Jammu Dev. Authority vs Bhag Din And Ors. on 2 December, 2003

JUDGMENT

V. K. Jhanji, A.C.J

1. Justice hurried is justice burried. This is an old legal maxim which, over and above court practices and procedures, has served, and should serve, us as a guiding caution in the process of dispensation of justice. It would be apt to the context to recall to ourselves that we, as Judges, have plentitude of judicial power in all matters concerning the general administration of justice. This power enables us to exercise control over process by regulating proceedings, by preventing abuse of process and, if necessary, by compelling observance of the process. Such jurisdiction, as a Court of Justice, may be invoked or exercised not only in relation to parties in pending proceedings, but in relation to any one, whether a party or not. We are supposedly immune from committing errors, mistakes or wrongs. We, as judges, know our absolute privileges: we have a freedom from action and question.

2. All this — the jurisdiction, the plentitude of powers the immunity and above all the freedom- not much for our sake as for the sake of the public; for advancement of justice: so as to be free in thought and the process of judgment making, that is, administration of justice. When we talk of dispensation or administration of “justice”; the word partakes and embraces the broad principles of providing a fair, reasonable and just opportunity of hearing and of defending, i. e., observance of principles of natural justice. After all, we are entrusted with the most onerous task of hearing and determining the issues before us. And when facts are in issue, the cardinal principle of justice is that no man should be condemned on mere suspicion, presumptions and, above all, without affording him an opportunity of being heard. Given the plentitude of powers, the privileges, immunity, and the freedoms, it legally behooves of us not to give to a person or a litigating party a cause to urge before a higher forum, by insistent reference to dates of proceedings, the proceedings conducted in a case and culmination of the process within a short span of period of less than a month, more so during vacations in one case and in twelve days in other case and concerning public property valuing Crores of rupees, to put across, though mincingly, that process was hurriedly burried, shrouded in mystery and, that too, without reasonable and fair opportunity of hearing. Proceedings in question may be referred to. Writ petition, titled Bhag Din and Anr. v. State of J&K and Ors. and registered as OWP No. 11/2003, was presented before the Registry of this Court during winter vacation on 14 January, 2003. The Petition came up before the learned Vacation Judge on 14 January, 2003 itself and the following order came to be passed:

” Mr. Gagan Basotra, Advocate, for the petitioners.

Vide judgment of the court dated 22.5.1995 delivered in OWP No. 421/94, State was directed to allot alternate land in exchange or ton pay compensation to the petitioners for the land restored to them, situate at Top-Sherkhanian, Jammu possession of which could not be delivered to the petitioners. Judgment was appealed by means of LPA (W) No. 291/95 which came to be dismissed on 30.8.2000. Respondents vide Govt. Order No. Rev(LB) 183 of 2002 dated 17.9.2002 have accorded sanction for transfer of 15 Kanals of Sarkar Land comprising Survey No. 533 situated in village Paloura Tehsil Jammu to the petitioners. Learned counsel for the petitioners has submitted that the respondents are not delivering the possession to the petitioners in implementation of the judgment of the court on the pretext that Nishandei is required to be conducted. The judgment of the court cannot be avoided on this pretext and is required to be implemented. Registry to issue bailable warrants in a sum of Rs. 1000 of respondents No. 3 to 5 to be present before the court to explain their conduct as to why the judgment of the court has not been complied with. In case compliance report is filed, they need not to appear. List on Friday i.e. 17.1.2003.”

(Underlining supplied)

Report of the Registry recorded on the file reveals that the bailable warrants issued were received back unexecuted on 21st January, 2003. However, on 17th January, 2003, when the matter again came up before the learned Vacation Judge in pursuance of earlier order dated 14th January, 2003, the following order was passed:

“Mr. Gagan Basotra for petitioner.

Despite issuance of bailable warrants, respondents have not appeared. Registry to issue non-bailable warrants and list on 24.01.2003.”

The petition came up before the learned Vacation Judge on 27th January, 2003 instead of 24th January, 2003. On that date, the following order was passed:

“Mr. Gagan Basotra, Advocate.

Mr. B. S. Manhas, SAAG, for respondents 1, 2 & 5.

Mr. Adarsh Sharma, Advocate for 3 and 4.

This petition is treated as a Contempt Petition.

It is stated by the learned counsel for the respondents that they have come to know about the order of the Government and also judgment of this Court, sought to be complied with, for the first time.

Respondents 3 and 4 have also filed objections stating therein that they were not a party in the writ petition and that the State cannot allot the land belonging to the Jammu Development Authority. This submission of the learned counsel for Respondents 3 and 4 is unfounded. JDA is part and parcel of the State. State was also aware that the land in question is with the JDA. The JDA, if had any objection to the Govt. order or the judgment of the Court, should have challenged it. Respondents 3 and 4 should comply with the judgment of the Court and the order of the Govt. by transferring 15 kanals of land comprising Khasra No. 533 situate at village Paloura. Tehsil and District Jammu to the petitioner.

Learned counsel for the State has submitted that the judgment was passed knowing fully well that the land has been allotted to the JDA and JDA shall implement the judgment of the Court and the Govt. order passed thereupon.

Mr. Adarsh Sharma learned counsel representing respondents 3 and 4 seeks unreasonable time to implement the judgment. Respondents shall file compliance report on or before 30th Jan. 2003. In case the compliance report is not filed they will surrender before the court.

List on 31st Jan. 2003.”

(Underlining supplied)

When the matter came up on 31st January, 2003, the learned Vacation Judge passed the following order:

“Mr. Gagan Basotra for the petitioner.

Mr. Adarsh Sharma for the respondents.

Respondents have filed the compliance report stating therein that the land has been identified for handing over to the petitioners in compliance to the judgment dated 22.5.1995 and Government order No. 183/2002 dated 17.9.2002 and the petitioner has been put in position. The grievance of the petitioner has been redressed. The petition is accordingly disposed of.”

It is thus seen that no notice was issued to the respondents requiring them either to file their reply / counter-affidavit or objections to the averments made in the writ petition. Without commenting at this stage on the various orders so passed and as to the course so adopted in disposal of the matter within a period of eighteen days, for the sake of judicial decency, we are compelled to say nothing more than that it is an irregularity.

3. These are three Letters Patent Appeals arising out of three writ petitions involving controversy relating to a chunk of land measuring 120 Kanals comprised in one and the same Khasra No. 533 situated at Paloura, Tehsil and District Jammu. Though the parties are different yet, the subject-matter being the same, we are proceeding to decide the three matters by this common order. The parties to these matters are two civil parties, State Government and Jammu Development Authority. Given the claims and counter claims and the messy situation that has cropped up, before we go into the merits, it has become imperative to take notice of facts, somewhat, in detail in each of the appeals.

4. In LPA No. 03/2003 arising out of writ petition, OWP Noll/2003 the relevant facts are that one Charag Din was the owner of land measuring 10 Kanals comprised in Khasra No. 868 situated at Top-Sherkhanian, Tehsil and District Jammu. The said property was declared as evacuee property. Somewhere around the year 1980, one Badru Din son of Shakoor staked claim to the property of Charag Din son of Rodha as being his nephew before the Assistant Custodian (Tehsildar), Jammu. In his application, Badru Din alleged that Charag Din alongwith his sister, Barkatay, were killed during the 1947 disturbances. According to him, Charag Din was unmarried whereas Barkatay was married and she was his (applicant’s) mother. He claimed to be the sole person entitled to inherit the property of Charag Din. Before the Assistant Custodian (Tehsildar), Jammu, he examined some witnesses who were not cross-examined. The Assistant Custodian (Tehsildar), Jammu, vide order dated 17th May, 1981 ordered restoration of the evacuee land measuring 10 Kanals in favour of Badar Din. At the relevant time, the said land was in possession of displaced persons. Possession of the land could not be actually restored to Badru Din. He made an application before Assistant Custodian (Tehsildar), Jammu, for allotment of alternate land in lieu of the land restored to him. The Assistant Custodian by his order dated 28th August, 1984 wrote to Deputy Commissioner, Additional Custodian, Jammu, to process the case of Badru Din for allotment in exchange of equal area of land from survey No. 1845/1734 situated at village Birpur. When the matter came up before the Custodian General, he, vide his communication dated 24th January, 1986, directed Custodian Evacuee Property, Jammu, to examine the legality of order dated 7th May, 1981 passed by Assistant Custodian (Tehsilar) Jammu. The Custodian Evacuee, in turn, referred the matter to Dy. Custodian, Jammu, to take up the matter in exercise of his revisional powers. Since the witnesses produced earlier before Assistant Custodian (Tehsilar) Jammu, had not been cross-examined, Dy. Custodian felt the necessity of directing the applicant, who at the relevant time was represented by his Attorney, Bhag Din, to produce all the witnesses before him for examination. However, Bhag Din produced only two witnesses, namely, Reham Ali and Maqbool Ahmad. Reham Ali deposed before the Dy. Custodian that, during the 1947 disturbances, Rodha (father of Charag Din), Charag Din and Barkatey, alongwith some other villagers, had come to Mohalla Ustad, Jammu. Charag Din died 2/3 years thereafter in the same Mohalla and Barkatey also died two years thereafter. He further deposed that Badru Din was born during the year 1947. Another witnesses, Maqbool Ahmad deposed before the Dy. Custodian that Charag Din was married prior to the year 1947 and his wife had died before the disturbances of 1947. That apart, he also deposed that Barkatey was not married. The Dy. Custodian, recorded that the ownership of the evacuee property as being that of Charag Din was not disputed, but the identification of the claimant as being the son of Charag Din was doubtful. In arriving at this conclusion, the Dy. Custodian also recorded that as per the statement of Rehman Ali, Badru Din was born during the year 1947. That means as in the year 1980 he was only about 33 years’ of age whereas in his statement recorded on 17th October, 1980 before Assistant Custodian (Tehsildar), Jammu, he had disclosed his age as 70 years. Reham Ali, witness, had further deposed that Badru Din was brought up by his aunt, Rehmat Bibi, after the death of his parents in Mohalla Ustad meaning thereby that around the year 1947 he was a child of 2/3 years. The Dy. Custodian, while examining the record of Assistant Custodin (Tehsildar), further found that, during the pendency of the original application for restoration filed before the Assistant Custodian (Tehsildar), Jammu, one Mohd. Yunus had filed an application dated 10.3.1981 stating therein that Charag Din had no nephew or any other relative in the State and that Badru Din had claimed the property on false grounds. Mohd. Yunus had opted to furnish proof in this regard. But this application was not considered or disposed of by the Assistant Custodian (Tehsldar).

The Dy. Custodian, Evacuee Property, Jammu, accordingly, vide order dated 17th June, 1988, set-aside the order dated 7th May, 1981 passed by Assistant Custodian (Tehsildar), Jammu, and ordered holding back of the property in question as evacuee property. However, the said order dated 17th June, 1988 passed by the Dy. Custodian, Evacuee Property, Jammu, was quashed by a Division Bench of this Court in terms of judgment dated 3rd April, 1989 passed in Writ petition No. 997 of 1988, on the technical ground that consequent upon the amendment in Sub-section (4) of Section 30 of the Jammu and Kashmir Administration of Evacuee’s Properties Act, 2006 BK made by Act No. XVIII of 1978, the Dy. Custodian, Evacuee Property did not have the revisional powers. In fact, the counsel representing the respondents therein had conceded to this position of law and consented to quashment of the order of Dy. Custodian as being without jurisdiction to enable the Custodian General to exercise the power, if necessary, under Sub-section (4) of Section 30 of the Act. It appears that subsequently his case was recommended by the Custodian, Evacuee Property, vide his No. 501-AP dated 1.11.1991 to the Custodian General who, in turn, recommended the same in 1992 to the Commissioner-cum-Secretary to Government, Revenue Department, for allotment of 100 Kanals and 15 marlas of land in village Majeeh (Samba) in exchange of 15 Kanals of the restored land. Since till 1994 no decision was taken, the petitioner filed writ petition, OWP No. 421/1994, seeking a direction to the respondents therein for allotment of an alternate land in exchange or to pay him compensation for the 10 Kanals of land situated at Top-Sherkhanian, Jammu, restored in his favour. The Custodian General and Custodian, Evacuee Property appear to have been impleaded as respondents 3 and 4 in that writ petition. They filed their objections in which, while admitting the case of Badru Din, they stated that the recommendations made by the Custodian General for allotment of alternate land in favour of Badru Din were pending with a the Commissioner / Secretary to Government, Revenue Department, since 1992. The Writ court found that there was no explanation from the respondent-State for the delay in disposal of the petitioner’s case. The writ petition was, accordingly, allowed in terms of judgment dated 22nd May, 1995 by the learned Single Judge directing the respondents to dispose of petitioner’s case for allotment of an alternate land in exchange or to pay him compensation for the land restored to him situated at Top-Sherkhanian, Jammu, in accordance with law. It was further directed that “all this shall be done within three months from the date of receipt of this order and the schedule prescribed shall be strictly adhered to by them. In case they are unable to stick to the time frame for some unavoidable reasons, they shall approach this Court again for extension of time with advance notice to the petitioner giving reasons in support”. The State took an appeal, being LPA(W) No. 291/95, against the aforesaid judgment. It was, inter alia, urged by the State Government that the respondent therein, namely, Haji Badru-Din, had fraudulently got the deletion of the land ordered from the register of evacuee properties.

