Poonam Sambyal vs State Of J&K And Ors
2022 Latest Caselaw 868 j&K

                                                                  S. No.38
               HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                             AT JAMMU


                                                     OWP No. 1504 of 2014



    Poonam Sambyal                                              ...Petitioner(s)


                        Through :- Mr. Pranav Sharma, Advocate
                 v/s
                   <




State of J&K and ors.
T
                                                             .....Respondent(s)


                       Through:- Mr. Adarsh Sharma, Advocate for R-2 & 3.


Coram:         HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE



                                      ORDER

1. Heard learned counsel for the parties and by consent the writ petition is

disposed of.

2. By virtue of a registered lease deed dated 19.04.2003, the respondent no. 2

i.e. JDA acting through its Secretary, the respondent no. 3, has granted lease hold

rights of a residential plot no. 16 (1920 Sq. ft.), Sector 1-A, situated in Rajinder

Nagar (Bantalab), Housing Colony Jammu in favour of the petitioner on due

payment of premium of Rs. 78,933/-.

3. Acting on the apprehension that the respondent no. 2 was contemplating to

cancel the allotments and the grants of the lease hold rights quo the plots,

commercials as well as residential, effected during the tenure of Mr. M. A.

Qureshi, as Vice Chairman of the respondent no. 2, which were alleged to be

without adhering to the procedure prescribed for the same, the petitioner

approached this Court with the present writ petition under Article 226 of the

Constitution of India to safeguard her vested rights/interest quo the said lease

hold plot from suffering prejudice without adopting due course of law at the end

of the respondents.

4. The apprehension of the petitioner, in fact, in her writ petition filed on

25.09.2014 came to be true when the fact of the Board of the Directors of the

respondent no. 2 reportedly taking a decision in 74th meeting held on 11.06.2015

to cancel the allotment including the one made in favour of the petitioner, came

to find disclosure during the pendency of the present writ petition constraining

her to seek amendment of the originally filed writ petition.

5. The petitioner came to seek amendment of the writ petition to deal with

the subsequent development after the outcome of the said Board meeting of the

respondent no. 2. The permission to amend the writ petition was granted vide an

order dated 31.10.2017, as a result whereof, the amended writ petition came to be

submitted and the objections to the said amended writ petition from the

respondents' end also came to be filed.

6. During the pendency of the writ petition, a matter of similar nature

concerning allotment of sites/plot of land from the respondent no. 2's end came

to form subject matter of a writ petition in LPAOW No. 106 of 2017 titled Jagdish

Raj v. JDA and ors., wherein the learned Division Bench of this Court came to

take cognizance of the allotment of the plot on lease hold basis by a registered

lease deed and its purported cancellation and the manner in which the same are

required to be dealt with in law by the respondents. Paragraph 10 of the learned

Division Bench judgment dated 19.03.2021 is reproduced as under:

"10. Although the allotment of plot of the appellant has been cancelled but same was followed by a lease deed which creates rights of the appellant in the immovable property. Assuming that the allotment was irregular but the right created under the lease deed can be withdrawn only after giving a notice to the appellant and also by providing an opportunity of being heard to him. The order of cancellation, thus, visits the petitioner with serious civil consequences affecting the rights of the appellant to which he had acquired in the allotted property. There is, as such, violation of principle of audi alteram partem, which the learned writ court has failed to notice."

7. The learned counsel for both sides are in accord that the said judgment of

the Division Bench is applicable to the scope of the present writ petition.

Keeping in view the dictum of the said Division Bench judgment dated

19.03.2021, which is fully binding to be followed by this Bench, the present writ

petition is disposed of on the similar note that before contemplating to consider

the case of the petitioner to be of irregular allotment quo the plot in reference, the

respondent no. 2 shall first put the petitioner on clear notice of facts and basis,

factual as well as legal, upon which the proposed decision is to be taken and then

afford a reasonable opportunity of hearing to the petitioner before taking any

final decision while keeping in consideration the fact that the petitioner is a

widow who has put up with the belief since 2003 that she is a holder of a lease

hold residential plot.

8. Writ petition disposed of accordingly.

(RAHUL BHARTI) JUDGE JAMMU 30.05.2022 Paramjeet Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No