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J&K High Court · body

2019 DIGILAW 361 (JK)

Romesh Gupta v. State through Housing Department

2019-07-30

SANJEEV KUMAR

body2019
Judgment 1. Impugned in this batch of petitions are the orders issued by respondent No.4, whereby, the allotment of different plots of different sizes made in favour of the petitioners has been cancelled for violating the conditions of allotment. The impugned orders have been assailed by the petitioners in all these petitions, primarily, on the ground that these orders have been issued by the respondent No.4 in violation of principles of natural justice and without complying with the mandate of Section 40 of the J&K Housing Board Act, 1976 (hereinafter “the Act” for short). 2. Having regard to the fact that all these petitions involve the determination of identical questions of law and fact, these petitions have been clubbed together and are being decided by this common judgment. OWP No. 35/2011: 1. In this petition, order of respondent No.4, issued vide his No. HB/2502-03 dated 09.01.2008, whereby, the allotment of plot No.27 in Sector No.1-A of Housing Colony, Channi Himmat, Jammu made in favour of the petitioner has been cancelled for violating clause No.2 (iii) of lease deed dated 03.08.1999 is under challenge. The short grievance projected by the petitioner in this petition is that, vide Annexure (A), which is lease deed executed between the petitioner and the respondent No.2 on 03.08.1999, the plot in question was leased out to the petitioner and possession whereof was handed over vide letter bearing No. HU-I/1050-53 dated 04.10.1999. The petitioner claims that ever since the allotment and handing over of the possession of the plot to the petitioner, he has been in exclusive peaceful possession of the said plot and has made all requisite arrangements for carrying out /raising of the construction thereon. He, however, submits that respondent No.4, without any lawful justification or provocation from the petitioner, issued the impugned order and cancelled his allotment. The petitioner asserts that before passing the order impugned, he was not served with any show-cause notice, nor was he ever provided any opportunity of being heard. He, therefore, submits that order impugned violates the “principle of audi alteram partem’ and, therefore, liable to be quashed. On behalf of the petitioner, it is also asserted and urged that no allotment can be cancelled and the person in occupation cannot be evicted from the Board premises without following the procedure laid down in Section 40 of the Act. He, therefore, submits that order impugned violates the “principle of audi alteram partem’ and, therefore, liable to be quashed. On behalf of the petitioner, it is also asserted and urged that no allotment can be cancelled and the person in occupation cannot be evicted from the Board premises without following the procedure laid down in Section 40 of the Act. It is, thus, argued that the order impugned issued without following the mandate of Section 40 of the Act is bad in the eyes of law and, therefore, cannot sustain. 2. The respondents have filed their objections and opposed the writ petition, primarily, on the ground that the petitioner was found violating the clause 2(iii) of the lease agreement and, therefore, became liable to be evicted from the allotted premises. It is, however, submitted by the respondents that though show-cause notice to the petitioner was issued by the respondent No.4 vide his No. HB/CS/986-88 dated 20.09.2007, but the same was not received by the petitioner. It is, thus, stated that cancellation order, which is impugned in the writ petition was served upon the petitioner, but he remained silent for more than three years, and has now filed this belated writ petition which is not maintainable. The respondents in their reply have also mentioned about some alleged encroachment made by the petitioner on the road situated on the rear side of the plot. The respondents have further claimed that residents of Chhani Himmat Housing Colony had filed a writ petition OWP No.506/2007, which was disposed of by this Court on the assurance of the respondents given to the Court that action against the violators of the lease agreements will be taken by the respondent-Board. It is, thus, submitted that pursuant to the decision of OWP No.506/2007 and to fulfill the assurance extended to the Court, the impugned action was taken against the petitioner. 3. Having heard the learned counsel for the parties and perused the record, it would be necessary to first set out Section 40 of the Act, which has been heavily relied upon by the petitioner to assail the impugned notice. Section 40 of the Act reads as under: “40. 3. Having heard the learned counsel for the parties and perused the record, it would be necessary to first set out Section 40 of the Act, which has been heavily relied upon by the petitioner to assail the impugned notice. Section 40 of the Act reads as under: “40. Power to evict certain persons from Board premises.