Jammu & Kashmir High Court
Renu vs Jammu Municipal Corporation on 19 February, 2024
Author: Sindhu Sharma
Bench: Sindhu Sharma
Sr. No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 3198/2023
CM No. 7746/2023
Renu .... Petitioner/Appellant(s)
Through:- Mr. Amit Gupta, Advocate
V/s
Jammu Municipal Corporation .....Respondent(s)
Through:- Mr. Mayank Gupta, Advocate
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
19.02.2024
01. Petitioner seeks quashing of Order No. JMC/DC(N)/4627-30
dated 12.12.2023 issued by the respondent directing her eviction from
Municipal accommodation and vacation of Municipal Flat/Quarter No.
2, 2nd Floor situated at Resham Ghar, Jammu within fifteen days.
02. Municipal Flat/Quarter No. 2, 2nd Floor at Resham Ghar, was
allotted to late Prabha Sharma W/o Late Sh. J. C. Shastri (mother-in-
law of the petitioner) vide order No. 378/RBA dated 27.07.1982 and
she continued to be in possession of the Flat till her death i.e.,
15.04.2014. One Irtiza Mushtaq, a practicing lawyer, filed a Public
Interest Litigation i.e., PIL No. 33/2017 challenging the allotment made
by Jammu Municipal Corporation in favour of respondent Nos. 5 to 13
in that petition as well as their eviction from the Municipal Flats
situated at Gandhi Nagar, Jammu and also for recovery of rent. The PIL
was decided vide judgment dated 28.04.2021 by the Hon'ble Division
Bench observing as under:-
"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.
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."
03. The respondent thereafter issued show cause notice to many
individual including the petitioner on 15.12.2021 for consideration of
their cases regarding cancellation/continuation of allotment as per the
Jammu & Kashmir Allotment of Municipal Corporation Residential
Accommodation Bye-Laws, 2020.
04. Petitioner made an application for transfer of the allotment of
the flat to her as she was daughter-in-law of Smt. Prabha Sharma and is
continuously residing in the same flat which is also maintained by her.
05. By way of impugned order dated 12.12.2023, the respondents
stated permissible period of retention of the residential accommodation
already stands expired and the petitioner is not eligible for allotment as
per the provisions of Jammu & Kashmir Allotment of Municipal
Corporation Residential Accommodation Bye-Laws, 2020.
06. Learned counsel for the petitioner submits that the petitioner
is residing with her mother-in-law, her husband and children for the last
so many years and the respondent, without following the mandate of
Sections 38 & 39 of the Jammu & Kashmir Allotment of Municipal
Corporation Residential Accommodation Bye-Laws, 2020, has issued
the order of eviction.
07. Mr. Mayank Gupta, learned counsel appearing on behalf of
the respondent submits that the petitioner is in unauthorized occupation
of the Municipal Flat since the death of mother-in-law, who was an
allottee, she has failed to inform the respondent about the death of the
allottee. Record is also produced by him. It is also submitted by him
that though the petitioner is not entitled to allotment in terms of the
Jammu & Kashmir Allotment of Municipal Corporation Residential
Accommodation Bye-Laws, 2020 but still if she is aggrieved of the
impugned order, she may file an appeal under Section 43 of the Jammu
& Kashmir Allotment of Municipal Corporation Residential
Accommodation Bye-Laws, 2020. Section 43 of the Bye-laws reads as
under:-
43. Appeals.
(i) Divisional Commissioner of the concerned Division shall be the
Appellate Authority for appeals against the eviction made under Clause
39.
(ii) An appeal under sub-clause (i) above shall be preferred against an
order issued under clause 39 within seven days from the date of
publication of the order:
Provided that the appellate officer may entertain the appeal after
the expiry of the said period of seven days, if he is satisfied that the
appellant was prevented by sufficient cause from filing the appeal in time.
(iii) Where an appeal is preferred from an order of the authorized
officer, the appellate officer may stay the enforcement of that order for
such period and on such condition as he deems fit:
(iv) Every appeal under this clause shall be disposed of by the appellate
officer within fifteen working days.
(v) The costs of any appeal under this clause shall be in the discretion
of the appellate officer.
08. In view of the fact that the remedy is available to the
petitioner under the Jammu & Kashmir Allotment of Municipal
Corporation Residential Accommodation Bye-Laws, 2020, it would be
appropriate for the petitioner to avail the same.
09. This petition is disposed of by directing the petitioner to
approach the appropriate authority under Section 43 of the Bye-Laws
against the impugned order of eviction. The petitioner may approach the
authority within a period of two weeks from today and till such time,
the appeal is considered and decided by the authority, status-quo, as on
date, be maintained. Delay, if any, in filing the appeal will not come in
the way of consideration of the appeal.
10. This petition stands disposed of along with connected
application(s), if any.
11. Record be returned back to the concerned.
(Sindhu Sharma)
Judge
JAMMU
Ram Murti/PS
19.02.2024
