Dr. Ritu Chib v. State of J&K through Commissioner/Secretary to Govt

Judgment

1. State of J&K through Commissioner/Secretary to Govt. Housing & Urban Development Department, Civil Secretariat, Jammu.

2. Managing Director, J&K Housing & Urban Development Department, Green Belt Park, Gandhi Nagar, Jammu.

3. Secretary, J&K Housing & Urban Development Department, Green Belt Park, Gandhi Nagar, Jammu.

4. Managing Director, J&K Housing Board, Jammu.

Through: Mr. S. S. Nanda, Sr. AAG …. Respondents Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE J U D G M E N T

01. Heard learned counsel for the parties. 2 OWP No. 307/2014

02. On the submission of learned Sr. Advocate appearing for the petitioner that the adjudication of this writ petition is squarely covered by a judgement dated 26.07.2022 of this Court rendered in the case “Champa Devi Vs State of J&K and others” OWP No. 429/2014, the present petition warrants the same outcome as the facts are identically placed without any shade of difference, this case is also taken up for its final adjudication.

03. Before coming to take notice of the judgment rendered in the said case of Champa Devi (supra), this Court needs to draw out the state of facts involved in the present case and the grievance which led the petitioner to approach this Court with the present writ petition under Article 226 of the Constitution of India.

04. A residential plot No. 96, measuring 40(cid:215)73+72/2 feet Sector 1-A, at Channi Himmat Housing Colony, Jammu came to be leased out by the J&K Housing Board, Jammu in favour of one Gh. Mehdi Dar by virtue of a registered lease-deed dated 02.04.1998. On the basis of the said lease-deed, the original lessee Gh. Mehdi Dar had come to in vacant possession of said residential plot of land.

05. In the year 1999, two persons, namely, Rakesh Kapoor and Suresh Sharma came to file a writ petition OWP No. 86/1999 wherein the allotments by the J&K Housing & Urban Development 3 OWP No. 307/2014 Department of the residential plots in Channi Himmat Housing Colony, Jammy in favour of ten persons (respondent Nos. 4 to 13) came to be questioned. In this writ petition, the respondent No. 8 was Gh. Mehdi Dar, the lessee of plot No. 96, Sector 1-A Channi Himmat Housing Colony, Jammu. In this writ petition, the two petitioners i.e. Rakesh Kapoor and Suresh Sharma were impugning the allotments as an act of favour and, therefore, sought similar favour of allotment of residential plots in their favour or for cancellation of the allotment of plots favour of aforementioned ten persons so named in the said writ petition. It is pertinent to mention here that the allotment of residential plots in favour of said persons had come to take place purportedly out of discretionary quota of the Minister-Incharge of the then Govt. of Jammu & Kashmir.

06. The aforesaid writ petition OWP No. 86/1999 came to be disposed of by the writ court vide its judgement dated 05.09.2001 in terms whereof a direction came to be given to the official respondents in the said writ petition to make available the allotment of plots to the said two writ petitioners and in the event of default of allotment so directed, the officials respondents in the said writ petition were directed to take steps to implement the judgment of the Hon’ble Supreme Court of India in case titled “Common Cause-A Regd. Society Vs Union of India and others,” 4 OWP No. 307/2014 (1996)6 SCC 593 with a view to cancel the allotments made in favour of the ten private respondents (respondent Nos. 4 to 13).

07. Against the aforesaid judgment dated 05.09.2001, the J&K Housing & Urban Development Department came to prefer a letters patent appeal (LPA) LPAOW No. 213/2001 in which, vide an interim order dated 20.07.2002, the operation of the judgement dated 05.09.2001 of the writ court judgement came to be stayed.

08. While the aforesaid letters latent appeal (LPA) was so pending disposal before the Division Bench and the operation of judgment of the writ court having been stayed, the petitioner, being unaware of the aforesaid aspect of the matter, came to make a deal with the original lessee -Gh. Mehdi Dar in December, 2010 with respect to the transfer of leasehold rights of the plot No. 96 Sector 1-A, Channi Himmat Housing Colony, Jammu in her favour.

09. Pursuant to the said deal, the petitioner had come to make an application on 05.02.2011 to the J&K Housing Board seeking transfer of the leasehold rights of the plot in reference in her favour. This application of the petitioner came to be accorded approval by the J&K Housing Board vide its approval No. HB-533- 34 dated 10.10.2012 on the condition of payment of an amount of Rs. 29,000/- as transfer fee which came to be deposited resulting in execution and registration of a tripartite agreement dated 5 OWP No. 307/2014

19.11.2012 registered on 10.01.2013 before the Sub-Registrar (Muffasil) Jammu as a result whereof the leasehold rights qua the plot No. 96, Sector 1-A, Channi Himmat Housing Colony, Jammu originally granted in favour of Gh. Mehdi Dar came to be transferred and vested in favour of the petitioner by the lessor – J&K Housing Board.