— (1) If the competent authority is satisfied,— (a) that the person authorized to occupy any Board premises has— (i) not paid rent lawfully due from him in respect of such premises for a period of more than two months, or (ii) sub-let, without the permission of the Board, the whole or any part of such premises, or (iii) committed, or is committing any act contrary to the provisions of clause(o) of Section 108 of the Transfer of the Property Act, 1977, or (iv) made, or is making, material additions to or alteration in such premises without previous written permission of the Board, or (v) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises; and (b) that any person is in unauthorised occupation of any Board premise the competent authority may, by notice served— (i) by Post, (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, (iii) in such other manner as may be prescribed, order that that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice. (2) Before an order under sub-section (1) is made against any person the competent authority shall inform the person by notice in writing of the grounds for which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made, within a period to be specified in such notice. If such person makes an application to the competent authority for extension of the period specified in the notice, the competent authority may grant the same on such terms as to payment and recovery of amount claimed in the notice as he deems fit. If such person makes an application to the competent authority for extension of the period specified in the notice, the competent authority may grant the same on such terms as to payment and recovery of amount claimed in the notice as he deems fit. Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the record of the case and such person shall be entitled to appear before the officer proceeding in this connection by the Advocate, Attorney or Pleader. Such notice in writing shall be served in the manner provided for service of notice under sub-section (1). (3) If any person refuses or fails to comply with an order made under subsection (1), the competent authority may evict that person from and take possession of the premises and may for the purpose use such force as may be necessary. Explanation.—For the purposes of this section and Section 41 the expression “authorized occupation” in relation to any person authorised to occupy any Board premises, includes the continuance in occupation by him or by any person claiming through or under him of the premises after the authority under which he was allowed to occupy the premises has been duly determined.” 4. From reading of Section 40 of the Act, it is evident that the competent authority if it is satisfied that the person authorized to occupy any Board premises has amongst other things, acted in contravention of any terms, express or implied, under which he is authorized to occupy such premises, may by notice served upon such person as well as other person who may be in occupation of the whole or part of the premises, order that he shall vacate it within one month of the date of service of notice. Sub section 2 of Section 40 of the Act, further provides that before an order under sub section 1 of section 40 is made against any person, the competent authority shall inform the person by notice in writing of the grounds for which the proposed order is to be made and give him reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause as to why the order of eviction against him should not be passed. If such person responds to the notice, applies to the competent authority for extension of time or files his written statement along with documents etc, such person shall be given a personal hearing before the officer proceeding in the matter. The appearance before the authority can be made by such person through advocate, attorney or pleader. This notice is provided to be served either by post or by affixing a copy of it on the outer door or some other conspicuous part of such premises or in such other manner as may be prescribed by the Rules if any framed under the Act. It is not in dispute that the plot allotted to the petitioner falls within the definition of “Board premises” as defined under sub section (3) of Section 2 of the Act. That apart, it is an admitted fact that the petitioner is in occupation of the plot in question pursuant to valid lease deed executed in his favour by the respondent Board. It is further not in dispute that in case of violation of any terms and conditions of the lease, the lease granted in favour of the petitioner is liable to be terminated and the petitioner liable to be evicted. Whether or not any term or condition of the lease has been violated by the allottee is a question of fact to be determined by the competent authority or the authorized officer of the Board after holding enquiry into the matter and providing adequate opportunity to defaulting allottee of being heard in the matter. It is precisely with a view to achieve this object, Section 40 has been engrafted in the Act. Otherwise also, there is an express provision in the lease agreement providing for determination of lease if the lessee is found guilty of breach of the condition in the lease agreement which relates to observance and performance of the covenants and the agreements other than covenants for payment of rent. This power of termination is also exercisable by giving 30 days’ prior notice to the lessee. 