Hem Raj Alias Hemu vs Unknown on 12 August, 2009

Jammu High Court
Hem Raj Alias Hemu vs Unknown on 12 August, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Appeal No. 11-A OF 2002  
Hem Raj alias Hemu  
Petitioners
State of J&K
Respondent  
!Mr. J. P. Sharma, Adv.
^Mr. S. C. Gupta, AAG. 

Honb�ble Mr. Justice Mansoor Ahmad Mir    
Date: 12/08/2009 
:J U D G M E N T :

This criminal appeal is directed against the judgment and order dated 12.6.2002
and 13.6.2002 passed by the learned Sessions Judge, Udhampur in File
No.35/Session, titled, State vs Hem Raj alias Hemu and others (for short,
impugned orders), whereby and whereunder the appellant came to be convicted and
sentenced for the commission of offence punishable under Section 376 Ranbir
Penal Code (for short, RPC).

Brief facts of the case
One Mst. Pushpa Devi-prosecutrix lodged a report on 8.3.1999 at about 15:30
(3:30 pm) in Police Station Udhampur with the allegation that on 5.3.1999 at
about 8:30 pm she was in her house with her son and two daughters, three
persons, namely, Hem Raj-appellant herein, Mukhtyar Singh and third person, name
not known, asked her whether she was having eggs, she replied in negative. They
asked her where her husband was and she replied that he was out of station.
Thereafter, they asked for a chicken, she replied in negative. At that time she
was preparing meal in the kitchen. All the three persons entered into her house
with criminal intention, appellant-Hem Raj caught hold of her, laid her on the
floor of the room and raped her. The other two persons broke the box and took
away Rs.1500/-. Thereafter all the three persons ran away. On her hue and cry,
one Amar Nath came on spot. Her husband returned on 6.3.1999 and she narrated
the entire story to him on the same day. 7th March 1999 was a holiday and on
8.3.1999 she lodged a report in the Police Station. During investigation the
investigating officer recorded the statements of witnesses, effected seizures
and obtained the opinion of medical expert/FSL opinion. The investigating
officer came to the conclusion that only appellant-Hem Raj and Mukhtyar Singh
were involved in the commission of offences, whereas nothing was collected
against the third person. Further, the investigating officer came to the
conclusion that Mukhtyar Singh and the third person had not taken away Rs.1500/-
after breaking the box, but only Mukhtyar Singh had made an attempt to break the
box and to take away the said amount. The appellant and Mukhtyar Singh came to
be arrested. The final report came to be presented before the Chief Judicial
Magistrate, Udhampur, who committed the case to the Court of learned Sessions
Judge, Udhampur-trial court. The appellant-accused No.1 came to be charge
sheeted for the offence punishable under Sections 376 and 458 RPC and Mukhtyar
Singh-accused No.2 came to be charge sheeted for the commission of offences
punishable under Sections 380, 458 and 511 RPC. The accused pleaded not guilty
and claimed to be tried. The prosecution examined 10 witnesses out of 13 cited
in the witness calendar. The prosecution failed to examine PWs 9, 10 and 13. The
trial court vide judgment and order dated 12.6.2002 convicted the appellant-
accused No.1 for the commission of offence punishable under Section 376 RPC and
acquitted him for the commission of offence punishable under Section 458 RPC and
also acquitted Mukhtyar Singh-accused No.2. Thereafter, the trial court heard
the appellant and prosecution on the question of punishment and awarded sentence
against the appellant vide order dated 13.6.2002.

Before arriving at a just conclusion, it is proper to give brief resume of the
prosecution witnesses herein:

PW1 Pushpa Devi has stated that on the date of occurrence she was preparing the
meal and her children were present in the house, whereas her husband was not
there. She came out to fetch water and found accused-Hem Raj, Mukhtyar Singh and
a third person, name not known, present in the compound. Accused-Hem Raj asked
for a chicken, but she told him that she did not have any. Then accused-Hem Raj
caught hold of her and took her inside the house. The other accused caught her
from behind. All the accused laid her in the room, accused-Hem Raj opened and
put off her trouser (salwar) and forcibly raped her. She tried to get rid of and
save herself, but Hem Raj did not allow her to do so and raped her twice. The
second accused did not commit any rape on her and the third person stole away
Rs.1500/- and silver ear rings belonging to her. She made hue and cry, one Amar
Nath, brother of her husband, armed with danda came on spot and the accused ran
away. On the next day she reported the matter to the Numberdar and on the third
day she lodged a report in the police station. She has admitted the contents of
FIR, Parcha illat and seizure relating to Salwar as true and correct and came to
be exhibited as EXPWPD, EXPWPD1 and EXPWPD2 respectively.
PW2-Lal Chand is the husband of prosecutrix. He has deposed that he was not
present on the spot when the alleged occurrence took place.
PW3-Amar Nath has deposed that Pushpa Devi is the wife of his younger brother
Lal Chand. On the date of occurrence he heard noise at about 8 pm. He went there
and found Hem Raj and Pushpa Devi in the house of Lal Chand, Pushpa Devi was
weeping. When he opened the door it was pitch dark and accused-Hem Raj came out
of the room. On inquiry Pushpa Devi told him that accused Hem Raj forcibly
committed sexual intercourse with her. He had only seen accused-Hem Raj in the
said house and none else, Pushpa Devi was sitting on the cot and thereafter he
returned back to his home.

In cross-examination he has stated that the house of accused is located just
three b�zaribsb�/three meters away from the house of Pushpa Devi and his house
is not adjacent to the house of Pushpa Devi, but houses of b�Premub� and
sister of prosecutrix are adjacent to the house of Pushpa Devi. Her sister did
not come on spot. Lal Chand is dealing with liquor and father of accused-Hem Raj
had lodged a report against Lal Chand about the trade of illicit liquor.
PW4-Om Parkash is the witness to the seizure of Salwar, EXPWPD2.
PW5-Smt. Hroli, PW6-Mst. Dewanu, PW7-Mst. Koshalya Devi and PW8-Smt. Shellu are
not the witness to the occurrence.

PW9-Dr. Uma Sharma has deposed that the prosecutrix was brought before her on
8.3.2009, whereas occurrence had taken place on 5.3.1999. She being a married
woman, it was not possible for her to frame a definite opinion regarding rape.
On cross examination she stated that she had not seen the presence of
spermatozoa in vaginal smear.

PW10-Jagdish Singh is the investigating officer, who has recorded the statements
of witnesses and prepared the site plan PXPWJS. He has also seized one lock, a
latch-EXPWAN and Salwar-EXPWPD2.

In cross-examination he has stated that the occurrence had taken place on
5.3.1999, he visited the spot on 14.3.1999 and arrested the accused on
16.7.1999. The complainant had found the alleged stolen articles in her trunk on
the next day.

The trial court acquitted the accused Mukhtyar Singh and also acquitted the
appellant for the offence punishable under Section 458 RPC, but only convicted
him for the commission of offence punishable under Section 376 RPC on the
solitary statement of the prosecutrix.

Dr. Hale C. J. of Australia, said, b�Rape is an accusation easily to be made
and hard to be proved and harder to be defended by the party concerned, though
never so innocent.b�
Keeping in mind the observations supra and the ratio of Apex Court judgments, it
is beaten law of the land that conviction can be based on the solitary statement
of the prosecutrix provided it is truthful and inspires confidence.
In the judgment titled as Ghulam Mohammad Pahalwan vs State, reported in SLJ
1983, J&K, P-175 held that, once the Court is satisfied that the version given
by the prosecutrix is trustworthy, free of blemish and find support from medical
evidence the court need for no other corroboration to record conviction.
Apex Court in the case titled State of Karnataka vs Mapilla P. P. Soopi,
reported in AIR 2004, SC 85, held that corroboration is required when statement
given by the prosecutrix does not inspire confidence and appears not to be free
of blemish.

The Apex Court in the case titled Aman Kumar and another vs State of Haryana,
reported in AIR 2004, SC 1497, held that prosecutrix complaining of having been
a victim of the rape is not an accomplice after the crime. There is no rule of
law that her testimony cannot be acted without corroboration in material
particulars. However, if the Court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it may search for evidence, direct
or circumstantial, which would lend assurance to her testimony.
Keeping in view the entire history of the case right from the lodging of FIR
till the prosecutrix appeared before the Court, it appears that she has changed
her statement in material particulars. The prosecutrix case is shrouded in
doubts for the following reasons:

i. In the FIR the prosecutrix has alleged that accused-Hem Raj, Mukhtyar
Singh and third accused, name not known to her, entered into her house at 8:30
pm when she was cooking food for her children in the kitchen. They asked about
the eggs and chicken, she stated that she did not have any. Thereafter they
enquired about her husband, caught hold of her, accused-Hem Raj laid her on the
floor of the room and forcibly committed sexual intercourse, thereby committed
rape upon her. The other two accused broke the lock of the box and stole away
Rs.1500/-, on her hue and cry, brother of her husband, namely, Amar Nath came on
spot and the accused ran away. The investigating officer, however, found that
the allegations against accused No.3, whose name is not known, were not correct.
He also found that the accused had not stolen away the currency notes, but only
Mukhtyar Singh-accused No.2 had made an attempt. However, when the prosecutrix
appeared before the Court, she made a different story by deposing that she was
preparing meal for her children, came out of her house for fetching water and
found all the three accused in the compound. They asked her about the eggs and
chicken, she replied that she did not have any and, thereafter, they made an
inquiry about her husband, she replied that he was not present in the house.
Thereafter Accused-Hem Raj caught hold of her, the other accused helped him and
laid her on the floor of the room and accused-Hem Raj committed rape on her and
the other two accused stole away Rs.1500/- and silver ear rings belonging to her
after breaking open the lock of the box.

ii. She has also deposed that when she made hue and cry, the neighbours and
Amar Nath came on spot and on noticing him the accused ran away. But Amar Nath
has stated that he heard noise at 8 pm and rushed to the house of his brother.
He opened the door and found accused-Hem Raj and prosecutrix in the house and
prosecutrix was weeping on the cot.

Amar Nath has specifically stated that when he entered her house, he did not see
any other person in the house.

iii. The prosecutrix has specifically stated before the Court that the other
two accused had stolen away Rs.1500/- and silver ear rings. She has no where
stated in the FIR that accused have also stolen the silver ear rings. This she
deposed for the first time before the trial court. The investigating officer
during investigation found that accused-Mukhtyar Singh had not stolen away
Rs.1500/-, but he has stated that an attempt was made by accused-Mukhtyar Singh.
He has categorically stated that no evidence had come forth against the third
accused. The investigating officer while deposing before the Court has stated
that the prosecutrix found the stolen articles in the room on the next day of
alleged occurrence, whereas the prosecutrix has deposed in the Court that
accused Nos.2 & 3 have stolen the said articles after breaking open the lock of
the box. The prosecutrix has stated in the FIR as also deposed before the Court
that she narrated the whole incident to the Numberdar. Why the Numberdar has not
been examined, is not explained by the prosecution. If she reported the matter
to the Numberdar on the next day of alleged occurrence, why she did not make the
report to the police on the very same day, which is only 20 kms away from her
house as per EXPWPD1. Further, why Amar Nath did not lodge report on the same
day, instead of going back to his home and why on the next day he had not
reported the matter to the police or taken any action, which a prudent man would
do after hearing/noticing that some person had raped his relative.
iv. The prosecutrix has specifically stated in the FIR and before the Court
that his son and two daughters were present in the house at the time of alleged
occurrence. Why their statements were not recorded during investigation and why
they were not produced before the Court is also not forthcoming from the record
and has also not been explained by the prosecution.

v. Who closed the door is also not explained by the prosecution. If the
accused would have closed the door, the children of prosecutrix would have
definitely made hue and cry. Amar Nath has only found the accused-Hem Raj in the
house. She has stated that she was laid on the floor of the room, then how she
was sitting on the cot, as stated by Amar Nath when he entered the room on
hearing the noise, is not forthcoming from the record. He nowhere has stated
that he had seen accused-Hem Raj committing the sexual intercourse with the
prosecutrix when he opened the door. He has nowhere stated that the prosecutrix
was not wearing the salwar at that particular point of time. In the given
circumstances it cannot be ruled out that it is not a case of b�consentb�.
vi. The prosecution has failed to explain the three days delay. The medical
report is also not in favour of prosecution. Dr. Uma Sharma has nowhere stated
that she found any injury on any part of the body of prosecutrix not to speak of
private parts. If at all the prosecutrix would have made an attempt to save
herself or would have resisted, then definitely there would have been some
bruises/scratches/injury marks on any part of her body, when the prosecutrix has
specifically stated that the accused opened and put off her salwar and forcibly
committed rape on the floor of the room.

vii. The evidence also discloses that the father of appellant-accused had
lodged a report against the husband of the prosecutrix about the trade of
illicit liquor. It can also be not ruled out that the case is not the outcome of
rivalry.

Apex Court in the case titled Davinder Singh and others vs State of
Himachal Pradesh, reported in AIR 2003 SC 3365, held that when there is delay in
lodging FIR coupled with the fact that there are inconsistencies in the
statement of the prosecutrix, it is not safe to base conviction on the testimony
of prosecutrix.

Honb�ble High Court of Orissa in the case titled Sanya alias Sanyasi
Challan Seth vs State of Orissa, reported in Cr. L. J. 1993, Page 2784, on
similar facts dismissed the prosecutrix case and acquitted the accused.

It is apt to reproduce para-2 of the judgment delivered by the Apex Court
in case titled State of Andhra Pradesh vs Lankapalli Venkateshwarlu, reported in
AIR 2000 SC 3555, hereunder:

b�We have perused the evidence recorded by the trial Court with the
assistance of learned counsel for the parties. Not only has the prosecutrix
given to go-bye to the version, in material particulars, as recorded in the FIR
in her evidence recorded in Court, but, even the medical evidence recorded by
the Doctor b�” P.W. 12 does not at all support the allegations made by the
prosecutrix.

In the given circumstances, the conviction cannot be made basis on the solitary
statement of the prosecutrix without corroboration. The trial court has fallen
in error while holding that without corroboration, the conviction can be made on
the solitary statement of the prosecutrix.

Viewed thus, the appeal is allowed, impugned judgment and order of conviction
and sentence are set aside and the case of prosecution is dismissed. The accused
is, accordingly, acquitted.

Jammu (Mansoor Ahmad Mir)
Dated:12.8.2009 Judge
(Anil)

Ankush Kohli vs State & Ors on 31 July, 2009

Jammu High Court
Ankush Kohli vs State & Ors on 31 July, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 346 OF 2005   
Ankush Kohli 
Petitioners
State & Ors 
Respondent  
!Mr. D.C. Raina,Senior Advocate with Mr. Vikas Mangotra, Adv
^Mr. Sanjay Kakar, GA 

Hon'ble MR. JUSTICE SUNIL HALI, JUDGE.    
Date: 31/07/2009 
:J U D G M E N T :

Claiming to be an outstanding person for having participated in International
and National Sports Events in the Roller Skating and Roller Hockey, the
petitioner seeks his appointment in the category of outstanding sports person
under Jammu and Kashmir (Appointment of outstanding sports person) Rule, 1998.
The aforesaid rules contemplate appointment of persons in the category of sports
persons to be appointed against any vacancy in the state of Jammu and Kashmir.
Petitioner claims that having been recommended for appointment as Assistant
Manager, he has been offered the post of Receptionist in the Hospitality and
Protocol Department of which he is aggrieved and challenge the same in the
present writ petition.