10. The petitioner, thus, came to be in vacant possession of the aforesaid residential plot of land as being lessee thereof for the purpose of constructing a residential house thereupon. In this regard, the petitioner came to avail building permission from the Jammu Municipal Corporation (JMC) which came to be granted vide Building Permission No. 1175/BS/2012 dated 15.03.2013.

11. For the purpose of undertaking the building construction, the petitioner came to avail bank loan from the J&K Bank Ltd., by mortgaging the leasehold rights with respect to which the lessor- J&K Housing Board even came to accord its approval vide No. HB- 980-81 dated 19.08.2013 acknowledging the lien of the J&K Bank Ltd., qua the plot in reference for the loan assistance granted in favour of the petitioner. On the basis of the loan so availed the petitioner has come to construct a residential house which has come to be in her residential use and occupation ever since then. The petitioner is, thus, a bona fide holder of the aforesaid residential plot No. 96, Sector 1-A, Channi Himmat Housing 6 OWP No. 307/2014 Colony, Jammu along with residential house thereupon, least aware of any legal clog attending the original lease of the plot in reference in favour of Gh. Mehdi Dar by the lessor-J&K Housing Board.

12. The cause of action for the petitioner to approach this Court with the present writ petition accrued when at the address of the petitioner by reference to plot No. 96, Sector 1-A, Channi Himmat Housing Colony, Jammu, a notice-cum-order No. 5337-38 dated 11.01.2014 issued by the J&K Housing Board came to be delivered in the name of Gh. Mehdi Dar whereby it was meant to be conveyed that pursuant to the judgment dated 20.11.2013 of the Division Bench in LPAOW No. 213/2001 the allotment of the plot in favour of Gh. Mehdi Dar stood cancelled which led the petitioner to fetch a copy of the Division Bench judgment dated 20.11.2013 to come across with the fact that the Division Bench had come to set aside the direction for allotment of plots in favour of said two persons as given in the judgment dated 05.09.2001 of the writ court passed in OWP No. 86/1999 whereas simultaneously upholding the direction for cancellation of the plots made under discretionary quota to the private respondents 4 to 13 in said writ petition.

13. It is in the aforesaid state of facts and circumstances that the present writ petition came to be laid by the petitioner herein 7 OWP No. 307/2014 thereby seeking a direction for quashment of the impugned communication-cum-order No. 5337-38 dated 11.01.2014 with respect to the purported cancellation of plot No. 96, Sector 1-A, Channi Himmat Housing Colony, Jammu with the relief of direction of mandamus as well as prohibition as set out in the writ petition.

14. Now, coming to the judgment rendered by this Court in Champa Devi’s case (supra) OWP No. 429/2014, said Champa Devi had come to approach this Court with an identical grievance as she too had come to acquire a residential plot from the original lessee Salman Ali, who was the respondent no. 9 in the writ petition OWP No. 86/1999 filed by said two writ petitioners, namely, Rakesh Kapoor and Suresh Sharma.

15. This Court, in its judgment dated 26.07.2022 in said lease came to apply the principle of “Approbate and Reprobate” against the J&K Housing Board that after itself being a privy to transfer of the leasehold rights from the original lessee in favour of Champa Devi, the J&K Housing Board was not entitled to revoke the original lease by purported reference to the judgment of the Division Bench. The present case is a replica of the case of Champa Devi and, therefore, the adjudication of the present writ petition cannot be different to the adjudication of the case of Champa Devi (supra). 8 OWP No. 307/2014

16. Accordingly, this writ petition is allowed by holding that the leasehold rights vested in the petitioner qua the plot in reference i.e. plot No. 96, Sector 1-A, Channi Himmat Housing Colony, Jammu cannot be subjected to any prejudice by reference to the judgment passed in OWP No. 86/1999 and LPAOW No. 213/2001 as the petitioner is deemed to have become the original lease holder by proper procedure of law entitling her to have and hold the demised plot in reference by her own claim and not through Gh. Mehdi Dar. The impugned communication-cum-order No. 5337-38 dated 11.01.2014 of the respondent No. 3 – Secretary, J&K Housing & Urban Development Department/J&K Housing Board is, therefore, quashed. The petitioner shall be entitled to earn conversion of her leasehold rights into freehold rights qua the plot in reference from the J&K Housing Board on account of valid lease-deed substituting in her favour. Disposed of accordingly. (Rahul Bharti) Judge Jammu 16.12.2023 Muneesh Whether the order is reportable : Yes Whether the order is speaking : Yes