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2017 DIGILAW 1010 (JK)

Mohinder Singh v. State of J&K

2017-11-15

BADAR DURREZ AHMED, SANJEEV KUMAR

body2017
JUDGMENT : Badar Durrez Ahmed, J. The present appeal arises out of the judgment dated 22.04.2016 delivered by a learned Single Judge of this Court in OWP No.875/2002. The reliefs claimed by the appellants-writ petitioners entail the issuance of a Writ of Certiorari quashing the order dated 11.04.1990 and the minutes of the Review Committee dated 14.11.1990 and, for quashing the Government Order No. 151-UD of 1987 dated 08.05.1987. The appellants-writ petitioners also claimed allotment of plot No. 9 situated at Transport Nagar, Jammu in their favour for the purposes of construction of a restaurant/cafeteria or for any other purpose on the same basis and costs as were granted/recovered from respondents 4 to 7. Other ancillary and incidental reliefs were also prayed for, which included the appellants-writ petitioners’ plea for regularization of the said plot No.9 at the Transport Nagar, Jammu. 2. The learned Single Judge, after having examined the case and hearing the arguments, noted that the Jammu Development Authority had shifted the transport service area from the old City to Transport Nagar, Narwal, Jammu for the purposes of establishment of transport related services. In view of the dislocation that might be suffered by the Transporters, a Government Order was issued being Government Order No. 151-UD of 1987 dated 08.05.1987. The said Government Order is reproduced herein below: “Government of Jammu and Kashmir, Civil Sectt: Housing and Urban Dev Deptt; Subject: Allotment of commercial sites at Transport Nagar-Truck Terminal behind Railway Station, Jammu. Reference: U.O. No:GDC.41/87 dated 8-4-1987 from the General Department. Government order No: 151-UD of 1987 Dated:8-5-1987 Sanction is accorded to the:— i. allotment of booking agencies of the standard size at Bs.1.60 lakhs per kanal be given to such of the Transporters, who have already been identified by the Committee headed by the Divisional Commissioner and on the basis of the first come first serve. This pattern has to be adopted as an incentive for people to come forward at the earliest; ii. the same price may be utilized for negotiating while handing over the workshop sites, spare part Sites and commission agents who have to be shifted from ware house and who have already been identified by the same Committee mentioned above; iii. any surplus sites over and above those already identified as workshop, spare part shops/Commission agents sites or even the booking agencies shall be auctioned. iv. any surplus sites over and above those already identified as workshop, spare part shops/Commission agents sites or even the booking agencies shall be auctioned. iv. if any further application comes stating that their names were left out, the JDA will refer the cases to the said Committee and if the Committee recommends their names, same pattern shall be followed, v. the land/plots being allotted by the JDA may be on lease initially for a period of 40 years extendable upto 99 years. vi. The mode of payment shall be as 25% as the initial deposit and the rest of 75% to be paid in monthly equated installments starting after 3 months of the first payment. vii. the go down and the office complex would be constructed by each of the allottees as per the Architectural control design and drawing developed by the authority. It is further ordered that at the time of allotment, permanent resident status of the allottees be rechecked. Sd/- Secretary to Government. No.UD-140/80/JDA Dated 08.05.1987” 3. On going through the said Government Order, it is evident that sanction was accorded to the allotment of booking agencies of a standard size at the rate of Rs.1.60 lakhs per kanal in favour of such of the Transporters, who had already been identified by the Committee headed by the Divisional Commissioner and on the basis of first come first served. This pattern was to be adopted as an incentive for the people to come forward at the earliest for their relocation at the new site. The said Government Order also specified that any surplus sites, over and above those already identified as workshop, spare part shops/commission agents sites or even the booking agencies, shall be auctioned. Thus, from the above Government Order, it is clear that the allotments have to be made in respect of the booking agencies, and for other related activities, such as workshops, spare parts shops/commission agents sites. These activities were all related to the transport business. Any surplus sites, over and above the allotments made to such activities, were required to be auctioned. The appellants-writ petitioners claimed allotment of plot No.9 at the Transport Nagar, Jammu for the purposes of establishing a restaurant/cafeteria. On a plain reading of the said Government Order, no allotment of such a plot could have been made for such purpose, other than by way of auction. 4. The appellants-writ petitioners claimed allotment of plot No.9 at the Transport Nagar, Jammu for the purposes of establishing a restaurant/cafeteria. On a plain reading of the said Government Order, no allotment of such a plot could have been made for such purpose, other than by way of auction. 4. However, the learned counsel for the appellants submitted that the foundation of their arguments is that the respondents. 4 to 7 have been allotted plots/spaces without subjecting them to auction. He claimed parity with them. The policy as indicated in the said Government Order was that, unless and until the allotments were made in terms of s.no.(i) and s.no. (ii) of the said Government Order for the transport related business, no other allotment could be made for other activities in case of surplus sites, other than by way of auction. If the respondents 4 to 7 have been allotted sites in violation of the said Government Order dated 08.05.1987, we are afraid, the appellants-writ petitioners cannot claim parity with them on the basis of negative equality. If a wrong has been committed in respect of others, the appellants-writ petitioners cannot expect the Court to give its imprimatur to a wrong sought to be committed in respect of the appellants-writ petitioners. 