Full Judgment
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.
OWP No. 1267 OF 2011
Bholi Devi
Petitioners
State J&K and others
Respondent
!Mr. A. H. Naik, Sr. Advocate with Mr. D. S. Chowhan, Advocate.
^Mr. D. C. Raina, Sr. Advocate with Mr. Rohit Kohli, Advocate and Mr. A.H.Qazi,
AAG. Mr. S.S.Nanda, Advocate. MR. JUSTICE J.P. SINGH, JUDGE.
Date: 10.10.2011
:J U D G M E N T: Claiming Lease Hold Rights in land measuring 5 kanals
situated at Rail Head Complex, Jammu, the petitioners have
approached this Court seeking quashing of Shri Mata Vaishno
Devi Shrine Board Katras Notice No. CO/Dev/33/1179 dated
25.07.2011 whereby Tenders were invited for construction of
Kalika Dham, a Multi Storeyed building (Basement +5) at Rail
Head Complex, Jammu, and the permission, if any, granted by
Municipal Corporation, Jammu permitting construction by the
Board on the aforesaid land, besides a Restraint direction to
the respondents not to interfere into the petitioners possession
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over the land.
The relief sought for by the petitioners in the Writ Petition
emanate from their challenge to Notifications issued under
Sections 4,6,7 and 17 of the State Land Acquisition Act
whereby their land was acquired and possession thereof taken.
It is admitted by the petitioners in Paragraph No. 19 of the
Writ Petition that they had questioned the Acquisition of their
land by the State Government for Shri Mata Vaishno Devi
Shrine Board by Writ Petition OWP No. 943/1996, dismissal
whereof stands questioned by them in LPA(OW) No. 170/2001
which was still sub judice.
The Boards Response to the Writ Petition indicates that
pursuant to the Acquisition of petitioners land, the possession
of the property was delivered to it and being satisfied with the
construction plan, the Municipal Corporation has after
accepting requisite fee and other charges allowed it permission
to raise construction thereon. Receipt evidencing payment of
Rs.16,63,590/- and Rs. 14,000/- by the Board to the
Corporation has been placed on records.
Considered the submissions of learned counsel for the
parties.
The petitioners seek adjudication of their challenge to the
Acquisition of land and in the event of success therein,
Restraint directions against the respondents not to raise any
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construction thereon and cause interference in possession
thereof.
The issues that the petitioners raise in this Petition
questioning the Acquisition of their land under the State Land
Acquisition Act, stand decided against them with the dismissal
of their earlier Writ Petition OWP No. 943/1996 and an Appeal
against the Judgment of the Writ Court was pending
consideration before a Letters Patent Bench.
In the circumstances, the question that therefore arises is
as to whether the petitioners can re-agitate their rights in the
land seeking adjudication of their challenge to Acquisition
thereof afresh when the Appellate Court was in seizin of the
disputes which the petitioners raise by this Petition.
Having failed in their challenge to the acquisition of their
land under the State Land Acquisition Act, the petitioners are
estopped from re-agitating same issues or issues which could
have been raised by them in earlier proceedings, in view of the
Principles of Judicial Amity and Res Sub Judice.
All the issues that the petitioners have raised in this
Petition being sub judice before the Letters Patent Bench, the
petitioners Writ Petition cannot be entertained for fresh
adjudication in exercise of this Courts Extra Ordinary Civil
Original Jurisdiction which had been invoked by the petitioners
on an earlier occasion too, but without success.
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The petitioners learned Senior counsels submission that
grant of building permission to the Board and its inviting
Tenders for construction on the land in question provides the
petitioners a fresh cause of action to approach the Court by a
Separate Petition, is found untenable, in that, the petitioners
plea to question Shri Mata Vaishno Devi Shrine Boards right to
raise construction and grant of permission to it by Municipal
Corporation, Jammu, arises out of their challenge to the
Acquisition proceedings and would not afford any fresh cause
of action to them to question the Boards right to raise
construction or deal with the acquired property in any manner
whatsoever, when their rights in the property stand
extinguished pursuant to its acquisition under the State Land
Acquisition Act.
For all what has been said above, the issues sought to be
raised by the petitioners through their Petition, cannot be
entertained by this Court when their Appeal against the
Judgment delivered in OWP No. 943/1996, raising similar
issues before the Appellate Court was still sub judice.
Thus, found without merit, this Writ Petition is dismissed.
(J.P. SINGH)
JUDGE
JAMMU
10.10.2011
Vijay