was properly made by the applicant. The relevant paragraphs are extracted below:

“13. … …. … … … … … It is pursuant to this reminder that on February 27, 1981 a letter accompanied by an application in the prescribed

form was sent, and both the letter as well as the prescribed form were duly signed for the first time by all the co-lessees. The contents of the

accompanying letter make it clear that even the lessees treated this application as the first duly made application for the purpose. It may also be

mentioned here that, as has been stated in the application, the plans for the construction of the commercial building were sanctioned only on January

21, 1981 and the exemption application made to the competent authority under Section 20(1) of the Act was even then still under process. It is in

response to this application that the sanction was given by the authority on January 12, 1984 to convert the user of the land. We are, in the

circumstances, of the view that it was only on February 27, 1981 that an application for the change of the user of the land was made by or on behalf

of the respondent-lessees of the land.

There is no explanation given by the appellants as to why the application made by the respondents on February 27, 1981 was not replied to till

January 12, 1984. Hence in the absence of anything else on record, it will have to be held that the date with reference to which conversion charges

have to be counted is February 27, 1981.

The authority has calculated additional premium with reference to May 27, 1981 on the footing that the outer limit for granting permission was

three months from the date of the receipt of the application. There is no justification for the authority to hold thus, for they are expected to process the

application as early as possible and not to wait till the end of three months. Unless there are valid reasons for them to do so or the delay is caused on

account of an omission or commission on the part of the applicants, it is not proper to take the end of the three months as the date with reference to

which the conversion charges should be calculated.â€​ (Underlining supplied)

Mr. Dar’s argument that this principle is applicable only to lessees under different Government Orders and not to the Petitioner, who has

applied under the 1973 Government Order and 1976 Government Order, is not correct and is, accordingly, rejected. There is no reasonable basis to

draw that distinction. It is not as if the scheme/policy formulated under the 1973 Government Order read with the 1976 Government Order suffered

from any illegality or was not implemented. In fact, the said scheme/policy provided for regularization and grant of proprietary/freehold rights to the

applicants on market rates plus 25% of the price payable as penalty. This scheme/policy was duly implemented in the other cases pointed out by the

Petitioner, as discussed above, which is not disputed by the Respondents.

In our considered view, a conjoint reading of the respective judgments of the learned Single and the Division Bench of this Court in Dr. Ved

Khullar’s Case and Dr. V. K. Pachnanda’s Case makes it clear that the same are applicable to the Petitioner’s case on all fours. In fact,

the Petitioner’s case is on a higher footing, firstly, it is undisputed that an application for regularisation and grant of proprietary/freehold rights was

properly made by the Petitioner under the applicable scheme/policy i.e., 1973 Government Order read with the 1976 Government Order. Secondly, the

Petitioner’s application had not just remained pending but had in fact been processed by the Respondents. Thirdly, this process undertaken by the

Respondents had culminated in the assessment and fixation of the conversion price @ Rs.35,904/- per Kanal as market rate, plus 25% thereof as

penalty, in tune with the mandate of 1973 Government Order read with the 1976 Government Order. Fourthly, there was default and failure on the

part of the Respondents to complete the consequential steps and formalities for regularisation and grant of proprietary/freehold rights to the Petitioner,

including the failure to accept deposit of conversion price from the Petitioner, without any legally sustainable reason or basis. As a result, in our

considered view, the Petitioner was treated in a discriminatory manner; and deprived parity and equality with other similarly placed applicants, who

were granted regularisation and proprietary/freehold rights by the Respondents under the same scheme/policy. In such circumstances, applicants such

as the Petitioner cannot be deprived of their accrued rights by the Respondents.

We re-emphasize that in this case the Petitioner’s application for regularization and grant of proprietary/freehold rights under the 1973

Government Order read with the 1976 Government Order had been processed and the conversion price was also assessed/fixed. Thereafter, the

letter/communication/order No. Rev(NDK)75/40 dated 12th of June, 1978 directing the completion of consequential formalities towards regularization

and grant of proprietary/freehold rights on the Petitioner was also issued. Still, the Respondents defaulted in their obligation to accept the conversion

price and complete the consequential formalities, without any legally sustainable basis.

