Jammu & Kashmir High Court
Irtiza Mushtaq vs State Of J&K And Others on 28 April, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Reserved on: 06.04.2021
Pronounced on: 28.04.2021
CJ Court
Case: PIL No. 33 of 2017
(through video conferencing)
Irtiza Mushtaq ...Petitioner(s)/Appellant(s)
Through: Sh. S. S. Ahmed, Advocate
and Ms. Supriya Chouhan,
Advocate
v/s
State of J&K and others .... Respondent(s)
Through: Sh. S. S. Nanda, Sr. AAG for
respondent No. 2
Sh. Sachin Gupta, Advocate for
respondent No. 3
Sh. Abhinav Sharma, Sr. Advocate
with Ms. Parkhi Parihar, Advocate
for respondent No. 5
Sh. R. K. Gupta, Sr. Advocate with
Sh. Ratish Mahajan, Advocate for
respondent Nos. 6 and 7
Sh. K. K. Jandiyal, Advocate for
respondent No. 8
Sh. Adarsh Sharma, Advocate for
respondent Nos. 9 and 10
Sh. Ajay Bakshi, Advocate for
respondent No.11
Sh. U. K. Jalali, Sr. Advocate with
Ms. Poonam Kaul, Advocate for
respondent No.12
Sh. S. K. Anand, Advocate for
respondent No.13.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The petitioner, a practicing lawyer of this Court claiming to be a
Right to Information (RTI) activist as well, has filed the present petition in public
interest, wherein a challenge has been thrown to the allotments made by the
respondent No. 3 in favour of respondent Nos. 5 to 13 by virtue of various
allotment orders spanning from the year 1993 till 2015 and simultaneously, the
petitioner has prayed for the eviction of the private respondents from the
Municipals Flats situated at Gandhi Nagar Jammu and also for recovery of rent at
the market value from the respondent Nos. 5 to 13. Yet another prayer has been
made to direct State Vigilance Organization (Now Anti Corruption Bureau) to
register an FIR under section 5(2) of the Jammu and Kashmir Prevention of
Corruption Act.
2. It is stated that the Jammu Municipal Corporation has adopted a pick
and choose policy for the purpose of allotment of Municipal Flats/Quarters
located at posh locality of Gandhi Nagar Jammu in favour of its officers who had
served its senior positions and later superannuated and the allotments have been
extended for a further period of 40 years at a meager rent of Rs. 600/- to Rs. 900/-
per month. It is also the case of the petitioner that the Municipal Corporation has
allotted the Municipal Flats/Quarters at Gandhi Nagar, Jammu to some private
persons as well at a meager rent arbitrarily just on the basis of pick and choose
policy without adopting any rational criteria. The petitioner claims to have
obtained an information under RTI Act, regarding the allotments made by the
Jammu Municipal Corporation.
3. The following instances of illegal allotments have been narrated by
the petitioner.
(a) That vide order No. ME/Estt/6466-67 dated 08.10.1993, a Municipal
Flat at Gandhi Nagar, Jammu was allotted in favour of respondent
No. 5 and the order was issued without mentioning the status of the
beneficiary who at that point of time was a senior KAS Officer and
later respondent No. 5 has remained as Municipal Commissioner,
Jammu and also served as Commissioner/Secretary to Government
of Jammu and Kashmir, Housing and Urban Development
Department. As per the Rent Deed dated 20.12.2012, the lease of the
aforesaid Municipal Flat has been executed for a term of 40 years
with effect from 20.12.2012 at a monthly rent of Rs. 1000/- only
with escalation of rent by at least 15% for a further period of 2 years.
It is further stated that the said IAS Officer has succeeded in
inducting his nephew, namely, Rahul Gupta S/o Sh. K. L. Gupta as
one of the beneficiaries of the above mentioned property as lessee
along with him.
