Gurmeet Singh vs State Of J&K And Others

MA Chowdhary, J

The petitioner, through the medium of this petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, on the strength of grounds taken in the petition, has prayed for the following reliefs/writs:

“a) Certiorari thereby quashing the communication No.HB/5393-94 dated 11.01.2014 issued by respondent No.2 being illegal, arbitrary, unconstitutional and against the principle of natural justice.

b) Mandamus thereby commanding the respondents No.2 and 3 for considering the case of the petitioner for conversion of leasehold rights of Plot No.134-A/7 measuring 44'+37'-3"/2×80' situated at Channi Himmat, Housing Colony, Jammu to freehold rights.

c) Prohibition thereby prohibiting the respondents from causing any interference in the peaceful possession and enjoyment of the house constructed by the petitioner on plot No.134-A/7 measuring 44'+37'-3"/2×80' situated at Channi Himmat, Housing Colony, Jammu.”

Factual matrix of the case, are that one Athar Ali Mir S/O Sh. A.M Mir was allotted plot No. 134-A/7 measuring 44'+37'-3"/2×80' situated at Channi Himmat, Housing Colony, Jammu, by respondent- J&K Housing Board, after completing all the formalities; that a lease deed was also executed in favour of allottee Athar Ali Mir and the possession of the plot was handed over to him who after having the possession enclosed the plot by raising boundary wall and an iron gate. The petitioner claims to have acquired the said plot 134-A/7 measuring 44'+37'-3"/2×80' situated at Channi Himmat, Housing Colony, Jammu from said allottee Athar Ali Mir, after obtaining proper permission from the respondents in terms of Order No.HB/1147-49 dated 16.06.2003. Thereafter, the petitioner deposited a transfer fee of Rs. 32,000/- as such, an Agreement was duly executed between the petitioner and respondents duly registered by Sub Registrar, Jammu styled as Tripartite Agreement. After entering into the agreement, the possession was handed over to the petitioner by the respondents as its true and lawful allottee. Thereafter, the petitioner applied for grant of building permission in favour of the applicant for which the respondents also issued a „no objections certificate‟ and a valid „permission‟ was granted in favour of the petitioner. Thereafter, in order to construct a residential house, he applied for housing loan which was also sanctioned in his favour. The petitioner raised construction in the said plot and claims to have been residing there with his family members for the last ten years. The respondent No.2 was well aware about the fact that they have filed LPA against the order of writ court, intentionally withheld this information from the petitioner, entered into the „Tripartite Agreement‟ permitted the transfer of plot in favour of the petitioner, charged the transfer fee and accepted the possession of the petitioner over the said plot. Respondent-Housing Board, thereafter, forwarded the communication No.HB/5393-94 dated 11.01.2014, to the petitioner, whereunder the allotment of the plot made in favour of the original lessee/allottee Athar Ali Mir was cancelled.

Objecting the petition, respondent Nos. 2 (Managing Director, J&K Housing Board, Jammu) and 3 (Secretary, J&K Housing Board, Jammu) have filed their response, taking only stand therein that the cancellation of plot allotted in favour of the petitioner was made in compliance of the judgment passed by learned Single Judge in OWP No.6/1999, which was upheld by Hon‟ble the Division Bench in LPAOW No.213/2001.

I have heard learned counsel appearing for the parties, considered their submissions and perused the record.

The grievance which forced the petitioner to knock portals of this Court and to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, is the communication No. HB/5393-94 dated 11.01.2014 issued by the respondent no. 2, i.e Managing Director, J&K Housing Board, Jammu by virtue of which the allotment made in his favour has been cancelled. This purported cancellation as mentioned in the said communication, is relatable to an after effect of the judgment of this High Court passed in OWP No. 86/1999 as upheld vide judgment dated 20.11.2013 in LPA(OW) no. 213/2001. In the said impugned communication there is no whisper of reference as to the fact, whether the petitioner was ever a party in the matter in the writ proceedings or in the Letters Patent Appeal proceedings before the High Court of Jammu & Kashmir.

Also, on the basis of the tripartite agreement, the petitioner came to be the lessee of the said plot and further the petitioner has a residential house built thereupon. The possession of the petitioner qua the said piece of land is lawful by every stretch of claim and entitlement which at no point of time was ever subjected to any question mark by the lessor Jammu & Kashmir Housing Board.

In the objections filed on behalf of respondent nos. 2&3 to the writ petition, they have avoided to attend the fact, that in case if the allotment of the plot in reference to original allottee Athar Ali Mir, was in question all along to the extent of forming the subject matter in a pending writ petition, then why the lessor i.e. the Jammu & Kashmir Housing Board, proceeded ahead not only to accord permission for transfer of the leasehold rights in favour of the petitioner but even further executed and got registered a tripartite agreement. Thus, there is a deafening silence on the part of the respondents no.2 and 3, who are the prime functionaries of the lessor– Jammu & Kashmir Housing Board, to attend to the truth of the situation.

The situation so obtaining is a classic display of the principle of “Approbate and Reprobate” on the part of the Jammu & Kashmir Housing Board and its functionaries who are the respondent Nos. 2&3. Said principle of “Approbate and Reprobate” if put into a common understanding means that a person/authority shall not be allowed to blow hot and cold in terms of his/her/its relationship/position vis-à-vis other person who get related to said relationship/position. This principle aims to mean, that an act of duality on the part of a person in his conduct/relationship vis-à-vis another person is nothing but dubious which no law can cherish, particularly when it comes to the matter of public administration and the acts of public officials. The principle of “Approbate and Reprobate” has been well elucidated and explained by the Hon‟ble Apex Court in cases titled “Nagubai Ammal & Ors Vs B. Shama Rao & Ors” reported in AIR 1956 SC 593, “Ram Vs B. Baijnath Singh & Ors” reported in AIR 1961 SC 1352, “Karam Kapahi & Ors Vs Lal Chand Public Charitable Trust & Ors” reported in AIR 2010 SC 2077, “The Rajasthan State Industrial Development and Investment Corporation and others Vs Diamond and Gem Development Corporation Ltd. & Ors” reported in AIR 2013 SC 1241 and “Bhagwat Sharan (Dead) through L.Rs Vs Purushottam & Ors” reported in AIR 2020 SC 2361.

Keeping in view the aforesaid facts coupled with the position of law, it is rendered very clear that the leasehold rights vested in the petitioner qua the plot in reference cannot be subjected to any prejudice by reference to the judgment passed in OWP No. 86/1999 & LPA(OW) no. 213/2001. In the eyes of law, the petitioner is deemed to have become the original leaseholder by a proper procedure of law entitling him to and hold the plot having reference by his own claim and not through the original leaseholder who may have arranged the grant/allotment of the leasehold rights by means of which the judgments of the High Court in OWP No. 86/1999 and LPA(OW) no. 213/2001, came to be passed. A coordinate bench of this court, in an identical matter of the same housing colony in case OWP No.341/2014 titled Sidhant Sharma & Ors Versus Managing Director, J&K Housing Board Jammu & Ors, vide judgment dated 16.11.2022 has also taken the same view, while allowing the petition, quashed the cancellation order.

Thus, this writ petition is allowed and the impugned communication No. HB/5393-94 dated 11.01.2014 of the respondent No. 2-Managing Director J&K Housing Board, is hereby quashed.

The petitioner is held further entitled, as a consequence, to have his case considered for conversion of leasehold rights into freehold rights as per the rules attending the subject matter at the end of the lessor- Jammu & Kashmir Housing Board.