After hearing the learned counsel for the parties, it transpires that
petitioner was recommended for the post of Assistant Manager in Hospitality and
Protocol Department by the committee constituted under the aforesaid Rules
headed by the Chief Secretary. This recommendation was made by the committee
after satisfying itself that the petitioner was an outstanding sports person as
defined in the definition clause of the aforesaid rules. The appointment of the
petitioner against the post of Assistant Manager could not fructify as a
consequence of which Government Order No. 157-GAD of 2005 dated 4-2-2005
appointing the petitioner as Receptionist in Hospital and Protocol Department in
the pay scale of Rs. 4000-6000 against the available vacancy was issued. There
is no dispute as contended by the petitioner that his case was recommended by
the committee for being appointed as Assistant Manager.

The respondents on the other hand, admit this position that the case of
petitioner was recommended by the committee for the post of Assistant Manager in
the Resident Commissioner’s Office, New Delhi. After the said recommendation,
the matter was taken up with the Hospitality and Protocol Department for
identification of the post. The information supplied by the department vide its
communication dated 9-11-2003 indicated that there was no post of Assistant
Manager available. The post of Receptionist was however available in the
Hospitality and Protocol Department. This fact was placed before the committee
vide decision dated 3-6-2004 that due to non-availability of post of Assistant
Manager, the petitioner be considered for appointment as Receptionist in the
Tourism Department. It is further averred that two more candidates namely Ankush
Soni and Tejinder Pal Singh having qualification of B.Com, Post Graduation
Diploma in Business Management and Diploma in Hotel Management and Degree in
Hotel Management and Diploma in Computer Application respectively have been
appointed as Receptionist in the Tourism Department. The petitioner can be
adjusted against the post of Receptionist as he was Degree holder in Hotel
Management, whereas Tejinder Pal Singh was a Degree holder in addition to
Diploma in Computer Application.

I have perused the record produced by the respondent which clearly reveals
that effort was made to identify the post of Assistant Manager in the
Hospitality and Protocol Department on the basis of recommendation made by the
committee, but due to non-availability of the post of Assistant Manager, the
said recommendation could not be carried out.

The question for consideration is whether the petitioner has a right to
seek appointment against the post of Assistant Manager as a matter of right. The
aforesaid Rules of 1998 are exception to the general rules of recruitment. The
appointment is made by the committee amongst the persons who are outstanding
person. Rule 3 of the aforesaid rules clearly envisages that appointment can be
made against any vacancy in non gazetted cadre. It does not envisage that a
person can be appointed on a post which is relatable to the qualification of the
person. Underlining object of granting this facility to an outstanding sports
person, is to encourage sports talent. A person has no right to claim a
particular post under the aforesaid rules. It is clearly revealed by the scheme
of the rules. The other features of the rule are that petitioner is not subject
to any test and the only qualification required for is that he should be
outstanding sports person.

Applying this test to the present case, it is clearly indicated that
respondents had recommended the appointment of the petitioner against the post
of Assistant Manager but due to non-availability of the said post, he has been
appointed as Receptionist. The other two outstanding persons named above who
have been appointed as Receptionist have the better qualification than the
petitioner and they stand appointed as Receptionist. So, on the face of it,
petitioner cannot claim any preference for being appointed as Assistant Manager,
when admittedly persons who have better academic qualification and are also
sports person have been appointed as Receptionist. Since there is no post of
Assistant Manager in the Hospitality and Protocol Department was available,
petitioner cannot claim any right to the said post. However, it is not disputed
by the respondents that the petitioner is entitled to be appointed as
Receptionist. A direction is required to be given to the respondents to appoint
the petitioner against the post of Receptionist to which he was found entitled
to by the committee vide its decision dated 3-6-2004.

Writ petition is disposed of with the direction to the respondents to
appoint the petitioner against the post of Receptionist. Let this exercise be
completed by the respondents within a period of two months from the date copy of
this order is received by them.

(Sunil Hali)
Judge
Jammu: 31-7-2009
RSB, Secy.

Rahul Pant & Anr vs State & Ors on 1 June, 2009

Jammu High Court
Rahul Pant & Anr vs State & Ors on 1 June, 2009
       

  

  

 

 
 
 ;??HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.             
OWP No. 855 OF 2007 AND OWP No. 507 OF 2008 AND OWP No. 850 OF 2007            
1.Rahul Pant & anr
2.Raj Kumari 
3.National Finance Company  
4.Anil Modi
5.Ashok Kumar  
6.Anil Modi
7.M/s Vardman Bartan Store  
8.Raman Aggarwal & anr.  
9.M/s AGM Sales Corporation  
10.Anand Rathi Securities Ltd.
11.Bal Krishan Gupta 
12.Rajinder Gupta
13.Kapil Salathia & anr.
14.Raj Kumar Gupta & anr. 
15.Ashwani Kumar Bali  
16.Tarun Bali
17.Sanjeev Kumar  
18.Majid Farid Shapoo 
19.Som Kumar Gupta & anr.   
20.Mufti Sharifu Din
21.Sahil Mahajan 
22.Abhiney Gupta 
23.Arwan Kumar  
24.Sajjad Ahmad Bhat  
Petitioners
State & Ors.
Respondent  
!M/s U.K.Jalali, A.V.Gupta,D.C.Raina,Sunil Sethi Senior Advocates,D.K.Khajuria
& D.S.Thakur,P.N.Raina, M. L.Gupta,F.S.Butt,M.K.Riana and I.H.Bhat, Advocates.  
^M/s Seema Shekher, AAG, Adarsh Sharma & A.G.Sheikh Advocates.      

Mr. Justice J.P.Singh, Judge.
Date: 01/06/2009 
:J U D G M E N T :

OWP No. 855/2007 & CMP No. 1243/2007
OWP No. 507/2008 & CMP No. 786/2008
OWP No. 850/2007 & CMP No. 1238/2007
OWP No. 851/2007 & CMP No. 1239/2007
OWP No. 852/2007 & CMP No. 1240/2007
OWP No. 853/2007 & CMP No. 1241/2007
OWP No. 854/2007 & CMP No. 1242/2007
OWP No. 856/2007 & CMP No. 1244/2007
OWP No. 857/2007 & CMP No. 1245/2007
OWP No. 858/2007 & CMP No. 1246/2007
OWP No. 859/2007 & CMP No. 1247/2007
OWP No. 860/2007 & CMP No. 1248/2007
OWP No. 861/2007 & CMP No. 1249/2007
OWP No. 862/2007 & CMP No. 1250/2007
OWP No. 863/2007 & CMP No. 1251/2007
OWP No. 866/2007 & CMP No. 1254/2007
OWP No. 868/2007 & CMP No. 1256/2007
OWP No. 869/2007 & CMP No. 1257/2007
OWP No. 870/2007 & CMP No. 1258/2007
OWP No. 884/2007 & CMP No. 1280/2007
OWP No. 890/2007 & CMP No. 1291/2007
OWP No. 896/2007 & CMP No. 1299/2007
OWP No. 902/2007 & CMP No. 1306/2007
OWP No. 904/2007 & CMP No. 1308/2007
OWP No. 905/2007 & CMP No. 1309/2007
OWP No. 934/2007 & CMP No. 1355/2007

Allotments for 31 Shops/Halls situated at Bahu Plaza
Complex, Jammu, made by the Jammu Development
Authority were found to have been made without following
the procedure of Open Auction. The Jammu and Kashmir
Government, in exercise of power, under Section 37 of the
Jammu and Kashmir Development Act, 1970, hereinafter to
be referred as b�the Actb�, therefore, issued directions vide
Government Order No. 1126-GAD of 1997 dated 22.09.2007
to the Jammu Development Authority to cancel the
allotments and take appropriate steps for restoration of the
property.

The Government Order aforementioned has been
questioned in all these writ petitions which, taken up for joint
consideration, are being disposed of by this judgment.

3

Justifying the allotments of the Shops/Halls made in
their favour, the petitioners have, inter alia, pleaded that the
Government Order impugned in the writ petitions, cancelling
their allotments, was illegal and unwarranted, in that, it had
been issued without complying with the statutory requirement
of issuing notice to them, in terms of the Proviso to Section
37 of the Act, before issuing directions which affect their
rights, And that the State Government had initiated action
directing cancellation of the allotments, on the basis of
truncated information which the Vice Chairman of, the
Jammu Development Authority, hereinafter to be referred as
b�the Authorityb�, had supplied to it. It is stated that the decision
taken by the Board of Directors of the Authority in its 65th
meeting providing for its earlier Board Resolution for making
the allotment of Shops/Halls on First Come First Served,
basis, to remain operational until all the Shops/Halls were
allotted, had not been brought to the notice of the
Government by the Vice Chairman of the Authority.

According to the petitioners, the Government had
cancelled the allotments to avoid embarrassment to the
Chief Minister whose brother had been allotted space at
4
Bahu Plaza Complex Jammu, in violation of the decision of
the Authority to follow the First Come First Served, rule.

The State Government has justified the impugned
Government Order saying that the Board Resolution of the
Authority adopted in its 65th meeting was unwarranted, in
that, it had been taken without holding any deliberations on
the subject, and the fact situation, that the area had been
fully developed and the Authority would get better price for
the Shops and Spaces at Bahu Plaza Complex, Jammu had
not been taken into consideration. The 65th meeting of the
Board of Directors, where the post facto approval of the
Board had been obtained, is stated to have been a result of
the non-application of mind by the Authority. It is further
stated by the State-respondents that the Authority had not
given publicity to its policy of First Come First Served, in
the matter of allotment of Shops/Spaces available at Bahu
Plaza Complex so as to provide opportunity to all those who
were interested in availing the opportunity, the allotments
were, therefore, illegal and improper.

The specific plea raised by the petitioners in their writ
petitions that the Government had not heard them before
5
issuing directions under Section 37 of the Act, has not been
adverted to by the State-respondents and all that has been
said in this respect is that the Government had issued the
impugned order after due application of mind and in terms of
the provisions of Section 37 of the Act, which, according to
them, would not prejudice the petitioners because they can
project their grievance, if any, while responding to the show
cause notice which has been issued by the Jammu
Development Authority to them pursuant to the Government
Order in question.

I have considered the submissions of learned counsel
for the petitioners, the counsel for the Authority and learned
Additional Advocate General appearing for the State-
respondents.

The first issue that falls for consideration in these
petitions is as to whether the Government was obliged to
hear the petitioners before issuing directions for cancellation
of their allotments?

According to the petitioners, the Government was
required to hear them before issuance of the order impugned
6
in the writ petitions as mandated by the Proviso appearing in
Section 37 of the Act.

The State Counsel, on the other hand, contends that
the State Government was not required to hear the
petitioners before passing the impugned order, in that,
opportunity of hearing contemplated by the Proviso would
apply only when the Government passes an order prejudicial
to any person, and not in a case where only directions were
issued to the Authority to pass requisite orders under the
Development Act. Learned counsel submitted that as the
Authority, in terms of the order impugned in the writ petition,
had yet to pass final orders pursuant to the notices issued to
the allottees requiring them to Show Cause as to why their
allotments be not cancelled, the petitioners plea that action
of the State Government in issuing directions to the Authority
was violative of the principles of natural justice, was
untenable, in that, issuance of notice by the Authority to the
petitioners, would satisfy the principles aforementioned.

In order to deal with the rival contentions of the parties,
regard needs to be had to the provisions of Section 37 of
Act, which for facility of reference is reproduced hereunder:-

b� 37. Control by Government b�
7
(1) The Authority shall carry out such direction as
may be issued to it from time to time by the
Government for the efficient administration of this
Act.

(2) If in, or in connection with, the exercise of its
powers and discharge of its functions by the
Authority under this Act, any difference or dispute
arises between the Authority and the Government,
the decision of the Government on such differences
or dispute shall be final.

(3) The Government may, at any time, either on
its own motion or on application made to it in this
behalf, call for the records of any case disposed of
or order passed by the Authority for the purpose of
satisfying itself as to the legality or propriety of any
order passed or direction issued and may pass such
order or issue such direction in relation thereto as it
may think fit.

Provided that the Government shall not pass an
order prejudicial to any person without affording
such person a reasonable opportunity of being
heard.b�
Plain reading of Section 37 of the Act demonstrates
vesting of plenary power in the Government to call for the
records of any case disposed of, or order passed by the
Authority, for the purpose of satisfying itself as to the legality
or propriety of any order passed or direction issued by the
Authority and passing such order or direction as it may deem
fit.

The orders passed and the directions so issued by the
Government under Section 37 of the Act, are required to be
carried out by the Authority in terms of Section 37 (1) of the
Act.

8

The Proviso appended to Section 37 of the Act casts
statutory obligation on the Government not to pass any order
prejudicial to any person without affording such person a
reasonable opportunity of being heard.

I do not see any merit in the State Counselb�s
submission that the rider aforementioned provided in the
Proviso would not be applicable when the State Government,
intends only to issue directions to the Authority, and that the
rider would have application only when a final order had to
be passed by the Government itself. This is so because the
expression b�shall not pass any order prejudicial to any
personb� appearing in the Proviso would, in my opinion,
include passing of directions too by the State Government,
which may be prejudicial to the person against whom such
directions had been issued. The expression b�shall not pass
any order prejudicial to any personb� appearing in the Proviso,
may not admit of any restrictive or literal meaning which the
learned State Counsel wants the Court to ascribe to the
expression b�orderb� appearing in the Proviso not including in
its fold, the b�directionsb� which may be issued by the State
Government for compliance by the Authority.

9

In order to understand the true meaning and import of
the expression b�orderb� appearing in the Proviso, the intention
of the legislature to include directions issued by it under
Section 37 of the Act too, in it, becomes explicit, on a bare
reading of the provisions of Section 37 (3) of the Act, in
terms whereof after examining the legality or propriety of any
order passed or direction issued by the Authority, the State
Government may either pass the order itself, or issue such
directions in relation to the act(s) of the Authority, as it may
think fit.

Passing of orders or issuance of directions by the State
Government in respect of the orders/directions issued by the
Authority is contemplated only after the Government
examines the legality or propriety of the Authorityb�s act(s)
and in such view of the matter, no distinction can be
contemplated in the two expressions aforementioned
appearing in Section 37 (3) of the Act. Directions issued by
the Government under Section 37 of the Act, if prejudicial to
the person against whom these are so issued, would
certainly require issuance of prior notice to him before
issuance of such directions so as to carry out the mandate of
10
the principle underlying the maxim audi alteram partem,
which the legislature in its wisdom has adopted by enacting
Proviso to Section 37 of the Act.

Keeping the intention of the legislature in view, in this
regard, the only logical interpretation which emerges from
the reading of the Section as a whole, would be that the
Proviso contemplates affording of reasonable opportunity of
being heard to the person who is prejudicially affected by
any order or directions issued by the State Government in
exercise of powers under Section 37 of the Act.

The first contention raised by the learned State Counsel
that the State Government was not required to hear the
petitioners before passing the Government order in question,
therefore, fails and is, accordingly, rejected.

An ancillary issue which may require consideration
before answering the main issue, is as to whether or not the
directions issued by the State Government are prejudicial to
the petitioners and in this view of the matter, were they
required to be heard before issuance of the Government
order?

11

The State Counsel, when asked to respond as to
whether or not the directions issued were prejudicial to the
petitioners, admitted these to be prejudicial, and rightly so
because perusal of the fifth and the penultimate paragraph of
the impugned Government order leaves no manner of doubt
that the Government had, after coming to the conclusion that
the allotments had been made without following the
procedure of Open Auction, on the basis of the report of the
Vice Chairman of the Authority, taken a decision that the
allotments being illegal and improper were required to be
cancelled. This decision of the Government certainly causes
prejudice to the petitioners who had not been heard by it
before taking the decision.