(b) That vide order No. JMC/RB/1053-55 dated 10.02.2016, the Jammu
Municipal Corporation, respondent No. 3 herein, allotted a cattle
pound illegally numbered as Municipal Quarter No. 10 in favour of
respondent No. 6 herein, who retired from the office of the Jammu
Municipal Corporation in August, 2017 and at the fag end of his
service, the then Municipal Commissioner, Ms. Mandeep Kour
gifted the said Quarter, originally a cattle pound, in favour of her
subordinate i.e. respondent No. 6 herein and before handing over the
possession, the respondent No. 3 spent lakhs of rupees on
repair/renovation and a rent agreement was executed between the
respondent No. 3 and the respondent No. 6 wherein rent of Rs.
1000/- per month was fixed.
(c) That vide order No. MJ/Estt/8880-84 dated 16.02.1993 the then
Executive Officer, Jammu Municipality, Sh. Jeet Lal Gupta,
respondent No. 5 herein, allotted a Municipal Quarter in favour of
Madan Mohan Khajuria (then PA to Administrator, Jammu
Municipality), respondent No. 7 herein.
(d) That vide order No. JMC/RB/4995-96 dated 26.03.2013, the
respondent No. 3 allotted a Municipal Quarter in favour of
respondent No. 9 herein, PSO to then Commissioner/Secretary to
Government, Housing and Urban Development Department,
respondent No. 5 herein and the rent was fixed at the rate of Rs.
200/- per month. It is submitted that the store was specifically
converted and renovated as a residential house in order to
accommodate the said PSO of respondent No. 5. The respondent No.
9 has also succeeded to execute a rent deed with the respondent No.
3 for a term of 39 years at the rate of Rs. 200/- per month.
(e) That vide order No. JMC/RB/19050-54 dated 16.11.2015, the
respondent No. 3 allotted a Municipal Quarter at Gandhi Nagar,
Jammu in favour of respondent No. 10 i.e. Driver, SUDA(H&UDD).
The said allotment was also made at the behest of the then
Commissioner/Secretary to Govt. H&UDD and rent in this case was
fixed at the rate of Rs. 720/- per month. The respondent No. 10
directly wrote a letter to the then Commissioner Secretary H&UDD
and the benevolent Administrative Secretary directed the
Commissioner, Jammu Municipal Corporation to look into the matter
and that culminated into allotment of flat at Gandhi Nagar, Jammu at
the rate of Rs. 720/- per month. It is further stated that the respondent
No. 10 has himself admitted in his application that presently he is
paying Rs. 6,000/- per month for a rental accommodation at Gandhi
Nagar, Jammu.
(f) That vide order No. JMC/RB/293-95 dated 20.04.2013, the Jammu
Municipal Corporation allotted a Municipal Quarter to Narinder
Sharma, respondent No. 11 herein, at Gandhi Nagar, Jammu,
President of a NGO, namely, „PEACE‟. The rent was fixed in this
regard at the rate of Rs. 600/- per month.
(g) That vide order No. MJ/RB/879-82 dated 27.11.2002 the then
Administrator, Municipality Jammu allotted a Municipal Quarter in
favour of Chain Singh, respondent No. 12 herein, a private person at
the rate of Rs. 100/- per month.
(h) That vide order No. JMC/RB/240-42 dated 20.05.2014, a Municipal
Flat at Gandhi Nagar, Jammu which was originally allotted to Arjun
Singh, was allotted and transferred to Kharati Lal, respondent No. 13
herein at the rate of Rs. 1025/- per month.
4. The petitioner has placed on record information obtained by him
under RTI Act, in which it is evident that besides the above mentioned persons,
one Bharat Bhushan was also an allottee of Municipal flat at Gandhi Nagar
Jammu. Further the petitioner also claims to have issued the notice requesting the
respondent Nos. 1 and 2 for taking appropriate action with regard to the illegal
allotments made by respondent No. 3 but no action has been taken, as such, the
petitioner was compelled to approach this Court.