This aspect of the matter pleaded before the Division Bench of this Court did not find favour with the Court on two counts, namely, first, that a point which was not raised in the writ court could not be allowed to be raised at the appellate stage; and second, that there could be no appeal against a finding arising out of admission of the parties. The Letters Patent Appeal filed by the State was thus dismissed in terms of judgment dated 30th August, 2000. Badur-Din did not take any steps to get the judgment of the Court dated 22nd May, 1995 read with judgment dated 30th August, 2000 implemented. He did not file any contempt petition for non-compliance of the judgment. However, it was on 17th September, 2002 that the Government issued Order No, Rev.(LB)183 of 2002 to the following effect:

“Whereas, land measuring 10 Kanals comprising Survey No. 868/Min situated in village Top-Sherkhania Tehil Jammu has been restored in favour of legal heirs of the late Badur-ud-Din S/0 Shakur Din evacuee of 1947;

Whereas, possession of the restored land could not be delivered to the restoree as it already stands allotted to the refugees;

Now, therefore, in pursuance of the recommendations of the Financial Commissioner (R), J&K, Srinagar, vide his No. FS-LS/LA/1188/2002 dated 24.05.2002 and in exercise of the powers conferred by Section 14-A of the Jammu and Kashmir State Evacuee’s (Administration of Property) Act, Samvat 2006, sanction is hereby accorded to the transfer of 15 Kanals of Sarkar Land comprising Survey No. 533 situated in Village Paloura Tehsil Jammu to Shri Bhag Din and Arshad Begum legal heirs of Shri Badur-ud-Din S/O Shakur Din in lieu of 10 Kanals of restored land comprising Survey No. 868 situated in Top-Sherkhanian, Jammu.

By order of the Government of Jammu and Kashmir.”

Copies of the aforesaid Government order were endorsed to the Financial Commissioner (R), J&K, Srinagar; Divisional Commissioner, Jammu; Deputy Commissioner, Jammu; besides being placed on the concerned Government order file and stock file. It is note worthy that Jammu Development Authority, or any of its functionaries, has never been a party in any of the writ petitions or proceedings before this Court or before any forum in connection with the claim of Badru Din or his heirs. Copy of aforesaid Government order dated 17th September, 2002 also was not endorsed by the Government to the Jammu Development Authority. However, on 11th November, 2002, Bhag Din and Irshad Begum through their Attorney appear to have made an application before the Vice Chairman, Jammu Development Authority, Jammu, bringing to his notice that vide Government order dated 17.9.2002 land measuring 15 Kanals situated at village Paloura under survey No. 533 had been transferred in their favour in exchange of 10 Kanals of land under survey No. 868/min situated at Tope Sherkhanian, Jammu, restored by the Custodian, Evacuee Property, Jammu, in favour of their father. They requested that spot Nishandehi may be ordered to the concerned staff to be given to applicants in compliance with Government order, a photocopy of which was enclosed with the application. The application did not make reference to or mention of any court order or direction. The application in question is quoted hereunder:

“The Vice Chairman, Jammu Development Authority, Jammu.

Sub; Demarcation of land under Survey No. 533 situated at village Paloura.

Sir,

With due respects, it is submitted that vide Government order No. Rev(LB)183 of 2002 dated 17.9.2002 land measuring 15 Kanals situated at village Paloura under Survey No. 533 has been transferred in favour of the applicants in exchange of 10 Kanals of land under survey No. 868 Min situated at Tope-Sherkhanian, Jammu, restored by the Custodian EP Jammu in favour of the father of the applicant.

It is, therefore, requested that the spot NISHAN DEHI may kindly be ordered to concerned staff to be given to applicants in compliance with Govt. order mentioned above a photostate copy of the Govt. order is enclosed herewith for ready reference.

Jammu

Yours faithfully,

9.11.2002

Sd/-

Bhag Din Arshad Begum through

A. A. Qureshi, Attorney holder,”

Perusal of the photocopy of this communication placed on record of the writ petition reveals that on 10th October, 2002 (should be 10th November, 2002), the Vice Chairman endorsed the application to DLM (Director Land Management) with the note, “May please examine and take n/a”. The DLM (Director Land Management) in turn endorsed the same to Tehsildar Zone-A, Jammu Development Authority, with the endorsement “please to examine the case and send report within a week’s time”. Before any further action could be taken by the Jammu Development Authority in this connection, Bhag Din and Irshad Begum through their Attorney, Abdul Aziz Qureshi, on 14th January, 2003, filed writ petition, OWP No. 11/2003, the order passed in which has given rise to one of the present appeals. It was for the first time that Bhag Din and Irshad Begum impleaded Vice Chairman, Jammu Development Authority, Jammu, and Director, Land Management, Jammu Development Authority, Jammu, as respondents in the writ petition, being respondents 3 and 4 respectively. They made the following prayers in the writ petition:

“It is, therefore, most humbly prayed that due to the aforesaid submissions and those to be urged at the time of hearing, the Hon’ble court may be pleased to:

A/ to allow the writ petition;

B/ to issue a writ of mandamus commanding the respondents to implement the directions of the Hon’ble Court in OWP No. 421 of 1994 dated 22.5.1995 in letter and spirit and consequently enforce the Govt. Order No. Rev (LB) 183 of 2002 and 17.9.2002 and further direct the respondents to deliver physical possession of the land measuring fifteen (15) Kanals comprising Khasra No. 533 situated at Village Paloura, Jammu to the petitioners.

Any other appropriate order which the Hon’ble Court may deem fit and proper in the given facts and circumstances of the case may also be passed in favour of the petitioner.”

In paragraphs No. 8 and 9 of the writ petition, they averred that the petitioners approached the respondent No. 3 (Vice Chairman, Jammu Development Authority) vide representation dated 9.11.2002 for demarcation of the aforesaid allotted land, but respondents 3 and 4 till the date of filing of the writ petition had not demarcated the said land sanctioned / allotted to them vide Govt. Order dated 17.9.2002 inspite of the repeated requests and representations and that the said respondents No. 3 and 4 were sitting over the matter. When the writ petition came up before the learned Vacation Judge on 14th January, 2003 itself, the learned Single Judge observed as under:

“Learned counsel for the petitioners has submitted that the respondents are not delivering the possession to the petitioners in implementation of the judgment of the court on the pretext that Nishandehi is required to be conducted. The judgment of the court cannot be avoided on this pretext and is required to be implemented.”

The learned Vacation Judge did not issue any notice to the respondents but, instead, ordered issue of bailable warrants in the sum of Rs. 1000 against respondents 3 and 4 in the writ petition, i.e., Vice Chairman and the Director Land Management, Jammu Development Authority. The matter was directed to be listed on 17th January, 2003. Record of the writ petition shows that the Registry of the Court issued the bailable warrants on 15th January, 2003 through SSP, Jammu. It is further revealed that the warrants were received back unexecuted on 21st January, 2003. However, before the Warrants were received back un-executed, on 17th January, 2003, when the matter came up before the learned Vacation Judge in pursuance of order passed on 14th January, 2003, the learned Single Judge observed that “despite issuance of bailable warrants respondents have not appeared”. Registry was directed to issue non-bailable warrants and the matter was ordered to be listed on 24th January, 2003. The non-bailable warrants were issued and delivered in the office of SSP, Jammu, on 20th January, 2003.

It appears that on 24 January, 2003 the matter was not listed before the Court, may be, the learned Vacation Judge was not available. However, on that date, respondents 3 and 4 appeared before the Registry of the Court. The Registry’s endorsement recorded on the order sheet reveals that they were directed to remain present in the Court on 27th January, 2003. Respondents 3 and 4 filed their objections in which they, inter alia, stated that they were not party in writ petition, OWP No. 421/94 which had been decided on 22nd May, 1995, or in LPA No. 291/95, which was decided on 30th August, 2000. Their specific case was that the instant writ petition was filed for implementation of Court order dated 22nd May, 1995 passed in OWP No. 421/94, and the consequent Government order dated 17th September, 2002. They were not a party in the writ petition or the LPA, therefore, no direction as against them was passed by the Court. It was further pleaded by them that they were also not a party to Government order dated 17th September, 2002, inasmuch as copy thereof was not endorsed to them for execution by the Government. They further stated that the land covered under Survey No. 533 had been transferred to Jammu Development Authority vide Government Order No. Revenue (ND-I) 46 of 1973 dated 28th January, 1973. Out of the said land 20 Kanals State land has been allotted under LB7 in favour of one Alam Din and there was no other State land comprised in Khasra No. 533 which could be allotted by the Government to any one else.

They further stated that the land comprised in Survey No. 533 situated at Paloura, Jammu, having vested in the Jammu Development Authority, it could not be taken away from it or allotted to any other person by the Government except in compliance with Sub-section (4) of Section 18 of the Development Act, 1970. These submissions, however, did not find favour with the learned Single Judge. The learned Single Judge, treating the writ petition as contempt petition, observed that the submissions of learned counsel in this regard were unfounded since the Jammu Development Authority was a part and parcel of the State and that the State was also aware that the land in question was with the JDA. The learned Single Judge further observed that if the JDA had any objection to the Government order or the judgment of the Court, they should have challenged the same. The learned Single, accordingly, in terms of order dated 27th January, 2003 ordered that respondents 3 and 4 should comply with the judgment of the court and order of the Government by transferring 15 Kanals of land comprising Khasra No. 533 situated at village Paloura, Tehsil and District Jammu to the petitioners. The order further reveals that learned counsel for the respondents 3 and 4, i.e., appellants herein, had sought time to implement the judgment which was disallowed. They were directed to file compliance report on or before 30 January, 2003. It was further directed that in case compliance report was not filed, they will surrender before the Court. The matter was directed to be listed on 31st January, 2003. Having been left with no option in the matter, on 29th January, 2003, Vice Chairman Jammu Development Authority, addressed a communication to the petitioners in that writ petition to the following effect:

“In compliance of Hon’ble High Court order dated 27.01.2003 passed in OWP No. 11/2003, titled Bhag Din & another v. State and Ors., the land measuring 15 Kanals bearing Khasra No. 533 Village Paloura which is JDA land is identified for handing over to you as per Govt. Order No. Rev. (LB) 183 of 2002 dated 17/09/2002. Tatima Sajra of the land measuring 15 kanals is attached herewith. You are requested to take nishandai and possession of the land from the Tehsildar JDA.

This order is however, subject to outcome of LPA and writ petition filed by the JDA before the Hon’ble High Court of J&K at Jammu.”

Consequent upon the above, the writ petition, treated as contempt petition, was disposed of on 31st January, 2003 by the learned Vacation Judge, observing that “respondents have filed the compliance report stating therein that the land has been identified for handing over to the petitioners in compliance to the judgment dated 22.5.1995 and Government order No. 183/2002 dated 17.9.2002 and the petitioner has been put in position. The grievance of the petitioner has been redressed”. Appellants, namely, respondents 3 and 4 in the aforesaid writ petition, have filed Letters Patent Appeal No. 03/2003 challenging order dated 27th January, 2003 passed by the learned Vacation Judge. The appeal came up for consideration on admission before the Division Bench of this Court on 24th February, 2003. The Division Bench comprising Hon’ble B. C. Patel, Chief Justice (as his lordship then was) and S. K. Gupta, J., observed and ordered as under:

“Mr. Adarsh Sharma, Advocate, for the appellant.