The Government order impugned in the petitions, even
otherwise, leaves nothing with the Authority, except to pass
resultant order for cancellation of the allotments and initiation
of steps for restoration of the allotted property.

The order passed by the State Government, therefore,
visits the petitioners with serious civil consequences
affecting the rights they had acquired in the allotted
properties after paying money therefor.

12

The State Government was, therefore, required to
comply with the requirements of the Proviso in providing
reasonable opportunity of hearing to the petitioners before
passing the impugned Government order which prejudicially
affects the rights of the petitioners in the allotted
Shops/Space.

Even otherwise, before taking the decision which visits
the petitioners with civil consequences regarding their rights
in the allotted properties, the State Government was required
to comply with the principles of natural justice in hearing
them before contemplating cancellation of their allotments.

Another aspect which needs to be noticed is that the
State Government does not appear to have been apprised
by the Vice Chairman of the Authority about the decision
which Board of the Jammu Development Authority had taken
in its 65th meeting, as its records, produced for the
examination of the Court during the course of hearing of the
petitions, so demonstrate.

It further comes out from the records that the State
Government had taken its decision directing cancellation of
13
the allotments, without noticing the resolution which the
Board of the Authority had passed in its 65th meeting.

The stand taken by the State Government, in its
response to the writ petitions, that the Authority had not
given publicity to its policy decision of serving persons on
First Come First Served, basis for allotment of the premises
available at Bahu Plaza Complex, Jammu and the allotments
being bad on that account, and no opportunity of hearing
was required to be afforded to the petitioners, is thus not
tenable, in that, neither the Government Order indicates the
State Government to have issued the order on the basis of
the Authority having not given publicity to its decision of
making allotments on First Come First Served, basis, nor
do the records of the State Government indicate this stand of
the State Government reflected in its pleadings. The State
Government had taken the decision to cancel the petitionersb�
allotments, only on the basis of the report of the Vice
Chairman of the Authority, as it so appears from reading of
the impugned order and the records of the State
Government.

14

The issue raised is thus answered by holding that the
Government was under a statutory obligation to hear the
petitioners before issuing the impugned order directing the
Jammu Development Authority to cancel the allotments of
their Shops/Halls.

Thus found to have been issued in violation of the
mandatory provisions of the Proviso appended to Section 37
of the Act, the Government Order impugned in these
petitions, is liable to be quashed, additionally, because it is
arbitrary and in violation of the principles of natural justice,
offending Article 14 of the Constitution of India.

The rest of the issues canvassed by learned counsel for
the petitioners at the Bar that the impugned order of the
State Government was even otherwise unjustified, on merits,
may not require consideration for the disposal of these
petitions, which are being allowed on the sole ground that
the Government have erred in issuing the impugned
Government order without providing reasonable opportunity
of hearing to the petitioners in terms of the Proviso appended
to Section 37 of the Act.

15

For all what has been said above, these petitions,
therefore, succeed and are accordingly allowed, quashing
Government Order No. 1126-GAD of 2007 dated
22.09.2007.

The State Government is, however, left free to examine
the issue as to the impropriety or illegality of the allotments of
the Shops/Halls at Bahu Plaza Complex, Jammu made by
the Jammu Development Authority and pass appropriate
orders/directions in this behalf as warranted under law, after
affording reasonable opportunity of hearing to those who
may be prejudicially affected by the order which the
Government may consider passing in this behalf.

A copy of this judgment shall be placed on each file.

(J. P. Singh)
Judge
JAMMU:

01.06.2009
Pawan Chopra

Manzoor Hussain Gulshan vs State And Others on 1 May, 2009

Jammu High Court
Manzoor Hussain Gulshan vs State And Others on 1 May, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 18 OF 2009   
Manzoor Hussain Gulshan   
Petitioners
State and others
Respondent  
!Mr. K. S. Johal, Advocate
^None for respondent Nos. 1 to 4 and 6 & 7. Mr. K. M. Bhatti, Advocate, for respondent
No.5. Mr. D. C. Raina, Sr. Advocate, with Mr. F. A. Natnoo, Advocate, for respondent
No.8 

Honble Mr. Justice Virender Singh, Judge
Date: 01.05.2009 
:J U D G M E N T: 

Vide this order I intend to dispose of the main writ petition at
the stage of admission itself as learned counsel for both the sides
have consented for the same.

In brief, the case set up by the petitioner is that vide order
dated 16.10.1987 (Annexure-A) he was appointed as Teacher in the
month of November, 1987 and was transferred as Warden in Gujjar
and Bakerwal Hostel in the year 1987 itself. Since then he is
continuously working as Warden and presently posted in Gujjar and
Bakerwal Hostel Rajouri. In between also he was transferred in
different Hostels in the State. He had met with an accident when he
was posted as Warden at Doda and this resulted into his 60%
permanent disability. The grievance projected herein is against the
2
order dated 31.03.2008 (Annexure-H) passed by respondent No.1 vide
which he has now been repatriated to his parent department and in
his place, respondent No.8 has been picked up.
While issuing notice to the respondents, implementation of the
impugned order was stayed by this Court. It was, however, subject to
objections from the other side.

Respondent No.1, 2 & 8 have already filed their respective
objections to the main petition. Respondent No.8 has also filed an
application bearing CMP No. 526/2009 for vacation/ modification of
the interim order. Mr. Raina, learned Sr. Advocate submits that the
application for vacation of the stay order may be treated as reply to
the CMP No. 20/2009 filed by the petitioner for the interim relief.
Allowed. However, the remaining respondents have not tendered their
reply till date.

Heard learned counsel for both the sides at length and perused
the record minutely.

Mr. Johal submits that continuance as Warden in Gujjar and
Bakerwal Hostel for long 21 years gives the petitioner a substantive
right of continuation for the same post. He submits that in fact the
petitioner was appointed on this post by transfer and, therefore, it
cannot be said to be a case of transfer/ deputation from parent
department, as such, the impugned order of his reversion is legally
not sustainable. While giving the flashback of the earlier writ
petitions, Mr. Johal submits that in September, 1991, the
Government came up with an order for constitution of a Divisional
Level Selection Committee for the purpose of making adjustment
against the posts of Wardens/ Assistant Wardens in Gujjar and
Bakerwal Hostels. Since the said order was affecting the service
3
career of the petitioner, he filed writ petition bearing SWP No.
1142/1991, which, however, came to be dismissed on 11.08.1998.
Thereafter also the petitioner filed two writ petitions on different
occasions bearing SWP No. 1127/2004, which was dismissed as
withdrawn with a permission to file fresh one and SWP No.
1743/2005, which was again dismissed as withdrawn with the same
liberty as during the pendency of the said petition, order of transfer
(impugned herein) was passed. In the aforesaid writ petitions, the
petitioner had challenged the policy prescribing the procedure for
filling up the posts of Wardens in Gujjar and Bakerwal Hostels.
Mr. Johal then submits that the petitioner is a Handicap person
with disability of more than 60% as he had suffered a serious
accident during the aforesaid period. Therefore, he is entitled to be
adjusted/ appointed on the basis of his reservation granted under the
provisions of Jammu & Kashmir (Persons with Disabilities Equal
opportunities, Protection of Rights and Full Participation) Act 1998
(hereinafter for short to be referred as Disability Act). He, in this
regard, has drawn the attention of this Court to provisions of Sections
21, 22 & 25 of the Act, requiring 3% vacancies to be reserved for
classification for persons with disabilities. He submits that in the
aforesaid two writ petitions (SWP No. 1127/2004 and SWP No.
1743/2005) also the petitioner had also taken the same plea on the
basis of Disability Act and is agitating it once again through the
instant petition.

Mr. Johal lastly submits that after spending 21 years as
Warden in different Gujjar and Bakerwal Hostels, it would not be
possible for the petitioner to change the track and teach the students,
4
that too when he is left with only few years of service and his
permanent disability of 60% is standing in his way.
Repudiating the submissions advanced by Mr. Johal, Mr. Raina
submits that the writ petitioner is seeking to enforce the right, which
is legally not available to him as he wants to stick to a particular post
despite being transferred by his employer as per the policy framed in
this regard. He contends that for the last 21 years, the writ petitioner
is holding a post of Warden on the strength of interim orders passed
by this Court on different occasions in different writ petition(s) filed by
him, whereas it is a simple case of sending the writ petitioner on
deputation/ transfer as Warden in Gujjar and Bakerwal Hostel Doda
being a permanent member of service in School Education
Department. He contends that transfer is the exigency of service and
the writ petitioner cannot project any grievance against the order
when it does not smack of any mala fides. Therefore, he possibly
cannot show any grievance against the impugned order and the
instant petition merits dismissal on this score alone.
Mr. Raina then submits that the writ petitioner otherwise has
not been able to lay any foundation to challenge the Government
Orders of 2003 & 2006 on the basis of the provisions of Disability
Act, and, therefore, he cannot claim any reservation now at this stage
on the ground of any disability suffered by him after many years of
his transfer. Even otherwise, the tendency to stall the transfer by
projecting a case on medical grounds deserves to be curbed and the
Honble Supreme Court of India has taken a serious note of it. At the
same time, after joining at his new place of posting, he can move a
representation for his adjustment projecting his case on medical
grounds, but not at this stage when he has no basis for it.

5

Mr. Raina on the basis of aforesaid submissions contends that
the petitioner has no case at all in his favour.
Mr. Bhatti representing respondent No.5 submits that when the
posts were initially created in the year 1977, the mode of appointment
of Wardens was by way of transfer/ deputation and there were no
service rules governing such appointment. Mr. Bhattis concern is
that every Hostel of such type should have Warden at the earliest and
submits that, in fact, at three hostels, no Warden has been appointed
by the State for a reasonably good time and it calls for some
directions to the State.

In my view, the controversy involved in the instant writ petition
revolves around the principal question relating to the service status of
the petitioner. The claim of the petitioner is that he was appointed as
Warden in Gujjar and Bakerwal Hostel Doda, by mode of transfer. It
is not in dispute that there were no service rules governing such
appointment. It is only in the year 2003, the State came up with the
policy (Government Order No.1483- GAD of 2003 dated 19.11.2003),
which envisaged a procedure for filling up the posts of Wardens in the
Gujjar and Bakerwal Hostels in the State. The said procedure is as
under:-

a. The Social Welfare Department shall obtain a
panel of three officers (three for each vacancy)
from the Education Department eligible for
appointment as Wardens of Gujjars and
Bakerwal Hostel
The selection from the panel provided by the
Education Department shall be made by the
Committee consisting of the following officers:-

1. Principal Secretary to Government,
Social Welfare Department.

6

2. Director School Education,
Jammu/Kashmir.

3. Director Social Welfare,
Jammu/Kashmir.

4. Secretary, Advisory Board for Gujjars
and Bakerwals.

b. The recommendations of the selection
Committee shall be passed on by the Social
Welfare Department to the General
Administration Department for issuance of
orders.

c. The normal tenure of deputation shall be two
years and may be extended upto a maximum
of three years with the concurrence of the
Social Welfare Department.
The aforesaid policy was thereafter superseded by policy of
2006, which reads thus:-

In supersession of Government Order No. 1483-GAD
of 2003, dated 19.11.2003, it is hereby ordered that
the Wardens/ Assistant Wardens in the Gujjars and
Bakerwals Hostels of the State shall be Governed by
the following procedure:-

a. The General Administration Department shall
obtain a panel of eligible Head
Masters/Masters, who have outstanding
service career from the Education Department
for their posting as Wardens in Gujjars and
Bakerwals Hostels of the State.

b. The Selection of Wardens/Assistant Wardens
from the panel provided by the Education
Department shall be made by a Committee
comprising the following officers:-

1. Administrative Secretary, GAD
Convenor
7

2. Administrative Secretary, Social Welfare
Deptt.

3. Administrative Secretary, Education
Deptt.

c. The GAD will issue the orders of deputation of
wardens and Assistant wardens after obtaining
approval of the HCM (Chairman of the J&K
State Advisory Board for Development of
Gujjars and Bakerwals).

d. The normal tenure of deputation of
Wardens/Assistant Wardens in Gujjars and
Bakerwals Hostels shall be two years and in no
case it will be allowed beyond three years.
May be the petitioner, on the basis of the interim orders to his
credit had remained posted as Warden for more than 20 years, that
by itself would not change the complexion of the case or as a matter
of fact his status. His transfer was a simple case of transfer out of
parent department as is clear from the basic order (Annexure-A) dated
16.10.1987 issued by the Education Department, indicating that he
was working as Teacher in High School Planger and was transferred
and posted as Warden, Gujjar and Bakerwal Hostel Doda. Therefore,
legally it is to be construed as deputation for the reason that his
transfer was out of parent department (Education Department).
Deputation, howsoever long it may be, it does not create indefeasible
right in favour of the deputee holding the post on which he was
deputed. In the absence of specific rules providing for appointment
by transfer of an incumbent to the post he is holding, mere transfer
cannot validly be said to be an appointment by transfer. It was, thus,
a transfer/ posting of the petitioner from his parent department
(Education Department) only. Therefore, his reversion to his parent
department can not be allowed to be objected to for any justifiable
8
reason. Keeping in view the aforesaid aspect into consideration, I do
not find any merit in the contentions of Mr. Johal raised on this
aspect.

At the same time, Disability Act 1998, the reliance on which is
being made by Mr. Johal to question the validity of reversion order of
the petitioner cannot come to his rescue as the said Act nowhere
stipulates that the person suffering from disability cannot be sent
back to his parent department from the post he has been deputed.
The net result is that finding no merit in the petition, on hand,
the same is dismissed alongwith connected CMP(s). Interim direction
issued shall stand vacated.

Before parting with the order, I may observe here that if the
petitioner at any subsequent stage moves a representation with
regard to his adjustment in his parent department to any place
suitable to him in view of his disability as projected by him, the
concerned authority may accord consideration to his request with
compassion.

( Virender Singh )
Jammu Judge
01.05.2009
Narinder

Vijay Chowdhary & Anr vs State And Ors on 23 April, 2009

Jammu High Court
Vijay Chowdhary & Anr vs State And Ors on 23 April, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
561-A Cr P C No. 44 OF 2003  
Vijay Chowdhary & anr. 
Petitioners
State and Ors.
Respondent  
!Mr. B. B. Kotwal, Advocate
^None 

MR. JUSTICE J.P.SINGH, JUDGE.     
Date: 23/04/2009 
:J U D G M E N T :

A sample of tablet Serase-5, batch No. TS-103,
manufactured by M/S QP Pharmachemb Pvt. Ltd,
Derra Bassi (Punjab), bearing manufacturing date
6/99 and expiry date 5/2002, lifted by Mr. Parvez
Ahmed Bhat, Drugs Inspector (HQ) from the
premises of M/S New Suraj Transport Agency
Srinagar, from the consignment of M/S Wani
Traders, Pharmaceutical Distributors, Gaw Kadal,
Srinagar, on its analysis, by the Central Indian
Pharmacopoeia Laboratory Gaziabad, was found to
be spurious in terms of its Report No. CIPL/6031/38
dated 14.01.2002.

