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2005 DIGILAW 354 (JK)

Ab. Hamid Zargar v. State

2005-12-09

BASHIR AHMAD KIRMANI, SYED BASHIR-UD-DIN

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1. The petitioner herein seeks quashment of government order no. 49/HUD/LSGof 1989 dt. 21.2.89 purporting to have been issued by second respondent, wherein allotment of land to petitioner under government order no. LSG-23/MC/88 dated 21.2.1989 was cancelled reportedly as desired by the then Chief Minister. Grounds pleaded are that the impugned order has been passed without giving petitioner, who suffered there under opportunity of being heard, which involves gross violation of Principle of Natural Justice, particularly because possession of the land in question having been with petitioner for a pretty long time he could not be pushed out in the casual manner as sought to be done by second respondent as said above, particularly because respondents had no right of reentry over the piece of land already leased out to petitioner for a period of 40 years w.e.f 10.11.1988. 2. In their objections, respondents have inter alia pleaded that previous to present petition, another petition being no OWP 242/98 of 1998 filed by one Mushtaq Ahmad Sofi, effected by the impugned order, was instituted in this court which has been finally disposed of in terms of court order dated 3.9.1998, and as a matter of fact, that decision governs the present petition also. During course of submissions the counsel for parties, have reiterated the contents of their respective pleadings. 3. I have heard learned counsel and considered the matter. Perusal of interim orders reveals that the petition has been admitted as far back as on 24th April 1990 and right there from, continuous opportunities have been granted to respondents for filing counter affidavit, which they have failed to file till date, even despite last opportunity granted vide interim order dated 23 March 2005, where after the matter was again listed in the court while nobody appeared. In view of respondents continuous failure to file counter affidavit for as many as 15 years, the right to file the same is closed, and the matter taken up for disposal. 4. Perusal of annexure appended with memo of objections reveals that under government order no. 314-HUD/LSGof 1988 dt. 28.10.88, Municipal land measuring 1520 Sft. Near Sheri Kashmir Park Srinagar, was leased out in favour of one Mushtaq Ahmed Sofi and the present petitioner Ab. 4. Perusal of annexure appended with memo of objections reveals that under government order no. 314-HUD/LSGof 1988 dt. 28.10.88, Municipal land measuring 1520 Sft. Near Sheri Kashmir Park Srinagar, was leased out in favour of one Mushtaq Ahmed Sofi and the present petitioner Ab. Hamid Zarger for 40 years; renewable up to a maximum period of ninety nine years; at premium of Rs.12/- lacs per kanal and ground rent Rs.100/- per marla per annum payable in two half yearly installments with the conditions that building structure thereupon be only two storied and commercial spacess be utilized only for purposes conforming to and supporting the activities relating to Tourist Trade. Under order no. 849 of 1988 dated 10.11.1988 the aforesaid lease was renewed and the leases continued to hold the land under aforesaid conditions and executed necessary agreements in that behalf. Thereafter under Government Order no. 49-HUD of 1989 dated 21.02.1989 the initial order of lease being no. 314-HUD/LSG dated 28.10.1988 was rescinded with immediate effect, whereupon Mushtaq Ahmed Sofi aforesaid instituted writ petition no. 242/98 which was disposed of by this court on 03.09.1998, by setting aside the rescinding order and directing respondent-State to pass fresh orders in accordance with law, with observation that till such orders were passed, parties shall maintain status quo in respect of properties in question. Significantly none of the parties have challenged that order or expressed any grievance against that. In view of the said court order therefore, even though, the impugned order stands wholly quashed, in substantial sense the quashment would pertain to the order in relation to petitioner in that litigation only, chiefly because it was his claim and interest in the matter only that was under consideration of the court. But in any case, the order impugned in both petitions being same, & challenged on similar grounds the logic employed by the court in quashment thereof in the aforesaid order would equally apply herein also. 5. For what has been stated above, the order impugned stands set aside, with direction to respondents for passing fresh orders in the matter. It is however, quite surprising despite direction for fresh orders passed in writ petition No.242/98 in 1998 the Government have failed to take any decision in the matter during last seven years, and by an unexplained default, allowed the property to continue being in the hands of petitioner and the other person aforesaid. It is however, quite surprising despite direction for fresh orders passed in writ petition No.242/98 in 1998 the Government have failed to take any decision in the matter during last seven years, and by an unexplained default, allowed the property to continue being in the hands of petitioner and the other person aforesaid. Going by photo copy of the letter furnished by their counsel the Administrator of Srinagar Municipality has vide no. SMI/PS/Adm/6330 dated 02.03.2000 while replying to a query from Principal Secretary to Government Housing and Urban Dev. Department regarding removal of shops on the land in question, suggested their regularisation in favour of petitioner along with other beneficiary aforesaid, on the pretext that whole area is build up, and there is no green area, one gets the impression that important official functionaries are visibly keen to have the land and shops existing therein regularized in favour of the petitioner and the other beneficiary for reasons best known to them and that perhaps sufficiently explains the unreasonable inaction on behalf of Government in taking the decision in terms of the court order passed in writ petition no. 242/98 (supra). 6. For what has been stated above while setting aside the order assailed hereunder, the petition is disposed of, with an express direction to respondents for passing afresh orders regarding cancellation/substance of the lease granted in petitioners favour along with the aforesaid Mushtaq Ahmed in terms of the lease deed within three months from now. Failure to pass orders as such would be deemed to reflect some undisclosed interest on their behalf in the matter, as being in direct conflict with the public interest and Govt. policy. 7. For assuring compliance the Registrar Judicial of this court shall transmit copies of this order to Advocate General, Chief Secretary, and Principal Secretary to Government Housing Urban Dev. Department, Commissioner/Secretary Law Department, Administrator Srinagar Municipality and the Commissioner/Secretary of General Administration Department Civil Sect. Jammu with instructions to do needful on their part. Advocate General shall also file an action taken report before Registrar Judicial on or before15.03.06. which shall be listed immediately there after along with the index to be maintained in the registry. 8. The matter stands accordingly, disposed of along with all connected petitions.