Mr. Gagan Basota, Advocate, for respondents.

In a petition under Article 226 of the Constitution of India for issuance of a writ of mandamus commanding the respondents to implement the direction of the court passed in OWP No. 421 of 1994 dated 22.5.1995 in letter and spirit and to enforce the Government Order No. Rev. (LB) 183 of 2002 dated 17.9.2002 etc., at the initial stage on 14th January, 2003, the learned Vacation Judge made an order directing the issuance of bailable warrant. Earlier, a petition was filed, wherein reliefs were claimed, however, in those proceedings, Jammu Development Authority was not a party. Under the pretext that the State Government being party, and the Jammu Development Authority being an instrumentality of the State, it was submitted that the Jammu Development Authority was required to obey the directions though it was not a party. As the judgment was not implemented, rightly the petition was filed by the learned counsel for seeking direction for issuance of a writ. It is also submitted that Jammu Development Authority filed petition and that was dismissed. There is nothing before us to substantiate that that petition was with regard to the land in question.

On 17th January, 2003, the learned Vacation Judge issued non-bailable warrants. It may be noted that on 14th January, 2003, the Court made an order for issuing bailable warrants returnable on January 17th, 2003. We put a question to the learned counsel for the respondents that is he willing to make a statement that bailable warrants were executed? However, he stated that bailable warrants were handed over to Superintendent of Police for execution. He made oral submission that Vice Chairman, Jammu Development authority was present in the Court on 17th January, 2003. On 17th January, 2003, as non-bailable warrants were issued, the Officer, namely, the Vice Chairman, Jammu Development Authority in compliance to the order of the Court, requested the original petitioner to take possession. However, specifically, it is stated that it is subject to the outcome of the LPA and the writ petition filed by the Jammu Development Authority before the High Court. Thus, as non-bailable warrant was issued, possessions was sought to be handed over by the Jammu Development Authority. On 31st of January, 2003, learned Judge disposed of the writ petition being OWP No. 11/2003. Though the order of calling the respondent to take possession makes it clear that it is subject to the outcome of the LPA and the writ petition filed by the Jammu Development Authority. By this order, petition was sought to be made infructuous. When in the order, it was clear that it was subject to the outcome of the LPA and the writ petition filed by the Authority, in the opinion of the Court, such an order ought not to have been passed. The Court ought to have waited. This appeal is preferred against the order made by the learned Single Judge on 27th January, 2003, as the Court called upon the Jammu Development Authority to file compliance report, failing which directed to surrender before the court.

Learned counsel submitted that when the matter was pendingbefore one or the other authority since long and the petition was filed under Article 226 of the Constitution of India for issuance of a writ of mandamus, there was no need to treat the writ petition as contempt petition. It was urged that it was not the grievance made by the petitioner that the respondents have committed contempt. It is submitted that the Court ought not to have treated the petition as contempt petition and ought not to have passed orders. We are of the opinion that this appeal is required to be admitted and hence the same is admitted. Mr. Gagan Basota waives service of notice of process on behalf of respondents.

The property belongs to the Jammu Development Authority, as argued. With a view to see that none suffers, we direct the parties to file copies of the petitions and the replies filed earlier before this High Court in the proceedings which are disposed of and which are pending. The Court will decide the matter thereafter. With a view to protect the interest of the parties, in the meanwhile, Jammu Development Authority shall retain the possession of the property as a trustee and the Jammu Development Authority shall give an undertaking to this Court that during the pendency of this appeal, the property shall not be dealt with in any manner without permission granted by this Court. This would protect the interest of the parties.

At the request of learned counsel for the respondents, the original petitioner, the matters stands adjourned to eight weeks.”

5. In LPA No. 107/2003, filed by the Jammu Development Authority, the facts are that, on the passing of order dated 27th January, 2003 by the learned Single Judge in OWP No. 11/2003 titled Bhag Din v. State of J&K, the Jammu Development Authority filed writ petition, OWP No. 99/2003. In the writ petition, the Jammu Development Authority challenged Government order No. Revenue (LB) 183 of 2002 dated 17th September, 2002 whereby sanction was accorded by the Government to the transfer of 15 Kanals of Sarkar land comprising Survey No. 533 situated at Village Paloura in favour of Bhag Din and Irshad Begum. It was averred in the petition that the land measuring about 97 Kanals out of Khasra No. 533 was transferred to the Authority vide Government order No. NDJ-46 of 1973 dated 28th January, 1973. The total land covered by Khasra No. 533 was about 120 Kanals. Out of this total chunk of land, one Sahib Din had been claiming to have been allotted 20 Kanals of land by the Government under LB 7 of 1958 dated 5th June, 1958 for cultivation purposes, though no cultivation was being carried on spot, and the remaining land measuring about 3 Kanals and 3 marlas was stated to be under the road.

In this manner, it was stated, the land comprising Khasra No. 533 was in possession of the Jammu Development Authority to the extent of 97 Kanals and the heirs of the alleged allottee, Sahib Din, to the extent of 20 Kanals. It was the case of the Jammu Development Authority in the writ petition that: firstly the Government order dated 17th September, 2002 was not endorsed to the Authority, nor had they any knowledge about the passing of the same till it was brought to their notice by Bhag Din; secondly, the Government in the order did not specify or identify as to out of which portion of the total chunk of 120 Kanals of land, 15 Kanals were allotted to Bhag Din and his sister, Irshad Begum: whether it was allotted out of 20 Kanals of land out of the said Survey, claimed by heirs of Sahib Din to be in their possession, or 97 Kanals which was transferred to Jammu Development Authority? It was further the case of the Jammu Development Authority that in terms of Section 18 of the Development Act, the Government could not allot any land in favour of any person unless it was re-vested in Government by the Development Authority by notification to be published in Government Gazette, on the mutually agreed terms and conditions by and between the Development Authority and the Government. This writ petition came up for admission before a learned Single Bench of this Court on 17th February, 2003 and was dismissed in limine on three counts: firstly, that the Jammu Development Authority is one of the functionaries of the Government and, therefore, it could not challenge the order issued by the Government without the sanction of Law Department and the Government; secondly, that the order dated 17th September, 2003 had been implemented and possession of the land had been delivered to the respondents in compliance to the order passed by the Court in OWP No. 421 of 1994 dated 22nd May, 1995; thirdly, that mutation has also been attested in favour of respondents 3 and 4 in the writ petition by the Tehsilar. The Jammu Development Authority has challenged the said order of the learned Single Judge in Letters Patent Appeal No. 103/2003. The grounds taken in the memorandum of appeal, inter alia, are that the Jammu Development Authority is a Body Corporate, created under the Jammu and Kashmir Development Act, 1970 and, as such, a legal entity having perpetual succession and common seal with power to acquire, hold and dispose of properties, both movable and immovable and to contract and it can sue and be sued in its name. Therefore, it did not require the sanction of the Government to challenge the Government order. It is further submitted that the Government order dated 17th September, 2002 was complied with because of the court direction dated 27th January, 2003 passed in OWP No. 11/2003.

6. In LPA No. 109/2003 arising out of OWP No. 564/2002 (Alam Din and Ors. v. State of J&K and Ors.), the facts are that one Sahib Din son of Roshan Din resident of Paloura, Tehsil Jammu, held one Kanal of land in the village as occupancy tenant. On 20 September, 1956, he applied for allotment of land in his favour for cultivation. The Zamindars of the village objected to it on the ground that the said land was being used by them as pasture. Thereafter, he tried to forcibly occupy a portion of the said land comprised in Khasra No. 533. On 8.11.1956 Tehsildar, Jammu, passed an order directing his ejectment from the State land and imposed a fine of Rs. 20 on him for illegally occupying the State land. Sahib Din filed a revision petition before Commissioner, Jammu Province, Jammu, against order dated 8.11.1956 passed by the Tehsildar on the ground that he was a landless tiller and that if the land was not allotted to him, he would starve. During the pendency of the revision petition, the Government issued Order No. LB-6/C of 1958 dated 5th June, 1958 and Order No. LB-7 of 1958 of even date. Under the former order, it was ordered that occupants of State land be recorded as tenants-at-will on certain terms and conditions as mentioned in the order. The latter order related to allotment of available evacuee and State lands for purposes of cultivation. The aforesaid revision petition was disposed of by the Commissioner on 24th September, 1958. The Commissioner overruled the objection of the Zamindars and recommended to the Financial Commissioner, Jammu and Kashmir, that the revision petition be accepted and the order under revision vacated. He also ordered that possession of the land shall continue with the applicant till his case was considered under orders, LD-6 and LD7 of 1958. The relevant portion of the order of the Commissioner is extracted below;

“I have heard the counsel for the applicant and gone through the record on the file. It appeared that when Shajra and Khasra of the plot was ordered to be produced some part of the land was brought by the applicant under plough to which the Zamindars objected.

I have heard the counsel for the applicant and gone through the record on the file. The objection of the Zamindars for pasture is not well grounded. The Zamindars were already given land for grazing purposes under Allan No. 17 and the deficiency if any was made good with the implementation of the Big Landed Estates Abolition Act. The land under dispute as is apparent from the report of the Patwari was ‘Gair Mumkin Khad’. This has been brought under cultivation by the applicant with great expense and labour. He is landless tiller and if the land is taken back from him it will hit him hard. The Zamindars have no claim over khalsa area when they have got land for grazing purposes. It would not therefore be justifiable to evict the applicant from this plot of land. His case can be considered under orders LD-6 and LD-7 of 1958. Under these circumstances it is recommended that the revision petition be accepted and the order under revision vacated. The possession of the land shall continue with the applicant till his case is considered under the orders referred to above by the Tehsildar.

Submitted to the Financial Commissioner Srinagar for favour of orders.

Announced 24.9.1958.”

The Financial Commissioner in terms of his order dated 27 April, 1960 ordered as under:

“I have gone through the record and the recommendation made by the learned Commissioner, I agree with the recommendation by the Commissioner. The notification LB 6 and LB 7 are quite clear in this point.

Action be taken according to recommendation of the learned Commissioner.”

Copy of Khasra Girdhawari for Kharif 2001 and Rabi 2002 placed on record reveal that the land measuring 20 Kanals and 10 Marias has been shown to be under cultivation of Sahib Din son of Roshan Din under LB-7.

7. It appears that Alam Din and Sobat Ali sons of Sahib Din filed a writ petition before this Court in the year 1990. They claimed that land comprised in Khasra No. 533 situated at village Paloura was allotted to their father who was a landless tiller and that the land was subsequently brought under cultivation and trees were planted on it. They projected the grievance that respondents in the writ petition were bent upon disturbing their peaceful possession and made a prayer that respondents be directed not to encroach upon the land in question and not to interfere in their possession. Jammu Development Authority was impleaded as party respondent in the writ petition. They filed their objections supported by an affidavit sworn in by its Vice Chairman. In the objections it was stated that Khasra No. 533 was composed of 120 Kanals and 13 marlas of land and that, as per the Khasra-Girdawari attached by the petitioners with the writ petition, only 20 Kansls and odd marls had been allotted under Government order No. LB-7 of 1958 to one Sahib Din. The Jammu Development Authority further stated that rest of the land comprised in the Khasra No. 533 had been transferred to it by the Government by virtue of Order No. NDJ(Rev) 46 of 1973 dated 28th January, 1973. They denied that they were interfering with the possession of the petitioners therein to the extent of 20 Kanals or that they had any plan to do so.

8. The Writ-Court vide its order dated 30th April, 1991 observed that since the matter involved disputed questions of fact, the Court will not delve into the question relating to quantum of land that was in possession of the parties. However, the respondents were directed not to encroach upon the land covered under Khasra No. 533 to the extent it was held by the petitioners and to proceed according to procedure established by law in case possession of land was sought to be taken over. The petition was disposed of with agreement of the parties at admission stage.

