Vijay Singh vs State of J & K

The case of the petitioner is that he is in occupation of plot No. P4 measuring 60' x 80' situated in Shastri Nagar, Housing Colony Jammu which

is owned by the respondent No. 2. Since the respondents have regularised the possession of plots in favour of S. Kulbir Singh S/O S. Teja Singh

vide order No. HB278791 dated 18021997, therefore, he is also entitled to the same treatment because the respondents it is further averred

cannot be allowed to pursue the policy of pick and choose. He has also placed on record order No. 133031 dated 16081993 by virtue of which

plot No: 431A measuring 45' x 65' situated at Ganhdi Nagar was regularised in favour of Sh. Sukhdev Singh on payment of Rs. 4.31 lacs.

The petitioner, therefore, prays that since he is in possession of the plot, the respondents be directed to regularise it in his favour on the same

analogy as in case of M/S S. Kulbir Singh and Sukhdev Singh.

The stand of the respondentHousing Board is that the petitioner is a trespasser and as such not entitled to allotment or regularisation. It is further

stated that there is no policy of regularisation of plots in favour of unauthorised occupants. Mr. Raina appearing for the petitioner argued that there

are two instances which show that respondents have regularised possession and therefore no different yardstick can be adopted in case of the

petitioner. According to Mr. Chowdhary appearing for the Housing Board, S. Kulbir Singh was in occupation of a strip of land and not a plot,

therefore, it could not be equated with the plot. With regard to the allotment in favour of Sukhdev Singh, Mr. Chowdhary stated that it was not a

regular plot.

Be that as it may, the question is whether the allotment in favour of S. Kulbir Singh and Sh. Sukhdev Singh was made under Rules or because they

were unauthorised occupants. Both the orders indicate that they were unauthorised occupants. This shows that unauthorised occupation was

rewarded by the Housing Board. Under Law the Housing Board or Jammu Development Authority is in occupation of all the plots which are yet to

be auctioned because nobody can build unless permitted by the Housing Board or the Municipality. Even if there is construction, it will be deemed

to be by the owner that is the Housing Board. Why these plots were regularised in favour of the two individuals is a mystery. However, both the

allotments in favour of S. Kulbir Singh and Sukhdev Singh are arbitrary and illegal because unauthorised occupants should have been removed by

the Board who has the machinery and power under the Public Premises (Eviction of Unauthorised Occupants) Act, 1988. The question is whether

such illegal and arbitrary action can be made precedence for granting the relief. This question was answered by the Apex Court in 'Chanidgarh

Administration and another Vs. Jagjit Singh and another' AIR 1995 SC 705 by holding that:

General Speaking, the mere fact that the respondentauthority has passed a particular order in the case of another person similarly situated can

never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal

and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in

favour of the other person is found to be contrary to law or not warranted, in the facts and circumstances of the case, it is obvious that such illegal

or unwarranted order cannot be made the basis of issuing a writ compelling the respondentauthority to repeat the illegality or to pass another

unwarranted order. The extra ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the

respondentauthority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over

again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the court

should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see

how it can be made a basis for its repetition. By refusing to direct the respondentauthority to repeat the illegality, the court is not condoning the

earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would

be prejudicial to the interest of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.

Since the allotment in favour of Jammu: the two persons was illegal and contrary to the Rules, therefore, it cannot be made the basis for granting

the same relief. Moreover, the petitioner could have challenged the allotment in favour of those persons but cannot be granted the same relief. The

Principle of Equity does not apply when the order relied upon is unsustainable in law as law laid down in 'M/S Faridabad Ct. Scan Centre Vs.

D.G. Health Services and others', AIR 1997 SC 3801, which reads as under:

We fail to see how Art. 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated

with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be!

discrimination against others if correct orders are passed against them. In fact, in the case of Union of India (Railway Board) and others Vs. V.J.V.

Subhaiah, 1996 (2) SCC 258: (1996 AIR SCW 705), the same learned Judge in his judgment has observed in para 21 that the principle of

equality enshrined under Art. 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the

basis for holding that other employees are discriminated against under Art. 14.

So the petitioner cannot claim right of equality when the allotment in favour of two persons named above has been made in flagrant disregard of the

Article 14 of the Constitution and without inviting applications for such allotment in open auction as is the practice being followed by the Housing

Board. The Housing Board ought not and should not have encouraged unauthorised occupants by regularising their illegal occupations as it sends a

wrong signal to law abiding citizens. This petition is, therefore, without any merit and hence dismissed.