{"id":161508,"date":"2008-10-10T00:00:00","date_gmt":"2008-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-p-paper-vs-k-k-amla-on-10-october-2008"},"modified":"2016-12-14T22:16:36","modified_gmt":"2016-12-14T16:46:36","slug":"k-p-paper-vs-k-k-amla-on-10-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-p-paper-vs-k-k-amla-on-10-october-2008","title":{"rendered":"K. P. Paper vs K. K. Amla on 10 October, 2008"},"content":{"rendered":"
Jammu High Court<\/div>\n
K. P. Paper vs K. K. Amla on 10 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n  IN THE COURT OF HIGH COURT OF JAMMU AND KASHMIR             \nAT JAMMU   \n OWP No. 292 of 2008  \n K. P. Paper\npetitioner\n State of J&K and Ors.\nRespondent  <\/pre>\n
! Mr. Rohit Kapoor, Advocate
\n^ M\/s A.H.Naik, AG Advocate with Mr. A.H.Qazi, AAG.\n<\/p>\n
JUSTICE J. P. SINGH, JUDGE
\n Date : 10\/10\/2008
\n: Judgment :\n<\/p>\n
_______________________________________________________
\n____
\nPetitioner has filed this writ petition seeking issuance of a writ of
\nmandamus against the respondents commanding them to grant it
\nPermanent Registration and all those benefits as may be available to
\nIndustrial Units under the Industrial Policy of the State of Jammu and
\nKashmir.\n<\/p>\n
M\/s K.P.Paper, initially a sole proprietorship concern, which later
\ncame to be constituted as a partnership firm, applied to the respondents
\nseeking permission to set up an Industrial Unit for manufacturing paper
\nas Medium and Large Scale Industry. Its proposal to set up an Industrial
\nUnit was approved by the Apex Project Clearance Committee (APCC for
\nshort) constituted in terms of the Industrial Policy of the State, and a
\nProvisional Certificate was issued to it by the Jammu and Kashmir State
\nIndustrial Corporation Limited, the Nodal Officer notified as such under
\n2<\/span>
\nthe Single Window Clearance System contemplated by the Industrial
\nPolicy of the State.\n<\/p>\n
The petitioner had initially taken land on lease hold basis in village
\nBarwal of District Kathua. It, however, with the permission of the
\nrespondents-authorities and APCC, shifted its project site from Barwal to
\nvillage Chak Ramchand in District Kathua. Provisional Registration
\nCertificate for setting up a Medium and Large Scale Industry was,
\naccordingly, granted to it for the changed location.
\nToll tax exemption on import of building material needed for
\nsetting up the Unit too was granted to the petitioner by the Deputy Excise
\nCommissioner, Lakhanpur on the recommendations of Director
\nIndustries and Commerce, J&K Government, Exhibition Ground Jammu.
\nPetitioner is stated to have invested approximately Thirty One
\nCrores of rupees in setting up the Unit and has been paying an amount of
\nRupees Twenty Lacs per month as interest thereon.
\nAccording to the petitioner, the Unit stands registered with the
\nSales Tax and other authorities and all requisite formalities to set up and
\ncommission the Medium and Large Scale Industrial Unit for manufacture
\nof paper thus stands completed. The Jammu and Kashmir State Pollution
\nControl Board too had granted its consent under Sections 25\/26 of the
\nWater (Prevention and Control of Pollution) Act, 1974 and Section 21 of
\nthe Air (Prevention and Control of Pollution) Act, 1981 to establish the
\nUnit at village Chak Ramchand Tehsil and District Kathua. The
\nrespondents, according to the petitioner had, however, refused Permanent
\n3<\/span>
\nRegistration to it thereby stalling the whole process of commissioning the
\nUnit.\n<\/p>\n
Aggrieved by the refusal of the respondents to grant it Permanent
\nRegistration for setting up and commissioning its Medium and Large
\nScale Industry, petitioner has approached this Court invoking its extra
\nordinary civil writ jurisdiction to issue a command to the respondents to
\ngrant it Permanent Registration and all those benefits which may be
\navailable to it under the Industrial Policy of the State.