5. The response stands filed by respondent No. 3 i.e. Jammu Municipal
Corporation, in which it is admitted that respondent No. 3 did not have any policy
or procedure for allotment/cancellation/transfer etc, of assets of the Municipal
Corporation. It was further stated that the Commissioner of Jammu Municipal
Corporation has constituted a committee for framing a policy with regard to
cancellation/allotment/transfer of the Municipal assets/properties. The respondent
No. 3 in its response substantiated the allotments made to respondent Nos. 5 to 13
as pleaded by the petitioner in the instant writ petition filed in public interest. It
was also pleaded that the revision of rent is under process and respondent No. 3
has initiated the process to assess the market rate of the rent. It is further stated by
the respondent No. 3 that the allotments made in favour of the private respondents
are old allotments made at that relevant time. Alongside, the respondent No. 3 has
placed on record the relevant documents regarding the allotments of flats/quarters
in question in favour of respondent Nos. 5 to 13.
6. The respondent No. 4-State Vigilance Organization in its response
has reiterated what has been stated by respondent No. 3 and has additionally
submitted that the probe is still under progress and some more documents and
particulars of the officers/officials who remained associated with the
constructions of the flats and allotments thereof, are being scrutinized to ascertain
the criminal liabilities of the public servant, if any, and as soon as the records and
particulars are received, the verification shall be finalized on merits.
7. The respondent No. 5 in his objections has submitted that the
petitioner has not approached the Court with clean hands as the petitioner has
thrown a challenge to the allotments made to the nine persons only and besides
them, there are more than 500 allottees of not only Municipal flats, but even
commercial shops and halls as well, but the petitioner has not arrayed them as
party respondents and it shows that the petitioner has some personal vendetta
against the answering respondent and the others. It is further submitted that the
allotments were not made on the basis of pick and choose policy but the
allotments were made keeping in view the services rendered by the officers and
employees of the Jammu Municipal Council subsequently converted into
Corporation. It is also stated that the order dated 08.10.1993 was issued in favour
of the answering respondent when he was serving as Executive Officer of the
Jammu Municipality and the said allotment was made on the representation of the
answering respondent and aforesaid allotment was made pursuant to the approval
accorded by the then Administrator of Jammu Municipality, keeping in view the
dedicated services rendered by him. It is stated that the answering respondent has
been paying rent ever since 15.02.1994 and after the answering respondent got
superannuated in 2013, he was recommended for appointment as Chairman,
Property Tax Board and in February, 2017, the answering respondent was
appointed a Chairperson of State Commission for backward classes and
thereafter, the State Government appointed the answering respondent as
Chairman, Tribunal for settlement of Payment Claim in respect of Shri Mata
Sukrala Devi Ji and Shri Mata Bala Sundri Shrine and against the aforesaid
assignment, the answering respondent was entitled to House Rent Allowance
(HRA) at the rate of Rs. 24,000/- per month, which the answering respondent did
not receive because of the Municipal accommodation allotted to him for which
the answering respondent is paying rent at the rate of Rs. 1000/- per month as
well. Precisely, it is the stand of the respondent No. 5 that because of his
subsequent assignment, he was entitled to HRA but he did not receive the same in
lieu of the Municipal accommodation allotted to him by the Municipal
Corporation. It is further stated that the Nephew was added as a joint allottee of
the Municipal Flat as he has been residing with respondent No. 5 for the last
many years as one of the members of his family. The respondent No. 5 has denied
that he ever recommended the case of Surinder Kumar for allotment as he was
working with the answering respondent as PSO. The respondent No. 5 has also
denied that he allotted the flat to his personal assistant, namely, Madan Mohan
Khajuria in the year, 1993 and rather the allotment was issued to him pursuant to
the approval granted by the then Administrator.
8. The respondent No. 6 has in fact reiterated the stand taken by
respondent No. 5 and additionally he has submitted that he requires to be deleted
from the array of respondents as he was served with the eviction notice by the
Municipal Corporation dated 21.12.2017 and he had challenged the same before
the Jammu and Kashmir Special Tribunal, Jammu and the same has been stayed.
It is submitted by him that in the year 2016, he has made an application to the
Municipal Corporation for appropriate accommodation and on the basis of report
of the Corporation, the quarter No. 10 at Gandhi Nagar, Jammu that was vacant
and needed repair at that time, was allotted to him. The respondent No. 6 has
admitted that there was no fixed policy in vogue of the Corporation for
allotment/cancellation/transfer etc of its properties situated in Jammu.
