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2022 DIGILAW 288 (JK)

All JK Youth Welfare Organization v. State of J&K

2022-06-01

JAVED IQBAL WANI

body2022
ORDER Javed Iqbal Wani, J. – In this petition, the petitioner has prayed for the following reliefs :- “a) A writ, order of direction including one in the nature of Prohibition, commanding upon the respondents not to cause any interference into the possession and occupation of the premises in question of the petitioners and allow them to carry out their de-addition and health rehabilitation service in the said premises without interference. b) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to refer the rent assessment case of the petitioners to the District Rent Assessment Committee for just, fair and transparent rent assessment, permitting the petitioners to liquidate the rent so assessed in easy instalments, with a further mandamus commanding upon the respondents to issue a formal allotment in favour of the petitioners and execute a formal agreement with the petitioners in respect of the premises in question.” 2. The facts those stem out from the petition are that the petitioner a society registered under the provisions of Societies Registration Act of 1998 (1941-AD), claims to be a body corporate capable to sue and be sued, and controlled by a Management Committee involved in drug De-addiction-cum-Rehabilitation activities with its established office at SDA Building, Near Gousia Hospital, Khanyar, Srinagar. 3. The petitioner society states to have set up a drug De-addiction-cum-Rehabilitation Centre in three sets accommodations in the premises owned by Srinagar Development Authority (for short, the ‘SDA’) situated at MIG Flats near Gousia Hospital, Khanyar Srinagar. Out of the said three sets accommodations, the first set being set No. 10-A is stated to have been allotted to the petitioner society by respondent No. 2 in the Month of December, 2008 and the other two sets being set Nos. 8-A and 9-A are stated to have been handed over by SDA to the petitioner in the Month of September, 2012. 4. It is being stated in the petition that possession of the said three sets accommodations was handed over to the petitioner’s society by the respondent No. 2 in pursuance to a duly recommended application of the society by the Office of Divisional Commissioner, Kashmir. 5. 4. It is being stated in the petition that possession of the said three sets accommodations was handed over to the petitioner’s society by the respondent No. 2 in pursuance to a duly recommended application of the society by the Office of Divisional Commissioner, Kashmir. 5. It is being next stated that the respondents did not issue any formal orders in favour of the petitioner society in respect of the said three sets accommodations despite repeated requests and persuasion of regularization of its possession thereof compelling it to file OWP No. 209/2008 before this Court which is stated to have got disposed of upon its dismissal in terms of order dated 08.11.2012 wherein this Court had directed the respondents not to dispossess the petitioner without following the procedure established by law. 6. It is further stated that instead of issuing formal orders of allotment and regularizing the accommodation of the three sets accommodations in question by the respondents, the respondents issued one after other communications requiring the petitioner society to pay the rentals for the occupation of the accommodations and in terms of communication dated 27.02.2015 required the petitioner society to deposit an amount of Rs. 13,185,042.00 as outstanding rentals upto 29.12.2014 and vide communication dated 19.01.2016 asked the petitioner society to deposit net amount of Rs. 15,49,742/- as rent up to 31.12.2015. 7. It is being next stated by the petitioner society in the petition that the rentals charged from it by the respondents has been without informing the petitioner society about the basis thereof as the rate of the rentals had not been got assessed by any rent assessment committee within the knowledge of the petitioner society and that the said assessment had been done on communication basis by the respondents and that the payment of the said rentals has been made a condition for issuance of any formal orders of allotment. 8. 8. It is further stated in the petition that the petitioner society is a non-governmental organization (NGO) having undertaken a voluntary service on non-profit basis of de-addiction and rehabilitation of drug addicts being handed over to them by the police agencies since 2007 and that more than 472 such drug addicts have been treated successfully by the petitioner society and that in this backdrop, the petitioner society represented before the respondents for issuance of formal order of allotment and assessment and fixation of rent in respect of the said three sets accommodations occupied by it. A representation is stated to have been submitted in this regard followed by a legal notice by the petitioner society before the respondents and it is stated that the respondent No. 2 being an executive organ of the Government of Jammu and Kashmir, as such, is required to act in a just and fair manner involving a very sensitive activities of drug de-addiction undertaken by the petitioner society and, as such, it was incumbent upon the respondents to act in a fair manner not only in the matter of assessment of rent but also in regard to recovery thereof. The mode adopted by the respondents in respect of assessment and recovery of the rentals in respect of premises occupied by the petitioner society is stated to have generated a serious sense of insecurity in the mind of the petitioner society having threatened of dispossession without following the procedure established by law as directed by this Court. The respondents are stated to be under a legal duty to act in a fair manner and determine and assess the rentals on a rational and transparent basis. 