\nContesting petitioner’s case for providing it Permanent
\nRegistration and making it available all those benefits which are
\navailable to Industrial Unit under the Industrial Policy of the State, the
\nState-respondents have opposed the grant of reliefs to the petitioner on
\ntwin grounds, viz.\n<\/p>\n
(1) Being a non-permanent resident of the State, the petitioner was
\nrequired to approach the State Government to seek allotment of
\nland through State Industrial Development Corporation Limited
\n(SIDCO for short), in case it had intended to set up an Industrial
\nUnit in the State. Having opted to get land from private persons on
\nlease, it cannot be allowed Permanent Registration of its Unit,
\nregardless of the grant of provisional registration to it which,
\naccording to the respondents, had been obtained by
\nmisrepresentation of facts in indicating the proprietor of the
\npetitioner a resident of village Barwal-Kathua; and
\n(2) Land obtained from private persons on lease by the petitioner,
\nwho is a Non State Subject, is invalid transfer of immovable
\n4<\/span>
\nproperty which disentitles the petitioner to set up his Industrial
\nUnit on such property and seek Permanent Registration therefor.
\nI have heard Mr. Rohit Kapoor, learned counsel for the petitioner
\nand Mr. Altaf Naik, learned Advocate General appearing for the
\nrespondents.\n<\/p>\n
Projecting petitioner’s case and meeting the defence set up by the
\nrespondents to oppose petitioner’s writ petition, Mr. Kapoor urged that
\nthe laws in force in the State of Jammu and Kashmir do not prohibit lease
\nof immovable property in favour of Non Residents of the State which
\nposition in law was well settled in view of the law laid-down by this
\nCourt in Estate Officer vs. K. K. Amla, reported as SLJ 1989 J&K, 105.
\nLearned counsel submitted that the respondents had granted Permanent
\nRegistration to various similarly situated Units such as Komal Paper Mill
\nJagatpur, District Kathua, T.K.Paper Mill Saktachak Kathua, besides
\nJammu Pigment, Makhan Alloy & Bharat Box, which had obtained land
\non lease from private persons to set up their Industrial Units and the
\npetitioner had been discriminated against for no valid reasons.
\nDisputing petitioner’s entitlement to seek Permanent Registration
\nof its Unit by Director Industries and Commerce, Mr. Naik initially
\nargued that Provisional Registration obtained by the petitioner from
\nSIDCO would not provide it any right to seek Permanent Registration
\nbecause SIDCO had no authority to grant Provisional Registration to its
\nUnit, which power, according to the learned Advocate, vested in Director
\nIndustrial and Commerce, Jammu and Kashmir Government, respondent
\nNo.2, but on being confronted with Government Order no. 94-Ind of
\n5<\/span>
\n2004 dated 31.03.2004, issued pursuant to Government Order no. 21-Ind
\nof 2004 dated 27.01.2004, in terms of Cabinet Decision No. 19\/1 dated
\n23.01.2004 pertaining to New Industrial Policy, 2004 and Package of
\nincentives for development of industries in the State of Jammu and
\nKashmir, indicating in its clause 4.13 that the Managing Director SIDCO
\nwould be the Nodal Officer for Medium and Large Scale Industrial Units
\nand all applications for registration of Medium and Large Scale Industrial
\nUnits shall be submitted to the Managing Director SIDCO at his office at
\nJammu and Srinagar in the same manner as provided for Small Scale
\nUnits, learned Advocate General had nothing to say to support his
\nsubmission that the Provisional Registration of the petitioner’s Unit was
\nunauthorized.\n<\/p>\n
Supporting respondents’ second plea that the petitioner, being a
\nNon-permanent resident of the State of Jammu and Kashmir was not
\nentitled to seek Permanent Registration for its Unit, learned Advocate
\nGeneral submitted that the provisions of the Transfer of Property Act,
\n1977 ( 1920 A.D) specifically prohibit lease of private land(s) to Non-
\nState subjects and in that view of the matter, petitioner being a Non State
\nSubject cannot be permitted to set up its Unit on land obtained by it on
\nlease hold basis in violation of the provisions of the Transfer of Property
\nAct and seek Permanent Registration for setting up an Industrial Unit.
