Jammu & Kashmir High Court
Kuldeep Singh vs State And Others on 23 August, 2022
Sr. No. 175
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 23.08.2022
OWP No. 573/2006
Kuldeep Singh .....Appellant(s)/Petitioner(s)
Through: Mr. C.M.Koul, Sr. Advocate with
Mr. A.R.Bhat, Advocate.
Vs
State and others ..... Respondent(s)
Through: Mr. Adarsh Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. The petitioner claims to have khokha at Ware House, Nehru Market,
Jammu and having business of second hand spare parts under the name
and style of 'K.S.Motor Parts'. The case of the petitioner is that his
khokha got burnt in the fire accident on 08.03.1992 and was also
demolished subsequently by the respondent-Jammu Development
Authority for establishment of Bus Stand for Kathua route buses. His
shop was also insured with the Insurance Company and the assessment
of loss was made with regard to the shop. The petitioner claims to have
made representations to the respondents for allotment of shop site at
Transport Nagar, Narwal, Jammu as the other similar situated persons
were provided the same benefit by the respondents but failed to get the
requisite relief from the respondents.
2. The petitioner has challenged order dated 07.02.2009 whereby the
claim of the petitioner for allotment of shop site in the Transport
Nagar, Narwal, Jammu has been rejected. The petitioner has annexed
the documents to plead that he had khokha at Nehru Market at the
relevant point of time. The sum and substance of the case of the
petitioner is that inspite of the fact that he had khokha at Nehru Market,
Jammu and was required to be provided alternate site at Transport
Nagar, Jammu yet he has been denied the benefit of the same by the
respondents without any plausible reason.
3. The objections to the writ petition have been filed by the respondents
wherein the respondents have submitted that the petitioner was
required to file his case for allotment at Transport Nagar, Jammu
before the Committee constituted for the said purpose but the petitioner
failed to do the same. As per the reply, 396 applications were received
qua the claims in pursuance to the notification issued for the same but
the petitioner had not applied for allotment. The petitioner did not
choose to file any application regarding his absence from the allottees
for more than fifteen years and, therefore, the petitioner has no case on
the ground of delay and latches. The respondents have denied of the
facts pleaded by the petitioner regarding the burning of his Khokha or
any compensation being assessed by the Deputy Commissioner,
Jammu. The case of the petitioner was considered but not found worthy
of merit. The petition involves disputed questions of fact and,
therefore, the writ petition is not maintainable is also the stand taken in
the objections. The rejoinder to the objections more or less reiterate as
to what is mentioned in the writ petition.
4. Mr. C.M.Koul, learned Senior Counsel appearing for the petitioner, has
taken the court through the documents placed on record in order to
impress upon the court that the petitioner had khokha which got burnt
down due to fire and he had made request for allotment of shop at
Narwal. The learned counsel has also tried to convince the court by
making submission that the respondents have taken inconsistent stand
when the note put up by the then Vice Chairman Jammu Development
Authority is considered and what has been stated in the agenda
whereby the case of the petitioner has been rejected. He has also stated
that the Commissioner Secretary to Government, Finance Department,
is not signatory to the agenda by virtue of which the case of the
petitioner was rejected which prima facie shows that he was not
convinced with the rejection of the case of the petitioner.
5. Mr. Adarsh Sharma, learned counsel appearing for the respondents, has
vehemently argued that the case involves disputed questions of fact
and, therefore, the writ petition is not maintainable. The petitioner has
in any case approached this court with his grievance after a long time
of the finalization of allotment of shops at Transport Nagar, Jammu
and, therefore, the petition is liable to be dismissed. The case of the
petitioner has been rejected by the Board after considering the same on
merits.