State through its Drugs Inspector (HQ)
Srinagar, filed a complaint in this regard, before
learned Judicial Magistrate First Class (Sub
Registrar) Srinagar, who on finding a prima facie
case for commission of the offence punishable under
2
Section 27(c) of the Drugs and Cosmetics Act,
issued Process against the functionaries of M/S QP
Pharmachemb Pvt. Ltd, Derra Bassi (Punjab).
Vijay Choudhary and Anil Berry, the Director
and the Managing Director of M/S QP Pharmachemb
Pvt. Ltd, Derra Bassi (Punjab), have approached this
Court seeking quashing of the proceedings, or in the
alternative, the transfer of the complaint for its trial
by any Court of competent jurisdiction at Jammu.
Petitioners’ learned counsel referred to the
provisions of Section 33-G(4) of the Act to urge that
in the absence of any notification by the
Government, learned Magistrate’s order, taking
cognizance of the offence punishable under Section
27(c)
of the Drugs and Cosmetics Act, 1940, was
unwarranted and without jurisdiction. He next
contended that the company had not been provided
information about the seizure of the Drug
manufactured by it and had thus been deprived of its
right to get the sample re-examined by the Central
Drugs Laboratory. Pleading violation of the
provisions of Section 23(4) of the Act, learned
counsel submitted that the proceedings initiated
against the petitioners need to be quashed.
Yet another point urged by the learned counsel
is, that in the absence of any allegation in the
complaint, that the petitioners were in-charge of the
Company at the time when the alleged offence was
committed, and were responsible to the Company for
3
the alleged offence, initiation of process against the
petitioners was unwarranted.

Supporting petitioners’ alternative plea for
transfer of the complaint, learned counsel submitted
that it would be highly inconvenient and
cumbersome for the petitioners to spend four/five
days, on each and every date of hearing, to attend
the Court at Srinagar, from their present location at
Chandigarh, and in these circumstances, fair trial of
the petitioners warrants transfer of the complaint
from the Court of Sub-Registrar Judicial Magistrate
Ist Class, Srinagar to any Court of competent
jurisdiction at Jammu.

The case was heard in ex-parte as none had
appeared for the respondents to contest the petition.
I have considered the submissions of learned
counsel for the petitioners and gone through the
judgments, cited by him in support of his
submissions.

Petitioners’ first plea that prosecution could not
have been launched without previous sanction of the
Authority specified under sub-section (4) of Section
33-G
of the Drugs and Cosmetics Act, 1940, is found
to be misconceived, in that, this Section does not
contemplate issuance of any Sanction before
launching of prosecution. Prior Sanction for
launching prosecution is, on the other hand,
contemplated by Section 33-M of the Act, which
would have, however, no application to the facts of
the present case because the prior Sanction
4
contemplated by the Section pertains to the
prosecution of the offences appearing under Chapter
IV-A of the Act and not for the offence punishable
under Section 27(c), which falls in Chapter IV of the
Act.

His contention is accordingly rejected.
In view of the material placed on records by the
complainant, I do not find any merit in petitioners’
other contentions too relating to the violation of the
provisions of the Act, in so far as following of
procedure prescribed in the Act for taking samples
and complying with other requirements of the Act,
before launching prosecution for commission of
offences punishable under Chapter IV of the Act, are
concerned. This is so because the material placed
on records by the complainant does not indicate any
prima facie violation of the provisions of the Act
which are required to be complied with before
launching of prosecution under the provisions of the
Drugs and Cosmetics Act, 1940, and the petitioner
has not placed any such material on records on the
basis whereof his plea about the violation of the
provisions of the Act may be sustained.
I, however, find substance in petitioners’ last
contention that neither is there any statement in the
complaint nor any material on records accompanying
the complaint indicating that the petitioners were, incharge
of, and were, responsible to the Company,
for the conduct of business of the Company, and
were thus, as such, liable for commission of the
5
offence by the Company, in terms of Section 34 of
the Drugs and Cosmetics Act, 1940.

For all what has been said above, I am of the
view that continuance of proceedings on the
respondent’s complaint against the petitioners, in the
absence of any allegation against them in the
complaint or appearing from the material on records,
of their being in-charge of, and responsible to the
Company for the conduct of its business, would
amount to abuse of the process of court.
Accordingly, allowing the petition, proceedings
initiated on respondents’ complaint against the
petitioners by learned Judicial Magistrate (Sub
Registrar), Srinagar, are quashed.
(J.P.Singh)
Judge
JAMMU:

23.04.2009
Anil Raina, Secy.

Sonam Joldan & Anr vs J&K Academy Of Art on 17 April, 2009

Jammu High Court
Sonam Joldan & Anr vs J&K Academy Of Art on 17 April, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP no. 2041 OF 2006   
Sonam Joldan & anr  
Petitioners
J&K Academy of Art, Culture & Languages & Ors.  
Respondent  
!M/s S. K. Shukla & Tashi Rabstan,Advocates. 
^M/s Seema Shekhar, AAG & P. N. Goja, Advocate.    

MR. JUSTICE J. P. SINGH, JUDGE.    
Date: 17/04/2009 
:J U D G M E N T :

Jammu and Kashmir Academy of Art,
Culture and Languages, Srinagar, (the Academy,
for short), issued its Employment Notice No. ADME/
12/2003-04/3099-3113 dated 22nd of September,
2003, through its Secretary, inviting
applications from the Permanent Residents of
Jammu and Kashmir State, for selection against
vacant posts in the Academy, on its, Executive,
Cultural, Teaching, Library, Technical and
Editorial Cadres. The posts so advertised included
2
two posts of Cultural Officer for Leh and Kargil
Office, in the Cultural Cadre. The qualification
prescribed therefor was:

1.Post Graduation from a recognized University.

2.Thorough knowledge of Cultural History of J&K.

3.Adequate knowledge of two regional languages.

4.Thorough knowledge of Folk performing art
traditions of the State.

Applications accompanied by a postal order
of Rs.50/-, for the posts including those of the
Cultural Officer, were required to reach the
Secretary Jammu and Kashmir Academy of Art,
Culture and Languages, Lal Mandi, Srinagar
along with attested copies of the:

1. Academic and Professional qualifications;

2. Age and health;

3. State Subject;

4. Experience
on or before 31st October, 2003.
Those in Government Service, had to route
their applications through proper channel.
Out of forty four candidates found eligible to
seek consideration for the posts of Cultural
Officers, only seventeen appeared for the interview
on 20th of September, 2006 at Cultural Complex,
3
Leh before the Selection Committee constituted by
the President of the Academy, the Chief Minister
of the State, which comprised of the following
members:

1. Secretary Academy Chairman

2. Sh. Zaffar Ahmad
Addl. Secretary to
Chief Minister Member.

3. Sh. T. R. Sharma, Member.

Addl. Secretary Academy.

Jammu

4. Mr. Zaffar Iqbal,
Addl. Secretary Academy
Srinagar Member.

Dr. Janyang Gailson, Lecturer Central
Institute of Buddhist Studies was co-opted by the
Committee as Expert on the Selection Committee.
The Committee, after evaluating the merit,
suitability, experience and qualification of the
candidates, recommended a panel of four persons
for appointment to the post of Cultural Officer,
Leh.

Shri Tsewang Paljore, selected at Serial No. 1

of the panel was, accordingly, appointed as
4
Cultural Officer, Leh vide Academy Order No. 72
of 2006 dated 23-11-2006.

Sonam Joldan and Sonam Chosjore, who too
had appeared seeking consideration for selection
against the Advertised Post before the Selection
Committee, have filed this writ petition seeking
quashing of Tsewang Paljores selection and
appointment, besides a command to the Academy
to appoint them as Cultural Officers.
Questioning Tsewang Paljore, Respondent No.
6s selection and appointment as Cultural Officer,
Leh, the petitioners say that respondent no.1 and
its Selection Committee, had violated the
fundamental right of Equality before the Law and
equal protection of the laws by converting their
merit into demerit, adopting arbitrary
methodology for selection, rendering the whole
selection process unfair and a mere eye wash,
designed to favour respondent no. 6.
Petitioner No. 2 is stated to be a Gold
Medalist, possessing M.A and M.Phil Degrees and
presently engaged in Ph.D in Political Science,
5
whereas petitioner No.1 is stated to have done his
Masters Degree from Delhi University, besides
possessing Ph.D in Ladakhs Traditional Ties
with Buddhist Tibet from Jawahar Lal Nehru
University 2006 and M.Phil in Buddhist Tibet
Cultural Ties with Ladakh and Mustang. He is
stated to have published papers titled Budhist
Tibet Cultural Ties with Ladakh Tibetan Review,
November, 2003, two articles titled Relationship
between Ladakh and Buddhist Tibet Trade and
Pilgrimage and Ladakh Traditional Ties with
Buddhist Tibet, Monastic Organization and
Monastic Education as a sustaining factor in
Tibet Journal. He is further stated to have
presented paper on Ladakh/Tibetan Cultural
ties in the 10th International Association for
Ladakh Studies, held in Oxford-2001 besides
participating in 2006 World Youth Care for Tibet-
Taiwan Forum.

Projecting his activities in the Sports Field,
petitioner No.1 is stated to have been awarded
National Awards i.e. Three Gold Medals in Tenth
6
Junior and 8th Sub Junior National Archery
Championship and also New National Record
Holder in the XXXVI National Shooting
Championship Competition held in 1993.
Petitioners have indicated, in the Rejoinder to
their writ petition that the documents supplied by
the Academy vide letter No. CA.PS/2006-
2007/961 dated 16.02.2007 reveal that Tsewang
Paljore, respondent No. 6, did not possess any
additional qualification i.e. of possessing M.Phil or
Ph.D Degrees and would possess only Masters
Degree, and that too, with the 2nd Division.
According to the petitioners, the three months
Computer Course Certificate and Certificate of
Diploma in Journalism produced by Respondent
No. 6 could not be taken into consideration by the
Selection Committee because those had been
obtained after the cut-off date fixed in the
Notification and even otherwise would not qualify
the respondent for the award of marks for
possessing Additional qualification according to
the criteria fixed by the Selection Committee.

7

Petitioners have further indicated in their
rejoinder as to how had the Selection Committee
converted their merit into demerit in omitting to
award them marks which they were entitled to,
according to the criteria fixed for the purpose, and
that the Selection Committee had allowed marks
under the heads additional qualification, and
published works to respondent No.6 which he
was not otherwise entitled to, in terms of the
criteria fixed by the Selection Committee.
Elaborating their submissions, it is stated that
respondent no.6 was not entitled to be awarded
for the published works because he had NO
published work to his credit when he had applied
seeking consideration for selection. Awarding of
24 marks under this head to respondent No. 6, by
the Selection Committee, was thus unwarranted
and unjustified.

Perusal of the records made available by the
Academy, and the material placed on the records
by the parties to the writ petition, indicate that
the criterion fixed for evaluating the merit and
8
suitability of the candidates, for selection, against
the post of Cultural Officers, was as follows:

1. Qualification 10 Marks
(M.A. 1st Division 10 Marks 2nd Div. 8 Marks 3rd Div, 7 Marks)

2. Additional Qualification 10 Marks
(M. Phil, Ph.D, Degree (two years), Diploma one year)

3. Published work 10 Marks
(Book published)

4. Viva-Voce 50 Marks
(10 marks to each member)
The merit of the petitioners and respondent
No. 6 which the Academys Selection Committee
had evaluated, has been indicated in Academys
Objections/Counter Affidavit as follows:
Perusal of the records further indicates that
rather than evaluating the merit of candidates out
of 10 marks earmarked for, Basic Qualification,
Additional Qualification and Published Works, the
Academy had taken the sum total of the
Name of the candidate Qualification
10 marks
Additional qualification
10 marks
Published works
10 marks
Viva voce
50 (10 marks for each
member)
Total
Sonam Jaldon
(Petitioner No.1)
35 24 5 30 94
Tsewang Paljor
(Respondent No. 6)
40 26 24 41 131
Sonam Chosjor
(Petitioner No. 2)
40 13 4 13 70
9
evaluation made by each member of the Selection
Committee under these heads. This error,
however, may not affect the determination of the
issue which falls for consideration in this petition
as to whether or not the selection conducted by
the Academy for the post of Cultural Officer was
valid?, for the evaluation so made can be
converted into requisite evaluation of each
candidate out of the total marks earmarked for
such evaluation, by dividing the evaluation of the
Committee, by five.

When so done, the merit of the candidates
relevant for the purpose of this petition would be
as follows:-

Some more facts, appearing from the records
of the Academy, need to be noticed here.
Name of the candidate Qualification
10 marks
Additional qualification
10 marks
Published works
10 marks
Viva voce
50 (10 marks for each
member)
Total
Sonam Jaldon
(Petitioner No.1)
7 4.8 5 30 46.8
Tsewang Paljor
(Respondent No. 6)
8 5.2 4.8 41 59
Sonam Chosjor
(Petitioner No. 2)
8 2.6 .08 13 24.4
10
Although the Selection Committee had
adopted a specific criteria for evaluating the merit
and awarding marks to the candidates for
acquisition of Minimum prescribed qualification,
Additional qualification, etc., yet rather than
following the laid-down criteria, each member had
awarded marks to the candidates for Minimum
prescribed qualification, Additional qualification
etc. according to his own assessment, which
action of theirs is incomprehensible, for, after
laying down the criteria for awarding ten marks to
those who had secured 1st Division in the
prescribed qualification of Post Graduation, eight
marks to those who had acquired Post Graduation
with 2nd Division and seven marks to those who
were placed in the 3rd Division and likewise, ten
marks on account of having acquired additional
qualification to only those who were holding
M.Phil, Ph.D, Degree with two years or Diploma
with one year, no discretion was left to the
members to assess the merit of the candidates,
according to their whims.

11

The marks awarded by each member to the
petitioners and the respondent under the above
referred two heads, too differ, and arbitrary
approach appears to have been adopted by the
members in awarding marks under these two
heads to the candidates thereby hinting at
arbitrary, irrational and unfair approach of the
members of the Selection Committee in assessing
the merit of the candidates. One of the members
of the Selection Committee had gone to the extent
of even omitting to award any marks to petitioner
no.1 for his Additional qualification.
Records further indicate that respondent
No.6 did not possess any Additional qualification
at the time when he had applied for consideration
against the advertised post, and had produced
documents evidencing acquisition of Additional
qualification of a three months Basic Computer
Course at Leh on 31st June, 2005 from SIPA
COMPUTER CENTRE and Post Graduate Diploma
in Journalism issued on 25th May, 2004 by
MANAGEMENT STUDIES PROMOTION INSTI12
TUTE, NEW DELHI, during the currency of the
Selection Process BUT admittedly much after 31st
October, 2003, the date prescribed as such in the
advertisement notice, for receipt of testimonials.
In view of the above mentioned factual
position emerging from the records, it becomes
apparent that the members of the Selection
Committee had failed to follow the laid-down
criteria for awarding marks to the candidates for
possessing Basic qualification, Additional
qualification and Published work, to assess their
merit and suitability for the advertised post. Such
course adopted by the Selection Committee in not
following the laid-down criteria for assessing the
merit of the candidates, in the absence of any
justifiable cause for deviating from the laid-down
criteria, projected during the hearing of the
petition, is nothing but stark arbitrariness.
The action of the Selection Committee in
taking into consideration the qualifications
acquired by respondent No.6 after the cut-off date
of 31st October, 2003 and awarding marks to him
13
for such qualifications, without providing any
opportunity to other candidates of referring to
their Additional qualifications, if any, possessed
during the currency of the Selection Process,
offends Article 14 of the Constitution of India.
Taking into consideration the biased
approach of the Selection Committee in evaluating
respondent No.6s merit against the laid-down
criterion, and awarding him marks much more
than the one which he would have been entitled to
in terms of the criterion, and omitting to award
marks to the candidates, which they were entitled
to, in terms of the laid-down criterion, clearly
demonstrates unfair and arbitrary approach of the
Committee, in assessing the merit of the eligible
candidates and preparing the panel of candidates
for selection against the post of the Cultural
Officer, Leh leading to the issuance of Academy
Order No.72 of 2006 dated 23.11.2006 appointing
respondent No.6 as Cultural Officer, Leh.
For all what has been said above, Tsewang
Paljor, respondent No.6s Selection, found to be in
14
violation of the laid-down criteria, is held to be
arbitrary and in violation of Article 14 of the
Constitution of India.