We are unable to accept the argument advanced on behalf of the Respondents that all pending cases of applicants under any pre-existing

Scheme/Government Order of the Respondents (as in the case of the Petitioner) stood automatically rejected upon coming into force of the Roshni

Act/Rules. As discussed above, in case of lessees whose applications had been processed, conversion price had been fixed but there had been a

wrongful denial of freehold rights by the Respondents, resulting in hostile discrimination and unequal treatment in comparison with others, the Division

Bench of this Court in Dr. V. K. Pachnanda’s Case, reported as 2007 (2) JKJ 222 (HC), has specifically held as follows:

“14. Thus what was in principle provided by the Government orders of 1981 and 1985 has now been provided in much broader way by the Roshni

Act. Roshni Act has thus not destroyed the right of a leasee to get ownership rights but only extended it to unauthorized occupants and has provided a

proper machinery to process and dealt with such matters. In such circumstances the claim of the respondent to get proprietorship rights cannot be

denied only on the ground that a more elaborate law, providing the same right which was available to him under the earlier orders, has been

provided… … .. … … … … … … …………..with the enactment of Roshni Act the State cannot take advantage of the inaction of its own

officers and cannot deny the benefit to the respondent on the ground that the matter remain pending for all these years.â€​ (Underling supplied)

In any event, since the Roshni Act/Rules having already been declared are null and void by a coordinate Division Bench of this Court by its

decision dated 9th October, 2020 in PIL No. 19/2011, the Respondents cannot take shelter under the Roshni Act/Rules to advance such an argument.

Alternatively, it is argued that since the Roshni Act/Rules have been declared as unconstitutional, null and void by virtue of decision of the

coordinate Division Bench of this Court, dated 9th October, 2020, passed in PIL No. 19/2011, even the rights of lessees/petitioners accrued under any

pre-existing Scheme/Government Order, upheld by binding judgements of this Court, do not survive any longer and would now stand extinguished.

Therefore, it is argued, this Court can no longer place any reliance on such earlier judgements of this Court rendered in the case of lessees/petitioners

under any pre-existing Scheme/Government Order, as legally binding precedent applicable to this Petitioner’s case.

In fact, Mr. Dar would go to the extent of arguing that even if proprietary/freehold rights have been granted by the Respondents to any

lessees/petitioners under any pre-existing Scheme/Government Order pursuant to (and in implementation of) final and binding judgements of this

Court, the grant of such proprietary/freehold rights would no longer survive after the decision of the Division Bench of this Court, dated 9th October,

2020, in PIL No. 19/2011 declaring all actions under the Roshni Act/Rule as void ab initio; specifically, in those cases where the procedural formalities

for implementation of such binding judgements of this Court were carried out through the mechanism provided under the Roshni Act/Rules even if: (i)

the rights of such lessees/petitioners had been held to have accrued under a pre-existing Scheme/Government Order by final judgements of this Court;

(ii) such lessees/petitioners were granted freehold rights upon payment of conversion price fixed under the respective Scheme/Government Order, as

upheld by such final and binding judgements of this Court and (iii) such lessees/petitioners have not derived the benefit of any rebates, discounts and

concessions under the Roshni Act/Rules. If this argument were to be accepted, even conclusively decided and duly implemented cases under any pre-

existing Scheme/Government Order, such as Dr. Ved Khullar’s Case or Dr. V. K. Pachnanda’s Case can also potentially be

undone/unimplemented based on the decision of the Division Bench of this Court, dated 9th October, 2020, in PIL No. 19/2011. We find this argument

too far-fetched and are unable to accept it. We reject it emphatically.

We have examined the decision of the Division Bench of this Court, dated 9th October, 2020, in PIL No. 19/2011, which applies to beneficiaries of

rebates, discounts and concessions under the specific scheme envisaged by the Roshni Act/Rules. It does not apply to the 1973 Government Order or

the 1976 Government Order. It also does not apply to those successful lessees/petitioners in whose favour earlier judgements had been delivered by

this Court enforcing their rights under any pre-existing Scheme/Government Order that existed before the enactment of the Roshni Act/Roshni Rules,

more so, if such judgements had attained finality and had even been implemented. The Respondents cannot take shelter under the decision of the

Division Bench of this Court, dated 9th October, 2020, in PIL No. 19/2011, to argue that lessees/petitioners under a pre-existing Scheme/Government

Order, who had been granted freehold rights by the Respondents in implementation of judgements of this Court, based upon rights held by this Court to

have accrued in their favour, would now stand deprived of their proprietary/freehold rights, notwithstanding the fact that such lessees/petitioners were

not beneficiaries of any rebates, discounts and concessions under the Roshni Act/Rules at all. We find that argument completely unacceptable, more

so, when the subject matter of the controversy before the Division Bench in PIL No.19/2011 had nothing to do with any such pre-existing

Scheme/Government Order. In our considered view, these cases are sui generis and cannot be clubbed with the cases of beneficiaries under the

Roshni Act/Rules.