9. On 21st June, 2002, Alam Din and Sobat Ali sons of Sahib Din and two other persons, namely, Mohd Younis and Mohd. Yousif sons of Late Hussain Ali, stated to be grand children of Sahib Din, all the four residents of Paloura, through their attrorney Mohd Sharief Shaad son of Noor Din resident of Village Paloura, filed writ petition, OWP No. 564/2002. In paragraph No. 2 of the writ petition, it was stated that all the petitioners had executed a power of attorney of the land falling under Khasra No. 533 measuring 20 Kanals situated at Village Paloura, Tehsil and District Jammu in favour of the attorney, Mohd Sharief Shaad son of Noor Din resident of Paloura and that all the petitioners had extinguished the rights of the above mentioned land in favour of their attorney. It is note worthy that in this writ petition, Jammu Development Authority was not impleaded as a party respondent. The only respondents impleaded in the writ petition are State of Jammu and Kashmir through Commissioner-cum-Secretary, Revenue Department; Financial Commissioner, Jammu and one Shri Baisakhi Ram, Tehsildar Settlement, Village Paloura, Jammu. The petitioners claimed that father of petitioners 1 and 2 and grand-father of petitioners 3 and 4 was in possession of land measuring 120 Kanals under Khasra No. 533 situated at village Paloura. In 1953 the then Tehsildar passed an order for evicting said Sahib Din from the land which order was set-aside by the Commissioner and that “the case was sent to the Financial Commissioner for reference with the recommendation that the Mutation be attested in favour of Sahib Din under LB-6 and LB-7 as the petitioner, i.e.. Sahib Pin acquired all the conditions which he should have for attesting the Mutation under LB-6 and LB-7”. It was further averred in the petition that “the reference sent by the Commissioner, Jammu Province, Jammu, was accepted by the Financial Commissioner with the remarks that the respondent is directed to attest the Mutation under LB 6 & LB 7 in favour of Sahib Din as Sahib Pin fulfills all the requisites which he should fulfill for attesting the Mutation in his favour”. (Highlighting supplied).

Before proceeding further, it may be observed here that the above quoted highlighted statements made in the writ petition were patently incorrect and against record. No such recommendations were made by the Commissioner, Jammu Province, Jammu, nor were any such directions made by the Financial Commissioner. We have already quoted the order of the learned Financial Commissioner and stated the relevant portion of the Commissioner’s recommendations made to the Financial Commissioner. The petitioners further averred in the petition that, after being satisfied, the Revenue authorities attested mutation under LB-6 and LB-7 in favour of the father of petitioners 1 and 2 and grand father of petitioners 3 and 4. Again this statement was incorrect to the extent that only Order LB-7 was referred to and recorded in the relevant records. The petitioners alleged that after the death of Sahib Din, they have been in continuous possession over the land measuring 120 Kanals, includingland measuring 20 Kanals, falling under Khasra No. 533. The petitioners appended a copy of Khasra Girdawari showing the possession of Alam Din, Hassan Ali and Sobat Ali son of Sahib Din over only 20 Kanals and illegal possession over 10 Marias. The petitioners averred that they tried their best to get the mutation attested in their favour as under law the respondents were under statutory obligation to attest the Mutation in their favour, but the respondents have been delaying the same on one pretext or the other. According to the averments made in the writ petition, they, in this connection, approached the Revenue Minister and requested him that mutation be ordered to be attested in their favour so as to confer ownership rights on them in respect of the land in question. The Minister directed the Secretary to Government Revenue Department to ask the Financial Commissioner to report as to why the Mutation had not been attested in favour of the petitioners and despite communication dated 4 December, 2000 written in this behalf by Under Secretary to Government, Revenue Department, respondent No. 2, Financial Commissioner did not take any action with regard to attestation of mutation in their favour. The petitioners, accordingly, prayed for issuance of a writ of Mandamus directing the respondents to attest the Mutation in favour of petitioners in respect of 20 Kanals of land comprised in Khasra No. 533 situated at Village Paloura, Tehsil and District Jammu.

10. The writ petition came up for admission before the learned Single Judge on 26.6.2002 when notice was directed to be issued. Notice was also directed to be issued “dusti”. The matter was directed to be listed on 2.7.2002. Then there is another order recorded on the file on 27.6.2002. It is not discernable from the file as to under what circumstances the petition again came up before the Court only the next day. There is neither any report / note of the Registry nor is there any emergency memo of this date on record of the file from which it could be gathered as to how the petition again came up before the Court on 27.6.2002. Be that as it may. The order passed on 27,6.2002 indicates that counsel for the petitioners made a submission that he had filed an application to bring on record some additional documents before the Registry. The Registry was directed to list the said application alongwith the petition. It was directed that, in the meantime, respondents shall be served by the petitioners and the matter was directed to be listed on 3.7.2002. Record reveals that usual notices, as directed on 26.6,2002, were not issued nor did the counsel take the necessary steps by depositing the registered envelops or the process fee. Instead only “dusti” notices seem to have been issued under Registry’s No. 2436 – 2438 dated 28th June, 2002.

The three “dusti” notices issued are on record. The notice addressed to the State of J&K through Commissioner-cum-Secretary to Government, Revenue Department, Jammu, is shown to have been sent through Director Litigation, Jammu, and delivered in his office on 28.6.2002, though in the array of respondents “through Director Litigation” is not mentioned. Notice addressed to Financial Commissioner, Jammu, is initialed by someone on 28.6.2002. It does not bear any official seal or identification of the officer or official receiving it. The notice issued to Sh. Baisakhi Ram, Tehsildar Settlement Village, Paloura, Jammu is shown to have been received by someone without identification or seal. There is neither any affidavit nor even any application on record either from any of the petitioners or their counsel in proof of the “dusti” service. Yet, the office on 3.7.2002 has made a report that “Notices have been received back duly served but nemo present. Service is complete”. When the matter came up before the Court on 3/7.2002, it was finally disposed of in terms of the following order, granting the relief claimed for:

“Mr. C. S. Gupta, Advocate.

Petitioners by means of this petition seek direction to the respondents for attestation of mutation in respect of land measuring 20 Kanals comprising Khasra No. 533 situate at Paloura Tehsil and District Jammu. This petition has been filed by the Power of Attorney of the petitioners.

It is averred in the petition that Sahib Din, father of petitioners No. 1 and 2 and grand father of petitioners No. 3 and 4 was in physical possession of land measuring 120 Kanals comprising Khasra No. 533 of village Paloura prior to 1950. In the year 1953, the Tehsildar passed order of eviction of said Sahaib Din from the land. The order of eviction was challenged before the Commissioner by means of Revision Petition. The Commissioner set aside the eviction order and the case was recommended to the Financial Commissioner for attestation of mutation under LB-6 and LB-7. The reference made by the Commissioner was accepted by the Financial Commissioner directing attestation of mutation under LB-6 and LB-7 in favour of Sahib Din. Copies of the orders have been annexed by the petitioners with this petition. Petitioners have also filed additional copies by means of CMP No. 615/02, which is allowed to be taken on record. Heard Mr. Mannas, Sr. AAG, also.

Petitioners seek innocuous relief as their rights have already been determined in Revision Petition No. 411 of 57 decided on 24.9.1958. The petition is taken up for disposal with the consent of the learned counsel for the parties. The Commissioner while recommending the case has recorded in the order that case of the petitioner Sahib Din be considered under LB-6 and LB-7 of 1958. The Financial Commissioner agreeing with the recommendations of the Commissioner has observed that the notifications under LB-6 and LB-7 are quite clear and action be taken on the recommendations of the Commissioner. The action to be taken was only attestation of mutation in favour of Sahib Din. It is stated by the petitioners despite approaching the respondents on numerous occasions, they have not acted upon the decision of the Financial Commissioner. It is the duty of the subordinate officers to implement the orders of the higher authorities. The respondent No. 3, subordinate authority is under obligation to execute the orders as directed by the Financial Commissioner. The Financial Commissioner has categorically held that the petitioners are entitled to be considered for attestation of mutations in their favour in terms of LB-6 and LB-7 of 1958. The Tehsildar, Respondent No. 3 is directed to implement the orders of the Commissioner and Financial Commissioner by attesting mutations under LB-6 and LB-7 of 1958 in respect of land measuring 20 Kanals comprising Khasra No. 533 situate in village Paloura, Tehsil and District Jammu.”

(Underlining supplied)

Thus, this petition came to be allowed within a period of twelve days from the date of its filing, granting the final relief, in respect of a landed property measuring 20 Kanals. It is stated by learned counsel for the appellant that value per Kanal land as at present in the area is nearly Rs. 10,00,000.

11. As observed earlier, Jammu Development Authority was not im-pleaded as a party in the writ petition. Since the land has been transferred to the Authority as back as in 1973, they filed Letters Patent Appeal against the said judgment of the learned Single Judge. Alongwith the appeal, they also filed an application, being CMP No. 53/2003, seeking permission to file the Appeal. They also filed a separate application, being CMP No. 42/2003 seeking condonation of delay in filing the appeal. Both these applications were allowed by this Court by separate orders recorded on 13.11.2003.

12. In the appeal, the appellant, Jammu Development Authority has repeated its submission that out of 120 Kanals and 13 marlas of land comprised in Khasra No. 533, 97 Kanals of land have been transferred to it by the Government in terms of Government order dated 28th January, 1973 and eversince the Jammu Development Authority has been in peaceful physical possession over the land in question as owners thereof. It is submitted that the said land belonging to the Jammu Development Authority is public property and has to be used for public purpose by the Development Authority. It is further submitted that land measuring 20 Kanals was allotted under LB-7 in favour of Sahib Din for cultivation purposes, which was located on the eastern side of the appellant-Authority’s land and that no proprietary rights could be conferred in favour of beneficiary of Order LB-7 of 1958 nor, in terms of the Order LB-7, the land allotted under LB-7 can be mutated in favour of the allottee. It is stated that Sahib Din had already sold about 20 Kanals of land in favour of different persons and that, under the garb of the impugned order; they want to grab further land belonging to the Jammu Development Authority. It is further submitted that the Jammu Development Authority has allotted 23 Kanals of land out of the 97 Kanals of land to Dewan Badri Nath Higher Secondary School, Jammu. The appellant Authority has submitted that the writ petition of the private respondents herein was liable to be dismissed for non-joinder of the Appellant-Authority which was a necessary party in the matter, since the land in question stands transferred to it thirty years back and had, in fact, been impleaded as party in earlier two rounds of litigation initiated at the instance of the present writ-petitioners. In this connection, it is stated that the respondents had earlier filed a writ petition OWP No. 212/1990 wherein they attempted to make out a claim that they were in possession of the total land measuring 120 Kanals which was against record and facts. Subsequently, they filed a civil suit against the appellant-Authority and others which was dismissed by the court-below as withdrawn. The appellants have prayed for setting-aside the order dated 3.7.2002 passed by the learned Single Judge.

13. We have heard learned counsel for the parties at great length on all aspects, whether involved in the writ petitions or the appeals, and have carefully gone through the record of these matters as contemplated in order dated 24 February, 2003 passed by the Division Bench quoted earlier. We also called for and perused the record of LPA (OW) No. 291/95 concerning the claim of Badru Din for allotment of alternate land.