The Writ petition, therefore, succeeds, and is
accordingly allowed quashing Academys Selection
Panel for the post of Cultural Officer, Leh and
setting aside the Selection and Appointment of
Tsewang Paljor, respondent No.6 against the
post of Cultural Officer, Leh notified for Selection
by the Jammu and Kashmir Academy of Art,
Culture and Languages, Srinagar vide
Employment Notice No. ADM-E/12/2003-
04/3099-3113 dated 22nd of September, 2003.
Academy to bear the litigation expenses of the
petitioners, which are assessed at Rs.10,000/-.
(J.P. Singh)
Judge
JAMMU:

17.04.2009
Pawan Chopra

Mehmood Akhtar Malik & Ors vs State And Ors on 17 April, 2009

Jammu High Court
Mehmood Akhtar Malik & Ors vs State And Ors on 17 April, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP no. 2466 OF 2001   
Mehmood Akhtar Malik & Ors.  
Petitioners
State and Ors.
Respondent  
!Mrs. Surinder Kour, Advocate.
^Mr. S.K.Shukla, Advocate for respondent Nos. 2 to 5.

MR. JUSTICE J. P. SINGH, JUDGE.    
Date: 17/04/2009 
:J U D G M E N T :

Services Selection Board, Srinagar/Jammu
had issued Advertisement Notice No. 01 of 1999
dated 09.03.1999 for Selection of candidates
against the Posts which included the posts of
Drivers in various Departments of the State
Government in their State/Divisional/District
Cadres except District Leh, prescribing Middle
Pass possessing Hill Road Driving Licence as
essential qualification for the posts.
Aggrieved by the Selection of the private
respondents as Drivers against Open and
Reserved categories, Mehmood Akhtar Malik,
2
Mohd. Parvez and Harpal Singh, the three
petitioners, have filed this petition seeking
quashing of the Select List published by the
Services Selection Board in Daily Excelsior on
26.09.2001, besides seeking a command against
the respondents to consider them for selection
and appointment against the posts.
The State and its Services Selection Board
have indicated in their response to the writ
petition that Mehmood Akhtar Malik, petitioner
No.1 and Harpal Singh, petitioner No.3 had
competed for the District Cadre Posts whereas
Mohd. Parvez, petitioner No.2 had competed for
the Divisional Cadre Post of Drivers.
Petitioner Nos. 1 is stated to have obtained
55.99 points in the Open Category, whereas the
last selected candidate in the Category in the
Rajouri District had obtained 65.66 points.
Petitioner No.3 competing for District Cadre Posts
in Jammu had obtained 58.66 points, whereas
the last selected candidate in the category had
obtained 67.99 points. As regards Mohd. Parvez,
3
petitioner No.2, the respondents say that having
applied for seeking consideration against the
posts of Drivers falling in the Divisional Cadre, he
could not question the selection of the
respondents made against District Cadre posts.
Disputing the stand taken by the official
respondents, petitioners learned counsel
submitted that petitioner No.2 had applied
seeking consideration against District Cadre Posts
and respondents had erred in refusing to consider
his case for selection against the posts.
In view of the merit position of the other
petitioners, the learned counsel was unable to
support rest of the petitioners case, in that being
less meritorious, they were not entitled to
selection for the advertised District Cadre posts.
During the course of consideration of the
petition, Mr. Shukla, learned counsel for the
Board produced a photocopy of the Application
Form of petitioner No. 2 to indicate that the
submission made on behalf of the petitioner was
factually incorrect as he had not sought
4
consideration for selection against District Cadre
Posts and had in fact applied for seeking
consideration against State/Divisional Cadre
Posts. This photocopy of the Application Form
produced by Mr. Shukla is taken on records.
I have considered the submissions of learned
counsel for the parties and perused the photocopy
of petitioner No.2s application seeking
appointment as Driver in Government Service.
Petitioner Nos. 1 & 3s plea that they were
meritorious and had been erroneously ignored
while issuing the list of candidates found selected
against the District Cadre Posts, is not supported
by any material on records.

Statement made by the official respondents in
their response to the writ petition supported by
the affidavit of the Administrative Officer of the
Board has not been controverted by the
petitioners either by placing any material on
records indicating position contrary to the one
affirmed by the respondents or by filing any
5
affidavit disputing the statement made by the
respondents in their reply to the writ petition.
Accordingly, in the absence of any material
on records indicating petitioner Nos.1 to 3 to be
superior in merit to the private respondents, the
Selection of the private respondents, who are
stated by the official respondents to have obtained
more marks than the petitioners, cannot be
faulted.

Perusal of petitioner No.2s application form
indicates that against Column No. 4 of the
application form requiring the candidates to
indicate the cadre for which they had applied,
petitioner No.2 had indicated his option for
seeking selection against State/Divisional Cadre.
It is thus apparent that petitioner No.2 had
not applied seeking consideration for selection
against the District Cadre Posts of Drivers and in
such view of the matter, he does not possess any
right to question the selection of the respondents
who had been selected against District Cadre
Posts.

6

For all what has been said above, there is no
merit in the petitioners writ petition, which is,
accordingly, dismissed.

(J. P. Singh)
Judge
JAMMU:

17.04.2009
Anil Raina, Secy

Majid Ahmad Khan vs Satpal & Ors on 4 April, 2009

Jammu High Court
Majid Ahmad Khan vs Satpal & Ors on 4 April, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 2 OF 2009    
Majid Ahmad Khan.  
Petitioners
Satpal & ors.
Respondent  
!Mr. R. S. Thakur, Advocate Mr. H. A. Siddiqui, Advocate.
^Mr. S. S. Lehar, Sr. Advocate Mr. A. H. Qazi, AAG.

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice J. P. Singh, Judge
Date: 04.04.2009 
:J U D G M E N T :

Per Barin Ghosh, CJ:

In this appeal, we are concerned with a land
measuring 2 Kanals 1 marla under Khasra no.99 situate at
Golod, Tehsil Mendhar. On September 26, 1987, by an
order, on the recommendation of the Assistant Custodian
(Tehsildar) Mendhar, the said land was leased out by the
Custodian, Evacuee Property, Jammu, in favour of the
2
appellant at a premium of Rs.100 and ground rent of Rs.26
per month for a period of one year in the first instance. No
formal lease was executed. By an order dated February 22,
1989, lease of the said land in favour of the appellant was
extended for a further period of 20 years by the Custodian
General, when the premium was increased to Rs.5,000 per
Kanal and the ground rent was increased to Rs.50 per
kanal per annum, and certain conditions were imposed.
Even thereafter, no lease was executed. Petitioner-
respondent approached the Special Tribunal and expressed
his grievance in regard to the said grant. Before the Special
Tribunal, it was contended by the petitioner-respondent that
he has some interest in the land in question and that before
grant or extension of the lease, he was entitled to be heard.
The Special Tribunal accepted such contention of
petitioner-respondent and set aside the order of extension,
and directed the Custodian General, Jammu to pass fresh
orders after hearing the parties. As a result extension of the
lease came to an end. The original lease was then not
subsisting.

3

Custodian General, Jammu heard the parties and
recorded that admittedly petitioner-respondent is a
displaced person and he had been allotted the said land
along with other land under Khasra nos.99 and 96. The
Custodian General, at the same time, held that petitioner-
respondent, as per records, never took possession of the
said land. He thereupon noted paragraph 5 of Cabinet
Order no.578-C and held that, in terms of the provisions
contained therein, petitioner-respondent has forfeited his
right to occupy the said land.

In order to arrive at the said conclusion, apart from
noting paragraph 5 of the said Cabinet Order, the
Custodian General, Jammu, took into consideration
mutation order no.151 dated July 4, 1981 issued under
section 3A of the Agrarian Reforms Act, 1976 and the
report of the Custodian, Jammu, dated February 9, 1989,
which was allegedly called for by the then Custodian
General before extending the lease. After looking at the
mutation order referred to above, the Custodian General
held that, as recorded therein, petitioner-respondent himself
4
admitted before the Tehsildar, Mendhar that he had never
taken or remained in possession of the land in question. By
looking at the alleged report of Custodian, Jammu, referred
to above, the Custodian General, Jammu, observed that in
the said report it has been reported that petitioner-
respondent is holding surplus land than permissible under
the said Cabinet Order and that petitioner-respondent was
never in possession of the land in question since 1962. On
the basis of the findings derived from the said mutation
order and the said report, and applying those findings to the
provisions contained in the said Cabinet Order, the
Custodian General, Jammu held in his order dated
February 18, 2002 that petitioner-respondent had no
subsisting right in the land in question as on the date of
grant of the initial lease as well as extension thereof and,
accordingly, non-suited the petitioner-respondent. At the
same time, the Custodian General, Jammu, in his said
order dated February 18, 2002 held that grant of lease of
the said land in favour of appellant and extension thereof
were inappropriate and contrary to rules but, despite that,
did not interfere with such grant and extension and, on the
5
contrary, by the said order altered the terms of the
extended lease.

Petitioner-respondent then approached this Court by
filing a writ petition. By that, he challenged the order of the
Custodian General, Jammu dated February 18, 2002.
There cannot be any dispute that the writ petition was not
appropriately drafted, but the fact remains that a reading of
the writ petition would make it amply clear that petitioner-
respondent was seeking quashing of the order passed by
the Custodian General, Jammu dated February 18, 2002
and, at the same time, was advancing his grievance that
the said land, which stood allotted to him, has been leased
out to the appellant in violation of law.

By the judgment and order under appeal, the writ
petition has been allowed. Although the Custodian General
by his order dated February 18, 2002 did not in so many
words cancel the allotment in favour of petitioner-
respondent, but insinuated, for the reasons indicated
above, that the allotment of the said land in favour of
petitioner-respondent stood forfeited. By the judgment and
6
order under appeal, the learned Judge set aside the order
of cancellation of allotment in favour of petitioner-
respondent, i.e., insinuations that the allotment of the said
land in favour of petitioner-respondent stands forfeited and,
at the same time, the learned Judge quashed the orders
granting lease and extension thereof in favour of the
appellant, and directed eviction of appellant from the land in
question with a further direction to hand over possession
thereof to petitioner-respondent. Being aggrieved thereby,
the present appeal has been preferred.

The principal contention of the appellant before us is
that when the order was passed on September 26, 1987 to
lease the land in question in favour of appellant, petitioner-
respondent had no interest therein inasmuch as allotment
of the land in question in favour of petitioner-respondent
stood forfeited. The other contention of the appellant is that
there has been unexplained delay, latches and negligence
on the part of petitioner-respondent in taking steps as he
purported to take in the year 1999 by approaching the
7
Special Tribunal seeking to challenge the order dated
February 22, 1989, by which the lease was extended.

It is the contention of petitioner-respondent that there
is no forfeiture of the allotment made in his favour and the
records, upon which reliance has been placed, would amply
demonstrate that the facts justifying forfeiture were absent
in the instant case. It was also contended by petitioner-
respondent that there was no delay or latches on his part in
taking remedial measures for which he had approached the
Special Tribunal.

The contention of the State is that, in the given facts
and circumstances of the case, what best could be done by
the Custodian General, Jammu, was done by him while
passing the order dated February 18, 2002.

In course of submissions, the learned counsel
appearing on behalf of appellant submitted that on the
strength of the lease, appellant has constructed shops as
well as residential infrastructure on the land in question and
only after steps to do so had been taken, petitioner-
respondent took steps as were taken by him. The fact
8
remains that subsequent to 1999, i.e., after petitioner-
respondent approached the Special Tribunal, the extension
of the lease was cancelled by the Special Tribunal. The
appellant did not express any grievance in regard thereto.
By the order impugned in the writ petition dated February
18, 2002, the Custodian General directed grant of fresh
lease on new terms and conditions and, soon thereafter, in
2002, this writ petition was filed when orders were passed
to maintain status-quo and there is nothing on record as to
when permission to construct was obtained by the appellant
and when, in fact, construction commenced. Therefore, the
ground taken by the appellant that writ petitioner
respondent was guilty of latches or negligence is of no
effect.

The question that requires answer in this appeal is,
therefore, whether the Custodian or the Custodian General,
as on September 26, 1987 or on February 22, 1989 was
entitled to deal with the land in question as was dealt with
by them by granting a lease for one year and, thereupon,
extending the same for 20 years.

9

There is no dispute that the land in question is an
evacuee property and, accordingly, the same vested in the
Custodian of Evacuee Properties. Such lands have been
dealt with by the J&K Evacuees (Administration of Property)
Act, Svt. 2006. Clause (d) of Section 2 of the Act provides,
among others, that an evacuee property means any
property in which an evacuee has any right or interest and
includes any property which has been obtained by any
person from an evacuee after 14th day of August, 1947 by
any mode of transfer unless such transfer has been
confirmed by the Custodian. The said clause of the said
section excludes certain properties with which we are not
concerned. Section 3 of the said Act provides that
provisions of the Act and the Rules and Orders made
thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force or in any instrument taking effect by
virtue of any such law. Section 5 of the said Act, subject to
the provisions thereof, vests all evacuee property in the
Custodian.

10

Clause (a) of section 2 of the said Act defines
allotment. It says that allotment means grant by the
Government or the Custodian or any other person duly
authorized by the Custodian in this behalf of a temporary
right of use and occupation of any immovable property of
an evacuee to any person otherwise than by way of lease.
Section 39 of the Act authorizes Government to make rules
to provide, amongst others, the manner and conditions
subject to which the Custodian may allot any immovable
property vested in him as well as the circumstances in
which leases and allotments may be cancelled or
terminated or the terms of any lease or agreement varied,
as well as any other matter which has to be and may be
prescribed under the Act.

In terms of the power so conferred by section 39 of the
Act, the J&K State Evacueesb�(tm) (Administration of Property)
Rules Svt. 2008 were made by the Government. The same
originally did not, however, deal with either allotment or
lease of evacuee properties, unless so done by rule 13
thereof, which was not produced for our consideration.

11

Subsequently, in exercise of powers conferred by section
39 of the Act to provide the manner in which and the
conditions, subject to which the Custodian may allot any
immovable property vested in him and the
circumstances in which leases and allotments may be
cancelled or terminated or the terms of any lease or
agreement varied, Allotment of land to Displaced persons
Rules, 1954, more particularly known as Cabinet Order
no.578-C of 1954 dated May 7, 1954, was made by the
Government. The said Rules of 1954, however, did not
address either grant or cancellation or variation of the terms
or conditions of lease. It dealt with allotment of land and
cancellation of such allotment. Allotment of land has been
dealt with in rule 5; whereas cancellation of allotment of
land has been dealt with in rule 12 of the said rules. Rule 12
provides that Tehsildar or the Provincial Officer shall have
power to cancel allotment when the allotment is in excess
of the permissible limit and the allottee shall forfeit his right
to claim allotment of land in his favour in future. Rule 5 of
the said Rules is as follows:

12

b�Liability to cultivate allotted land personally and
consequences of failure to do so.

(1) A displaced family, who may hereafter be,
and such family as has already been, allotted land,
shall be bound to bring such land under personal
cultivation within six months of the date of delivery
of possession on allotment or the date of this
order, as the case may be, failing which such
family shall forfeit its right to occupy such land.
(2) The land, of which the right to occupy is
forfeited under clause (1) may be re-allotted to any
other displaced family, which shall not have been
settled on land by that time and failing it shall
continue with the person, who has been in actual
cultivating occupation thereof; provided such
person is a landless tiller, and otherwise will be let
out to a landless tiller, to the extent of the limit
permissible.