5. In the instant case, indubitably, neither the mandate of Section 40 of the Act has been complied with nor have the principles of natural justice been observed. This power of termination is also exercisable by giving 30 days’ prior notice to the lessee. 5. In the instant case, indubitably, neither the mandate of Section 40 of the Act has been complied with nor have the principles of natural justice been observed. The respondent board has taken a unilateral decision that the petitioner has violated the condition of the lease contained in clause 2(iii) and has, therefore, entailed the cancellation of the allotment. 6. From a perusal of the original record produced by Mr. N A Chowdhary, learned counsel appearing for the Housing Board, it appears that a show-cause notice was issued by the respondent No.4 vide his No. HB/CS/986-88 dated 20.09.2007 but the same was never served upon the petitioner. There is some endorsement made by some officer on the aforesaid show cause notice with the remarks “report why received back”, which clearly indicates that the show cause notice though taken out was received back un-served. I could not find any service report in this regard on record. It is, thus, beyond any doubt that order impugned was issued by the respondents not only in violation of “principles of natural justice” but also contrary to the stipulation in the lease agreement and mandate of Section 40 of the Act. 7. For the aforesaid reasons, I find merit in this petition. Consequently, the writ petition is allowed and notice impugned, whereby the allotment of the plot of the petitioner has been cancelled, is quashed. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The respondent Board, while proceeding against him, however, shall keep in mind the mandate of Section 40 of the Act and the necessity of complying with the principles of nature justice. OWP No. 37/2011: 1. Order of respondent No.4 issued vide his No. HB/2504-05 dated 09.01.2008, whereby, the allotment of plot No.26 in Sector No.1-A of Housing Colony, Channi Himmat, Jammu made in favour of the petitioner has been cancelled for violating clause No. 2(iii) of lease deed dated 12.03.1991 is subject matter of challenge in this petition. 2. The impugned notice has been challenged on the similar grounds as have been taken in OWP No.35/2011. The reply affidavit filed by the respondents is also on the same lines. 2. The impugned notice has been challenged on the similar grounds as have been taken in OWP No.35/2011. The reply affidavit filed by the respondents is also on the same lines. However, during the course of the arguments, learned counsel for the respondents submitted that prior to filing of this writ petition, the petitioner had challenged the impugned order by way of civil suit filed before the learned 1st Civil Subordinate Judge, Jammu, which was later on dismissed as withdrawn and, therefore, on the same cause of action, the petitioner cannot file this writ petition. 3. Having heard the learned counsel for the parties and perused the record, I am of the view that the judgment passed by me in OWP No.35/2011 applies on all fours to this case as well. The plea of the respondents that in view of dismissal of the civil suit filed by the petitioner challenging the impugned notice, the writ petition is not maintainable cannot be accepted for the reason that from the perusal of the original record produced before me by Mr. Chowdhary, I find that the suit which was filed by the petitioner before the Court of 1st Civil Subordinate Judge, Jammu was withdrawn by the petitioner for the reason that before filing the suit, he had not complied with the mandatory provisions of Section 57 of the Act and, therefore, it suffered from a formal defect. The 1st Civil Subordinate Judge, Jammu vide its order dated 11.12.2009 dismissed the suit as withdrawn but granted liberty to file fresh one. The petitioner instead of filing the fresh suit has filed the instant writ petition. In these circumstances, I am not persuaded to accept the contention of learned counsel for the respondents that the dismissal of the suit of the petitioner as withdrawn by the Civil Court bars the maintainability of this petition. 4. On the parity of reasoning given in the judgment passed above in OWP No.35/2011, I allow this petition and quash the notice impugned, whereby the allotment of the plot of the petitioner has been cancelled. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The respondent Board, while proceeding against him, shall, however, keep in mind the mandate of Section 40 of the Act and the necessity of complying with the principles of nature justice. OWP No.131/2011: 1. Order of respondent No.4 issued vide his No. HB/2509-10 dated 09.01.2008, whereby, the allotment of plot No.25 in Sector No.1-A of Housing Colony, Channi Himmat, Jammu made in favour of the petitioner has been cancelled for violating clause No. 2(iii) of lease deed dated 06.02.1995 is assailed in this petition. 2. The impugned notice has been challenged on the similar grounds as have been taken in OWP No.35/2011. The reply affidavit filed by the respondents is also on the same lines. However, during the course of the arguments, learned counsel for the respondents submitted that prior to filing of this writ petition, the petitioner had challenged the impugned order by way of civil suit filed before the learned 1st Civil Subordinate Judge, Jammu, which was later on dismissed as withdrawn and, therefore, on the same cause of action, the petitioner cannot file this writ petition. 3. From a perusal of the original record produced before me, it transpires that show cause notice was issued to the petitioner by the respondent No.4 Vide HB/CS/977-79 dated 20.09.2007, to which the petitioner appears to have responded and has taken the stand that the plot in question is in his actual possession and that he has not entered into any agreement with any hotelier nor has he authorized anybody to use the aforesaid plot for commercial purposes. In reply to the show cause notice, the petitioner also points out some personal difficulty, as a result of which he could not fence the plot, although the possession of the same had been handed over to him. Be that as it may, the respondents have apparently not conducted any enquiry in this regard nor have given an opportunity of personal hearing to the petitioner. As a matter of fact, from the impugned order, it clearly transpires that the reply submitted by the petitioner to the show cause notice has not been taken note of. Be that as it may, the respondents have apparently not conducted any enquiry in this regard nor have given an opportunity of personal hearing to the petitioner. As a matter of fact, from the impugned order, it clearly transpires that the reply submitted by the petitioner to the show cause notice has not been taken note of. The order impugned has been issued on the presumption that there is violation of terms and conditions of the lease by the petitioner, as a result whereof, the allotment made in favour of the petitioner is liable to be terminated. 4. Having heard the learned counsel for the parties and perused the record, I am of the view that the judgment passed by me in OWP No.35/2011 applies on all fours to this case as well. The plea of the respondents that in view of dismissal of the civil suit filed by the petitioner challenging the impugned notice, the writ petition is not maintainable cannot be accepted for the reason that from the perusal of the original record produced before me by Mr. Chowdhary, I find that the suit which was filed by the petitioner before the Court of 1st Civil Subordinate Judge, Jammu was withdrawn by the petitioner for the reason that before filing the suit, he had not complied with the mandatory provisions of Section 57 of the Act and, therefore, suit suffered from a formal defect. The 1st Civil Subordinate Judge, Jammu vide its order dated 11.12.2009 dismissed the suit as withdrawn but granted liberty to file fresh one. The petitioner, instead of filing the fresh suit, has filed the instant writ petition. In these circumstances, I am not persuaded to accept the contention of learned counsel for the respondents that the dismissal of the suit of the petitioner as withdrawn by the Civil Court bars the maintainability of this petition. 5. On the parity of reasoning given in the judgment passed above in OWP No.35/2011, I allow this petition and quash the notice impugned, whereby the allotment of the plot of the petitioner has been cancelled. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The respondent Board, while proceeding against him, shall also keep in mind the mandate of Section 40 of the Act and the necessity of complying with the principles of nature justice. OWP No.34/2011: 1. Impugned in this petition is order of respondent No.4 issued vide his No. HB/2506-08 dated 09.01.2008, whereby, the allotment of plot No.28 in Sector No.1-A of Housing Colony, Channi Himmat, Jammu made in favour of the petitioner has been cancelled for violating clause No. 2(iii) of lease deed dated 22.02.1990. 