\nAccording to Mr. Naik “Transfer of property”, as defined in
\nSection 5 of the Transfer of Property Act includes in its ambit, Lease of
\nimmovable property too, and in view of the prohibition contained in the
\ncommands and Irshads mentioned in Section 139 of the Act, lease hold
\n6<\/span>
\nrights obtained by the petitioner, a Non State Subject, in immovable
\nproperty, for setting up and commissioning its Medium and Large Scale
\nUnit was illegal and impermissible and the land covered by the lease was
\nliable to be escheated to the State.\n<\/p>\n
Referring to the amendment introduced in Section 140 of the Act
\nvide Act No. VII of 2004, learned Advocate General submitted that the
\nLegislature had demonstrated its intention in clear terms that Transfer of
\nproperty in terms of Section 5 of the Act would include Lease of
\nimmovable property also.\n<\/p>\n
I have considered the submissions of learned counsel for the
\nparties.\n<\/p>\n
Petitioner’s case seeking Permanent Registration for its Unit by
\nDirector Industries and Commerce, has been contested by the
\nrespondents on the remaining solitary ground that it is not entitled to seek
\nits Permanent Registration because Lease of land obtained by it for
\nsetting up its Unit was illegal and impermissible, in that, being a Non
\nPermanent Resident of the State, it cannot acquire any immovable
\nproperty on Lease in the State of Jammu and Kashmir in view of the laws
\nin force in the State.\n<\/p>\n
The question that, therefore, falls for consideration, in this petition
\nis, as to whether or not there exists any law in the State of Jammu and
\nKashmir which prohibits Lease of immovable property in favour of Non-
\nPermanent residents of the State?\n<\/p>\n
7<\/span><\/p>\n
To answer the question and deal with the submissions raised at the
\nBar, regard needs to be had to the provisions of Sections 5, 105, 139 &
\n140 of the Transfer of Property Act, 1977 (1920 A.D).
\nProvisions of the Transfer of Property Act do not create any
\nspecific bar, as such, prohibiting lease of immovable property in favour
\nof Non State Subjects. It is only Section 139 of the Act which saves
\ncertain Regulations, Hidayats, Resolutions, Ailan, Rule and valid custom,
\nwhich regulate transfer of immoveable property or any right therein, in
\nany part of the Jammu and Kashmir State.\n<\/p>\n
The question as to whether the Regulations, Hidayats, Resolutions,
\nAilans etc., enact any bar for Transfer of property in favour of Non State
\nSubjects, does not appear to be res integra in view of the Full Bench
\ndecision of this Court in Lala Devi Dass versus Panna Lal, reported as
\nAIR 1959 J&K, 62 where their lordships had held as follows:
\n“Our attention has been drawn to another Irshad of
\n29th Magh 1943 and Irshad dated 23rd Magh 1962
\nby which sales and mortgages of land in favour of
\nresidents of British India have been prohibited and it
\nis argued that as it had been the consistent policy of
\nthe State not to transfer immovable property in
\nfavour of non-State Subjects either by sale or
\nmortgage, therefore, the alienation of the property by
\nwill also by implication should be deemed to have
\nbeen prohibited.\n<\/p>\n
The learned counsel has not been able to show any
\nauthority or law for the proposition that disposal by
\nwill of immovable property consisting of a house in
\nfavour of a non-State Subject is prohibited. He has,
\nhowever, referred toS.4 of the Land Alienation Act
\nwhich prohibits the transfer of land in favour of any
\nperson who is not a State Subject. The word
\n“transfer” is not specifically defined in the Land