9. The respondent Nos. 7 and 8 have in fact taken a similar stand to that
of respondent No. 6. The respondent Nos. 9 and 10 have not chosen to file the
objections.
10. The respondent No. 11 in his objections has reiterated the stand
taken by respondent No. 5 and additionally he has submitted that the property has
been allotted to the NGO, namely, „PEACE‟ in the year, 2013 and the said
organization has been working in the field of education sector, child protection,
health, cultural, tourism, environmental sector and disaster management sector
and initially the NGO was allotted accommodation at Krishna Nagar, Jammu in
the year, 2013 and thereafter, on the application of the President of the
organization, the present accommodation at Gandhi Nagar was allotted and later
rent was fixed at the rate of Rs. 600/- per month and was subsequently enhanced
to Rs. 720/- per month with effect from 2015.
11. Respondent Nos. 12 and 13 have also taken a similar stand in
objecting the writ petition filed by the petitioner and has made additional
averments those are not necessary for adjudicating the present controversy.
12. Mr. Sheikh Shakeel Ahmed, learned counsel for the petitioner has
vehemently argued that in absence of the policy, the Municipal Corporation has
adopted a pick and choose policy in allotting the flats/quarters to the blue eyed
persons and the Municipal assets being a public property could not have been
distributed in a manner as has been done by the respondent No. 3 and rather the
allotments were required to be made by auction only so as to enable the wider
participation of the common public insofar as allotments to private persons are
concerned. So far as employees are concerned, it were not only the respondents 5
to 10 who being the officials were entitled to accommodation but there were other
officials also, who too had right to be allotted the Municipal assets.
13. On the contrary, learned counsels appearing for the respondents
argued that the petitioner has no locus standi to file the present petition in public
interest being an advocate and further that the petitioner is himself guilty of
adopting pick and choose policy as he has not challenged more than 500 other
allotments made in similar fashion in favour of the other persons.
14. Heard learned cousnel for the parties, considered the matter and
perused the record.
15. One of the objections raised by the respondents 5 to 13 though half
heartedly, is with regard to the locus standi of the petitioner to file the present
petition in public interest as the petitioner is an advocate.
16. It is not in dispute that to invoke the jurisdiction under Article 226 of
the Constitution of India, the petitioner has to demonstrate his locus standi,
however, in the public interest litigation or in petition likes habeas corpus or quo-
warranto, this rule has been relaxed. Constitutional Courts even suo motu can take
cognizance of a matter if the public interest is involved and even when no one
espouses the said cause. Once the Court comes to the conclusion that there is
manifest arbitrariness in the decisions of the Administrative Authority, it hardly
matters as to who has approached the court. Otherwise also, objections with
regard to the locus of the petitioner, pales into insignificance in view of the law
laid down by the Apex Court in "Chairman, Railway Board and others v
Chandrima Dass (Mrs) and others, (2000) 2 SCC 465", as such, the first
objection raised by the respondent Nos. 5 to 13 deserves to be rejected. The Apex
Court has held in the aforesaid judgment as under:
"The existence of a legal right, no doubt, is the foundation for
a petition under Article 226 and a bare interest, may be of a
minimum nature , may give locus standi to a person to file a
writ petition, but the concept of "locus standi" has undergone
a sea change. There has been a spectacular expansion of the
concept of locus standi. The concept is much wider and it
takes in its stride anyone which is not mere "busybody".
Public-spirited citizens having faith in the rule of law are
rendering great social and legal service by espousing causes
of public nature. They cannot be ignored or overlooked on a
technical or conservative yardstick of the rule of locus standi
or the absence of personal loss or injury. In this case the
reliefs which were claimed in the petition included the relief
for compensation. But many other reliefs as, for example,
relief for eradicating anti-social and criminal activities of
various kinds at Howrah Railway Station were also claimed.
The true nature of the petition, therefore, was that of a
petition filed in public interest. Having regard to the nature of
the petition filed by the respondent and the reliefs claimed it
is clear that this petition was filed in public interest which
could legally be filed by the respondent and the argument
that she could not file that petition as there was nothing
personal to her involved in this petition must be rejected."
