Shakeel Ahmad Andrabi vs State & Ors.

Dispute in the present writ petition relates to the allotment of public land by the Municipal Corporation to the petitioner. Connected with this

question is the fact as to whether any public land in the municipality is owned by it merely because the same is located within the precincts of

Municipality Corporation. In order to appreciate this question certain facts are required to be enumerated.

The petitioner claims to be in possession of a piece of land measuring 6' x 15' situated near old Amirakadal Bridge. He claims that he applied for

allotment of a shopping site available at Gonikhan, Hari Singh High Street, juxtaposition to Amirakadal Bridge. The basis for seeking such

allotment is on account of the fact that allotments were being made in favour of the persons, who are identically situated with the petitioner.

Reliance has been placed on the various orders passed by the Municipality, whereby sanction has been accorded for regularization of unauthorized

occupation of the site in favour of some persons. The orders relied upon by the petitioner reveal that unauthorized occupation of the land has been

regularized subject to payment of rent as enumerated in the orders passed by the Municipal Corporation. Petitioner claims that he forms one class

with these persons and cannot be discriminated in regularizing unauthorized occupation of the land. This, in nut shell, is the case of the petitioner.

Stand of the respondents is that land is question is State land near old Amirakadal Bridge, which is used as a pathway by the general public, as

such, petitioner cannot be permitted to use the same as a shopping complex. It is further contended that petitioner never been in occupation of the

said land since 1988, as alleged by him. The said land has been occupied by the petitioner somewhere in the year 2005, which is revealed from

annexure (C) placed on record by the petitioner along with the petition. In the said application the petitioner has sought allotment of vacant piece of

land in his favour on temporary ground basis measuring 6' x 15'. Specific stand of the respondents is that the said land cannot be allotted to the

petitioner over which, he has raised construction after obtaining order of status quo from this court.

I have heard learned counsel for the parties.

The Corporation has powers to acquire any immoveable properly for the purpose of its use. The land can be acquired after making request to

the Government, who may in turn take steps as required under the Land Acquisition Act, Svt. 1990. Similarly, the Commissioner has the power to

dispose of the property belonging to the Corporation subject to its prior approval in terms of Section 157 of the Municipal Corporation Act, 2000

(hereinafter referred to as the Act). Such powers can be exercised by granting a lease not exceeding a period of ten years of any immoveable

property belonging to the Corporation. The power of granting lease can be exercised only if the property is owned by the Corporation.

Land is defined under the Land Grants Act, 1960, (hereinafter called the Act of 1960), which means the land which belongs to Government and

includes buildings standing on such land. Government can grant lease of land in terms of Section 4 of the Act of 1960. Section 8 of the Act of

1960, contemplates that management and administration of lands under this Act shall be vested in such authorities and the records connected

therewith shall be maintained in such form and in such manner as may be prescribed.

Rule 3 of the Land Grants Rules, 1960 provides that in the event such land is leased out, the Collector shall obtain a report from the Tehsildar in

this behalf regarding survey numbers of land, where the land is comprising; whether cultivated or uncultivated; the location of the land, whether

situated within or outside the Municipal/Town Area or notified area limits. It also envisages that in case lease is being granted, no objection from

the local authority is also required to be obtained. Rule 4 of the said Rules provides that the lease is to be granted by taking recourse to auction.

Conjoint reading of the provisions of the Act and Rules referred to above, reveals that the power to grant lease of Government land vests with

the Collector as defined under Act of 1960.

It is pertinent to mention that the Act of 1960 applies to the areas, which fall within the radius of 13 Kms from Jammu City, 16 Kms from

Srinagar City and also all town areas and notified areas. The scheme of the Act provides that land can be entrasted to any local authority which

includes Municipal Corporation, Notified Area and Town Area Committee. It envisages that the local authority can be entrusted with the

management of the land as already discussed herein above. Corporation has power to acquire any immoveable property which is owned by it and

the same can be leased out under Section 157 of the Act. Municipal Corporation has no power to allot any land which is not owned by it. That

power exclusively vests with the State Government under the Act of 1960. To say it candidly, any land belonging to the State Government can

only be entrusted for management to the Municipality who in turn cannot lease out it unless the property is owned by it.