Explanation.- b�Personal cultivationb�(tm) includes
cultivation by any member of the family.b�
Rule 5 of the said rules, quoted above, would show
allotment of land can be made for cultivation thereof.
Forfeiture of the allotment is a certainty if the land is not
cultivated within six months from the delivery of
possession of the land on allotment or the date of
coming into force of the said rules. If an allotment is
made, the same denotes grant of right in favour of the
allottee to occupy the land, but for cultivation only. If the
13
right is forfeited, the allotted land becomes available for
re-allotment, but again, for cultivation. In the event re-
allotment of the land is not made, the land will continue
with the person who has been in actual cultivating
possession thereof, provided such person is a landless
tiller and, if the same is not in possession of any person
who has been in actual cultivating possession thereof,
the land would be let out to a landless tiller to the extent
of the limit permissible. In other words, it suggests that
once a land is allotted, such land would remain either
with the original allottee, if the allotment is not forfeited,
or with the re-allottee, or with the person in cultivating
occupation, or with a landless tiller, but for the purpose
of cultivation.

In this connection, one is required to take note of
rule 6 of the said rules, which grants exemption from
personal cultivation in certain cases. While granting
exemption, it has been expressly stated that the allotted
land in no case shall be left fallow, i.e., uncultivated. It
provides further that, if the land is left fallow or
14
uncultivated without sufficient cause for more than six
months from the date the said rules came into force or
the date of delivery of possession, it shall be lawful for
the revenue authority to let out the same to such
landless tiller as he deems fit and on payment of such
rent as he may consider fair. This is also an indication
that an allotted land was intended to remain in
cultivation for all times to come.

Looking at rules 5, 6 and 12 of the said rules, it
appears that a land allotted should not only remain
under cultivation, but if an allottee or a re-allottee fails
to bring the same under personal cultivation within six
months from the date of delivery of possession of the
land on allotment or re-allotment, his right to occupy the
land on the basis of allotment or re-allotment will stand
forfeited. Similarly, if an exempted allottee or re-allottee
fails to arrange cultivation of the land for more than six
months from the date of delivery of possession of the
land on allotment or re-allotment, his right to occupy the
land on the basis of the allotment or re-allotment will
15
stand forfeited. However, in the event allotment of land
is more than the limit prescribed, the allotment is liable
to be cancelled beyond the prescribed limit. As
aforesaid, the said rules did not make any provision for
leasing out any land.

On July 31, 1961, rule 13 of the Evacuees
(Administration of Property) Rules, referred to above,
was substituted. The substituted rule 13 of the said
rules authorized the Custodian to allot or lease any
evacuee property in such manner and subject to such
conditions as may be prescribed by the Government.
The said rule, however, imposed a restriction on the
period of lease or allotment. It directed, except with the
permission of the Custodian General, such lease or
allotment shall not exceed one year, in the case of
residential property and two or three years in the case
of commercial and industrial undertakings, respectively.
The said rule, therefore, authorized grant of lease or
allotment of residential, commercial or industrial
properties. Allotment, by reason of definition thereof
16
given in the Act, would be for temporary use. Therefore,
with effect from July 31, 1961, in terms of the said rules,
the Custodian became entitled to allot or lease out
residential, commercial or industrial properties. The
power, however, stood restricted to one year, two years
and three years, respectively. With the permission of
the Custodian General, such power became
exercisable beyond the periods of one year, two yeas
and three years, as the case may be.

On April 5, 1985, rules 13-A, 13-B, 13-C and 13-D
were inserted in the Evacuees (Administration of
Property) Rules. While rule 13-A authorized revision of
rent of all evacuee buildings; rule 13-B authorized
revision of rent of houses or shops used for commercial
purposes. The said rules, therefore, authorized revision
of rent of buildings, shops and commercial properties
used as such. Rule 13-C directed fixation of premium
and rent in respect of vacant land to be leased out. It
said that, notwithstanding anything contained in rule 13,
the Custodian shall put to an open auction lease of any
17
evacuee land for a period not exceeding 40 years for
determination of premium to be charged from the
allottee to hold such land as leased out or may charge
the premium and ground rent annually after taking into
consideration the market value of such land of the
locality in which it is situate. It further provided that
different rates of premium and ground rent shall be
fixed for the lands put to use for residential, commercial
or industrial, as the case may be. Therefore, an
embargo was put on the Custodian, even with
permission of the Custodian General, to grant lease of
a vacant land for a period not exceeding 40 years with
a further obligation to determine the premium to be
charged for grant of such lease at such rate as may be
available on open auction or at such rate which may be
determined after taking into consideration the market
value of such land of the locality in which it is situate
and such market value should be determined on the
basis of the proposed use of the land, i.e., whether for
residential or for commercial or for industrial purpose.

18

From what has been stated above, it would be
evidenced that, though allotment may be made of
residential or commercial or industrial properties and, at
the same time, lease thereof may be granted, but while
provisions have been made as regards lease of vacant
land to be used for residential or commercial or
industrial purpose, no provision has been made for
allotment thereof. The rules, as above, authorize
allotment of land for cultivation. Since, after April 5,
1985, lease of vacant land for residential, commercial
or industrial purpose is also permissible. The same is
required to be made only by fixing premium by taking
recourse to open auction or upon taking into
consideration the market value thereof. No provision
has been made for grant of lease for residential,
commercial or industrial purposes of a plot of land,
which had been allotted for the purpose of cultivation. In
other words, cultivable lands allotted as such should
remain cultivable lands and lands which have not been
allotted for cultivation and, accordingly, may be used for
residential, commercial or industrial purposes, may be
19
leased out on such premium as may be determined by
taking recourse to two options, namely, open auction or
by determining market value thereof. The rules framed
under the Act do not authorize use of a land, allotted for
cultivation, for residential, commercial or industrial
purpose. At the same time, the rules do not suggest
forfeiture of land allotted for cultivation beyond the
periods of six months, as referred to in rules 5 and 6 of
the Allotment of Land to Displaced Persons Rules. At
this juncture, it must also be noted that allotment of land
for cultivation is available only to displaced persons or
families, i.e., those who held land in Pakistan held
territory of the State and whose source of livelihood
was the income from such land, and to no one else. In
case of forfeiture of allotment of such land, a tiller in
occupation or a landless tiller, who may not be a
displaced person, may be authorized to remain in
occupation of the forfeited allotted or re-allotted land. At
the same time, lease may be granted to any one.

20

Nothing is mentioned in the said rules as to what
will happen if the allotment of land for cultivation to
displaced persons is not forfeited or cancelled for failure
on their behalf to do what has been provided in rules 5
and 6 of Allotment of Land to Displaced Persons Rules,
but the land becomes fallow later on. It is well settled in
law that when a field is not covered by rules, the same
may be supplied by administrative instructions. By the
administrative instructions contained in Government
Order dated September 9, 1971, it appears, the
lacunae in the rules, as regards cancellation of
allotment or re-allotment of land to displaced persons
for cultivation for their failure to cultivate the same after
expiry of the period mentioned in rules 5 and 6 of
Allotment of Land to Displaced Persons Rules, was
supplied when it was provided that it would be
permissible to cancel allotment of land or re-allotment
of land to those displaced persons / locals, i.e., the
tillers in occupation or landless tillers, who have not so
far cultivated land themselves or got it cultivated by
tenants and whose land is lying fallow for the last two
21
successive harvests. While doing so, the said order
directed that before allotment / re-allotment is
cancelled, a notice should be served upon the allottee
or the re-allottee or the person in possession, to show
cause within 30 days of the issue of the notice as to
why the allotment or re-allotment of the land should not
be cancelled for non-cultivation. It further provided that
in case no satisfactory explanation is tendered, or in
case the allottee or the person in occupation fails to
tender any explanation, the allotment may be cancelled
and he be ejected. As would be evidenced from the
said Government Order, the object and purpose of
cancellation of allotment or re-allotment as provided
therein, was aimed at grant of allotment / re-allotment to
a larger segment of displaced persons. It directed the
manner of assessing excess land held by a displaced
person and the mode and method of cancellation
thereof. It directed for that purpose to take into account
records contained in the revenue records.

22

Reading the Act, the rules and the Government
Order referred to above, allotment or re-allotment can
be made of land for purposes of cultivation; whereas
land can be leased out for residential, commercial as
well as industrial purpose. The land allotted or re-
allotted for the purpose of cultivation would remain as
such. In the event land allotted for cultivation is not
cultivated by the allottee or the re-allottee within six
months from the date of obtaining possession by him
on such allotment, his right to occupy the land will stand
forfeited. In other words, the allotment / re-allotment will
stand cancelled. In such event, the tiller in possession
shall continue to remain in possession of the land in
question; if not, the same will be given to a landless
tiller. If the allottee or re-allottee having had cultivated
the land in question for a period of six months from the
date of obtaining possession on allotment or re-
allotment and, thereupon, fails, or the tiller in
possession or the landless tiller keeps the land fallow
for two consecutive harvests, he faces the threat of
ejectment, unless satisfactory reason is furnished by
23
him therefor in a proceeding to be initiated upon issuing
a notice to him. Any other land, not allotted for
cultivation, may be leased for residential, commercial or
industrial purpose and such lease, since after April 5,
1985, is required to be settled upon fixation of premium
to be ascertained by putting the land in question to
open auction or by taking into consideration the market
value thereof.

In the instant case, the revenue records do
suggest that the land in question was allotted in favour
of petitioner-respondent. Even the alleged report of the
Custodian, Jammu, dated February 9, 1989, considered
by the Custodian General in the order impugned in the
writ petition, says that petitioner-respondent was in
possession of the land in question before 1962 as its
allottee. The revenue records upon which reliance has
been placed, suggests that petitioner-respondent was
the allottee of the land in question. They do not suggest
that there was forfeiture. The mutation order no.151,
also taken into consideration by the Custodian General
24
in his order impugned in the writ petition, clearly
suggests that petitioner-respondent was allottee of the
land in question. We have read the said mutation order
no.151 dated July 4, 1981 with the assistance of
learned counsel for the parties. We found by reading
the same that nowhere therein it had been recorded
that petitioner-respondent stated before the authority
passing the said order that he was never in possession
or occupation of the said land; instead he stated that he
is not now in possession of the said land. The revenue
records, at the same time, suggest that though the said
land was allotted in favour of petitioner-respondent but
the same was in possession of the revenue
department. The rules referred to above do not suggest
any mechanism by which at any point of time the
revenue department could have come in possession of
the said land. At the same time, though the land in
question vests in the Custodian, but there is nothing
which would suggest that the Custodian could take
possession of the land allotted in favour of petitioner-
respondent before cancellation of his allotment. No
25
such step had been taken is not in dispute. There was,
thus, no forfeiture of the allotment of the land in
question in favour of the petitioner-respondent, nor
there was cancellation thereof.

It may be possible that petitioner-respondent, or
his family, is holding excess land but again cancellation
of allotment of excess land is required to be made and,
for that matter, a quasi judicial proceeding, as
mentioned in the said Government Order of 1971, is
required to be taken. Admittedly, no such proceeding
has been taken.

While the allotment of the said land in favour of
petitioner-respondent stands admitted in the revenue
records, the revenue records do not suggest that the
same is in occupation of a tiller. On the other hand, it
suggests that the same was in possession of the
revenue department since July 4, 1981. In terms of the
law governing the subject matter discussed above, until
such time the allotment in favour of petitioner-
respondent is cancelled, he is entitled to be in
26
possession thereof and, if he is not in possession
thereof and, accordingly, has not taken any steps to
have the same cultivated for two harvests, petitioner-
respondent has exposed himself to the threat of
cancellation of the allotment followed by ejectment.

In order to understand the aspect discussed
above, one is also required to take notice of the
provisions of the Jammu and Kashmir Agrarian
Reforms Act, 1976.

Before we consider the provisions of the Jammu
and Kashmir Agrarian Reforms Act, 1976, it would be
appropriate to take note of two other Acts also: one of
them is the Jammu and Kashmir Displaced Persons
(Permanent Settlement) Act, 1971. The said Act grants
authority to the Government to transfer any land owned
by the State, any land which has escheated to the State
and any evacuee land acquired under section 4 of the
Act for permanent settlement of any displaced person.
The land dealt with in the said Act means land which is
occupied or has been let for agricultural purposes or for
27
purposes subservient to agriculture. Section 4 of the
Act authorizes the Government to acquire any evacuee
land allotted to displaced persons by publishing a
notification to the effect that the government has
decided to acquire such evacuee land. The purpose of
such acquisition, as aforesaid, is to transfer land to any
displaced person for his permanent settlement. The
evacuee land carries the same meaning as given in the
Jammu and Kashmir State Evacuee (Administration of
Property) Act, 2006. The said Act provides for payment
of compensation after acquisition of evacuee land and
other provisions in connection therewith. Section 6 of
the said Act provides that the provisions of the said Act
shall not apply to, amongst others, any evacuee land
other than such land which has been allotted under
Allotment of Land to Displaced Persons Rules 1974, i.
e., Cabinet Order no.578-C of 1954. Thus, the said Act
applied to the land in question since the same was
allotted under the said Rules / Cabinet Order. It does
not appear that the land in question was acquired in
terms of the said Act.

28

The other Act, which is required to be taken note
of, is the Jammu and Kashmir Agrarian Reforms Act,
1972. Section 17 of the Act provides, amongst others,
that any land to which the provisions of the Jammu and
Kashmir Displaced Persons (Permanent Settlement)
Act, 1971 apply, i.e., those settled under the said rules /
Cabinet Order, shall, with effect from the date
appointed under section 3 of the said Act, be deemed
to have been acquired by the Government within the
meaning of section 4 of the Jammu and Kashmir
Displaced Persons (Permanent Settlement) Act, 1971
and the same shall vest in the displaced person who
held it in personal cultivation on the first day of
September, 1971, subject to the provisions of section
18 of the said Act. It further provides that where a
displaced person held such land in more than one
village, he shall be deemed to have held it in personal
cultivation if he was, on the first day of September,
1971, in personal cultivation of the portion of land in at
least one village. It further added that where any
displaced person held any such land not in his personal
29
cultivation on the first day of September, 1971, the land
shall vest in the State. However, if the monthly income
of the displaced person does not exceed Rs.500 per
month, he would be entitled to resumption and, for that
matter, within the time to be prescribed, if he does not
apply, the prescribed authority shall itself determine
whether the land is rC(c)sumeable by such person in the
prescribed manner as if the application of such person
was duly made before it.

It is not known whether the petitioner-respondent
and his family members were allotted land in more than
one village and whether they held land in one of such
villages in their personal cultivation as on September 1,
1971 or whether their income did not exceed Rs.500
and, accordingly, they became entitled to resumption.
On the other hand, the revenue records show that even
until July 4, 1981, writ petitioner-respondent and his
family were recognized as allottees of the land in
question. The said Act provides that if the vested land is
not cultivated within a period of six months from the
30
appointed date or if the resumed land is not cultivated
within a period of 8 months from the date of entering
into possession, the right in the land shall extinguish
but, for that matter, an enquiry in the prescribed manner
is required to be made followed by a declaration. It
does not appear any such step had been taken. The
only logical reason, therefore, can be that the petitioner-
respondent was holding land in more than one village
and held land in personal capacity in at least one
village.