9. Per-contra, objections have been filed by the respondents Nos. 2 to 4 wherein it is being, inter-alia, stated that the petition is misconceived both on facts as well as on law and that the petitioner society has suppressed true, correct and material facts and that none of the rights of the petitioner have been infringed entitling it to maintain the petition. 10. 2 to 4 wherein it is being, inter-alia, stated that the petition is misconceived both on facts as well as on law and that the petitioner society has suppressed true, correct and material facts and that none of the rights of the petitioner have been infringed entitling it to maintain the petition. 10. It is being next stated in the objections that the petitioner society had represented to the Divisional Commissioner, Kashmir for allotment of rooms at SDA Building at Khanayar Srinagar, which had been forwarded to the SDA by the Additional Commissioner Kashmir vide letter No. Div.Com/Dev-76/231 dated 13.04.2007, and that the said matter was discussed in the Auction committee by SDA on 02.06.2007 where it had been decided that the case of the petitioner society be resubmitted after obtaining NOCs from Police and verification from the CID Department and that the petitioner society was accordingly, informed vide letter No. SDA/DLM/150 dated 20.06.2007 and in response to which the petitioner society furnished NOC from the CID Department and District Magistrate Srinagar. 11. It is being next stated in the objections that the petitioner society, however, without waiting for issuance of a formal allotment of the accommodations to be made by the respondent-SDA, illegally occupied rooms/set comprising of three rooms and two more sets before an auction can be taken in the matter by the SDA. 12. It is being next stated in the objections that the petitioner’s society represented to the SDA on 23.12.2011 and assured to deposit the rentals for having illegally occupied sets/accommodations and that the SDA auction committee on 29.12.2014 discussed the matter and decided that the petitioner society shall liquidate an amount of Rs. 13,18,042/- in the first instance and that the petitioner society, as such, was informed vide letter No. SDA/DLM/3779-80 dated 27.02.2015 in response to which the petitioner society failed to liquidate the rentals whereupon it was again notified to the petitioner society by the respondent-SDA on 19.01.2016 to liquidate the rentals amounting to Rs. 15,49,742/- having accrued up to 31.12.2015. 13. It is being further stated in the objections that the petitioner society failed to liquidate the rentals and instead submitted representation on 29.11.2017 for depositing the same in easy instalments and that the said representation was considered and the petitioner society was informed to deposit the rentals and complete the formalities vide letter of the respondent-SDA bearing No. SDA/DLM/2624-25 dated 22.01.2018. 14. It is being next stated in the objections that the petitioner society admittedly occupied the accommodations without waiting for formal allotment on one hand and on the other hand failed to deposit the rentals on one pretext or the other. It is being lastly stated in the objections that SDA is a self-sustenance body having no budgetary support and has to generate its own funds for running the day to day business. 15. The Srinagar Development Authority, (SDA) is created under Section 3 of The Jammu and Kashmir Development Act, 1970 (for short, the ‘Act’) and is a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property, both moveable and immovable, to contract and sue and be sued in the said name. 16. Before proceedings to advert to the issues involved in the instant petition, it would be appropriate and advantageous to refer to various Provisions of the Act here under :- Under Section 19 of the Act, the SDA has to have and maintain its own funds to be applied towards meeting of the expenses incurred by it in the administration of the Act. The said funds, inter-alia, have to include :- a) All moneys received by the Authority from the Central, or State Government by way of grants, loans, advances or otherwise b) All moneys borrowed by the Authority from sources other than the Government by way of loans or debentures; c) All fees and charges received by the Authority under this Act; d) All moneys received by the Authority from the disposal of lands, buildings and other properties, movable and immovable, and e) All moneys received by the Authority by way of rents and profits or in any other manner or from any other source. Under Section 43 – Every member and every officer and other employees of the Authority are deemed to be a public servant within the meaning of Section 21 of the Ranbir Penal Code. Under Section 37 – The Authority has to carry out such directions as may be issued to it from time to time by the Government for the efficient administration of the Act. Under Section 37 – The Authority has to carry out such directions as may be issued to it from