\nAlienation Act but a definition of “permanent
\nalienation” is given in sub-sec. (3) of S.2 of the Act
\nwhich is as follows:-\n<\/p>\n
“The expression “permanent alienation” includes
\nsale gift, bequest, grant of occupancy rights and
\nexchange other than an exchange made for the
\npurpose of consolidation of holdings”.\n<\/p>\n
8<\/span><\/p>\n
The expression “land” is defined by Sub-clause (2)
\nof S.2 as land which is not occupied as the site of
\nany building in a town or village and is occupied or
\nlet for agricultural purposes or for purposes subservient
\nto agriculture or for pasture.\n<\/p>\n
As bequest is specifically included in “permanent
\nalienation” which is synonymous to the term
\ntransfer, so the permanent alienation of land as
\ndefined in the Land Alienation Act by bequest is
\nprohibited under the provisions of the Land
\nAlienation Act. But there is no law prohibiting
\ndisposal of immovable property other than land as
\ndefined in the Land Alienation Act by will in favour
\nof a non-State Subject. The mere fact that transfer by
\nsale or mortgage of immovable property in favour of
\nnon-State Subjects is prohibited cannot be
\nconsidered to be a bar to the disposal of immovable
\nproperty other than land as defined in the Land
\nAlienation Act by will. There must be a clear and
\nunambiguous provision of law prohibiting the
\ndisposal of all kinds of immovable property by will
\nand in the absence of such a provision the Courts
\nwill not interpret the latent intention of the
\nlegislature which is not embodied in express
\nprovisions of law.”\n<\/p>\n
In view of the legal position settled by the Full Bench Judgment
\n(supra), it may be concluded that the prohibition on transfer of land
\nwhich is provided in the Irshads mentioned in Section 139 of the Act is
\nonly on the Sale and Mortgage of lands in the State of Jammu and
\nKashmir.\n<\/p>\n
The next issue which needs to be considered is as to whether
\nTransfer of a right to enjoy property by way of lease would attract the
\nprovisions of the Commands\/ Irshads prohibiting Transfer of Immovable
\nProperty by Sale or Mortgage, And whether Transfer of right to enjoy
\nproperty, by way of Lease would be Transfer of Property in terms of
\nSection 5 of the Act.\n<\/p>\n
Transfer of Property has been defined in Section 5 of the Act to
\nmean, an act by which a living person conveys property, in present or in
\nfuture, to one or more persons, whether living or unborn or to himself, or
\n9<\/span>
\nto himself and one or more other such persons; and “to transfer property”
\nis to perform such act.\n<\/p>\n
Living persons, in terms of the definition, include a Company or
\nAssociation or body of individuals, whether incorporated or not. It has
\nbeen explained in Section 5 of the Act that nothing contained in it would
\naffect any law for the time being in force relating to transfer of property
\nto or by companies, associations or bodies of individuals.
\nLease of immovable property, as defined in Section 5 of the Act, is
\na transfer of a RIGHT TO ENJOY such property, made for a certain
\nterm, express or implied, or in perpetuity, in consideration of a price paid
\nor promised, or of money, a share of crops, service or any other thing of
\nvalue, to be rendered periodically or on specified occasions to the
\ntransferor by the transferee, who accepts the transfer on such terms.
\nPerusal of the definitions of ‘Transfer of Property’ appearing in
\nSection 5 and ‘lease’ in Section 105 of the Transfer of Property Act
\nunambiguously demonstrates a well defined distinction.
