Land Holders Of Village Safanagri @APPELLANT@Hash State Of Jammu & Kashmir And Others

Instant application has been filed by M/s Fruit Master Agro Fresh Private Limited through its Managing Driector, Faisal Burza son of Musthaq Ahmed Burza resident of Ishber, Nishat, Srinagar for their impleadment as interveners.

According to applicant - M/s Fruit Master Agro Fresh Private Limited, the company has been established with an aim and object to develop fresh fruit industry to upgrade and give boost to the economy of the State by adopting modern scientific techniques and technologies being practised and used elsewhere in the world. It is stated that by Government order no.08-Horti of 2017 dated 7th February 2017, "High Density Apple Plantation Scheme" in the State through private enterprises was launched. Applicant company thereafter was enlisted/empanelled for developing forty hectares under High Density Apple Plantation Scheme in Jammu and Kashmir. J&K Bank is said to have sanctioned an overdraft of Rs.10.85 Crores for implementing aforesaid Scheme. Thereafter land measuring 150 kanals was identified and allotted in favour of applicants at ACHD Zainapora vide Licence Deed dated 19th November 2018. All that was required for High Density Apple Plantation was done. It is stated that applicants were in the process of shifting the high density apple plants and saplings, imported by them from abroad at huge cost and expense to aforesaid newly built post entry quarantine facility, but they were intercepted and stopped by SHO police station Zainapora from doing so on the ground of interim orders/directions of this Court.

Objections have been filed by petitioner/non-applicant, stating that they have no quarrel qua High Density Apple Plantation Scheme but the selection of Entrepreneur for establishment of aforesaid scheme has remained a hidden secret till application came to be filed for intervention. It is insisted that the land, which is claimed to have been identified, is owned and possessed by petitioners and that writ petitioners sensing their dispossession and deprivation of their fundamental rights to hold and possess the land, have filed writ petition in the year 2016, in which series of orders have been passed against the Government and the State functionaries and they have been directed not to act upon the land. Despite the order dated 27th April 2016, respondents continued to interfere with the land and take forcible possession. Since the respondents continued interference, another application was filed, being IA no.01/2017, in which after hearing the counsel for the parties, this Court was pleased to pass an order dated 23rd March 2017, directing respondents to ensure compliance of order dated 27th April 2017 and no action would be taken unless the land was duly acquired. It is further insisted that the claim preferred for being allowed to intervene in the proceedings is exclusively based upon a Licence Deed purportedly signed on 19th November 2018, providing authority to applicant to install facility for quarantine measures for development of High Density Apple Plants. It is averred that the land does not belong to the Government as it is owned by writ petitioners and therefore, the Government has no authority or jurisdiction to create licence/lease or any sort of transfer in favour of a third party. It is also insisted that applicant has no right, interest or authority to enter upon the land or to create any facility for any purpose on the land which exclusively belongs to writ petitioners and even on an erroneous assumption of the land being that of the Government, no right is created in favour of applicant to enter upon the land or to create any facility thereover on the basis of lease deed. It is averred that applicant has in cavalier manner obtained loans from the State Bank for his own advantage and there is nothing on record to show that any material of the sort for which land was wrongly licensed, has been received by him or by the department. Petitioners submit that quarantine facility is alleged to have been sanctioned by the Government in Estate Zainapora, which is actually sought to be established by force on the land of petitioners which is part of Estate Reshipora. The two estates, namely, estate Zainapora and estate Reshipora are different estates and the department is labouring under serious misconception.

Learned counsel for applicants states that applicants are indebted to J&K Bank Limited to the tune of Rs.7.14 crores and are likely to suffer a colossal loss if they are not allowed to move their plant stocks and material into the Post Entry Quarantine Facility established by them for the said purpose. He also avers that applicants had no knowledge as to pendency of any litigation and the orders passed by this Court. He also asserts that an intervener is one who is seeking to become a party to a suit for the purpose of protecting an interest of his own which neither plaintiff nor defendant is interested in protecting and he is not in any sense a party to the suit until permission to intervene is granted. In support of his submission, he has placed reliance on the judgements rendered in the cases of Collector (Distt. Magistrate) Allahabad and anr. v. Raja Ram Jaiswal, AIR 1985 SC 1622; Municipal Council, Hansi v. Mani Raj and others, AIR 2001 SC 1861; Amit Kumar Shaw and another v. Farida Khatoon and another, (2005) 11 SCC 403; Gh. Ahmad Sofi & ors v. Mohd. Ayub Khan & anr, 2001 SLJ 84; Abdul Aziz Mir v. Suhail Nabi and others, 2015 (II) SLJ 901 (HC); and judgement dated 30th March 2009 passed by the High Court of Patana, in Bal Mukund Singh v. Gautam Singh.

Per contra learned counsel for petitioner/non-applicants states that the lease deed relied upon by applicant as regards land in question is void ab initio as it has been brought into existence in contravention of Constitutional provisions as embodied in Section 122 of J&K State Constitution. He also states that applicant seeks personal relief on the basis of a void documents without even mentioning his interest in any question of law of substantial importance for expressing his point of view and that no public interest is involved in his application. His next submission is that Order 1 Rule 8-A CPC, inter alia, provides that intervention can be sought by any person or group of persons interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law. Learned counsel in support of his submissions, has relied upon Mulamchand v. State of M.P., AIR 1968 SC 1218; State of U.P. and ors v. Committee of Management an dors, 2009 (76) ALR 750; State of J&K & ors v. Goodwill Forest Lessees, 2010 (9) JKJ 755 [HC].