Even otherwise, the decision of the coordinate Division Bench of this Court, dated 9th October, 2020, in PIL No. 19/2011 could not have overruled

or overturned the earlier binding judgements of the Division Bench of this Court delivered in respect of lessees whose rights had accrued under such

pre-existing Scheme/Government Order. The Supreme Court of India has held in Sant Lal Gupta and others v. Modern Cooperative Group Housing

Society Limited and others, reported as (2010) 13 SCC 336, as follows:

“18. In Rajasthan Public Service Commission & Anr. v. Harish Kumar Purohit & Ors., (2003) 5 SCC 480, this Court held that a bench must follow

the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any

latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the

proper course is for it to refer the matter to a larger bench.â€​

(Underling supplied)

In our view, the implementation of such earlier judgements of this Court that were decided based upon accrued rights under any pre-existing

Scheme/Government Order in favour of the lessees/petitioners cannot be undone in the manner now argued, without resorting to disobedience of the

judgements of this Court. Not only this, such a course of action would result in unsettling long settled cases and cannot be permitted. In our considered

view, the Respondents remain under a legal obligation to ensure the continued implementation of such earlier binding judgements of the Court relating

to rights accrued under any pre-existing Scheme/Government Order. Such concluded cases cannot be reopened.

We accordingly reject the argument that the judgements of this Court in such cases relating to any Scheme/Government Order existing prior to the

Roshni Act/Rules, are no longer binding precedent and cannot be relied upon by this Court in this case relating to the Petitioner. We are, therefore,

bound by the judgments of this Court that have been discussed above, as confirmed and upheld by the Division Bench of this Court. We reaffirm them

accordingly.

Having held as above, in the specific and peculiar facts limited to this case involving a delay of several years (although because of the

Respondent’s default), we exercise our discretion by permitting the Respondents to recover a reasonable rate of simple interest (not exceeding

14% per annum) from the Petitioner, while raising their demand on the Petitioner in this case.

We are unable to consider the second part of the Petitioner’s prayer regarding the additional parcel of land measuring 7 Marlas and 257 sfts

as that claim is made under the Roshni Act/Rules.

CONCLUSIONS AND RELIEF: We summarize our conclusions, in light of the analysis and discussion above, and consequently hold, direct and

order as follows:

a) In cases where the application for grant of proprietary/freehold rights has been made by an applicant (i) during the subsistence of any

Scheme/Government Order issued by the Respondents, which was existing prior to the coming into force of the Roshni Act/Rules, i.e., when such

Scheme/Government Order was in force, AND (ii) such application was duly recommended by the recommending authorities of the Respondents,

consequent to assessment and fixation of the conversion price under the said Scheme/Government Order; the Respondents cannot deny the grant of

proprietary/freehold rights to the applicants under the said Scheme/Government Order on any arbitrary, unreasonable and illegal basis, more so, if

other similarly placed applicants have been granted proprietary/freehold rights by the Respondents under the said Scheme/Government Order. In such

cases, the applicant cannot be made to suffer because of the delay, default or omission on the part of the Respondents.

b) In such cases covered by conclusion (a) above, if the process has further culminated in a decision by the Respondents to grant proprietary/freehold

rights to the applicant, but the decision was not implemented by the functionaries of the Respondent on some inexplicable, illegal, arbitrary and legally

unsustainable basis (as in the case of the Petitioner); such applicants case would be on a much higher footing.

c) The Roshni Act/Rules or the decision of the Division Bench of this Court, dated 9th October, 2020, in PIL No. 19/2011 do not extinguish or destroy

the rights of any applicant mentioned in conclusion (a) and conclusion (b) above, if such rights had accrued under any such pre-existing