17. Now we have to consider as to whether the allotments have been
made by the officers of the Municipal Corporation-respondent No. 3 is in
accordance with law or not. The respondent No. 3 has very fairly conceded that
there was no policy for the allotment of the Municipal assets, when the allotments
impugned were made in favour of the private respondents and the respondent No.
3 in its objections has not been able to demonstrate as to on which basis the said
allotments were made in favour of the private respondents. When there is no
policy for the allotment of the Municipal assets, that left the allotment/distribution
of Municipal assets at the sole discretion of the officer concerned at the helm of
affairs at the relevant point of time and absolute discretion gives birth to
nepotism, arbitrariness and corruption. The discretion if at all is required to be
exercised, that must be within some parameters and not unbounded discretion that
is prone to misuse giving rise to despotism and corruption.
18. It would be apt to note decision of Apex Court in "Shivsagar Tiwari
v Union of India and others, (1996) 6 SCC 558" in which the Hon‟ble Supreme
Court while cancelling allotments of shops/stalls allotted by Minister of Urban
Development to his own relatives/employees/domestic servants without following
any policy or norm, has quoted "Edmund Burke" as under:
"Edmund Burke stated as early as 1777: "Among a people
generally corrupt, liberty cannot long exist." In 1778, he
observed: "An arbitrary system indeed must always be a corrupt
one. There never was a man who thought he had no law but his
own will, who did not soon find that he had no end but his own
profit."
19. In Common Cause, A Registered Society v Union of India and
others, (1996) 6 SCC 530, the Hon‟ble Apex Court while cancelling the
allotments of retail outlets for petroleum products made by the then Minister of
State for petroleum and Natural Gas, exercising the powers of Central
Government, has held as under:
"Such a discretionary power which is capable of being
exercised arbitrarily is not permitted by Article 14 of the
Constitution of India. While Article 14 permits a reasonable
classification having a rational nexus to the objective sought
to be achieved, it does not permit the power to pick and
choose arbitrarily out of several persons falling in the same
category. A transparent and objective criteria/procedure
has to be evolved so that the choice among the members
belonging to the same class or category is based on reason,
fair play and non-arbitrariness. It is essential to lay down
as a matter of policy as to how preferences would be
assigned between two persons falling in the same category.
If there are two eminent sportsmen in distress and only
one petrol pump is available, there should be clear,
transparent and objective criteria/procedure to indicate
who out of the two is to be preferred. Lack of
transparency in the system promotes nepotism and
arbitrariness. It is absolutely essential that the entire
system should be transparent right from the state of
calling for the applications up to the stage of passing the
orders of allotment. The names of allottees, the orders and
the reasons for allotment should be available for public
knowledge and scrutiny. Without imposing any procedure
on the government, any procedure laid down by the
Government must be transparent, just, fair and non-
arbitrary. Leaving the authorities to enjoy absolute
discretion even within the guidelines would inevitably lead
to gross violation of the constitutional norms when the
persons for allotment are picked up arbitrarily and
discriminatorily."
20. It is evident from the record produced by the respondents that
allotments were made to its officers, other Government servants and the private
persons just on their asking and there was no policy for the allotment of the
flats/quarters. No advertisement was ever issed for the purpose of inviting
applications for allotment of flats/quarters so as to enable other eligible persons to
participate in the allotment process. Rather no procedure was followed by the
respondent No. 3 in allotment of Municipal Assets. The assets being the public
property could not have been allotted in a manner as has been done by the
respondent No. 3 in an arbitrary and opaque manner.
21. The respondent Nos. 5, 6, 7 and 8 were the officers/officials of the
Municipal Corporation. So far as the respondent No. 5 is concerned, he was
initially allotted quarter in question in the year 1993 by Secretary, of then Jammu
Municipality and strangely enough in 2012, when he was at the verge of his
retirement, the rent deed for 40 years was executed, not only in his favour but also
in favour of his Nephew.