14. As already noticed, in writ petition, OWP No. 11/2003 instead of issuing notice, bailable warrants were issued on the very first day. On that day, even the order treating the writ petition as contempt petition was not passed. On the subsequent date, i.e., just after two intervening days, though bailable warrants were not executed till then, non-bailable warrants were ordered to be issued. As on that date also, the petition had not been treated as contempt petition. No notice at all was issued to the respondents for filing reply or counter-affidavit. This petition pertained to allotment of 15 Kanals of land under Khasra No. 533 situated at village Paloura. The other writ petition, OWP No. 564/2002, filed earlier, has been disposed of, granting the final relief, within a period of 12 days, again without affording the respondents therein an opportunity of putting up their case. The service shown to have been effected on respondents in that petition by the office is doubtful. Court had ordered issuance of notice and, apart from the usual notice, “dusti” notice was permitted. Permission granted to take “dusti” notice does not mean that usual course of effecting service is altogether to be bye-passed unless specifically directed by the Court. Even so, when “dusti” notice is taken, the party effecting “dusti” service is required to swear an affidavit in support of factum of effecting service on the concerned. There is not even a trace of any such thing on record on behalf of the writ-petitioners which could establish that service was, in fact, effected. Mere return or production of copies of notices with initials of unidentified and undisclosed persons cannot be taken as a substitute for due service of notices on respective respondents. This petition related to 20 Kanals of land comprised in the same Survey No. In these circumstances, first and the foremost, we are of the opinion that the two writ petitions, have been disposed of in a manner not conducive to administration of justice. It is the cardinal principle that justice should not only be done but should seem to have been done. This Court is the custodian of fundamental rights of the citizens both, collectively as well as individually. The property in question is a public property. It is the duty of this Court to safeguard the interests of the public in public properties. Since the public is represented by governmental agencies and organisations established or created by the State under law, a duty is cast on us to ensure that no individual, governmental agency, organization or authority plays with the public property or dithers in protecting it. Even if there had been an admission on the part of the concerned agency, organization or authority, this Court would be within its duty, as a Court of Record, in the peculiar facts and circumstances of the matter, to examine the issue and determine the same on the basis of record and after giving due hearing to the parties. It does not befit us to deal with public properties valuing Crores of rupees and dispose of the matters, granting final relief concerning such public properties, in such a summary manner without observing the legal formalities established by law. The course so adopted tantamounts to denial of an opportunity, moreso a fair and reasonable opportunity, to defend. And that is simply against the canons of justice.

15. It may be relevant to observe here that this Court has formulated the Rules governing the conduct of proceedings in writ petitions, known as Writ Proceeding Rules, 1997. These Rules were published vide Notification No. 7 dated 3rd June, 1997 in Government Gazette in its issue of even date. The object of the Rules is contained in its preamble which reads as under:

“By virtue of Article 226 of the Constitution of India and Section 103 of the Constitution of Jammu and Kashmir and all other powers enabling in this behalf, and in supersession of the existing rules, the High Court of Jammu and Kashmir, with the previous approval of Governor of Jammu and Kashmir, hereby make the following rules to regulate the proceedings under Article 226 of the Constitution of India and Section 103 of the Constitution of Jammu and Kashmir.”

Rule 15 of the aforesaid Rules is for our observance. It is extracted below:

“15(1) Upon being satisfied, the court may either issue rule nisi or notice for rule nisi or dismiss the petition. In case the court decides to adopt either of the two former courses, the opposite side shall file complete reply on the merits of the case within the time fixed by the court. In case no time is fixed by the court, the reply shall be filed within four weeks from the date of the order. The Registrar may, however, grant such further extension in time as he may deem fit upon being satisfied as to the genuineness of the request made for the purpose by the party concerned.

Provided further that court may allow such further extension as it may deem fit in the circumstances of the case and on being satisfied by the party, subject to conditions it may like to impose.

(2) Every notice issued by the court shall be sent through registered post with acknowledgement due at the expenses of the petitioner or in any other manner as may be directed by the court,”

When a writ petition comes up before the Court on first date of hearing on admission and after hearing counsel for the petitioner, Rule 15(1) of the Writ Proceedings Rules envisages only three eventualities, depending upon the satisfaction of the court: first, issuance of rule nisi; second issuance of notice for rule nisi and third dismissal of the writ petition. When a writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir comes up for hearing on admission for the first time, the Rules do not envisage dispensing with the requirement of issuance of rule nisi or notice for rule nisi and instead issuing a warrant of arrest. Since we have framed these Rules, insofar as they are meant for our observance, we are obliged to obey and observe the same in their letter and spirit. Issuance of notice to the other party is sine qua non to the administration of justice. Since that course has not been adopted, with respects, we feel that grave irregularity has crept in, prejudicing the respondents in the writ petition to the hilt. Any proceedings conduct or orders passed without notice cannot be sustained in law.

16. It was argued by learned counsel for the appellants that in OWP No. 11/2003 disposed of in terms of order dated 27th January, 2003, the petitioners sought for a direction to direct the respondents therein to implement order of the Court dated 22nd May, 1994 passed in the earlier writ petition, OWP No. 241/94 with further direction to enforce Government order dated 17th September, 2002. The petitioners, according to him, did not allege any sort of disobedience to any judgment or order of the Court. Therefore, there was no reason or justification in converting the writ petition into a contempt petition, that too, against the appellants, who were neither party in the earlier writ petition, OWP No. 421/94 nor were under any kind of directions to implement the court order. On the other hand, it was contended by learned counsel for the respondents that Jammu Development Authority is a functionary and instrumentality of the State and any direction given by the Court to the State was binding on the appellants, moreso when the Government had fulfilled its part of the obligation by issuance of Government order dated 17th September, 2002 allotting 15 Kanals of land comprised in Survey No. 533 situated at Paloura in favour of the writ-petitioners, respondents herein.

17. It is seen that respondents 1 to 4 herein filed writ petition, OWP No. 11/2003, with specific prayers to command the respondents (i) to implement the directions of the Court passed in OWP No. 421 of 1994 dated 22.5.1995 in letter and spirit and (ii) consequently enforce the Government order No. Rev (LB) 183 of 2002 dated 17.9.2002 and (iii) further direct the respondents to deliver physical possession of the land measuring 15 Kanals comprising Khasra No. 533 situated at Village Paloura, Jammu, to the petitioners. Obviously, the third prayer was subservient to the fulfillment of the first two prayers made in the writ petition. It is not in dispute that appellants herein were not party to the earlier writ petition. The Court order dated 22n May, 1994 was directed at the respondents in that writ petition before whom the case of respondents 1 to 4 for allotment of alternate land was pending. In fact, the order was implemented by them to the extent of issuing the allotment order dated 17th September, 2002. If any deficiency was left in the implementation of the Court order and that deficiency was to be made good in letter and spirit, it could be done by those respondents alone and it were they who had to carry out the order of the Court in letter and spirit. Again, the petitioners had sought the prayer for directing the respondents to “enforce” Government order dated 17.9.2002. “Enforce” means compel compliance with, meaning thereby that the petitioners in the writ petition wanted the Court to issue a direction in the nature of mandamus to the Government, or the issuing authority of the Government order, to compel the concerned to comply with the order dated 17th September, 2002. In that view of the matter, the respondents 1 to 4 herein were conscious that it were the respondents in that writ petition who were under obligation to implement the order of the court in letter and spirit and also that it was within their powers to enforce the order issued by them. It was not, therefore, open to the Court to taken upon itself the power and function that was vested with and exercisable by the Government or the issuing authority of the order in question. It was not a prayer made to the Court to execute the Government order, nor could any such prayer be made. Court cannot take upon itself the governmental functions, nor it is the jurisdiction of this Court to direct the execution of orders issued by the Government in a specific manner.

18. As to the argument regarding the power of the Court to convert writ proceedings into contempt, we will not delve into that question. However, we are clear in our mind that no contempt proceedings can be taken unless notice is issued and warrants of arrest cannot be issued unless proceedings are initiated and the contemnors fail to respond. Contempt jurisdiction is of a special nature; to be used sparingly for up-holding the dignity of the court and to keep the administration of justice pure and clean. It is not to be used for execution of court orders for the benefit of a private litigant, not to speak of a Government order. Further, contempt proceedings are quasi criminal in nature; therefore, all the requisites of law have to be strictly complied with before the proceedings can be taken. In the present case, there was not even an iota of allegation made in the petition against the appellants of disobedience of any court order.

19. It may further be observed that it was the specific case of respondents 1 to 4 in paragraph 6 of the writ petition that the ownership and possession of the land in question was with the State. This factual aspect was supported by a photocopy of the Copy of Intikhabi Jamabandi for Kharif 1959 and Rabi 1960. This certainly was a state document; nevertheless, the averment made in the petition, supported by an affidavit, was enough material for the Court not to proceed against the appellants in the writ petition as long as this factual statement, though incorrect, was on record and not withdrawn. It may be mentioned here that as against it there was not even a whisper made in the writ petition by the writ petitioners that the appellants were in possession of the land in question or that they were, in any manner or to any extent obliged to do anything in connection with the implementation of the judgment. Therefore, the writ petition itself as against the appellants was not maintainable. However, notwithstanding the above position, it appears that respondents 1 to 4 were conscious that the land in question was in possession of the Jammu Development Authority. They, in fact, made an application to the Vice Chairman for ordering “spot Nishandehi”. That application, as noticed earlier, was duly processed by the Vice Chairman. Reading between the lines, it further appears that the writ petitioners were also conscious that the Development Authority were not obliged to, or had a legal disability in, making spot demarcation and/or parting with their possession over the land. It is in that context that respondents 1 to 4 herein had sought the relief of directing the respondents, reference obviously being to the respondents in the earlier writ petition, to enforce the order in question. The prayer made in the petition was not that Jammu Development Authority be directed to execute the Government order nor was it their case that the Jammu Development Authority had to implement the direction of the Court. The learned Single Judge in order dated 14.1.2003 proceeded to direct issuance of non-bailable warrants against appellants herein on the premise that judgment of the court cannot be avoided on the pretext that Nishandehi is required to be conducted. In fact, it was the case of the writ-petitioners made out in paragraph 8 of the writ petition that they had made a representation dated 9.11.2002 to respondent No. 3, Vice Chairman, for demarcation of the allotted land. Therefore, even if it be assumed that appellants were, in any manner, concerned with the implementation of the order, the facts averred were sufficient to show that they had not devised any method to avoid judgment of the Court. In face of that fact, the very premise for proceeding against the appellants was wrong.

20. Next, it is the case of the appellants that the Jammu Development Authority is an entity by itself with power to possess and dispose of property and that the State Government could not allot the land belonging to the Development Authority except in compliance with Sub-section (4) of Section 18 of the Act. To buttress his submissions, learned counsel for the appellants has invited the attention of the Court to the relevant provisions of the Jammu and Kashmir Development Act. The learned Single Judge has rejected this submission of the appellants as being unfounded and has observed that the Jammu Development Authority is a part and parcel of the State. Sections 3 and 4 of the aforesaid Act are quoted hereunder:

“3. Declaration of local area and constitution of Development Authority. — (1) As soon as may be after the commencement of this Act, the Government may, by notification in the Government Gazette, declare any area to be local area for purposes of this Act and constitute thereafter an authority to be called the Development Authority (hereinafter referred to as the Authority.

(2) The Authority shall be a body corporate by the name of the Local Area having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall in the said name sue and be sued.”

21. It is clear from the aforesaid statutory provisions that the Jammu Development Authority is a body corporate constituted under the Jammu and Kashmir Development Act, 1970. It has a perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract. It can sue and be sued in the said name. Body corporate means an entity having an independent and distinct existence. It owes its existence to the Legislative enactment. It is an instrumentality of the State, but it is not a functionary of the State in the sense of being a Government Department. An organisation established under any law by the State for implementation of any of its plans and programmes for the benefit of general public may be instrumentality of the State and, therefore, part and parcel of the State in that sense, but such instrumentality does not necessarily constitute functionary of the State in the sense of being a Government Department. There is a legal distinction between a Government Department and an instrumentality of the State not being a Government Department. Whereas a governmental functionary means an official of the Government, carrying on the governmental business in the name of the Government; an instrumentality carries its business in its own name. Jammu Development Authority is a State within the meaning of Article 12 of the Constitution of India, but it is not a Government Department. A Government Department has to be an organization which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Development Authority is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract in its name. It may also sue or be sued by its own name.

(See State of Punjab v. Raja Ram, AIR 1981 SC 1694). It, therefore, follows that any direction issued to the State Government would not be ipso facto and automatically binding on it. Sub-section (2) of Section 3 of the Act, as quoted above, further makes it clear that, if any relief is claimed against the Jammu Development Authority, it has to be sued in its name. Unless that is done, directions, if any, issued by the Court in the name of State Government, will have no binding force on the Development Authority more so when such directions of the Court are not endorsed to it by the Government for implementation. In that view of the matter, the learned Single Judge was not correct in holding that the Jammu Development Authority is a part and parcel of the State in the sense that directions issued to the government or the State were binding and to be implemented by the Jammu Development Authority despite the fact that they were neither party to the writ proceedings nor was the Government order endorsed to them for implementation. Consequently, the order of the learned Single Judge directing the Jammu Development Authority to comply with the judgment of the court is not sustainable.