Scheme/Government Order. Therefore, the Petitioner cannot be deprived of his rights under the 1973 Government Order read with the 1976

Government Order and the letter/communication/order No. communication/letter/order No. Rev(NDK)75/40 dated 12th of June, 1978.

d) In any event, the earlier judgements of this Court upholding the rights of any lessees/petitioners accrued under any such pre-existing

Scheme/Government Order regarding grant of proprietary/freehold rights to such lessees/petitioners, which have attained finality and have been duly

implemented, remain binding and their implementation cannot be undone based on the decision of the Division Bench of this Court, dated 9th October,

2020, in PIL No. 19/2011 provided: (i) such lessees/petitioners were granted proprietary/freehold rights based upon the conversion price fixed under

the said Scheme/Government Order, which came to be upheld by the judgements of this Court and (ii) such lessees/petitioners were not beneficiaries

of any rebates, discounts and concessions under the Roshni Act/Rules. The procedural formalities followed for the implementation of such judgements

by the Respondents do not impact the binding and conclusive nature of such judgements in favour of such lessees/petitioners. Such concluded cases

cannot be reopened. Therefore, this Court is not precluded from relying on such judgements as legally binding precedent in similar cases.

e) Accordingly, based upon the above principles, we allow the Writ Petition bearing OWP No.1294/2017 filed by the Petitioner by directing the

Respondents to accept the cost of the land measuring 06 Marlas and 15 sft., comprised under Khasra No. 836 situated at Estate Narsingh Garh, Gogji

Bagh, Srinagar, which has been regularized in favour of the Petitioner vide letter/communication/order No. Rev(NDK)/75/40 dated 12th June, 1978

and to complete the formalities vis-Ã -vis grant of proprietary/freehold rights in favour of the Petitioner qua the said parcel of land in tune with the

mandate of the 1973 Government Orders (dated 28th of January, 1973) and 1976 Government Order (dated 23rd of December, 1976) (supra), as

recommended in terms of letter/communication/order No. Rev(NDK)75/40 dated 12th of June, 1978, issued by the Revenue Department, within a

period of three months from today.

f) Towards that end, the Respondents are directed to decide within one month from today as to whether Respondent 5 or 7 (or any other Respondent)

is to receive payment from the Petitioner. Accordingly, it is further directed that the Respondent which is to receive payment from the Petitioner

should issue a demand notice in favour of the Petitioner as cost of the regularized parcel of land measuring 06 Marlas and 15 sft falling under Survey

no. 836. While raising such demand notice, in the peculiar and specific facts of this case, the said Respondent is permitted to charge a reasonable rate

of simple interest (not exceeding 14% per annum) starting from 12th June, 1978 and include the same in the total amount demanded from the

Petitioner under the demand notice. Upon deposit of such amount by the Petitioner, the Respondents are directed to complete the formalities vis-Ã -

vis grant of proprietary/freehold rights in favour of the Petitioner qua the land measuring 06 Marlas and 15 sfts comprised under Khasra No. 836

situated at Estate Nursing Garh, Gogji Bagh, Srinagar, in tune with the mandate of the 1973 Government Orders (dated 28th of January, 1973) and

1976 Government Order (dated 23rd of December, 1976) (supra), as recommended in terms of communication/letter/order No. Rev(NDK)75/40

dated 12th of June, 1978., issued by the Revenue Department.

g) Insofar as the second portion of the relief sought for by the Petitioner is concerned, regarding the additional parcel of land measuring 07 Marlas and

257 sfts under the same Survey number, in respect of which no action or process had been initiated by the Respondents under the Roshni Act/Rules,

the same will abide by the decision of the Division Bench rendered in PIL No. 19/2011 titled S. K. Bhalla (Prof) v. State of J&K & others, decided on

9th of October, 2020, with any further decision in the review petition(s) stated to have been pending before the coordinate Division Bench of this

Court in that matter. The Petitioner, in this behalf, shall be free to approach the coordinate Division Bench with appropriate proceedings to seek any

further relief.

h) We order accordingly and to that extent.

i) Consequently, the connected appeal filed by the Respondents against the interim order of this Court which has now merged with this judgment shall

stand dismissed as infructuous. Besides, the Contempt Petition filed by the petitioner shall stand disposed of accordingly as well.

Registry to place a copy of this judgment on each file.