22. Likewise, the flat/quarter was allotted to respondent No. 6 when he
was at the fag end of his service and for that purpose cattle pound was converted
into a residential accommodation.
23. Similarly, quarter was also allotted to respondent No. 7, Madan
Mohan Khajuria by respondent No. 5 in December 1983 and as already noted
above the Respondent No. 5 obtained allotment for himself from Secretary of
Jammu Municipality in October 1983.
24. Respondent No. 8 in similar fashion has been allotted an
accommodation on the same terms and conditions as that of earlier allottee in the
year, 1988. Thus, it is evident whosoever was at the helm of affairs of the Jammu
Municipality, later on Jammu Municipality Corporation, the said officers/officials
at their sweet will distributed/allotted the Municipal assets to the persons either of
their choice or chosen by their superiors.
25. So far as the other persons, who though are not employees of
respondent-Corporation but employees of Administrative Department i.e.
Housing and Urban Development Department or other department, too have been
allotted the residential accommodation in a similar manner. So far as the
allotment made to NGO „PEACE‟ i.e. respondent No. 11 is concerned, it too has
been allotted the residential accommodation, just on the asking of the respondent
No. 11.
26. The private persons i.e. respondent Nos. 12 and 13 too are also
beneficiaries of similar type of orders passed by then officers of the Municipal
Corporation. It is not only the respondent Nos. 5 to 13 who could have been
allotted the Municipal assets but there could have been other contenders as well
and the manner in which the allotments have been made, have deprived the
similarly situated persons of their right of consideration as well and such type of
allotments do not stand the principal of equality as enshrined under Article 14 of
the Constitution of India.
27. The Apex Court in Akhil Bhartiya Upbhokta Congress v. State of
M.P., reported in (2011) 5 SCC 29 has held as under:
"50. For achieving the goals of justice and equality set out in the
Preamble, the State and its agencies/instrumentalities have to
function through political entities and officers/officials at
different levels. The laws enacted by Parliament and the State
Legislatures bestow upon them powers for effective
implementation of the laws enacted for creation of an egalitarian
society. The exercise of power by political entities and
officers/officials for providing different kinds of services and
benefits to the people always has an element of discretion,
which is required to be used in larger public interest and for
public good. In principle, no exception can be taken to the
use of discretion by the political functionaries and officers of
the State and/or its agencies/instrumentalities provided that
this is done in a rational and judicious manner without any
discrimination against anyone. In our constitutional
structure, no functionary of the State or public authority has
an absolute or unfettered discretion. The very idea of
unfettered discretion is totally incompatible with the
doctrine of equality enshrined in the Constitution and is an
antithesis to the concept of the rule of law."
"65 What needs to be emphasised is that the State and/or its
agencies/instrumentalities cannot give largesse to any person
according to the sweet will and whims of the political entities
and/or officers of the State. Every action/decision of the State
and/or its agencies/instrumentalities to give largesse or confer
benefit must be founded on a sound, transparent, discernible and
well-defined policy, which shall be made known to the public by
publication in the Official Gazette and other recognised modes
of publicity and such policy must be implemented/executed by
adopting a non-discriminatory and non-arbitrary method
irrespective of the class or category of persons proposed to be
benefited by the policy. The distribution of largesse like
allotment of land, grant of quota, permit licence, etc. by the State
and its agencies/instrumentalities should always be done in a fair
and equitable manner and the element of favouritism or
nepotism shall not influence the exercise of discretion, if any,
conferred upon the particular functionary or officer of the State."
66 We may add that there cannot be any policy, much less, a
rational policy of allotting land on the basis of applications made
by individuals, bodies, organisations or institutions dehors an
invitation or advertisement by the State or its
agency/instrumentality. By entertaining applications made by
individuals, organisations or institutions for allotment of land or
for grant of any other type of largesse the State cannot exclude
other eligible persons from lodging competing claim. Any
allotment of land or grant of other form of largesse by the State
or its agencies/instrumentalities by treating the exercise as a
private venture is liable to be treated as arbitrary, discriminatory
and an act of favoritism and/or nepotism violating the soul of the
equality clause embodied in Article 14 of the Constitution."