time to time by the Government for the efficient administration of the Act. What emerges from the aforesaid provisions of the Act is that the SDA is a public authority and while exercising its functions, nonetheless has to act in a manner which would serve public interest and promote and dispose of its properties (movable or immovable) in such a manner that would achieve public good. 17. When a public body/authority is actuated by a constitutional purpose embodied in the Directive Principles, the considerations which weigh with it in determining the mode of alienation of a property should be such as would be for public interest and public good. 18. It is settled principle of law that generally when any immovable property or natural resource is intended to be transferred by the State or its instrumentality or any largesse is to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people. This is to ensure that the State/its instrumentality/a public authority that it receives adequate compensation for the said property or natural resource. 19. Keeping in mind the aforesaid principles of law, this Court having regard to the facts and circumstances of the case and material on record will determine as to whether the petitioner society’s occupation of the property of SDA is lawful and can be acknowledged, as such, and also as to whether allowing the petitioner society to occupy and remain in possession of the said property of the SDA fell foul of the above principles of law. 20. Indisputably and admittedly, the petitioner society herein has without any order of allotment taken over the three sets accommodations belonging to the respondent-SDA on one hand and on the other hand, the respondent-SDA has consciously and knowingly allowed the said occupation of three sets accommodations by the petitioner society without undertaking any process in this regard recognized by law including a process of auction. 21. 21. The engagement of the petitioner society in the drug-de-addiction and rehabilitation activity of the drug-addicts, though a social activity, yet in law, would have by no sense of imagination entitled it to intrude or trespass in a public property and to occupy it without any authority or sanction of law or else to remain in possession thereof and carry out such drug de-addiction activities. Unauthorized encroachment of a public property and its illegal occupation cannot be either accepted, condoned or else regularized on any grounds whatsoever. An intruder, trespasser and an unauthorized occupant has to be evicted. There is no way out and the occupation of the public property in question by the petitioner society without any legal sanction inasmuch as without an open advertisement cannot be legally countenanced and is completely forbidden in law. It may be that the interference by this Court may result in inconvenience to the petitioner society or affect the person who may have been receiving rehabilitation measures from the petitioner society therein the accommodations in question, but what this Court is to guard is against a much greater evil when it comes to know that a public property has been intruded, encroached upon and occupied without any authority and sanction of law in the name of and under the cover of a so-called social work. The claim of the petitioner society as lodged in the instant petition and the reliefs sought therein without there being any right recognized under law is nothing but a travesty of law. The petitioner society has only itself to blame for its woes based on its conduct being full of blame. 22. Neither any sympathy nor any consideration can be shown to the petitioner society in regard to above nor can this Court overlook the acts of omission of commission committed by the officers of the respondent-SDA. 23. Having regard to what has been observed, considered and analyzed herein above, though, the instant petition merits outright dismissal yet keeping in mind the nature of the property in question being a public property, public good inasmuch as public interest, certain specific directions need to be passed by this Court for doing complete justice in the matter. Accordingly, the petition shall stand dismissed along with all connected applications. i. The petitioner society shall forthwith surrender the possession of the three sets accommodation being MIG flat Nos. Accordingly, the petition shall stand dismissed along with all connected applications. i. The petitioner society shall forthwith surrender the possession of the three sets accommodation being MIG flat Nos. 8-A, 9-A and 10-A situated near Gousia Hospital, Khanyar Srinagar to the respondent-SDA within 15(fifteen) days from the date of pronouncement of this judgment. In the event, the petitioner society fails to surrender the possession thereof within the above stipulated time, the respondent-SDA shall take over the possession of the same thereafter forthwith and shall be free to avail the assistance of the Police Authorities. ii. The respondents shall be at liberty to recover the occupational charges from the petitioner society without any fail for having illegally occupied and possessed the said three sets accommodations through a mode permissible by law. iii. The respondent No. 1 shall hold an inquiry into the matter and in the event, any officer/official of the SDA is held guilty, such officer/official be proceed against in accordance with law. 24. Registry to return the record back to the counsel for the respondent-SDA.