22. It was next argued by learned counsel for the appellants that, in the facts and circumstances of the case, in the event of Government’s failure, if any, to comply with the court direction, the appellants could not be asked to surrender. The direction passed by the Court in writ petition, OWP No. 421/94, was to allot alternate land or to pay compensation to the respondents herein. This direction was meant to be complied with by the respondents in that writ petition. In fact, in compliance thereto, Government order dated 17th September, 2002 was passed. To that extent the court direction stood complied with. In case the possession of the land was not delivered to them, the writ petitioners ought to have approached the respondents in the writ petition for delivery of the possession of the allotted land. There is nothing on record to show that respondents 1 to 4, after the issuance of the Government order, approached the concerned respondent for delivery of the possession of the land in question to them. This is so because even after the issuance of Government order dated 17th September, 2002, it was for the Government to take recourse to Sub-section (4) of Section 18 of the Development Act to give effect to their own order in its letter and spirit. The direction of the Court was not in the name of the Development authority. The Development Authority also was not competent to transfer possession of Nazul land to the writ-petitioners, because that course is not envisaged by Section 18 (4) of the Development Act. Besides, they had a genuine legal disability in doing that. Therefore, delivery of possession of the Nazul land to the writ-petitioners could not be thrusted on them. They did not have any such statutory duty or obligation of public nature. Further, the Government had not also asked the writ petitioner to approach the Development Authority in this behalf. The writ petition itself, therefore, as against the Jammu Development Authority, was not maintainable for the reliefs prayed for therein as respondents 1 to 4 had no cause against them. Nor were they liable to be proceeded against for contempt since there was no disobedience or disrespect shown by them to any orders of the Court.

23. It is the case of the appellants that land comprised in survey No. 533 situated at Paloura, Jammu, is owned and possessed by Jammu Development Authority having been transferred to it by the Government way back on 28th January, 1973 vide Government order No. Rev (NDI) 46 of 1973. Therefore, according to the learned counsel, the Government could not have made any allotment out of the said land in favour of respondents 1 to 4, muchless at the back and without the knowledge of Jammu Development Authority, unless recourse was taken to Sub-section (4) of Section 18 of the Act. This issue is also involved in LPA No. 107/2003 arising out writ petition, OWP No. 99/2003. However, herein the point involved is that once the Government order dated 17th September, 2002 was void ab initio, the appellants could not have been compelled to deliver possession of the land to respondents 1 to 4 without there being a valid allotment and transfer. Learned counsel for the appellants invited the attention of the Court to various provisions of the Development Act etc. This issue needs, somewhat, an in-depth examination.

24. Sub-section (2) of Section 3 of the Development Act envisages that the Authority shall have the power to acquire, hold and dispose of property, both movable and immovable and to contract. However, the perusal of various provisions of the Act reveals that the Act envisages two types of properties which the Authority can acquire and hold. Chapter VI of the Act deals with acquisition and disposal of land. Section 16 of the Act provides that if, in the opinion of the Government, any land is required for the purpose of development, or for any other purpose under the Act, the Government may acquire such land under the provisions of the Land Acquisition Act and, after taking possession thereof, may transfer the land to the Authority for the purpose for which the land has been acquired on payment by the Authority of the compensation awarded under the Land Acquisition Act and the charges incurred by the Government in connection with the acquisition. In respect of this land, which is acquired by the Government and transferred to the Authority on its paying the compensation and other charges incurred by the Government, the Authority under Section 17 of the Act has the power to dispose of the same. This is one type of property which can be acquired and held by the Authority in respect of which the Authority has also the power of disposal as envisaged in Sub-section (2) of Section 3 of the Development Act, subject to the terms and conditions mentioned in Section 17 itself,. The Development Authority undoubtedly acquires ownership rights over this land. Then there is another type of property envisaged under Section 18 of the Act which could be kept at the disposal of the Authority for purpose of development in accordance with the provisions of the Act. Section 18 of the Act may be reproduced hereunder:

“18. Nazul Lands. — (1) The Government may, by notification in the Government Gazette and upon such terms and conditions as may be agreed upon between the Government and the Authority, place at the disposal of the Authority all or any developed and undeveloped lands in the zone or the local area vested in the Government (known and hereinafter referred to as “Nazul land) for the purpose of development in accordance with the provisions of this Act.

(2) No development of any Nazul land shall be undertaken or carried out except by or under the control and supervision of the Authority after such land has been placed at the disposal of the Authority under Sub-section (1).

(3) After any such Nazul land has been developed, by or under the control and supervision of the Authority, it shall be dealt with by the Authority in accordance with rules made and directions given by the Government in this behalf.

(4) If any Nazul land placed at the disposal of the Authority under Sub-section (1) is required at any time thereafter by the Government, the Authority shall, by notification in Government Gazettee, place it at the disposal of the Government upon such terms and conditions as may be agreed upon between the Government and the Authority.”

It may be mentioned here that all State land situated in and around the twin cities of Jammu and Srinagar constitutes Nazul land. It is thus seen that in terms of the provision contained in Section 18 of the Act, the Government could place at the disposal of the Authority all or any developed and undeveloped Nazul land for purpose of development in accordance with the provisions of the Act. Certain things are axiomatic from a reading of this provision of the Act: first and the foremost, that the words used are “place at the disposal of the Authority”. The phrase “place at the disposal of does not mean or connote transfer in ownership. It means to keep “available for one’s use” or “subject to one’s orders and decisions” (The concise Oxford Dictionary Ninth Edition). The second meaning assigned to the word, as mentioned above, is eliminated by the latter part of Sub-section (1) when it says “for the purpose of development in accordance with the provisions of this Act”. That means the power of disposal of immovable property vested in the Authority under Sub-section (2) of Section 3 read with Section 17 of the Act cannot be exercised by the Authority in relation to the Nazul land placed at its disposal. This land is transferred to the Development Authorities only for purposes of development. In other words, Section 18 of the Act does not envisage transfer of Nazul land to the Development Authority in ownership rights. This is further fortified by Sub-section (4) of Section 18 of the Act which says that if any Nazul land placed at the disposal of the Authority under Sub-section (1) is required at any time thereafter by the Government, the Authority shall, by notification in Government Gazette, place it at the disposal of the Government upon such terms and conditions as may be agreed upon between the Government and the Authority. Learned counsel for the appellants has made reference to Government order No. Rev (NDI) 46 of 1973 dated 28th January, 1973 to canvass that all Nazul land in and around the Jammu City stands transferred to the Jammu Development Authority and that the intention of the Government was to transfer the ownership rights in the land to the Development Authority. The aforesaid Government order is quoted hereunder:

” Government of Jammu and Kashmir, Revenue Department.

Sub: Transfer of Nazool lands to the Development Authorities.

Cabinet Decision No. 39 dated 28.1.1973.

Govt. Order No. Rev.(NDI) 46 of 1973, dated 28.1.1973.

It is ordered that:

1 All vacant and lease free Nazool lands situated in and around the Cities of Jammu and Kashmir (should be Srinagar) shall be transferred to the respective Development Authority immediately.

2 Government order No. 649 of 1972 dated 28.10.72, issued in pursuance of Cabinet Decision No. 446 of 19th Oct., 1972 shall be modified to the extent that patches of Nazool land measuring 10 Marias and above within and around two cities of Jammu and Srinagar, which are encroached upon, shall be handed over to the respective Development Authorities after the encroachment are removed by the Revenue Department.

3 Survey of all Nazool lands respectively within the two Cities of Srinagar and Jammu which have been encroached upon shall be completed as early as possible.

4 The work of identification of Nazool lands encroached upon by private individuals but required for any public purpose regardless of the sizes, shall be completed by the Chief Executive Officer of the respective Development Authority on the nishandehi of Assistant Commissioner Nazool or his nominee within a period of one month after the completion of survey work.

5 Patches of Nazool land below ten marlas but encroached by private individuals and required for any public purpose shall be transferred by the Revenue Department to the respective Development Authorities after removal of encroachments therefrom.

6 Patches of Nazool land below 10 marlas but not required for any; public purposes shall be sold off in proprietary rights to the en-croachers on payment of price at market rate prevailing in the locality to be fixed by the Revenue Minister on the recommendations of the concerned Dy. Commissioner except in case where market rate of a tertian piece of land of either kees or more than that falling in the locality. In such a case market rates shall be fixed with concurrence of Finance Department.

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

8 Deputy Commissioner concerned shall be competent to execute necessary documents of transfer.

By order of the Government of Jammu and Kashmir.”

There is no dispute and, in fact, nobody’s case that the land in question was not transferred to the Development Authority. It is rather the admitted case of the parties that the land in question stands transferred to the Jammu Development Authority for the purpose envisaged by Section 18(1) of the Development Act. But the transfer has not been to the extent of transfer of ownership thereof to the Development Authorities. Transfer of ownership in respect of immovable property, in law, has necessarily to be followed by registered documents. Learned counsel for the appellants has not shown us or produced before the Court any such document having been executed by Deputy Commissioner, Jammu, nor has any such document been placed on record. What is, at best, gathered from the aforesaid Government order dated 28th January, 1973 is that all Nazul land in and around the cities of Jammu and Srinagar has been placed at the disposal of the respective Development Authorities as envisaged and contemplated by Sub-section (1) of Section 18 of the Development Act for use by the Development Authorities to achieve the object of the Jammu and Kashmir Development Act, 1970.

25. In fact, the question involved herein is not whether the Development Authority is the owner or the land in question or not. The real question that arises is that, once the land in question was placed at the disposal of the Development Authority in terms of a legislative enactment, Sub-section (1) of Section 18 of the Act, whether the Government could exercise any of its powers or authority over it, or any part thereof, without recourse to Sub-section (4) of Section 18 of the Development Act? If no, what would be its effect? The answer is simply No. The preamble of the Jammu and Kashmir Development Act, 1970, is to provide for the development of the State according to plan and for matters ancillary thereto. The object of constituting Development Authorities is contained in Section 6 of the Act. It reads as under”

“6. Objects of the Authority. — The objects of the Authority shall be to promote and secure the development of the local area for which it is constituted, according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering and other operations, to execute works in connection with supply of water and electricity, disposal of sewerage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto.”

Sections 7 and 8 under Chapter III of the Act contemplate conducting of surveys, preparation and drawing of master plans. Chapter V deals with operation of such development plans etc. In that view of the matter, it is necessary that the Development Authority holds, possesses and even owns the acquired land for carrying out the development in the State in accordance with the plans as enumerated in Section 6 of the Act. In case Sub-section (4) of Section 18 would not be there, there was every likelihood that Government, if it would require any Nazul land for any purpose, would exercise its power with respect to the land kept at the disposal of the Development Authority, without taking the Authority into confidence, frustrating the master plans so prepared and drawn by the Development Authority, thereby, defeating the very object of the Act and the public purpose thereof. To obviate eruption of such a situation and to meet any such eventuality, the legislature has enacted Sub-section (4). Requisition of any such land required by the Government from the Authority and its notification in the Government Gazette is, therefore, compulsory. There is no short cut or escape route to the observance of this provision of law. It is note worthy, that the language of Sub-section (4) leaves no discretion with the Development Authority when a requisition is made by the Government in respect of any Nazul land to be placed at its disposal. The only rider is that the Development Authority can fix its terms and conditions. These terms and conditions may relate to payment of any charges incurred by the Development Authority on its development or in relation to their right of carrying on any developmental works in accordance with the plan that may have been formulated by it concerning the area in which the land in question falls. Any order passed by the State / Government, without observance of the requirements of this provision of law, therefore, would be illegal and, therefore, not binding on the Development Authority. It is the case of the appellants that a large portion of the land comprised in Survey No. 533 situated at Paloura, Jammu, has been allocated and, in fact, allotted to Dewan Badri Nath Higher Secondary School. Establishment of a School constitutes a service and amenity and, therefore, one of the objects enumerated in Section 6 of the Act. That being the position, it follows that if the Government required 15 Kanals of Nazul land out of survey No. 533 situated at paloura, placed at the disposal of the Jammu Development Authority under Sub-section 18 of the Act, for implementation of the order of the court dated 22nd May, 1995 in OWP No. 421 of 1994, in compliance of the law, as it stands, they had necessarily to make a requisition thereabout to the Jammu Development Authority. Since that lawful course was not adopted, the order of the Government dated 17th September, 2002 was in-executable and, as a necessary corollary, un-enforceable in law. Consequently, the Court could not direct its execution, the question of its enforcement by the court or under the direction of the court being further remote.