\nWhereas Lease is a transfer, only of a “right to enjoy” the property,
\nwhich is one of various rights which the owner or authorized occupier
\nthereof possesses therein, the ownership remaining vested in the
\ntransferor-lessor, the “transfer of property” on the other hand, is the
\n“transfer of ownership of the property itself” vesting it absolutely and
\nexclusively in the Vendee(s) thereby divesting Owner-Vendor of all his
\nrights in the property.\n<\/p>\n
The above view gets support from the intention of the legislature
\nexpressed as such in enacting Section 8 of the Transfer of Property Act
\n10<\/span>
\nwhich indicates about the effects post transfer of immovable property,
\nwhich one may not find in case of “transfer of right” alone in the
\nproperty, as in case of lease of the immovable property. Section 8 of the
\nAct, is reproduced hereunder, for facility of reference:-
\n“Operation of transfer
\nUnless a different intention is expressed or
\nnecessarily implied, a transfer of property passes
\nforthwith to the transferee all the interest which the
\ntransferor is then capable of passing in the property, and
\nin the legal incidents thereof.\n<\/p>\n
Such incidents include, where the property is land,
\nthe easements annexed thereto, the rents and profits
\nthereof accruing after the transfer, and all things
\nattached to the earth;\n<\/p>\n
and, where the property is machinery attached to the
\nearth, the moveable parts thereof;\n<\/p>\n
and, where the property is a house, the easements
\nannexed thereto, the rent thereof accruing after the
\ntransfer, and the locks, keys, bars, doors, windows, and
\nall other things provided for permanent use therewith;
\nand, where the property is a debt or other actionable
\nclaim, the securities therefor (except where they are also
\nfor other debts or claims not transferred to the
\ntransferee), but not arrears of interest accrued before the
\ntransfer;\n<\/p>\n
and, where the property is money or other property
\nyielding income, the interest or income thereof accruing
\nafter the transfer takes effect.”\n<\/p>\n
In view of the marked distinction in the expression “transfer of
\nproperty” appearing in Section 5 and “transfer of right to enjoy” the
\nproperty appearing in Section 105 of the Transfer of Property Act, it may
\nbe concluded that lease of immovable property cannot, by any stretch of
\nreasoning, be construed as transfer of property in terms of Section 5 of
\nthe Transfer of Property Act which may in turn attract the prohibition on
\ntransfer of immovable property to Non State Subjects.
\nMerely because the legislature has by Act No. 7 of 2004
\nintroduced, by way of amendment to Section 140 of the Act, which refers
\n11<\/span>
\nto exemptions of certain instruments from restriction imposed on transfer
\nof immovable property, lease of immovable property in favour of (1) Shri
\nMata Vaishno Devi University established under the Jammu and Kashmir
\nShri Mata Vaishno Devi University Act, 1999 and (2) Baba Ghulam Shah
\nBadshah University established under the Jammu and Kashmir Baba
\nGhulam Shah Badshah University Act, 2002, would not even remotely
\nsuggest that lease of immovable property in favour of Non State Subjects
\nhad been intended to be prohibited. This is so because introduction of
\n“leases in favour of Shri Mata Vaishno Devi University and Baba
\nGhulam Shah Badshah University” in Section 140 of the Transfer of
\nProperty Act, requires to be viewed in the context of any restriction on
\ntransfer of immovable property in favour of a person who is not a
\nPermanent Resident of the State, as contemplated by Irshad dated 29th
\nMaghar 1943 or any Law, Rule, Order, Notification, Regulation, Hidayat,
\nAlian, Circular, Robkar, Yadasht, Irshad, State Council Resolution or any
\nother instrument having the force of law.\n<\/p>\n
As already held in the earlier part of this judgment that none of
\nthese commands as mentioned hereinabove had created any bar on lease
\nof immovable property in favour of Non State Subjects and the bar
\ncreated therein pertained only in respect of Sale and Mortgage of
\nimmovable property, so introduction of “leases in favour of Shri Mata
\nVaishno Devi University and Baba Ghulam Shah Badshah University” in
\nSection 140 of the Transfer of Property Act, would not in any way
\nchange the settled position of law that lease of immovable property
\nwould not amount to transfer of property itself so as to attract the bar
\n12<\/span>
\nenacted by the above commands for transfer of property in favour of Non
\nState Subjects.\n<\/p>\n
In view of the above discussion, it, therefore, needs to be
\nconcluded that the Transfer of Property Act, 1977 (1920 A.D), does not
\nas such enact any bar prohibiting lease of immovable property in favour
\nof Non State Subjects.\n<\/p>\n
Submissions made by learned Advocate General are thus rejected
\nas utterly frivolous.\n<\/p>\n
Learned Advocate General had not referred to any other law in
\nforce in the State which prohibited Lease of immovable property in
\nfavour of Non State Subjects and rightly so because even the Jammu and
\nKashmir Alienation of Land Act, 1995 (1938 A.D), does not provide any
\nprohibition for lease of land as defined in the Jammu and Kashmir
\nAlienation of Land Act in favour of Non State Subjects. Prohibition
\ncontained in Section 4 of the Jammu and Kashmir Alienation of Land Act
\non transfer of land in favour of Non State Subjects applies only to
\npermanent alienation of land and not to transfer of right to enjoy the land
\nby way of lease.\n<\/p>\n
I am, therefore, inclined to hold that the laws in force in the State
\nof Jammu and Kashmir do not prohibit lease of immovable property in
\nfavour of Non Permanent Residents of the State.