On August 21, 1976 the Jammu and Kashmir
Agrarian Reforms Act, 1976 came into force. By section
43 thereof, with effect from August 21, 1976, the
Jammu and Kashmir Agrarian Reforms Act, 1972 was
repealed. In terms of the provisions of the said Act,
evacuee land means land as defined in the Jammu and
Kashmir Evacuee (Administration of Property) Act and
land means which was occupied or was let for
agricultural purposes or for the purposes subservient to
agriculture or for pasture in Kharief 1971. Section 3
31
thereof provides that the provisions of the said Act,
except those specified in clause (c) of sub-section (2) of
Section 4 and Sections 5, 7, 13 and 14 and sub-section
(3) of Section 26 of the Act shall not apply to evacuees
land. Clause (c) of sub-section (2) of Section 4 of the
Act provides that the land mentioned in Schedule-II to
the Act (which deals with State land), allotted to a
displaced person, shall not vest; provided that such
land and evacueesb�(tm) land, if any, allotted to the same
displaced person, is situate in more than one village
and such displaced person cultivated personally the
land in at least one village in Kharif 1971. As against
that, Section 5 of the Act provides that notwithstanding
anything contained in any other law for the time being in
force, where any land held by an individual in personal
cultivation, whether as owner or tenant or otherwise,
was in excess of the ceiling area on the first day of
September, 1971, the rights, title and interest of such
individual in the excess land shall be deemed to have
vested in the State free from any encumbrances on the
1st day of May, 1973. Similarly, where aggregate of
32
such land is held by the members of a family, the
excess land shall also vest. Section 7 of the Act deals
with resumption for bona fide personal cultivation by ex-
landlord. Section 13 imposes restriction on utilization of
land and Section 14 deals with optimum retainable area
of land. Sub-section (3) of Section 26 of the Act deals
with unauthorized occupation of State land reserved for
grazing purpose. Therefore, in terms of the provisions
of the said Act only in case of the petitioner holding
excess land, the same may vest in the State or in the
revenue department. Nothing has come on record of
this case that the land in question, at any point of time,
by reason of the provisions of the said Act, vested in
the State.

Section 3-A of the said Act, inserted in 1978,
converted displaced persons cultivating evacuee land
personally into occupancy tenants with right to transfer
their right of occupancy tenancy by sale, mortgage or
gift, subject to the provisions of the Alienation of Land
33
Act, and to which the provisions of Jammu and Kashmir
Tenancy Act shall have no application.

The order no.151 dated July 4, 1981 deals with
the claim of the petitioner-respondent to record him and
his family as the occupancy tenant of the land in
question. The prayer made to that effect was refused
since petitioner-respondent accepted before the
authority concerned that he was not cultivating the land
in question. Despite that, no record of the revenue
department has been placed before us suggesting
vesting of the land in question in the State. On the other
hand, the revenue records went on suggesting that the
land stands allotted in favour of the petitioner-
respondent and his family. From the action of the
Custodian General, complained of in the writ petition, it
is clear that the land in question did not vest in the
State in terms of the Jammu and Kashmir Agrarian
Reforms Act, 1976, for, if the same had vested, the
Custodian of Evacueesb�(tm) Properties or the Custodian
General could not deal with the land in question in the
34
manner they purported to do firstly in the year 1987,
then in the year 1989 and lastly on February 18, 2002;
and, instead, the same would have been dealt with by
the Government, may be through its revenue
department.

In the facts and circumstances, the conclusion
would be that though the petitioner-respondent was not
in possession of the land in question but, being allottee
thereof, not only he had right to resume possession but,
in any event, the same could not be dealt with in the
manner the same was purported to be done.

The appellant by referring to the records of the
revenue department contended that this land was not
cultivable and, accordingly, the very allotment was
inappropriate. The fact remains that the land in question
was allotted and allotment of land is permissible only for
cultivation purpose. Abandoned lands, so far as
evacuee lands are concerned, would become non-
cultivable due to passage of time but if an evacuee land
is allotted, the same is to be cultivated. The
35
consequences for non-cultivation have been provided.
However, every effort must be made to cultivate it in the
manner and through the mechanism provided in the
Acts and the rules referred to above. Till such time, it is
declared by an appropriate authority of the State that
the land has become impossible to be cultivated, which
declaration is absent in the instant case, the land in
question could not be used but for cultivation.

Lastly, despite noting the applicable rules, the
Custodian General in the order impugned in the writ
petition did not make any effort to at least find out the
market value of the land for the purpose of fixation of
premium while passing the said order. Further more, for
the purpose of fixation of premium one may proceed to
take into account the market value, but the larger
question is how to select the lessee? In the absence of
rules governing the subject, the minimum that was
required was invitation of applications from persons
otherwise thought to be eligible. That too was not done
in the instant case. The manner in which the Custodian
36
General dealt with the matter denotes that he felt that
the land in question is his personal property. We
deprecate wholeheartedly the actions of the Custodian
as well as of the Custodian General.

The conclusion, therefore, would be that there is
no scope of interference with the intimate conclusion of
the judgment and order under appeal. In the order of
the Custodian General, impugned in the writ petition, he
has in no uncertain terms held that the appellant has
raised illegal constructions and for that purpose has
imposed penalty upon the appellant. However, this
penalty has been imposed for making a false
declaration or statement while obtaining lease. No step
has been taken in respect of the adjudged illegal
construction.

In the circumstances, we would only modify the
judgment and order under appeal to the extent that the
appellant shall remove himself lock, stock and barrel,
including all illegal constructions made by him on the
land in question and restore back the land to its original
37
condition within a period of six months from today,
within which period it shall be open for the Custodian to
have the allotment made in favour of the petitioner-
respondent cancelled or the revenue department to
have a declaration made that the land in question vests
in the State. In default, it shall be obligatory on the part
of the Custodian to hand over possession of the land in
question to the petitioner-respondent immediately after
expiry of six months from today after taking possession
thereof from the appellant.

We were minded to impose exemplary costs upon
the appellant as well as upon the State, but we have,
with great effort, restrained ourselves from doing so.

The appeal is, accordingly, disposed of.

                 (J. P. Singh)             (Barin Ghosh)
                                            Chief Justice.
                     Judge
Srinagar,
    .03.2009
A. H. Khan, JR.






N. K. Mehta & Ors vs State Of J&K & Ors on 4 April, 2009

Jammu High Court
N. K. Mehta & Ors vs State Of J&K & Ors on 4 April, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. D-35 OF 2008    
1 N. K. Mehta & ors.
 2 Kamlesh Prabhakar  
Petitioners
1 State of J&K & ors.
 2 State of J&K & ors.
Respondent  
!Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Advocate in LPA D-35/2008. Ms. Mandeep Reen in LPASW 31/2008    
^Mr. Firdous Ahmad Mir, Adv. in D-35/08 Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Advocate in LPASW 31/2008. 

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice J. P. Singh, Judge
Date: 04.04.2009 
:J U D G M E N T :

Per Barin Ghosh, CJ:

In the writ petition, which has been dismissed by the
judgment and order under appeal, the appellants
contended that they are entitled to serve their employer,
namely, the State Cooperative Agriculture Rural
Development Bank Limited until the age of 60 years and
not until the age of 58 years, as was being contended by
their employer. The judgment under appeal has been
2
rendered, principally, upon relying on a Division Bench
Judgment of this Court, which was rendered on April 30,
1999 in the case of Ved Pal Sharma v Citizens Co-
operative Bank Ltd., reported in 2000 SLJ 117. The said
Division Bench judgment followed the judgment earlier
rendered by a Single Bench of this Court in CSA
No.35/1994,reported as Kuldip Raj v Citizen Co-
operative Bank Ltd., in 1988 KLJ 83. The law which
stood changed after April 30, 1999 was, therefore, not
noticed in the said Division Bench and Single Bench
judgments.

There appears to be no dispute that the employer
society was governed by the J&K Cooperative Societies
Act, 1960. There appears to be also no dispute that the
employer society on July 3, 1971 made service rules in
relation to its employees. The learned Judge, while
rendering the judgment and order under appeal,
proceeded on the basis that the said service rules have
not been registered with the Registrar of Co-operative
Societies whereas the service rules upon which reliance
has been placed clearly show that the same stand
registered with the Registrar, Cooperative Societies. That
the said rules were registered with the Registrar,
Cooperative Societies too was not disputed by the parties.
There is no dispute that Rule 25 of the said rules makes it
3
clear that the employees of the employer society shall
retire at 60 years of age.

Section 124 of the J&K Cooperative Societies Act,
1960 authorized the Government to make rules, including
those pertaining to laying down service conditions of
employees of Co-operative Societies. There is no dispute
that on July 8, 1988, in exercise of powers conferred by
section 124 of the J&K Co-operative Societies Act, 1960,
which applied to all societies, the Government made the
rules called the J&K Co-operative Societies Services
Rules, 1988; while, however, doing so, in clause (o) of
section 2 thereof provided that b�societyb�(tm) means Co-
operative District Wholesale-store Society / Co-operative
Sale and Supply Society / Co-operative Multipurpose
Societies / Co-operative Service Society registered under
the Jammu and Kashmir Co-operative Societies Act,
1960, but did not include Co-operative Development
Banks registered as co-operative societies under the said
Act. However, in the note appended to Rule 24 of the said
rules, which contained directions pertaining to service
records, it was stated that the term b�other societiesb�(tm) means
Co-operative Societies, Co-operative Industrial Societies,
Co-operative Banks and the like. The term b�other
societiesb�(tm) however, did not feature in Rule 24 of the said
rules. The Division Bench referred to above, taking note of
the said note as also applicability of the said rules to all
4
societies, held that the said rules were also applicable in
relation to Co-operative Development Banks registered
under the said Act. Rule 13 of the said rules specifically
mentions that the persons appointed to the service shall
retire on attaining the age of 58 years or on the date the
society in which he was initially appointed ceases to
function. The object of the said rules was to make a cadre
of the employees of all Co-operative Societies and to
make them interchangeable by transfer and deputation.
There is no dispute that the said object was not fulfilled
and no attempt was made to fulfill the said object.

At the same time, there cannot be any dispute that
the rules made by the employer society in 1971, to the
extent the same determined the age of superannuation,
stood altered by the rules of 1988 made by the State.
Thus, on and from July 8, 1988, the employees of the
employer society became obliged to superannuate or
retire upon attaining the age of 58 years.

On July 8, 1989, the J&K Co-operative Societies Act,
1989 (hereinafter referred to as b�the said Actb�(tm)) came into
force, and by virtue of section 172(1) of the said Act, the
employer society, which was existing as on July 8, 1989,
and which had been registered under the Co-operative
Societies Act, 1960, became deemed to be registered
under the said Act and its bye-laws, so far as the same
are not inconsistent with the express provisions of the
5
said Act, continued to remain in force until altered or
rescinded. At this juncture, it is necessary to take note of
sub-section (2) of section 172 of the said Act which is as
follows:

All appointments, rules and orders made,
notifications and notices issued and suits and
other proceedings instituted under the said Act
(1960 Act) shall, so far as may be, be deemed to
have been respectively made, issued and
instituted under this Act.b�
Section 177 of the said Act repealed the 1960 Act
but, at the same time, provided that any rule made under
the provisions of the repealed Act, shall, in so far as the
same are not inconsistent with the provisions of the
repealing Act be deemed to have been done, taken,
issued and made under the corresponding provisions of
the repealing Act.

Section 176 of the said Act authorizes the
Government to make rules to carry out the purposes of
the Act, including conditions of service of officers and
other employees of Co-operative Societies.

In exercise of such power granted by section 176 of
the said Act, the Government made the J&K Co-operative
Societies Rules, 2001 (hereinafter referred to as b�the said
rulesb�(tm)). While making the said rules, the Government
provided in sub-rule (1) of rule 5 of the said rules the
6
subject-matters which are required to provide for in the
bye-laws of the Co-operative Societies; and in sub-rule (2)
of Rule 5 provided that in the bye-laws they may provide
for the matters enumerated from clauses (e) to (f)
thereunder. Clause (e) of sub-rule (2) of Rule 5 provided
the method of recruitment, the conditions of service and
the authority competent to fix, revise or regulate the
scales of pay and allowances of paid officers and
employees of the societies and the procedure to be
followed in the disposal of disciplinary cases against
them. The said rules did not provide for the service
conditions of the employees of Co-operative Societies,
instead granted liberty to them to provide for the same.
There cannot be any dispute that by reason of
continuation of the rules made under the 1960 Act by
section 177 of the said Act, the 1988 rules made by the
Government continued to remain in force until such time
the said rules of 2001 came into effect.

The short question is whether by reason of coming
into force of the 2001 rules, the 1988 rules became
inconsistent with the provisions of the Act, inasmuch as
the said rules in no uncertain terms authorized the
Societies to make bye-laws pertaining to conditions of
service of their employees and whether the rules
governing the conditions of service framed by the
7
respondent-employer in 1971 automatically stand
revived?

Rule 26 of the 1988 rules repealed all the then
exiting rules, except the Common Cadre Rules of 1976.
When the Government under section 124 of the J&K Co-
operative Societies Act 1971 had power to frame rules to
lay down conditions of service of the employees of Co-
operative Societies, it goes without saying that, such
power included the power to repeal all rules, though not
made by the Government, but laid down conditions of
service of employees of Co-operative Societies, including
the 1971 Rules made by the respondent-employer.

In the circumstances, the 1971 Rules made by the
respondent-employer having been repealed by the 1988
rules, by reason of the said rules, which authorized Co-
operative Societies to provide in their bye-laws the
conditions of service of their employees, the 1971 Rules
made by the respondent Co-operative Society, there
cannot be any dispute, did not revive since the said rules
indicated no intention to revive the same or similar rules.
Further, the Co-operative Societies by the said rules have
been authorized to provide for in their bye-laws conditions
of service of their employees and their appears to be no
dispute that as yet no such step has been taken by the
employer society to provide for the same in their bye-laws
and, at the same time, the 1971 rules, it is nobodyb�(tm)s case,
8
were part of the bye-laws of the employer society, though
the same was registered with the Registrar, Co-operative
Societies.

The conclusion, therefore, would be that the 1988
rules, framed by the Government, governing the service
conditions of the employees of the Co-operative Societies,
including those of the employer society, still are in force
and, as such, there is no scope of interference with the
judgment and order under appeal. This conclusion is
based on section 24 of the General Clauses Act, 1977
(1920 AD).

However, before we conclude, it would be
appropriate on our part to state that the questions raised
in the writ petition were, in fact, not covered by the
judgments referred to above and the same were required
to be answered independently. We may further point out
that the said rules have made a great departure from what
had been provided in the 1988 rules having granted
power to the Co-operative Societies to frame rules
pertaining to service conditions of their employees as part
of their bye-laws. The 1988 rules would become
inconsistent with the rules governing service conditions as
and when framed by Co-operative Societies in their bye-
laws, liberty for which has been granted by the said rules.
At the same time, there being no authoritative
pronouncement that the rules governing the service
9
conditions made by the societies prior to coming into force
of the 1988 rules were repealed by the 1988 rules, the
petitioners did have reason to come to this Court to seek
continuation of their service until 60 years and, in the
circumstances, though we dismiss the appeal, but make it
clear that the petitioners having rendered service despite
having crossed the age of 58 years on the strength of the
orders of this Court, should not be made to repay any part
of their salaries drawn in course thereof.

Because we have stated above that substantial
questions of law had been raised in the writ petition, we
award no cost against the appellants and, accordingly,
make it absolutely clear that on account of the present
litigation, which includes the writ petition, the petitioners-
appellants will not be saddled with any litigation cost of
any nature. We are disturbed to note that by an order
dated July 11, 2008, an attempt had been made to
recover litigation costs alleged to have been incurred by
the employer society to defend the present litigation. It is
made clear that no such litigation cost shall be recovered
from the appellants.

The appeals are, accordingly, dismissed.