5. Apart from this, we find that the learned Single Judge has noted that the writ petitioners-appellants had made a request for allotment of plot No.09 in the Transport Nagar, Jammu. There was also a recommendation in their favour, but that had not fructified into an allotment. The minutes of the Review Committee dated 14.11.1990 which are also the subject matter of the challenge in the writ petition indicate that, it had deliberated upon the claim of the appellants-writ petitioners afresh (i.e, after the High Court order dated 06.07.1990 in OWP No.210/1990). The Committee also examined the recommendations of the Chief Town Planner. It was noted that the sites at Transport Nagar, Jammu were to be allotted to the Transporters, who had been identified by the Committee headed by the Divisional Commissioner, Jammu and to the persons, who were to be shifted from the ware house. It was also noted in the minutes that in the overall plan of the Transport Nagar, no such site has been reserved for cafeteria/restaurant and that the allotment for such a cafeteria would mean an alteration of the land use. It was also noted in the minutes that in the overall plan of the Transport Nagar, no such site has been reserved for cafeteria/restaurant and that the allotment for such a cafeteria would mean an alteration of the land use. Consequently, the Committee did not find it feasible to change the land use. Importantly, it was also noted that Sh. Mohinder Singh (one of the appellants-writ petitioners) had already been allotted a site for a spare parts shop in lieu of the Khokha, which he had in the ware house. 6. On going through the said minutes, it is evident that strictly speaking, the appellants-writ petitioners cannot stake any claim under the said Government Order dated 08.05.1987 in view of the fact that they already had an allotment for a spare parts shop in New Transport Nagar at Narwal, Jammu. Faced with this, the leaned counsel for the appellants submitted that the claim of the appellants-writ petitioners was independent to the said Government Order and sought parity with the respondent Nos. 4 to 7. In respect of the claim of the appellants-writ petitioners for parity, we have already indicated above, that the same cannot be granted to the appellants-writ petitioners in view of the principle of negative equality. 7. We may also point out that subsequent to the filing of OWP No.210/1990 in which the order dated 06.07.1990 was passed, the appellants-writ petitioners had filed another writ petition being OWP No.139/90 which was disposed of by a final order dated 20.08.1990. Thereafter, yet another writ petition was filed being OWP No.57/1991 in which an interim order was passed on 16.05.1991. The operative portion of that order reads as under: “In these circumstances of the case more so when despite opportunity the respondents have not contested this CMP, prima facie, a case is made out by the petitioner for issuing some positive directions in his favour for allotment of a plot of land on the same basis as has been done to others by the respondents. Balance of convenience also lies in his favour. He will definitely suffer an irreparable injury if he is not given such land for doing some business, to earn his livelihood. Balance of convenience also lies in his favour. He will definitely suffer an irreparable injury if he is not given such land for doing some business, to earn his livelihood. It is therefore, directed that plot No.9 at Transport Nagar, Jammu which has already been ordered by this Court to be reserved, vide its order dated 6th of February, 1991, in the present writ petitioner, shall be allotted in favour of the petitioner on the same basis as has been done in favour of other identical matters who are similarly circumstanced with him. The said allotment however, shall be subject to the result of the writ petition. The petitioner shall give an undertaking to the satisfaction of the Additional Registrar Jammu and Kashmir High Court Srinagar that in case he fails in the writ petition, he shall have no claim over the said plot of land and shall deliver the same to the respondents without any encumbrances. The respondents shall however, be at liberty to seek modification/cancellation or variation of this order”. 8. The writ petition was ultimately dismissed for non-prosecution in the year 2000 and the revival of which was not sought by the appellants-writ petitioners. It is pertinent to note that the interim order, whereby an interim allotment was made pursuant to the order dated 16.05.1991 was clearly subject to the result in the writ petition. The writ petitioners were also required to give an undertaking to the satisfaction of the Additional Registrar Jammu and Kashmir High Court Srinagar, that in case, they failed in the writ petition, they shall have no claim over the said plot of land and shall deliver the same to the respondents without any encumbrances. In other words, when the writ petition was dismissed in the year 2000 for non-prosecution, the interim order for allotment of plot also stood vacated. In terms of the undertaking, the writ petitioners were required to deliver the possession of the plot No.9 to the respondents without any encumbrances and in any event, the petitioners-appellants had already undertaken that they would have no claim over the said plot. 9. It is further pertinent to note that all the petitions (except OWP No.210/1990) were filed before the Srinagar wing of the Jammu and Kashmir High Court. Thereafter, OWP No.875/2002 (out of which the present appeal arose) was filed before the Jammu Wing. 10. 9. It is further pertinent to note that all the petitions (except OWP No.210/1990) were filed before the Srinagar wing of the Jammu and Kashmir High Court. Thereafter, OWP No.875/2002 (out of which the present appeal arose) was filed before the Jammu Wing. 10. In the backdrop of the aforesaid facts, it is evident that the appellants-writ petitioners can have no independent claim to the said plot No.9. They also cannot claim any benefit under the Government Order dated 08.05.1987 as already indicated above. The claim for regularization of the said plot, based on the interim order, is also without any basis. In fact, it would run contrary to the Court order dated 16.05.1991 and the consequent undertaking given by the writ petitioners-appellants. 11. For all these reasons, we do not find any cause for interfering with the impugned order. The appeal is dismissed. Appeal dismissed.