It be been seen that the land in the present case only situates within the limits of the Corporation and does not belong to it. It has been

entrusted to it for management only. The powers to allot this land on lease vests with the Collector under the Act of 1960.

Grievance of the petitioner that he is in occupation of the land from 1988 and therefore, the said possession should be regularized in his favour

is misconceived. On his own showing, he has applied for allotment of this land in the year, 2005 as is revealed from Annexure 'C' annexed with the

writ petition. His application for grant of said land to the Municipality cannot be considered in view of the fact that the land is not owned by the

Corporation. It is only the land owned by the Municipal Corporation which can be leased out by it as stated herein above. The petitioner has no

where, in his petition, mentioned that property is owned by the Municipality, as such, he is entitled to seek allotment in his favour. Nothing has been

shown by the Municipality before this court that it is the owner of the land and is capable of allotting the same on lease to the petitioner.

It is not in dispute that such land is to be used as a pathway as is revealed from the stand taken by the respondents. The petitioner has not

contested this plea but only claims that similarly situated persons have been allotted the land, as such, he may also be granted the same benefit of

allotment. Invoking article 14 of the Constitution in his support, he states that as he forms one class with those persons who have been allotted the

land he cannot be discriminated. Article 14 cannot be invoked in the matters where order violates any provision of the law and rules. The allotment

made in favour of the various persons as indicated in the writ petition prima facie does not seem to be in accordance with the law unless it is shown

that the Municipality has powers to allot this land on lease to the said persons.

From the pleadings it reveals that petitioner has encroached upon the land and raised construction over it after obtaining status quo order from

this court. His prayer for regularization of allotment under these circumstances cannot be accepted. His right to seek regularization of allotment is

neither supported by any provision of law nor by equity. On his own showing he occupied the land only after filing an application before the

Corporation for allotment of land in his favour. He did not wait for the decision of the Corporation on his application before raising structure on the

land. He, as such, has not come to this court with clean hands and tried to mislead the Court by stating that he is in occupation of the said land

since 1988. By his own showing, in his application addressed to the Deputy Mayor, Srinagar, Municipal Corporation, the petitioner has requested

for allotment of vacant piece of land measuring 6' x 5' in his favour in 2005. In such a situation, no relief can be granted to the petitioner.

Occupation of the public land has become common feature in this country. The public pathways, roads are shrinking due to encroachment of

public land. The manner in which the corporation is dealing with these type of issues clearly indicates their collusion with such encroachers. As a

matter of public policy, Municipal Corporation should refrain from allotting footpaths, pathways and roads to any person.

In view of the above, I find no merit in this writ petition, the same is, as such, dismissed. Interim direction passed by this court dated 1st of

Feb'06, shall stand vacated.

Before parting with the judgment, I direct the Municipal Corporation to examine the cases of the persons which have been referred to by the

petitioner in his writ petition in whose favour allotments have been made by the Corporation with whom the petitioner is seeking parity. The

Municipal Corporation will examine as to whether it has power to grant this land in favour of the said persons in terms of Section 157 of the Act,

which as indicated above, envisages that land owned by the Municipality alone can be leased out by it. In case, the land allotted in favour of these

persons is not owned by the Municipality, then the matter pertaining to allotment made in their favour shall be reviewed. However, before doing so,

the authority concerned of the Corporation will issue notice to the said persons in whose favour allotment has been made and afford them

opportunity of hearing before passing any order.

Let this exercise be completed by the respondents within a period of two months from today and shall file compliance report before this court

regarding steps taken by them by or before 15th of Sept, 2010.

Registry to prepare the index and list the same on 16.09.2010.