26. Admission made by the Additional Advocate General as recorded in order dated 27th January, 2003, as to the liability of the Jammu Development Authority to deliver possession of the land in question to respondents 1 to 4 herein, being against a statutory provision would not bind any one. Admission made by a party or a counsel will not override or annul a legislative enactment. No body is above law. The law has to be obeyed, as it is. Reference to, or reliance on, any such statement at Bar made by the Additional Advocate General is misplaced as the statement itself is untenable in law being patently against law.

27. To sum up, we hold that writ petition, OWP No. 11/200 as against the appellants herein, was not maintainable, nor could any contempt proceedings be initiated or taken against them. The proceedings taken against them are not sustainable. The writ petition treated as contempt against the appellants herein deserves to be dismissed and order dated 27th January, 2003 passed by the learned Single Judge to be set-aside. Any advantage derived by respondents- writ petitioners is rendered inconsequential.

28. Coming to LPA No. 107/2003 arising out of order dated 17th February, 2003 passed by the learned Single Judge in SWP No. 99/2003, we have already held that Jammu Development Authority is not a Government Department. That apart, Government order dated 17th September, 2002 being violative of the statutory provision contained in Sub-section (4) of Section 18 of the Jammu and Kashmir Development Act, 1970, the Development Authority did not require any Government sanction or sanction of Law Department to challenge the Government Order. Secondly, possession of 15 Kanals of land was parted with by the appellants in pursuance of proceedings on which we have already expressed our opinion hereinabove. That apart, the handing over of possession of the land was made by the Development Authority subject to the outcome of the writ petition, OWP No. 99/2003 as also LPA No. 107. That being so, the better course would have been to determine the issues involved in the writ petition after hearing the counsel on merits. It may be observed here that by virtue of order dated 24th February, 2003 passed by the Division Bench of this Court, already quoted in this judgment, the possession of the land was ordered to be retained by the Jammu Development Authority. As to the attestation of mutation in favour of private respondents herein, it would be suffice to say that was no reason to dismiss the writ petition in limine. We have already expressed our opinion that transfer of ownership necessarily requires a registered deed. Even after the Government order dated 17th September, 2003 there has to be a written registered document to effectuate the transfer and ownership of land. That has not been done in the present case. Unless that was done, no interest in the land in question could be said to have been created in the respondents. In any case, Government order dated 17th September, 2003, being against a legislative enactment; it is illegal and deserves to be quashed. The order of the learned Single Judge dated 17th February, 2003, dismissing the writ petition in limine, is not based on a correct view. Consequently, the writ petition OWP No. 99/2003 deserves to be allowed.

29. As regards LPA No. 109/2003 arising out of writ petition, OWP No. 564/2002, we have already noticed the facts in relation to this matter. We have also referred to incorrect and mis-statements made by the petitioners in their writ petition. For instance, in paragraph 3 of the writ petition, the petitioners made the following statement:

“It is submitted that the learned Commissioner set aside the order passed by the then Tehsildar and the case, was sent to the Financial Commissioner for reference with the recommendation that the Mutation be attested in favour of Sahib Din under LB-6 and LB-7 as the petitioner. i.e., Sahib Din acquired all the conditions which he should have for attesting the Mutation under LB-6 and LB-7”.

In same paragraph of the writ petition, the writ petitioners made the following further statement:

“It is further submitted that the reference sent by the Commissioner, Jammu Province, Jammu, was accepted by the Financial Commissioner with the remarks that the respondent is directed to attest the Mutation under LB 6 & LB 7 in favour of Sahib Din as Sahib Din fulfills all the requisites which he should fulfill for attesting the Mutation in his favour”.

(Underlining supplied)

A perusal of the orders of the Commissioner and the Financial Commissioner makes it unambiguously clear that no such directions were issued by either of them in their respective orders. The case of Sahib Din before the Commissioner, Jammu, was that he was a landless tiller and that the land may be allotted in his favour for cultivation. He stated that in case the land was not allotted to him for cultivation, he would starve. The matter before the Commissioner arose out of order of Tehsildar concerned dated 8th November, 1956. At the relevant time Government Orders LB-6/C and LB-7/C of 1958 were not in existence. The Revision petition before the Commissioner pertained to the year 1957. It was during the pendency of the aforesaid Revision petition before the Commissioner that Government Orders LB-6 and LB-7/C of 1958 were issued by the Government on 5th June, 1958. The Commissioner in his order dated 24th September, 1958 observed that the petitioner therein was a landless tiller and if the land was taken back from him that would hit him hard. The Commissioner was of the opinion that it would not be justifiable to evict him from the plot of land and that his case could be considered under Orders LD-6 and LD-7, The Commissioner made his recommendations to the Financial Commissioner on these lines. The Financial Commissioner vide his order dated 27th April, 1960 simply agreed with the recommendation made by the Commissioner and ordered that “action be taken according to the recommendation of the learned Commissioner”. Neither did the Commissioner nor the Financial Commissioner make any such orders as have been attributed to them by the writ petitioners in their writ petition as quoted above. The crux of the orders was that Sahib Din be not evicted from illegal possession over the plot of land and that his case be considered under the aforesaid Government orders. That being the factual background and position, the petitioners in their writ petition had made blatant mis-statements. Therefore, they had come to the court with unclean hands. Their writ petition was ex-facie liable to be dismissed on that score alone. Further, the writ-petitioners were never in possession of the total 120 Kanals of the land comprised in Khasra No. 533. This fact is borne out by order dated 24th September, 1958 passed by Commissioner, Jammu, in the revision petition filed by their father, Sahib Din, against the order of eviction of Tehsildar concerned. The Commissioner in his order has said that Sahib Din, father of the respondents, had brought some part of the land under plough. It is they, who have produced the copy of Intikhabi Jamabandi for the years 1959 and 1960 which shows their father’s possession only on 20 Kanals of land. In the petition they have claimed continuous possession over 120 Kanals of land. This was again a misstatement of fact, aimed at hoodwinking the Court.

30. Further, the learned Single Judge in the impugned order has observed that the Commissioner while recommending the case has recorded in the order that the case of the petitioner, Sahib Din, be considered under LB-6 and LB-7 of 1958. The Financial Commissioner agreeing with the recommendations of the Commissioner has observed that the notifications under LB-6 and LB-7 were quite clear and action be taken on the recommendations of the Commissioner. The learned Single Judge has held that the action to be taken was only attestation of mutation in favour of Sahib Din. It needs to be mentioned here that petitioners’ father was not holder of any “Nautor” from State land. He was a landless tiller and had forcibly occupied a portion of land comprised in Survey No. 533. He had moved an application for allotment of the said land for purposes of cultivation. Government Order No. LB-6 of 1958 did not relate to allotment of State lands for cultivation. It pertained to regularization of “Noutors” It was Government order No. LB-7 of 1958 which provided for allotment of State and Evacuee land for cultivation purposes. His case, after the Financial Commissioner’s order dated 24th September, 1958, was considered and entry in the revenue record was made to the extent of 20 Kanals under Government order No. LB-7/C of 1958 for cultivation purposes. Therefore, it is only Government order LB-7 which is relevant and not the Government Order LB-6. The question that arises, therefore, is whether Government order No. LB-7/C of 1958 envisaged or contemplated conferment of proprietory rights on such allottees and attestation of mutations to be effected in their favour; and secondly, whether such entries as envisaged by the Order were to be continued in respect of the decedents of the allottees who did not observe the conditions of allotment, such as agricultural cultivation etc.? In this connection, it would be advantageous to quote the relevant clauses of Government Order LB-7 of 1958. However, before doing that, it may be mentioned here that Clause 1 thereof deals with definitions of various terms used in the order; Clause 2 prescribes the eligibility criteria for grant of lands; Clause 3 provides for reservation of land for grazing and other purposes; Clause 4 places a bar to allotment of certain lands and trees and classifies that category of land and trees; Clause 6 prescribes the order of preference of allotments; clauses 6, 7, 8, 9, 10, 11, 12 and 13 of the order prescribe the procedure to be adopted for such allotments, delivery of possession and its supervision and conditions of liability to payment of land revenue. Clause 14 prescribes the conditions under which allotments would forfeit. Clause 16 deals with the procedure for maintaining records and last, but not the least, Clause 17 prescribes the remedy available for a person aggrieved by an order passed by a Tehsildar under the provisions of the said order and the limitation therefor. The main order and its various provisions insofar as relevant here, read as under:

“ALLOTMENT OF AVAILABLE EVACUEE AND STATE LANDS FOR PURPOSES OF CULTIVATION.

Order No. LB/7-C of 1958 dated 5th June, 1958. In supersession of all previous orders on the subject and with a view to allotting available evacuee’s and State lands for cultivation in a rational and equitable manner amongst the landless agricultural labourers, and petty land holders the following orders and instructions are hereby issued for implementation in such Tehsils or parts of Tehsils to which these may be made applicable by the Revenue Minister.

14. Forfeiture of allotment. — Where any allottee –

(a) does not engage in personal cultivation within six months of taking over of the possession of the land allotted to him; or

(b) sublets the land allotted without permission in writing of the Collector; or

(c) fails to fulfil the tests of good husbandry and to conform to the proper standard of cultivation; or

(d) fells, lops or damages the trees standing thereon;

(e) fails to pay land revenue, cesses, or other charges due to the Government;

the allotment shall be liable to be cancelled and the allottee ejected.

16. Procedure for maintaining Records. — The acquisition of the interest under the foregoing provisions by the allottee shall be recorded in the girdawaries and other registers prescribed,

17. (i) Any person aggrieved by an order passed by a Tehsildar under the provisions of the said order may prefer an appeal to the Collector or make an application for revision to the Financial Commissioner;

(ii) The appeal shall be preferred within 60 days from the date of decision appealed against;

(iii) No application for revision shall be entertained unless made within 90 days from the date of passing of the order on the appeal preferred under sub-para (i);

(iv) All appeals and applications for revision now pending before the Revenue Minister shall be transferred to officers competent to hear these as if such appeals and applications for revision had been validly preferred or made before such officers.”

It is unambiguously clear from a reading of the aforesaid order that the land was to be allotted only for purposes of “agricultural cultivation” amongst landless agricultural labourers and petty land holders. Clause 14(a) made it compulsory on the allottees to commence personal cultivation within six months from the date of allotment, otherwise the allotment would forfeit. This Clause was relevant during a particular period or point of time. However, Clause 14(c) is indefinite in point of time insofar as it provides that if any allottee fails to fulfil the tests of good husbandry and to conform to the proper standards of cultivation, the allotment shall be liable to be cancelled and the allottee ejected from the allotted land. Meaning thereby that, if at any time in future from the date of allotment an allottee fails to fulfil such tests, the allotment is liable to be cancelled and the allottee ejected without any fetters or riders on the competent authority in doing so. This condition is enforceable even at this stage. Further there is a clear bar on subletting of the allotted land without permission in writing of the Collector provided under Clause 14(b) of the Order, Once that is so, transfer of the allotted land or any portion thereof in any mode would result in the same consequences. Clause 16 provides that the acquisition of the interest under the foregoing provisions by the allottee shall be recorded in the girdawaries and other registers prescribed. It does not say that the land so allotted should be mutated in favour of the allottees. It simply savs that the acquisition of interest shall be recorded in the Records. What interest did an allottee get under the order is axiomatic from the opening paragraph of the order and that is “possession for cultivation”. The order does not provide for mutating the land in the name of the allottee. It may be mentioned here that there are specific columns prescribed under law in the relevant register of records, “Khasra Girdawari” and “Intikhab-i-Jamabandi”. In both these registers, one column relates to “Name of owner with details” and another column relates to “Name of cultivator with details”. The object of Clause 16 of Order LB-7/C of 1958 is that the name of the cultivator should be recorded in column for “Name of cultivator with details”. The name of the owner had to continue to be the State. This is so because proprietory rights were not intended to be conferred on the allottees. The order did not envisage substitution of the name of the owner in the relevant registers. Only the fact of allotment for cultivation purposes with necessary details and the name of the allottee were required to be mentioned in the relevant column of the registers. That course, in fact, was adopted by the Revenue authorities. Writ-petitioners have appended with the petition, as annexure “D”, a copy of Khasra Girdawari for Kharif 2001 and Rabi 2002 which records the name of Sahib Din in possession of 20 Kanals as allottee and 10 marlas as illegal possession under LB-7 of 1958. Since Sahib Din has expired, in Khasra Girdawari, the writ-petitioners have been recorded to be in illegal possession of the land. Petitioners have also appended as annexure “E” a copy of Intikhab-i-Jamabandi for Kharif 1959 and Rabi 1960 which also depicts the name of Sahib Din as being the cultivator. In this manner, the orders of the Commissioner and the Financial Commissioner stood complied with in the year 1959 itself. No further direction was required to be made to the concerned respondents in this behalf. However, under the garb of the court direction, the writ-petitioners intended to grab the State land. In this connection certain facts with supportive documents have come on record to which reference would be made hereinafter.