                    (J. P. Singh)          (Barin Ghosh)
                       Judge               Chief Justice.
Jammu,  
04 .04.2009
A. H. Khan, JR.
10






Union Of India & Ors vs Ayodhya Nath on 4 April, 2009

Jammu High Court
Union Of India & Ors vs Ayodhya Nath on 4 April, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPA(OW) no. 336 of 2000  
Union of India & ors.
Petitioners
Ayodhya Nath. 
Respondent  
!Mr. Tashi Rabastan, CGSC.  
^Mrs. S. Kour, Advocate.

Hon'ble Mr. Justice Barin Ghosh, Chief Justice.
Hon'ble Mr. Justice J. P. Singh, Judge.
Date: 04.04.2009 
:J U D G M E N T :

Per Barin Ghosh, CJ:

In a writ petition, petitioner-respondent challenged the
Summary Court-martial verdict sentencing him to undergo 6
monthsb�(tm) rigorous imprisonment in civil prison and also
terminating his service on this count. Petitioner-respondent also
prayed for quashing of the order by which the appeal filed by
him was rejected. By the judgment and order under appeal, the
order terminating the service of petitioner-respondent was not
2
interfered with, but a direction was given that petitioner-
respondent shall appear before the Commanding Officer of the
Unit when he shall be at liberty to prove his defence, with a
further direction upon the Commanding Officer to conduct an
enquiry after affording a prospective hearing. The Writ Court
directed that the relief to which petitioner-respondent is entitled,
would depend upon the outcome of the enquiry. The Writ Court
further fixed a date for appearing of petitioner-respondent
before the concerned officer and directed completion of the
enquiry within three months from the date thereof. This was
done proceeding on the basis that petitioner-respondent was
not given a reasonable opportunity of hearing since the
proceedings were concluded in one day. Being aggrieved
thereby, the present appeal has been filed by the appellants
herein.

The principal contention of the appellants in the appeal is
that they have acted strictly in accordance with rules governing
the field and there was, and is, no scope for directing a further
enquiry in respect of matters which have been enquired into in
accordance with rules and concluded strictly in accordance
therewith.

The undisputed facts of this case are that, on October 5,
1982, petitioner-respondent joined the Army. In the month of
December, 1991, he was a Gunner in the Army, attached to
18/12 Field Regiment. He was then, thus, not an officer in the
Army. Petitioner-respondent approached for leave for the
purpose of attending his sisterb�(tm)s marriage to be performed on
December 11, 1991. Accordingly, casual leave with effect from
December 9, 1991 was accorded to him. By telegram sent by
3
petitioner-respondent and received by the appropriate authority
on December 10, 1991, petitioner-respondent held out that the
marriage has been shifted to December 15, 1991 with a request
to extend the leave. Accordingly, his leave was extended till
December 26, 1991. By another telegram received by the
appropriate authority on December 18, 1991, petitioner-
respondent purported to hold out that his wife was serious and,
accordingly, sought extension of leave by 20 days. By a
telegram, the date of which is not on record of this case,
petitioner-respondent was purportedly informed that he has not
been sanctioned leave as was requested for. Petitioner-
respondent on January 6, 1992 rejoined duty. In the meantime,
since petitioner-respondent did not join on December 27, 1991,
apprehension warrant was issued on December 28, 1991 which
was cancelled on January 9, 1992.

As it appears from the records produced by the
appellants, on January 21, 1992, proceedings under Army Rule
22 were initiated by the Commanding Officer, Col. Arun. On that
date, two witnesses were allegedly examined in the presence of
petitioner-respondent who, allegedly, declined to cross-examine
them. Allegedly, in course of such proceedings, petitioner-
respondent made no statement but pleaded guilty. He also did
not produce any witness.

The proceedings under Army Rule 22 pertained to the
following charge:

b�He is charged for without sufficient cause overstaying
leave granted to him, in that he having been granted
leave from 09 Dec. 91 to 26 Dec. 91 to proceed to his
home, failed without sufficient cause to report on duty
on expiry of the said leave till rejoined voluntarily on 06
4
Jan 92 at 2030h. (Total period of absence 11 days)
[(Army Act 39(b)]b�.

Petitioner-respondent signed annexure II of the
proceedings conducted under Army Rule 22. The contents of
annexure II is as follows:

b�A brief of the statement made by the accused
No.14480997P Rank Gunner (General Duties) Name
Ayodhya Nath of 12 Field Regiment:-

b�I am guilty of the above charge as mentioned
in Annexure Ib�(tm).b�
The entire body of annexure II is type-written, except the
signature appended thereto by petitioner-respondent.

On conclusion of the hearing, in course of the proceedings
before the Commanding Officer under Army Rule 22, an order
was passed on January 21, 1992 to the effect as follows:

b�Evidence to be reduced to writingb�
Thereupon, on January 22, 1992 evidence of Major Ranbir
Singh; Subedar Govind Singh and Havildar Vijay Kumar was
recorded before Capt. Jaya Kumar in the presence of Naib
Subedar Brij Gopal Singh, when it was recorded that petitioner-
respondent declined to cross-examine the witnesses and that
the summary evidence was recorded in the presence of the
accused and independent witness.

5

There is one more document produced by the appellants,
dated February 10, 1992, which appears to be a certificate to
the effect as follows:

b�Before recording plea of guilty offered by the accused
No.14480997P Gunner (General Duties) Ayodhya
Nath, the Court explained to the accused the hearing of
charge to which he has pleaded guilty and ascertained
that the accused understand the nature of the charge
to which he has pleaded guilty. The Court also
informed the accused the general effect of the plea of
guilty and the difference in procedure which will be
followed consequent to the same plea. The court
having satisfied itself that the accused understand the
charge and the effect of his plea of guilty, accepts and
records the same. The provision of Army Rule 115(2)
are complied with.b�
This certificate records that the accused refused to sign the
certificate. It then records that friend of accused, Capt. Shivesh
Tandon, has signed the certificate.

The documents produced by the appellants suggest that
in course of Summary Court-martial conducted by the
Commandant, Col. Arun, Commanding Officer, 12 Field
Regiment, the accused pleaded guilty to the charge as
mentioned above. It further appears that on February 10, 1992,
sentence of the Court presided over by the Commanding Officer
was pronounced whereby petitioner-respondent was sentenced
to rigorous imprisonment in civil prison and was directed to be
dismissed from service. It appears that the said sentence was
counter-signed by Brigadier L. K. Arora, Commandant, 24
Artillery Brigade, on March 4, 1992.

It appears that on August 19, 1992 discharge certificate
was handed over to petitioner-respondent.

6

The question is: In the facts and circumstances of the
case, can it be said that the proceedings complained of in the
writ petition are contrary to rules or procedure established by
rules requiring interference by the Writ Court?

Clause (b) of Section 39 of the Army Act, 1950 provides
that any person subject to the said Act, who, without sufficient
cause, overstays leave granted to him shall, on conviction by
Court-martial, be liable to suffer imprisonment for a term which
may extend to three years or such less punishment as is
mentioned in the Act. There is no dispute that petitioner-
respondent was subject to the said Act and he overstayed leave
granted to him. The question as to whether or not such overstay
was without sufficient cause, by the nature of the provisions
contained in clause (b) of Section 39 of the Act, was required to
be ascertained by the Court-martial, for, without ascertainment
of the same, no conviction could be awarded.

Sub-section (3) of Section 20 of the Act provides that an
officer having power not less than a Brigadier or equivalent
Commander or any prescribed officer may dismiss or remove
from the service any person serving under his command other
than an officer or a junior commissioned officer. Rule 17 of the
Army Rules, 1954 authorises dismissal or removal from service
on the ground of conduct which has led to conviction of the
person concerned by a Court-martial. Therefore, dismissal can
be effected when the conduct of the person has led to his
conviction by a Court-martial by an officer having power not less
than a Brigadier. In the instant case, the sentence as well as the
order of dismissal had been countersigned by the Brigadier,
Shri L. K. Arora.

7

Clause (d) of Section 108 of the Army Act recognizes
Summary Court-martial; whereas section 116 of the Act
provides that a Summary Court-martial may be held by the
Commanding Officer of any corps, department or detachment of
the regular army and he shall alone constitute the Court. It
further provides that the proceedings shall be attended
throughout by two other persons who shall be officers or junior
commissioned officers or one of either, and who shall not as
such be sworn or affirmed. There is no dispute that Lt. Col Arun
was the Commanding Officer of the corps or the department or
detachment of the regular army to which petitioner-respondent
was attached.

Section 120 of the Act provides that a Summary Court-
martial may try any offence punishable under the Act, subject to
certain exceptions with which we are not concerned. It further
provides that the Summary Court-martial may try any person
subject to the Act and under the command of the officer holding
the Court, except an officer, junior commissioned officer or
warrant officer. Therefore, Lt. Col Arun was duly authorized to
hold Summary Court-martial to try petitioner-respondent for the
offence for which he was tried. There is no dispute that the
sentence which the Summary Court-martial could award has
been awarded in the instant case.

Section 191 of the Act has authorized the Central
Government to make rules, including those pertaining to
assembly and procedure of the Courts of Inquiry, recording of
summaries of evidence, administration of oaths or affirmations
by such Courts, convening and constituting Courts-martial and
appointment of prosecutors at trials by Courts-martial. In terms
8
of the power so conferred, the Central Government has made
the said Rules. Chapter V thereof deals with investigation of
charges and trial by Court-martial. Rule 22(1) contained in the
said Chapter says that every charge against a person subject to
the Act shall be heard by the Commanding Officer in presence
of the accused and that the accused shall have enough
opportunity to cross-examine any witness against him and to
call such witness and make such statement as may be
necessary for his defence. In the instant case, as it appears
from the records referred to above, the charge against
petitioner-respondent was heard by the Commanding Officer
when he heard witnesses against petitioner-respondent, but the
petitioner declined to cross-examine such witnesses and
instead admitted his guilt. Rule 22(3)(c) provides that after
hearing the charge, if the Commanding Officer is of the opinion
that the charge ought to be proceeded with, he shall adjourn the
case for the purpose of having the evidence reduced to writing.
In the instant case, inasmuch as petitioner-respondent pleaded
guilty, as it appears from the records referred to above, the
Commanding Officer adjourned the case for the purpose of
having the evidence reduced to writing.

Rule 23(1) of the Rules provides that where the case is
adjourned for having the evidence reduced to writing, at the
adjourned hearing evidence of witnesses, who were present
and gave evidence before the Commanding Officer, whether
against or for the accused, and of any other person, whose
evidence appears to be relevant, shall be taken down in writing
in the presence and hearing of the accused before the
Commanding Officer or such officer as he directs. In the instant
9
case, evidence was not recorded before the Commanding
Officer, but before Capt. Jaya Kumar and there is nothing on
record to suggest that Capt. Jaya Kumar was not directed by
the Commanding Officer to record such evidence. No such plea
has also been taken.

Rule 23(3) of the Rules provides that the evidence of each
witness, after it has been recorded, as provided in the rule,
when taken down, shall be read over to him and shall be signed
by him or, if he cannot write his name, shall be attested by his
mark and witnessed as a token of the correctness of the
evidence recorded, which means that the evidence recorded
should be acknowledged by the witness whose evidence is
recorded and such acknowledgement should be made by
signing or by putting the mark of the witness. It further provides
that after the evidence against the accused has been recorded,
the accused will be asked, b�Do you wish to make any
statement? You are not obliged to say anything unless you wish
to do so, but whatever you say will be taken down in writing and
may be given in evidenceb�. It further provides that any
statement thereupon made by the accused shall be taken down
and read over to him, but he will not be cross-examined upon it
and that the accused may then call his witnesses, including, if
he so desires, any witness as to character. In the instant case,
the evidence of witnesses, as recorded, has been
acknowledged by the witnesses as evidence given by them.

It is the contention of petitioner-respondent that recording
of such evidence is required to be countersigned by the person
charged. But Rule 23(3) does not say so. Reliance of petitioner-
respondent on the case of Ranjit Thakur v. Union of India,
10
AIR 1987 SC 2386, for the preposition that procedure
prescribed must be scrupulously observed and non-compliance
thereof is such an infirmity which goes to the root of the
jurisdiction and vitiates the proceedings, particularly in view of
the nature of the provisions of the Act and the Rules which
curtail, to a large extent, the protections contained in Article 21
of the Constitution on the strength of Article 33 of the
Constitution of India, appears to be not applicable to the instant
case, for, rule 23(3) does not suggest that the evidence of
witnesses recorded must be countersigned or signed by the
person charged.

Rule 115(2) of the rules provides that if an accused
person pleads guilty, that plea shall be recorded as a finding of
the Court but, before recording the same, the Presiding Officer
is required to do certain things. The contention of petitioner-
respondent that the plea of guilty has not been signed by him on
the certificate given to that effect, which was done to comply
with rule 115(2) and, instead, was signed by his alleged friend,
is of no consequence, for, the plea of guilty in terms of the
requirements of rule 115(2) of the rules is required to be
recorded as the finding of the Court and the finding of the Court
need not be countersigned or accepted by the person charged.
As held in Union of India v Ex. Havildar Clerk Prithpal Singh,
KLJ 1991 513 (DB), signature of the accused is not required
after recording of the plea of guilt, but as a matter of caution the
same should be taken. In the instant case, the same was taken
in course of the proceedings under Rule 22. Since at that stage
summary of evidence was not recorded, the same was directed
to be recorded and later the certificate was issued signifying
11
compliance of the mandate contained in Rule 115(2) to
conclude the Summary Court-martial.

It is true that the alleged friend of petitioner-respondent
could not sign on his behalf the subject certificate and his
signing of the same is of no effect inasmuch as in terms of Rule
95(4) of the Rules the friend of the person charged is not even
entitled to examine or cross-examine witnesses or to address
the Court, but the same will not vitiate the finding of the Court
that petitioner-respondent pleaded guilty. When the plea of
guilty had been taken of the sole charge, in terms of Rule 54,
the Court, upon receiving any statement made by the person
charged, was required to take further steps as were taken in the
instant case and, accordingly, the sentence was awarded in
terms of rule 65 and the same was accepted by the Brigadier by
his counter-signature and, therefore, it does not appear that the
applicable rules were not followed by the Summary Court-
martial. Consequentially, overstaying leave without sufficient
cause, a punishable offence under section 39 of the Act, was
determined not only on the plea of guilt pleaded, but also on
evidence which appears to be the mandate of the law. Such
determination entailed conviction, on which it cannot be said
that petitioner-respondent could not be removed from service.

That being the situation, there was no scope of
interference in the instant case.

The other aspect of the matter is that the proceedings in
question, resulting in conviction and dismissal took place
outside the jurisdiction of this Court. The Appellate Authority
decided the appeal outside the jurisdiction of this Court. Mere
12
communication of a copy of the order within the jurisdiction of
this Court is no part of the cause of action which could give
jurisdiction to this Court to entertain the present writ petition.
The judgment rendered in Union of India v. Narinder Singh
Mehta,
1996 SLJ 276, is distinguishable inasmuch as in that
case pre-confirmation petition against conviction and sentence
was dismissed on February 19, 1994 and the sentence was
promulgated on October 3, 1994 and on October 10, 1994 the
post-confirmation appeal was filed when the petitioner was
serving on transfer within the jurisdiction of this Court. An
appeal is a continuation of the original proceeding and,
accordingly, it must be held that the original proceeding at the
appellate stage continued against the employee residing within
the jurisdiction of this Court as a condition of his service, and
termination of the proceedings by appeal, resulting in his
dismissal, took effect within the jurisdiction of this Court.

The appeal, accordingly, stands allowed and the judgment
and order under appeal is set-aside.

             (J. P. Singh)                  (Barin Ghosh)
                Judge                        Chief Justice.
Jammu,  
04.04.2009 
A. H. Khan, JR.