28. Further the Supreme Court while taking note of its numerous earlier
decisions, in Lok Prahari v State of Uttar Pradesh and others, (2018) 16 SCC
1 struck down the Section 4(3) of the Uttar Pradesh Ministers (Salaries,
Allowances and Miscellaneous Provisions) Act, 1981 that provides for allotment
of residential accommodation to Ex-Chief Ministers as unconstitutional and
observed as under:
"38. Natural resources, public lands and the public goods like
government bungalows/official residence are public property
that belongs to the people of the country. The "Doctrine of
Equality" which emerges from the concepts of justice,
fairness must guide the State in the distribution/allocation of
the same. The Chief Minister, once he/she demits the office,
is on a par with the common citizen, though by virtue of the
office held, he/she may be entitled to security and other
protocols. But allotment of government bungalow, to be
occupied during his/her lifetime, would not be guided by the
constitutional principle of equality."
29. In view of the law laid down by Apex Court, We have reached to an
un-escapable conclusion that impugned allotments are illegal and contrary to
principle of equality as enshrined in Article 14 of the constitution of India.
30. Vide status report filed by respondent No. 3 pursuant to order dated
02.03.2020, the respondent No. 3 has submitted the details of the Municipal
Shops, flats, and garages, those are in occupation of the different allotees. It is
further submitted in the said status report that a team of officers was constituted
by the answering respondent vide order dated 27.01.2020 to submit a physical
verification of the each property in tabulated form. The said committee till date
has not furnished the report.
31. During the pendency of this petition, respondent Nos. 1 to 3 have
placed on record the Bye-laws i.e. the Jammu and Kashmir Allotment of
Municipal Corporation Residential Accommodation Bye-laws, 2020 (for short the
Bye-laws) issued by the Municipal Corporation. The PART-12 with heading
"Miscellaneous" of the Bye-laws provides that the allotments made by the
Municipal Corporation from time to time for the residential accommodation of
the Corporation in possession of any employee/ non-employee /retiree or any
other person which are not eligible under these Bye-laws shall be deemed to be
unauthorized except in the case of presently serving employees in the Corporation
and that too shall be re-visited and further continuation/allotment to be made
afresh on year to year basis as per these Bye-laws. However, for the continuance
of allotment in respect of non-employees /retired persons or any other person in
possession of the residential accommodation of the Corporation, they shall be
charged license fee at market rates. The said Bye-laws virtually legalizes the
allotments made earlier by the Corporation without any policy/rules governing
the same. Once this Court has held that the initial allotments were illegal
allotments, they cannot be legalized further. No benefit of this Policy can be
granted to an employee who was put into occupation of the Municipal premises
through impugned allotment orders as other employees of the Corporation too
were/are entitled to be considered for the said allotment. Similarly, occupants
other than the employees in occupation of the Municipal premises cannot be
granted the benefit of the Policy on the same analogy. All the allotments made in
their favour are violative of the Article 14 of the Constitution of India and the
respondent Nos. 1 to 3 cannot legalize the illegal allotments through the medium
of present Policy. Otherwise also, Section 157, of Chapter X of the Jammu and
Kashmir Municipal Corporation Act, 2000 deals with the properties and contracts
with regard to the Municipal Corporation and section 160 deals with the mode of
executing contracts. Section 157 reads as under:
"157. Disposal of property.-With respect to the disposal
of property belonging to the Corporation, the following
provisions shall have effect, namely :-
(a) The Commissioner may, with the prior approval of
the Corporation :-
(i) dispose of, by sale or otherwise, any movable property
belonging to the Corporation the value of which does not
exceed one lakh rupees; or
(ii) grant a lease not exceeding a period of ten years, of
any immovable property belonging to the Corporation; or
(iii) sell or grant a lease in perpetuity of any immovable
property belonging to the Corporation the value of which
does not exceed fifty lakh rupees or the annual rent of
which does not exceed five lakh rupees;
(iv) in cases not covered by clause (a) the Commissioner
may, with the sanction of the Government un
recommendation of the Corporation lease, sell, let out on
hire or otherwise transfer any property moveable or,
immovable belonging to the Corporation;
(v) the consideration for which any immovable property
may be sold, leased or otherwise transferred shall not be
less than the value at which such immovable property
could be sold, leased or otherwise transferred in normal
and fair competition;
(vi) the sanction of the Government under the aforesaid
clauses may be given either generally for any class of
cases or specially for any particular case;
(vii) subject to any condition or limitation that may be
specified by or under any other provision of this Act, the
foregoing provisions of this section shall apply to every
disposal of property belonging to the Corporation made
under, or for any purposes of this Act."