2. The impugned notice has been challenged on the similar grounds as have been taken in OWP No.35/2011. The reply affidavit filed by the respondents is also on the same lines. However, during the course of the arguments, learned counsel for the respondents submitted that prior to filing of this writ petition, the petitioner had challenged the impugned order by way of civil suit filed before the learned 1st Civil Subordinate Judge, Jammu, which was later on dismissed as withdrawn and, therefore, on the same cause of action, the petitioner cannot file this writ petition. 3. From a perusal of the original record produced before me, it transpires that show cause notice was issued to the petitioner by the respondent No.4 Vide HB-CS/983-85 dated 20.09.2007, to which the petitioner appears to have responded and has taken the stand that the plot in question is in his actual possession and that he has not entered into any agreement with any hotelier nor has he authorized anybody to use the aforesaid plot for commercial purposes. In reply to the show cause notice, the petitioner also points out some personal difficulty, as a result of which he could not fence the plot, although the possession of the same had been handed over to him. Be that as it may, the respondents have apparently not conducted any enquiry in this regard nor have given an opportunity of personal hearing to the petitioner. As a matter of fact, from the impugned order, it clearly transpires that the reply submitted by the petitioner to the show cause notice has not been taken note of. Be that as it may, the respondents have apparently not conducted any enquiry in this regard nor have given an opportunity of personal hearing to the petitioner. As a matter of fact, from the impugned order, it clearly transpires that the reply submitted by the petitioner to the show cause notice has not been taken note of. The order impugned has been issued on the presumption that there is violation of terms and conditions of the lease by the petitioner, as a result whereof, the allotment made in favour of the petitioner is liable to be terminated. 4. Having heard the learned counsel for the parties and perused the record, I am of the view that the judgment passed by me in OWP No.35/2011 applies on all fours to this case as well. The plea of the respondents that in view of dismissal of the civil suit filed by the petitioner challenging the impugned notice, the writ petition is not maintainable cannot be accepted for the reason that from the perusal of the original record produced before me by Mr. Chowdhary, I find that the suit which was filed by the petitioner before the Court of 1st Civil Subordinate Judge, Jammu was withdrawn by the petitioner for the reason that before filing the suit, he had not complied with the mandatory provisions of Section 57 of the Act and, therefore, suit suffered from a formal defect. The 1st Civil Subordinate Judge, Jammu vide its order dated 11.12.2009 dismissed the suit as withdrawn but granted liberty to file fresh one. The petitioner instead of filing the fresh suit has filed the instant writ petition. In these circumstances, I am not persuaded to accept the contention of learned counsel for the respondents that the dismissal of the suit of the petitioner as withdrawn by the Civil Court bars the maintainability of this petition. 5. On the parity of reasoning given in the judgment passed above in OWP No.35/2011, I allow this petition and quash the notice impugned, whereby the allotment of the plot of the petitioner has been cancelled. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The respondent Board, while proceeding against him, shall also keep in mind the mandate of Section 40 of the Act and the necessity of complying with the principles of nature justice. OWP No.1492/2010: 1. Challenge in this petition is to the order of respondent No.4 issued vide his No. HB/2511-13 dated 09.01.2008, whereby, the allotment of plot No.24 in Sector No.1-A of Housing Colony, Channi Himmat, Jammu made in favour of the petitioner has been cancelled for violating clause No. 2 (iii) of lease deed dated 20.05.1996. The short grievance projected by the petitioner in this petition is that, vide Annexure (A), which is lease deed executed between the petitioner and the respondent No.2 on 20.05.1996, the plot in question was leased out to the petitioner and possession whereof was handed over vide letter bearing No. 883-85 dated 14.06.1996. The petitioner claims that ever since the allotment and handing over of the possession of the plot to the petitioner, he has been in exclusive peaceful possession of the said plot and has made all requisite arrangements for carrying out /raising of the construction thereon. He, however, submits that respondent No.4, without any lawful justification or provocation from the petitioner, issued the impugned order and cancelled his allotment. The petitioner asserts that before passing the order impugned, he was not served with any show-cause notice, nor was he ever provided any opportunity of being heard. He, therefore, submits that order impugned violates the “principle of audi alteram partem’ and, therefore, liable to be quashed. On behalf of the petitioner, it is also asserted and urged that no allotment can be cancelled and the person in occupation cannot be evicted from the Board premises, without following the procedure laid down in Section 40 of the Act. It is, thus, argued that the order impugned issued without following the mandate of Section 40 of the Act is bad in the eyes of law and, therefore, cannot sustain. 