\nPlea of the petitioner that similarly situated Non State Subject
\nOwners of the Units had been allowed Permanent Registration by the
\nrespondents, has not been denied by them in their response to the writ
\npetition.\n<\/p>\n
13<\/span><\/p>\n
The State and its functionaries are thus found to have grossly erred
\nin refusing Permanent Registration to petitioner’s Unit on absurd
\ninterpretation of the provisions of the Transfer of Property Act and in
\nraking up an unnecessary issue which stood concluded by a Full Bench
\nJudgment of this Court which had been later followed in Estate Officer
\nversus K.K.Amla, reported as SLJ, 1989 J&K, 105, when there was no
\nlegal impediment in the registration of petitioner’s Unit and similarly
\nsituated Units, like the petitioner had been allowed Permanent
\nRegistration.\n<\/p>\n
Petitioner has, therefore, succeeded in establishing its case for
\nissuance of command to the respondents to consider according it
\nPermanent Registration and allow it all those benefits to which it may be
\nentitled to under law and the Industrial Policy of the State.
\nBefore concluding, it needs to be observed that a welfare State like
\nours and its functionaries whose duty it is to serve people and act
\nbonafide, cannot afford to permit contest of litigation on vexatious and
\nfrivolous pleas. It is because of such type of defence of the respondents
\nthat the petitioner had to suffer in business for its no fault. The
\nrespondents are, therefore, liable to be burdened with exemplary costs for
\nrefusing registration to petitioner’s Unit and contesting their case on
\nmisconceived and vexatious grounds whereas in other similar cases they
\nhad granted Permanent Registration to the Units which though owned by
\nNon State Subjects had obtained lease hold rights in land from private
\nowners.\n<\/p>\n
14<\/span><\/p>\n
A command shall accordingly issue to the respondents to consider
\npetitioner’s case for its Permanent Registration and pass appropriate
\norders thereon in accordance with law within a period of one month.
\nThey are further directed to provide the petitioner’s Unit all those
\nbenefits which may be available to it under the Industrial Policy of the
\nState and the laws in force in the State.\n<\/p>\n
This petition, therefore, succeeds and is allowed with exemplary
\ncosts of Thirty Thousand Rupees.\n<\/p>\n
(J. P. Singh)
\nJudge
\nJAMMU:\n<\/p>\n
10.10.2008:\n<\/p>\n
Pawan Chopra<\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court K. P. Paper vs K. K. Amla on 10 October, 2008 IN THE COURT OF HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 292 of 2008 K. P. Paper petitioner State of J&K and Ors. Respondent ! Mr. Rohit Kapoor, Advocate ^ M\/s A.H.Naik, AG Advocate with Mr. A.H.Qazi, AAG. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-161508","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nK. P. Paper vs K. K. 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