160. Mode of executing contracts. -
(1) The mode of executing contracts under this Act shall
be prescribed bye-laws made in this behalf.
(2) No contract which is not made in accordance with
the provisions of this Act, bye-laws made thereunder
shall be binding on the Corporation.
32. The bare perusal of aforesaid section would reveal that the
Commissioner may with the prior approval of the Corporation, grant a lease not
exceeding the period of 10 years of any immoveable property and sell or grant a
lease in perpetuity of any immoveable property belonging to the Corporation the
value of which does not exceed fifty lakh rupees or the annual rent of which does
not exceed five lakh rupees. Further sub section (a) (v) of section 157 (supra)
reveals that the consideration for which any immovable property may be sold,
leased or otherwise transferred shall not be less than the value at which such
immovable property could be sold, leased or otherwise transferred in normal and
fair competition. Thus, the immovable Municipal assets can be sold, leased or
otherwise transferred only for a consideration that the said asset would fetch in
normal circumstances and in a fair competition. So the intention of the legislature
behind incorporating this provision is to get the maximum value for the
Municipal assets sought to be sold, leased or otherwise transferred. So far as the
respondent Nos. 11, 12 and 13 are concerned, the said provision has been
flagrantly violated and the properties have been rented out for peanuts. Likewise
rent agreement executed by Respondent No. 5 for a period of 40 years and
respondent No. 9 for a period of 39 years is violative of the section 157 of the Act
(Supra). The Policy so far as pertain to legalizing the unauthorised occupation of
the respondent Nos. 5, 9, 11, 12 and 13 is concerned, the same is contrary to the
provisions of the Act referred above. No agreement has been executed by
Respondent Nos. 7 and 10, though there was clause in the allotment order that
agreement shall be executed with in the period of 7 days. We are at pains to
observe and take note of the manner in which allotments have been made by the
respondent No. 3 and subsequent inaction on the part of respondent No.3.
Another aspect of the matter is that proviso to the Rule 7(i) of the Policy provides
that no application shall be entertained for accommodation if the employee is
retiring on superannuation in the next six months, meaning there by that the
person who is nearing his retirement within the six months is not entitled to apply
for allotment of residential accommodation. So when the employees who are at
the verge of retirement cannot apply for allotment of residential premises, then we
fail to understand as to how the respondent Nos. 5 and 6 can be granted the
benefit of the Policy when they are no more the Employees of the Corporation.
33. In view of all what has been discussed above, the writ petition is
allowed and is disposed of with the following directions:
i) The allotments as well as consequential rent deeds/ rent agreements
made in favour of the respondent Nos. 5 to 13 are quashed.
ii) The respondent Nos. 5 to 13, are directed to vacate the premises in their
respective occupation within a period of six months from the date of this
order.
iii) So far as other Municipal shops, flats and garages are concerned, the
respondent Nos. 1 to 3 are directed to examine the individual case and
proceed in accordance with the law laid down by the Apex Court in
numerous decisions mentioned above and take appropriate actions
within a period of six months, extendable by another period of six
months only.
34. Before parting, we would like to observe that we have examined the
Bye-laws framed by the respondent Nos. 1 to 3 only for the purpose of examining
the issue of the respondent Nos. 5 to 13 to continue in occupation of the premises
in question and we have not expressed any opinion with regard to the legality of
the Bye-laws.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
28.04.2021
Rakesh
Whether the order is speaking: Yes
Whether the order is reportable: Yes