6. The perusal of the documents filed with the petition shows that the
petitioner appears to have requested for allotment of shop at Narwal,
Jammu as it was demolished. This is evident from the purported
communication dated 18.12.2004 from the petitioner to the Vice
Chairman, Jammu Development Authority. It does not refer to the
factum of the burning of the shop of the petitioner in a fire incident as
mentioned in the writ petition. Thereafter as per the petition and the
documents annexed with the same, the petitioner had approached the
Minister of Housing and Urban Development Department in the year
2006 with a request for allotment of shop at Transport Nagar, Narwal
Jammu. The petitioner has annexed the response given by the then
Vice Chairman Jammu Development Authority in pursuance to the
aforesaid request made by the petitioner to the concerned Minister in
the year 2006. The note prepared by the Vice Chairman indicates that
the petitioner had approached the Jammu Development Authority in
December 2004 for allotment of shop at Narwal, Jammu. The note
further details that the petitioner claims to have represented his case in
the year 1992 as per the saying of the petitioner but no such record is
available with the office. It is evident from what is pleaded by the
petitioner is that the petitioner had slept over the matter for more than a
decade after the alleged fire incident and also when the applications
were sought from those conducting business at Ware House, Jammu
for allotment of the shops at Transport Nagar, Jammu. Apparently,
there is a huge delay on behalf of the petitioner to approach the court
for redressal of his grievance or even before the authorities after the
applications were invited for allotment of shops at Transport Nagar,
Jammu. The argument of learned Senior counsel for the petitioner that
the petitioner used to approach the authority for allotment of shop site
at Transport Nagar during the aforesaid period also is not backed by
any material and is conspicuously absent from the pleadings in the writ
petition. The petitioner had indeed approached the court with his
grievance after a long gap when he claims to have a case in his favour
for allotment by the respondent-authorities. The petitioner cannot raise
a plea that he waited for umpteen period before approaching the
authorities or the court with his grievance. It is not in dispute that the
allotment had been made long before the petitioner for the first time
approached the authorities or the concerned Minister with his plea of
allotment.
7. The petitioner has forcefully argued that the respondents were in know
of the case of the petitioner in the year 1992 itself as he had made
representation of his case is very much evident from the note/reply
made by the then Vice Chairman Jammu Development Authority vide
No. JDA/TPY/504 dated 20.03.2006 in response to the report sought
by the concerned Minister. The court is of the view that the said
communication/note from the Vice Chairman does not indicate what is
argued on behalf of the petitioner. The reference to the misplacement
of the record in the note is not from the department but only refers to
what is claimed by the petitioner in his representation filed before the
Development Authority and nothing more. The absence of record
referred in the aforesaid communication does not mean misplacement
of record as the same is only the assertion of the petitioner and not any
admission of the department and, therefore, the petitioner cannot take
any mileage out of the same. The impugned decision of the Jammu
Development Authority whereby the case of the petitioner stands
rejected is on the ground that the petitioner had not applied in response
to the Notification issued by the Jammu Development Authority and
his name did not figure in the list of applicants in response to the
notification issued for allotment of shop at Narwal, Jammu. The court
does not find the refusal of the case of the petitioner by the respondent-
Authority on any flimsy ground but on merits.
8. Last but not the least, the argument of the learned counsel for the
petitioner that one of the members of the Committee is not signatory to
the agenda which shows that the decision taken by the Committee was
not backed by all the members. The argument is without substance as
the absence of the signatures of one of the members in the agenda will
not invalidate, in any case the decision taken by the Committee.
9. The plea of the petitioner that he had khokha at Ware House, Jammu
and which got burnt is backed by the documents annexed with the
petition is disputed by the respondents in their reply. Admittedly, the
disputed questions of fact cannot be adjudicated upon by the court in
the writ petition. The existence of the khokha of the petitioner and the
damage caused to it in the fire is the disputed question of fact which
cannot be otherwise gone into by the court in the present writ petition.
10. From the record and on the basis of discussion made above, it is held
that the petitioner had approached the authorities for allotment of shop
long after the applications were invited for the same and the allotments
were finalized. The disputed questions of fact are raised in the writ
petition which cannot be adjudicated upon by the court. The agenda by
virtue of which the case of the petitioner has been rejected cannot be
faulted with by the court for the reasons mentioned above.
11. The petition is without any merit and is, accordingly, dismissed.
( Puneet Gupta )
Judge
Jammu :
23.08.2022
Pawan Chopra
Whether the order is speaking : Yes
Whether the order is reportable : Yes
PAWAN CHOPRA
2022.08.23 16:11
I attest to the accuracy and
integrity of this document