31. The claim of the writ-petitioners is reflected in paragraph 5 of the writ petition in which they state as under:

“That since from the immemorial times upto the day when Sahib Din expired, he was in possession over the land in question and after his death the petitioners are in continuous possession of the land measuring 120 Kanals including land measuring 20 Kanals falling under Khasra No. 533 situated at village Paloura, Tehsil and District Jammu of which the petitioners are asking for attesting the Mutation in their favour.”

We have already quoted the relevant provisions of Government order LB-7/C of 1958 and described its import and conditions of retention of allotment or forfeiture thereof prescribed therein. The Government order does not contemplate continuance of the entries as provided in Clause 16 thereof in the name of the heirs of the original allottee, unless the terms and conditions on which the land was originally allotted subsisted. That apart, in our view the petition filed by the writ petitioners gave rise to disputed questions of facts which could not be determined by this Court in its writ jurisdiction. These questions may be summarized

(i) whether the writ-petitioners were landless cultivators;

(ii) whether the land was being used for agricultural cultivation;

(iii) whether they fulfilled the tests of good husbandry and conformed to the proper standards of cultivation as envisaged by the Government order;

(iv) whether they were in possession of the total chunk of land measuring 120 Kanals comprised in Khasra No. 533, as claimed by them;

(v) whether they had fulfilled the mandate of Clause 14(b) of the Government Order relied upon by them; etc.

Without determining the aforesaid questions and finding answer thereto, which, in fact, could not be done in writ jurisdiction by this Court, the writ petition could not have been allowed. Therefore, the writ petition was not maintainable. Consequently, the writ-petitioners were not entitled to the reliefs claimed by them from the writ Court.

32. There is another aspect of the matter. The land comprised in Khasra No. 533 has been transferred to the Jammu Development Authority way back in 1973. Writ petitioners had earlier filed a writ petition, being OWP No. 212/1990 against the Jammu Development Authority claiming possession on the basis of allotment of land comprised in Khasra No. 533 and complaining of interference by the Jammu Development Authority into their possession. They had sought restraint against the Jammu Development Authority. The appellants herein objected to their claim and complaint, stating that only 20 Kanals and odd marlas seem to have been allotted to one Sahib Din Gujjar. The learned Single Judge, vide order dated 30th April, 1991, disposed of the writ petition holding that the matter involved disputed questions of fact. However, the learned Single Judge directed the appellants herein not to encroach upon the land covered under Khasra No. 533 to whatever extent it was held by the petitioners and to proceed according to procedure established by law in case possession of land was sought to be taken over. The petition was disposed of at the admission stage with agreement of the parties thereto. The respondents did not then claim the relief prayed for by them in the writ petition, OWP No. 564/2002. Be that as it may, the writ-petitioners in that petition did not claim to be in any cultivating possession of the land. In fact, they had averred that after the land was allotted to their father, trees were planted on it. This is a land use contrary to the spirit and object of Government Order No. LB-7/C of 1958 entailing the consequences of forfeiture of the allotment. Writ-petitioners in paragraph 2 of their present writ petition have stated that “as per the power of attorney all the petitioners have extinguished the rights of the above mentioned land in favour of their attorney holder, i.e., Mohd Sharief Shaad” A photocopy of the power of attorney executed by them in favour of the aforesaid Attorney in respect of 20 Kanals of land comprised in Khasra No. 533 has been appended as annexure “A” to the petition. It is stated therein that since they remain busy with their respective jobs, they are not in a position to look after the land which is likely to be encroached upon all around etc., and, therefore, they are appointing Shri Mohd. Sharief son of Noor-ud-Din, Gujjar, resident of Paloura, Tehsil Jammu, as their Attorney with power to take care of the land in question and to deal with it in every manner. Few of the covenants of the Power of Attorney are that the Attorney shall have the power “to sell the land in question, execute the sale deeds, agreements to sell, lease out the land, give it on contract, and receive compensation in case the land is acquired by the Government etc. etc.” This power of attorney is executed on 5th January, 2001. The plea of “extinguishment of rights”, as averred by the petitioners themselves, supported by the covenants of the Power of Attorney, clearly establishes the violation of the terms of allotment entailing forfeiture of the allotment. This power of attorney is a sham and farce document. The appellants have brought on record a photocopy of an agreement to sell executed by the respondents (writ-petitioners) in favour of the Attorney holder on 19th December, 2002 in respect of 2 Kanals of land delineated therein for a consideration of Rs. 2,00,000 out of which they are shown to have received an amount of Rs. 1,80,000 as part of consideration. Apart from being violative of the basic allotment and the fact that they are not cultivating the land, it clearly demonstrates that they did not come to the court with a genuine case, legitimate claim or with clean hands. Therefore, their writ petition was and is liable to be dismissed. It is rather clear that the respondents intended to sell out the State land and in that connection wanted mutations to be effected in their favour to facilitate them to pursue their nefarious and illegal designs. This clearly constitutes a mischief being played with the course of justice. This Court cannot be a party to, or be a moot spectator to, all these illegal acts being committed against public property valuing Crores of rupees. In any case, they were not entitled to the relief claimed by them in the writ petition. They have conveniently, deliberately and intentionally eliminated the Jammu Development Authority, inasmuch as they were not impleaded as party respondents though they were so impleaded as such by them in their earlier writ petition. Further, they have also suppressed the fact that they had filed a Civil Suit before the Civil Court. All these factors clearly demonstrate that their claim has all along been nefarious and pretentious and loaded with mischief. The conduct of the respondents, writ-petitioners, as described above, lends support to the submission of the appellants that the writ-petitioners have already sold 20 kanls of land which was originally allotted for agricultural cultivation to their father and now wants to grab further land.

33. There is another most important factor involved in the matter. In the statement of facts prefacing the writ petition for perusal of the Court and to be relied by the petitioners while making their submissions in terms of Rule 4 of the Writ Proceeding Rules, it is admitted by the writ-petitioners that mutation in terms of Government order LB-7/C of 1958 was, in fact attested in favour of their father but, according to them, the respondents in the writ petition were under statutory obligation to attest mutation under Section 432. This is again a deceitful act on the part of the respondents. They have all along been saying that land was allotted in favour of their father under Government Order No. LB-6/C and LB-7/C of 1958. We have already shown that the statement is incorrect. The land was allotted to their father only under LB-7/C of 1958 and not under LB-6/C of 1958. Though Order LB-6/C directed regularization of “Nautors” from State land, but no proprietory rights were conferred on such persons. It was vide Revenue Department Notification, Government Order No. S-32 of 1966 dated 3rd June, 1966 that the Government ordered conferment of proprietory rights on the cultivators of State lands who were permanent residents of the State and had already been declared as tenants-at-will in terms of Government order No. LB-6/C of 1958 subject to the conditions that the land was held by them in self cultivation continuously from Kharif 1957-58 and other conditions mentioned in the order. Even in this order condition No. 4 is that the grantee shall use it for agricultural purposes only and shall not be entitled to alienate if without the previous permission of the government. It is further provided in the order that any violation of the conditions of the grant, as detailed therein, shall make the grant liable to forfeiture. This Government Order S-432 dated 3rd June, 1966 has not been made applicable to the allottees of land under Government order No. LB-7/C of 1958. Therefore, no such proprietory rights have been conferred or can be claimed by them. It may also be mentioned here that Clause 17 of the Government Order LB-7/C of 1958 lays down that any person aggrieved by an order passed by a Tehsildar under the provisions of the order may prefer an appeal to the Collector or make an application for revision to the Financial Commissioner. Under Clause 16 (i) and (ii) the limitation period for preferring any appeal is prescribed as 60 days and for revision it is 90 days respectively. If the writ-petitioners think that their father’s case was actually entitled to be treated under Government Order No. LB-6/C of 1958 and not under LB-7/C of 1958 and were aggrieved of the entries made in the relevant records under LB-7/C of 1958, it was for them to take appropriate proceedings as provided by law, including the one mentioned above, within the limitation period prescribed therefor. They cannot agitate this matter after about four decades and, that too, invoking the extra ordinary jurisdiction of this Court.

34. In view of all what has been discussed above, we allow all the three Letters Patent Appeals and set-aside order dated 27th January, 2003 passed in writ petition, OWP No. 11/2003; order dated 17th February, 2003 passed in writ petition, OWP No. 99/2003 and order dated 3rd July, 2002 passed in writ petition, OWP No. 564/2002. Consequently, the writ petitions, OWP Nos. 11/2003 and 564/2002 are dismissed. Writ petition No. 99/2003 is allowed and Government Order No. Rev. (LB)183 of 2002 dated 17th September, 2002 is quashed leaving the Government free to pass fresh orders, as may be deemed fit and appropriate, in implementation of order of the court dated 22nd May, 1995 passed in OWP No. 421/94.

35. Any entry effected or recorded in the revenue records pursuant to the Government order dated 17th September, 2002 shall be reversed and any document written or executed on the basis of such Government order or such entries made in the revenue records shall be inconsequential. We direct the appellants and the concerned revenue authorities to take all necessary steps in order to restore status-quo ante on the spot.

36. Similarly, mutations, if any, effected in revenue records in the name of petitioners in OWP No. 564/2002, namely, Alam Din and Ors., pursuant to order of the court dated 3rd July, 2002 shall be reversed. Any documents written or executed pursuant thereto shall be inconsequential. Since it has come on record that petitioners in the writ-petition have lost the status of agricultural cultivators and have violated the other terms and conditions of the Government order No. LB-7/C dated 5th June, 1958 as indicated above, the original allotment made in their favour has, therefore, forfeited in terms of Clause 14 of the said Government Order. The allotment made thus is liable to be cancelled and the writ-petitioners or any person claiming through them or acting on their behalf under law are liable to be ejected from the land in question. Consequently, the State Government, appellants and the concerned Revenue authorities are directed to take necessary steps as provided in Clause 14 of Government Order No. LB-7/C of 1958 dated 5th June, 1958 in this behalf, as also directed by the learned Single Judge vide order dated 30th April, 1991 passed in the earlier writ petition, OWP No. 212/1990, filed by the respondents. The needful, as directed above, shall be done within a period of three months from today. The appellants, State and the Revenue authorities shall file compliance report before Registrar Judicial of this Court. However, in case they are not in a position to complete the process within the period-stipulated hereinabove and would require any further time, they shall be free to seek extension of time on a motion being made in that behalf.

37. After the compliance report in terms of the above is submitted, the Registrar Judicial shall list this matter for the limited, purpose of placing the report before the Court.

38. It may be observed here that we have noticed some serious lapses on the part of the Registry, which we have already referred to in this judgment. The matter concerning thereto shall be dealt with separately on the administrative side by the Chief Justice after a report is received from the Registrar General to whom the matter has been assigned.

No order as to costs.