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2005 DIGILAW 56 (JK)

Managing Director, Housing Board (J&K) v. Balwant Kour

2005-03-16

PERMOD KOHLI, S.K.GUPTA

body2005
Per S.K. Gupta, J. 1. This Letters Patent Appeal arises out of the judgment and order dated 5-5-2003 passed by the learned Single Judge in OWP No. 675 of 2002, titled Balwant Kour v. Managing Director & another. 2. By the aforesaid judgment and order, the writ petition has been disposed of with a direction that appellant/respondent No. 1 will consider the allotment of the plot in favour of the petitioner, in any Housing Colony at Jammu, independently of auction procedure, taking note of the fact that when the petitioner applied in the year 1990, the plots were not put to auction but were allotted on feasibility and further keeping in view the plight of the petitioner which has not been redressed since the year 1990, with a further direction that the process of consideration be completed within a period of two months. 3. The writ petitioner had applied for allotment of plot in Government Colony at Gandhi Nagar, Jammu. The petitioner was denied the allotment while other persons, who had also applied along with the petitioner, were allotted the plots by the Government. For seeking redressal of her grievance, writ petition bearing No. 363 of 1990 came to be preferred in the High Court. The case of the petitioner was considered on merits and writ petition stood disposed of by the Court, vide order dated 17.5.1991 on the consensus of the parties and with the directions that the petitioners application for allotment of plot in Government Colony, Jammu will be considered by the respondents i.e., the Managing Director, Housing Board, under rules within a period of two months. Further the case of the petitioner is that she approached the respondents several times and requested for the allotment of the plot, but without any positive response till date. The Housing Board, however, impugned correctness of the order dated 17.5.1991 passed in OWP No. 363 of 1990 by filing a Letters Patent Appeal, which also stood disposed of based on the submissions of counsel appearing for the Housing Board that no plot was available for the allotment, vide order dated 13.5.1993. The Housing Board, however, impugned correctness of the order dated 17.5.1991 passed in OWP No. 363 of 1990 by filing a Letters Patent Appeal, which also stood disposed of based on the submissions of counsel appearing for the Housing Board that no plot was available for the allotment, vide order dated 13.5.1993. The petitioner, however, when found that periodically Housing Board is making allotment of plots even after it made a statement about the non-availability of the plot before the Division Bench, the petitioner filed another writ petition being OWP No. 675/2002, which was disposed of by the learned Single Judge with the aforesaid direction vide order dated 5.5.2003, which became the subject mater of challenge in this appeal by the appellant, Managing Director, Housing Board. 4. The main plank of the appellants contention is that writ petition having been filed after a belated stage, i.e., after the lapse of 10 years, neither any cause of action accrues to the petitioner nor she is entitled to release of any equity in invoking the writ jurisdiction of this Court. Mr. Choudhary, learned counsel appearing for the appellant, however, submitted that in case the petitioner was interested in taking the plot in any housing colony, she could have applied when advertisement was made for such colony. The petitioner having not applied along with other eligible persons for allotment of plot in any Government Colony at Jammu, she cannot now be allotted a plot in view of the guidelines issued by the Government from time to time for allotment of the plots. 5. It is not in dispute that the petitioner had applied along with other eligible persons for allotment of plot in Gandhi Nagar Housing Colony in the year 1990, but her application was not considered when others were allotted plot in the said Colony. The policy of the Government in making the allotment, as is borne out from the record, prior to 1993 was by way of allotment. Auction procedure was alien at that time with regard to the allotment of the plots in the housing colonies. The contention of the respondent-writ petitioner that the Government had been periodically making the allotment of the plots even after making the statement before the Division Bench about the non-availability of a plot in the housing colony, at Gandhi Nagar, Jammu has not been replied and refuted by the respondent/appellant. The contention of the respondent-writ petitioner that the Government had been periodically making the allotment of the plots even after making the statement before the Division Bench about the non-availability of a plot in the housing colony, at Gandhi Nagar, Jammu has not been replied and refuted by the respondent/appellant. Tender Notice dated 17.6.1993 published in Daily Excelsior Newspaper, copy of which has been placed on record, makes it clearly manifest that the plots are available both in Gandhi Nagar and Shashtri Nagar Housing Colonies, Jammu, but the petitioner has been deprived of her legitimate right to seek the allotment of plot which has been denied to her unjustifiably and in an arbitrary manner. The learned Single Judge, while adverting to this aspect of the matter, found that the petitioner has been pursuing the allotment of the plot since 1990 and she has no house in Jammu for her shelter where she can live peacefully for the rest of her life and to ask the respondent/writ petitioner now after 15 years to participate in the auction of the plots would amount to great injustice for there being no auction policy for the allotment of plots at the time when she applied for the plot. The plots were made available on feasibility prior to 1993 and not by auction. 6. Having given our considered thought to this aspect of the case, we are of the opinion that to deny the allotment of plot to such a person as per Rule/Policy existing at that time when she applied along with other eligible persons independent of auction procedure, would constitute departure from the same. So, we do not accept the contention raised by Mr. Choudhary in his argument and shun the appellant of going soft in such a hard hit case. 7. Respondent/writ petitioner is litigating since 1990, but her grievance has not been redressed. In the facts and circumstances of the case, we are of the considered opinion that the view taken by the learned Single Judge is a view to which no exception can be taken both from legal and human angle. 8. In the result, we find no merit in this Letters Patent Appeal which is, accordingly, dismissed. In the facts and circumstances of the case, we are of the considered opinion that the view taken by the learned Single Judge is a view to which no exception can be taken both from legal and human angle. 8. In the result, we find no merit in this Letters Patent Appeal which is, accordingly, dismissed. The order of the learned Single Judge dated 5.5.2003 in directing the respondents to complete the process of consideration for making the allotment of plot in any Government Housing Colony at Jammu independent of auction procedure is upheld and confirmed. The Letters Patent Appeal stands disposed of, accordingly.