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2017 DIGILAW 322 (JK)

Vinay Rampal v. State of J&K

2017-07-14

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : 1. This review petition has been filed seeking review of order dated 03.04.2014 passed by the Division Bench of this Court in LPAOW No. 33/2013, by which the petitioner was relegated to the remedy of civil suit on the ground of disputed question of facts. 2. The facts giving rise to the filing of this review petition briefly stated are that petitioner was allotted a plot admeasuring 30’ x 55” bearing No. 417/7 in Channi Himmat, Housing Colony, Jammu by the J&K Housing Board. A lease deed with regard to the said land was executed on 20.02.1993. The adjoining strip measuring 8’ x 55” belonging to the J&K Housing Board was also recommended for allotment to the petitioner vide communication dated 15.09.1993. Thereafter, lease deed with regard to the said strip of land was duly executed in favour of the petitioner on payment of consideration amount. However, possession of the aforesaid land was not given to the petitioner. Thereupon, the petitioner approached the J&K Housing Board and was called upon to pay a sum of Rs. 968/- by way of penalty. It is the case of the petitioner that despite depositing the amount of penalty, the possession of the said strip of land was not handed over to the petitioner. The petitioner filed writ petition, namely, OWP No. 794/2007. The respondents filed preliminary objections in the said writ petition, in which a stand was taken by the respondents that the said strip of land could not be allotted to the petitioner as the same is a part of road. The learned Single Judge dismissed the writ petition and petitioner was relegated to the remedy of filing civil suit. The said decision of the Single Judge was upheld by the Division Bench vide impugned order dated 03.04.2014. In the aforesaid factual background, the petitioner has approached this Court. 3. Mr. Sunil Sethi, learned senior counsel for the petitioner submitted that the petitioner cannot be asked to avail remedy of civil suit against the encroacher or against the J&K Housing Board. In fact the J&K Housing Board is under obligation to remove the encroachers and handover the possession of the strip of land in question to the petitioner as the lease deed has duly been executed in favour of the petitioner, which still subsists as on today. In fact the J&K Housing Board is under obligation to remove the encroachers and handover the possession of the strip of land in question to the petitioner as the lease deed has duly been executed in favour of the petitioner, which still subsists as on today. It is further submitted that the aforesaid aspect of the matter has not been considered by the Division Bench. 4. On the other hand, learned counsel for the Housing Board submitted that strip of land in question has erroneously been allotted in favour of the petitioner as the same is a part of road, possession of which cannot be given to the petitioner. It is further submitted that the whole judgment passed by the Division Bench cannot be reviewed and the housing Board cannot initiate action for removing the encroacher. 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. Admittedly, lease deed has executed in favour of the petitioner by the J&K Housing Board, which still subsists and the same has not been cancelled by the Housing Board till today. Undisputedly, under the provisions of the Jammu and Kashmir Housing Board Act, the Board has powers to remove the encroacher in a summary way and to handover the possession to the person who is entitled to the same. The aforesaid aspect of the matter has not been considered by the Division Bench while relegating the petitioner to avail alternate remedy. 6. In the preceding analysis, the impugned order is recalled and LPA is restored to the file. 7. Accordingly, the review petition is disposed of.