2. The respondents have filed their objections and opposed the writ petition, primarily, on the ground that the petitioner was found violating the clause 2(iii) of the lease agreement and, therefore, became liable to be evicted from the allotted premises. 2. The respondents have filed their objections and opposed the writ petition, primarily, on the ground that the petitioner was found violating the clause 2(iii) of the lease agreement and, therefore, became liable to be evicted from the allotted premises. It is, however, submitted by the respondents that though show-cause notice to the petitioner was issued by the respondent No.4 vide his No. HB-CS/989-91 dated 20.09.2007, but the same was not received by the petitioner. It is, thus, stated that cancellation order, which is impugned in the writ petition was served upon the petitioner, but he remained silent, and has now filed this belated writ petition which is not maintainable. The respondents in their reply have also mentioned about some alleged encroachment made by the petitioner on the road situated on the rear side of the plot. The respondents have further claimed that residents of Chhani Himmat Housing Colony had filed a writ petition OWP No.506/2007, which was disposed of by this Court on the assurance of the respondents given to the Court that action against the violators of the lease agreements will be taken by the respondent-Board. It is, thus, submitted that pursuant to the decision of OWP No.506/2007 and to fulfill the assurance extended to the Court, the impugned action was taken against the petitioner. 3. Having heard the learned counsel for the parties and perused the record, I am of the view that the judgment passed by me in OWP No.35/2011 applies on all fours to this case as well. The plea of the respondents that in view of dismissal of the civil suit filed by the petitioner challenging the impugned notice, the writ petition is not maintainable cannot be accepted for the reason that from the perusal of the original record produced before me by Mr. Chowdhary, I find that the suit which was filed by the petitioner before the Court of 1st Civil Subordinate Judge, Jammu was withdrawn by the petitioner for the reason that before filing the suit, he had not complied with the mandatory provisions of Section 57 of the Act and, therefore, the suit suffered from a formal defect. The 1st Civil Subordinate Judge, Jammu vide its order dated 11.12.2009 dismissed the suit as withdrawn but granted liberty to file fresh one. The petitioner, instead of filing the fresh suit, has filed the instant writ petition. The 1st Civil Subordinate Judge, Jammu vide its order dated 11.12.2009 dismissed the suit as withdrawn but granted liberty to file fresh one. The petitioner, instead of filing the fresh suit, has filed the instant writ petition. In these circumstances, I am not persuaded to accept the contention of learned counsel for the respondents that the dismissal of the suit of the petitioner as withdrawn by the Civil Court bars the maintainability of this petition. 4. On the parity of reasoning given in the judgment passed above in OWP No.35/2011, I allow this petition and quash the notice impugned, whereby the allotment of the plot of the petitioner has been cancelled. The quashment of the order impugned, however, shall not mean that respondent Board cannot proceed against the petitioner, if he has violated any term or condition of the lease. The respondent Board, while proceeding against him, shall also keep in mind the mandate of Section 40 of the Act and the necessity of complying with the principles of nature justice. CPOWP No.82/2018 c/w CPOWP No.91/2018, CPOWP No.90/2018, CPOWP No.83/2018, CPOWP No.81/2018: In these contempt petitions, which are filed by the respondents, it has been alleged by the respondents that despite there being order of status quo issued by this Court, the petitioners have changed the position on spot and black-topped the area falling in their plots. Whether black-topping of the area has been done by the petitioners and if done whether it was done prior to the issuance of order of status quo or thereafter is a disputed question of fact which would require evidence in the matter. I would have ventured to do that but in view of decision of the writ petitions, it would be an exercise in futility. Accordingly, the proceedings in these contempt petitions are closed. The original record produced by Mr. Chowdhary is returned back to him in the open court.