JAMMU Tawi, MARCH 16:- In a much publicized case pertaining to land at Gole Market, Gandhi Nagar, Jammu wherein the Jammu and Kashmir Housing Board removed the encroachments and constructed the boundary wall, the Additional District Judge, Jammu in its landmark judgement dated 16.03.2021 in the case titled Ch. Mohd. Sadiq S/o Late Sh. Anayatullah & others Versus J&K Housing Board upheld the judgement and decree passed by the trail court on 29.06.2013, dismissing the suit of the plaintiff with respect to suit property i.e. two plots of land, measuring 160’+120’X110’ each situated at Gole Market, Gandhi Nagar, Jammu.
The Court observed that the trial court has rightly decided the legal issues in favour of the defendants viz J&K Housing Board and against the plaintiff’s. The grounds taken in the memo of appeal, whereby challengeg has been thrown on the judgement impugned of the trail court, have been declared as not sustainable under law as on the basis of the said grounds the impugned judgement cannot be set aside.
Thus the appeal filed by the appellants being devoid of any legal merit stands dismissed. The Judgement has settled the long controversy around the ownership of the plots situated at Gole Market, Gandhi Nagar, Jammu. The spokesperson of the government revealed that the Housing Colony, Gandhinagar, Jammu was established by Housing & Urban Development Department way back in 1950s.
The Government in 1955 granted 3 acres of land to the Ziarat Sharief at Gandhinagar Jammu out of which 12.5 Kanals was transferred to the Public Works Department for development of the Gandhinagar colony by payment of compensation of Rs. 12,500/- to Ziarat. Further in 1957, additional land measuring 6 Acres and two Kanals and 6 Marlas was transferred to Ziarat Sharief Baba Ibrahim Shah Sahib at Gandhinagar, Jammu.
The parties having vested, illegal and unrightful interest in the Housing Board and Auqaf land, taking recourse to the allotment of land made to Ziarat on 10th May 1957, had dragged both the departments in mischievous litigations resulting in an inordinate delay in execution of the planned projects in the Gnadhinagar colony.
As per the orders the net land allotted to Ziarat comes to around 62 Kanals. The Auqaf Department, which was established in 1959, claimed ownership of the land measuring 62 Kanals transferred to Ziarat. The matter was decided on 26th April 1974 by then Hon’ble Chief Justice of the High Court of J&K, Justice Murtaza Fazal Ali, in favour of the Auqaf Department declaring it as sole owner of the 62 Kanals land including the two plots measuring 160+120×210.
The private individuals having vested interests in the land took the matter to the Hon’ble Supreme Court of India and on 7th February 1991, the bench constituting Hon’ble Justice Kuldip Singh and Hon’ble Justice K. Ramaswamy, upheld the judgment of the Hon’ble High Court dated 26th April 1974 declaring the Auqaf Department as sole owner of the land measuring 62 Kanals which includes the two plots measuring 160+120×210.
So, the issue of ownership of the land measuring 62 Kanals at Gandhinagar Jammu including the two plots of land measuring 160+120×210 had since been laid to rest by the Hon’ble Supreme Court of India in 1991 and has attained finality and thus any further suit or writ petition to rake the issue of ownership of these plots by any individual or private party is hit by the doctrine of res judicata.
The J&K Housing Board was established in 1976 & in 1980 vide Government Order No.125-UD of 1980 dated 25.02.1980, two plots of land, measuring 6.85 Kanals and 1.12 Kanals, situated at Gole Market Gandhinagar, Jammu were transferred to it as capital grant.
While a commercial building was constructed by the J&K Housing Board on the plot (II) of land measuring 1.12 Kanals way back in 1983, no construction could be taken up on the plot (I) measuring 6.85 Kanals, which exactly is in front of Bansi Mandir, due to mischievous litigations instituted by the parties having vested interests in the land by claiming ownership of two plots of land measuring 160+120×210, which has since been settled by the Hon’ble Supreme Court of India.
Despite the fact that the above land vested in Auqaf Department, which was finally ordered by the Hon’ble Supreme Court of India in 1991, the parties having vested interests in the land filed series of litigation in various courts to subvert the construction of commercial complexes on two plots at Gole Market, Gandhi Nagar, Jammu one in front of Bansi Mandir measuring around 6.85 Kanals and other in front of Pahalwan Sweet shop measuring around 6.6 Kanals, which are distinct, different and independent of the two plots measuring 160+120×210 under the ownership of Auqaf Department but illegally occupied by the private parties.
The base of litigation always remained the two plots measuring 160+120×210 of the Auqaf Department (Each 5.04 Kanals), which are quite distinct, different and independent of the plots allotted to J&K Housing Board in 1980 and the plot opposite Pahalwan Sweet shop at Gandhinagar Jammu. Furthermore, the private parties again tried their luck by claiming ownership of two plots measuring 160+120×210 in writ petition No. 211/96 in which the Hon’ble High court ordered as under on 15th November 1999: – “The petitioners have thus no right on these plots as they have no dependent right over the property of Ziarat which has vested in the Wakf committee under the Wakf Act 1978.
There is thus no merit in this petition which is dismissed.” After losing the false and fake claim which the petitioners were bound to lose, they sought review of the judgement. The findings/orders of the Hon’ble High Court of J&K in Review Petition No. 59-B/ 2000 of the year 2000 clearly states that the two plots of 160+120×210 dimensions belong to Auqaf Department.
The operative portion of the review order dated 24th November 2000 is as under: – “The findings returned is that the two plots, referred to by the petitioners belong to Ziarat and the petitioners have no right to file the writ petition because the management vests in the Wakf Committee constituted under J&K Wakf Act. This is what the finding is and it does not require any review because the petitioners have themselves mentioned that the plots ‘A’ and ‘B’ are of Ziarat. So, there is nothing wrong in the aforesaid finding.’
In the layout plan of the Housing Colony, Gandhinagar, Jammu, prepared by Chief Engineer, Design & Planning, J&K in 1965, the plot opposite Pahalwan Sweet Shop measuring 6.6 Kanals and the one allotted to the J&K Housing Board in 1980 measuring 6.85 Kanals at Gole market, Gandhinagar, Jammu have been shown for Shops/Professional Offices/Service Industry.
Therefore, the ownership of the plot vests with the Housing Board/Housing Department. At present, while the land measuring 6.85 Kanals situated at Gole market Gandhinagar, Jammu has been fenced by the J&K Housing Board, the private parties who are having illegal possession of the Auqaf land/ buildings/shops had instituted mischievous litigations against the J&K Housing Board in the Hon’ble Court of 2nd Additional District Judge Jammu again claiming ownership of two plots of land having dimensions of 160+120×210 despite the fact that the Hon’ble Supreme Court of India in 1991 and Hon’ble High Court of J&K in 2000 have ordered that the two plots are property of the Auqaf Department.
The learned Judge Tahir Khurshid Raina while pronouncing the judgment referred to the gospel words of the Hon’ble Supreme Court in case Maria Margadia Sequeria Vs Erasmo Jac De Sequeria (D.O.D 21.03.2012) in which it’s held:- “The truth alone has to be foundation of justice.
The entire judicial system has been created only to discuss and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.” The appeal filed by private appellants has been dismissed with costs.