It is pertinent to mention here that non-applicants/petitioners, in their objections, have stated that they have no quarrel with the High Density Apple Plantation Scheme but the selection of Entrepreneur of establishment of the said scheme has remained a hidden secret till instant application came to be filed for intervention. They also aver that the land, which is claimed to have been identified is owned and possessed by writ petitioners, and sensing their dispossession they filed a writ petition in the year 2016, in which a series of orders have been passed against the Government, including Agriculture Production Department, Horticulture Department. However, notwithstanding the orders, respondents continued to interfere with the land and take forcible possession. It is also made mention of by petitioners/non-applicants in their objections that least caring for the orders, respondents on war footing basis enclosed part of the land by fixing iron-angle/rods with barbed wire and green net sheets and that these facts were brought the notice of this Court in an application, being MP no.02/2019. SHO P/S Zainapora, Shopian, is said to have been directed to go on spot and implemented the orders/directions passed by this Court in the matter and file status report. Further submission of petitioners in their objections is that status report has been filed, in which it is mentioned that Horticulture Department has executed a Licence Deed in favour of present applicant. Petitioners also maintain in their objections that the investment made by applicant is at his own risk and peril. The submission of learned counsel for petitioners is that applicants seeks personal relief on the basis of a void document without even mentioning his interest in any question of law of substantial importance for expressing his point of view inasmuch as he claims enforcement of his private rights on the basis of a document. The stand taken by petitioners somehow furnishes comfort to the case projected by applicant in his application for his intervention.

Application on hand is for impleadment of applicant as intervener. It may not be out of place to mention here that there is increase in the number of intervention applications being filed. This practice of intervention is further accentuated in cases that have a large impact and are being reported in the print and digital media. Intervention applications are commonplace from Constitutional matters to group litigation, with most Courts allowing persons/pleaders to address the Court with little to no prior assessment of locus standi or the authorisation supposed to be provided in the prescribed format.

The word 'intervention' has its origin in late Latin, interventionem, meaning an interposing or simply to come in between to interrupt. The law, as a mechanism of inter se dispute resolution between parties, has welcomed the concept of intervention/ impleadment with robust riders. It must be noted that there is a difference between the concept of impleadment and intervention. While impleadment results in addition of the applicant as a party, intervention merely allows the applicant to address the Court.

Apart from the traditional civil and criminal axis, the writ remedy of a person is present under Article 226. As a general rule, the right to move to the Court is available to only those person(s) whose fundamental right/ constitutional right is violated. Locus standi, as it is referred, is necessary before availing the writ remedy, otherwise the Court may rule that the person "lacks standing" and can dismiss the case without considering the merits.

The jurisprudence under Article 226 has given birth to public interest litigation (PIL) route, allowing members of public, not necessarily a person with locus standi, to approach the Court for reliefs implored therein. Considering the obvious public law element in writ and PIL jurisdiction of the Constitutional Courts, the intervention applications filed therein are, in practice, allowed with a slight lower standard of scrutiny. There exists no prohibition in any statute or in any rules against allowing an intervener to be heard.

It may not be out of place to mention here that if a necessary party or a party likely to be affected by the writ on order, or a party whose presence may be necessary to make the writ effective is not before the Court, the Court may, either upon an application made for that purpose, or of its own motion direct that such a party be added and the rule nisi served upon him, or simply that the rule nisi be served upon him, or even that he may be allowed to be present at the hearing without being served with a rule nisi. In such a case the person served with the rule nisi or permitted to attend the hearing, would be deemed to be a party and be entitled to show cause or support or oppose a cause already shown.

In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.

In England also the Courts have taken the view that when the application is made by a party or by a person aggrieved the Court will intervene ex debito justitias, in justice to the applicant, and when it is made by a stranger the Court considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court. [See: R. v. Thames Magistrates' Court, ex. p. Greenbaum (1957) 55 L.C.R. 129-extracted in Yardley Source Book of English Administrative Law, 1970, p. 228)].

A somewhat similar principle is recognised by Rule 8-A in Order I, CPC. If a Court is satisfied that it is necessary in the public interest, the Court may permit a person or a body of persons to present its opinion or to take part in a pending suit as the Court in its discretion may specify. The Law Commission of India in its 54th Report on the Code of Civil Procedure, 1980, has explained reasons for incorporation of Rule 8-A. It has referred to provisions of the Fundamentals of Soviet Civil Legislation in this regard and has found that "the Code has, at present, no provision for permitting the joinder of an organisation interested in the legal issues in a suit, i.e. the organisation which, though not concerned with the narrow questions of fact arising between the parties, has a view to offer on some broader issues........:. some such provision suitably adapted, of course so as to suit Indian conditions would be useful. It is true that it may not be in harmony with the adversely system on which our procedure is based. Some safeguards may also be required, in order to prevent busy bodies from interfering with private disputes. Nonetheless, it would be worthwhile inserting a provision which could be pressed into service in suitable cases. This will not exactly the same as the practice of appointing an amices curaie, because the organisation concerned would have its own views to present, and its role would not be confined to assisting the Court, though its participation may help the Court in elucidation of some of the issues." The Law Commission recommended that both the private persons and organisations should be permitted to participate and this is accepted in Rule 8-A.

For reasons stated above, application is disposed of and M/s Fruit Master Agro Fresh Limited through its Managing Director, Faisal Burza son of Musthaq Ahmad Burza resident of Ishber Nishat, Srinagar, is permitted to intervene in writ petition bearing No. 667/2016, and to address the Court on all questions raised by the petitioner in that writ petition. However, he will not have any right to file counter affidavit or a right of reply. Facts stated here are merely, summary of respective allegations. They are not the final findings of the Court.

Let main matter along with connected IA(s) come up on 20th instant.