Jammu & Kashmir High Court
Gopal Krishan Age 48 Years S/O Late Sh. ... vs State Of J&K on 1 March, 2024
6
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No.1677/2015
Reserved on: 23.02.2024
Pronounced on: 01.03.2024
Gopal Krishan Age 48 years S/O Late Sh. Munshi Ram
R/O New Bahu Fort Colony, Jammu .....Petitioner
Through: Mr. V. R. Wazir, Sr. Advocate with
q
Mr. Abhishek Wazir, Advocate
vs
1. State of J&K, Urban Development,
Government of J&K, Civil Secretariat Jammu/Kashmir
through Commissioner/Secretary
2. Vice Chairman, Jammu Development Authority
Vikas Bhawan, Rail Head Complex, Jammu
Through Secretary
3. Secretary, Jammu Development Authority,
Vikas Bhawan, Rail Head Complex, Jammu
4. Chief Khilafwarzi Officer, Jammu Development Authority,
Vikas Bhawan, Rail Head Complex, Jammu
5. Assistant Commissioner (Collector), Land Acquisition, JDA
Vikas Bhawan, Rail Head Complex, Jammu
6. Director Land Management, Land Acquisition, JDA,
Vikas Bhawan, Rail Head Complex, Jammu .....Respondent(s)
Through: Mr. Adarsh Sharma, Advocate
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. The present petition has been filed seeking quashment of Order No.
Secy./JDA/PS/640-43 dated 10.11.2015 regarding plot No. 267 measuring 20′ X
40′ at New Bahu Fort, Housing Colony Jammu, issued by respondents No. 2 and
3 whereby allotment made in favour of petitioner with respect to aforesaid plot
was cancelled and Director Land Management was directed to take over the
possession of the plot in question.
2. The facts leading to the filing of the present petition as pleaded are that
father of the petitioner was allotted Plot No. 267 in Qasim Nagar, Jammu in the
year 1989 on perpetual lease for sole purpose of construction of a residential
house on a premium of Rs.3500/- and a lease deed came to be executed in his
favour on 09.11.1989. After the demise of the father of petitioner, a suit for
declaration declaring the petitioner as legal heir of the deceased, Munshi Ram,
allottee of Plot No. 267 was filed. Petitioner, accordingly, obtained a declaration
having filed a suit in the Court of learned Munsiff Jammu declaring to be the
only legal heir and owner of plot in question. Thereafter, petitioner approached
respondent No.2, Vice Chairman, JDA for transfer of the lease hold rights in his
favour and respondent No. 2 granted permission for transfer of the plot in
question in favour of the petitioner on the same terms and conditions contained
in the erstwhile lease deed. Ultimately the lease hold rights were conferred upon
the petitioner who was directed to get the lease deed registered in the office of
Sub Registrar, Jammu. Lease deed, thus, came to be registered in favour of the
petitioner and possession was handed over to him. It is contention of the
petitioner that the respondents having joined together to cancel the lease deed
and are trying to dispossess him without any right or authority of law.
3. Objections have been filed by the respondents, wherein, it is stated that
petitioner is not entitled for allotment of plot in question as same has been
obtained by him by suppressing the true facts and when it came to their notice,
allotment was cancelled by passing the order impugned. It is categorically stated
by the respondents that in the year 1988, Housing & Urban Development
Department decided to shift the inhabitants of Qasim Nagar and provide them
alternative residential plots for their rehabilitation. Father of the petitioner was
allotted Plot No. 267 vide Letter No.JDA/QN/1444-555 dated 10.10.1988 with
the condition that he will surrender the possession of the house at Qasim Nagar
and execute lease deed immediately after taking the possession. Possession was
handed over to the father of the petitioner by Executive Engineer, Division No.
II JDA Vide No. JDA/II/QN25090-12 dated 02.11.1988 and after taking
possession of plot in question, father of the petitioner made representation
stating that he wants alternate plot as he did not wish to take plot in question and
on his request, Plot No.312 was allotted to him in lieu of plot in question. It is
stated that father of the petitioner after getting Plot No. 312 in lieu of Plot No.
267 surrendered/vacated the possession of the Plot No. 267 in favour of the
respondent-JDA and the petitioner after lapse of about 24 years came up with a
representation dated 23.09.2013 to respondent No. 3 for transfer of plot in
question in his favour, being legal heir of Munshi Ram, the original allottee.
Petitioner, in fact, has deliberately and intentionally concealed the fact from the
respondent-authority that his father obtained Plot No. 312 in lieu of Plot No.
267. It is urged that respondent, on receiving a complaint from one Pardeep
Kumar S/O late Sh. Gian Chand that Munshi Ram holds three plots in violation
of norms and rules of JDA, constituted a Committee of Officers to ascertain
factual position regarding allotment made in favour of father of the petitioner.
Committee submitted its report whereby afore-narrated facts came to the
knowledge of the respondents that father of the petitioner obtained allotment of
Plot No. 312 in lieu of Plot No. 267 and had also surrendered the possession, in
favour of respondent-JDA at that point of time.
4. This Court vide order dated 16.11.2015 issued notice to the respondents
and directed that operation of order impugned shall remain stayed.
5. Learned counsel for the petitioner submits that order impugned cancelling
the lease hold rights of the petitioner is illegal as same was issued without
issuing notice to the petitioner and without affording an opportunity of being
heard to him. He submits that the once a plot was leased out vide a registered
lease deed, the same could not be cancelled unilaterally, without following due
course of law.
6. Mr. Adarsh Sharma, learned counsel appearing for the respondent-JDA,
on the other hand, submits that allotment made in favour of the petitioner was
cancelled on the basis of report of the officers' committee that father of the
petitioner obtained allotment of Plot No. 312 in lieu of Plot No. 267 and had also
surrendered the possession in favour of JDA at that point of time. Mr. Sharma
further argued that respondent-authority was well within its right and
competence to cancel lease in favour of petitioner as and when it was found by
the authority on the basis of the officers' Committee report that the allotment of
plot in question had been obtained by the petitioner as lessee by
misrepresentation and suppression of facts by playing a fraud, as such, in terms
of Clause 12(3) of the lease deed that respondent-authority was competent to
cancel the lease deed and it has rightly done so, which cannot be set aside as
prayed for.
7. Heard learned counsel for the parties and perused the record.
8. It is admitted position on record that father of the petitioner was allotted
Plot No. 267 in New Bahu Fort, Housing Colony, Jammu in the year 1989 and a
lease deed came to be executed on 09.11.1989. After taking possession, his
father made a representation to respondent No. 3 for exchange of plot in question
as he did not wish to take the said plot and on his request, Plot No. 312 was
allotted to him in lieu of plot in question and his father vacated the possession of
the Plot No. 267 in favour of the respondent-authority. It is also admitted that the
petitioner after lapse of about 24 years came up with a representation dated
23.09.2013 to respondent No.3 for transfer of plot in question in his favour,
being legal heir of Munshi Ram, the allottee. It is categoric stand of the
respondents that they have never asked the petitioner to obtain legal heir
certificate as the father of the petitioner got alternate allotment in lieu of Plot No.
267 and as such lost every right with regard to Plot No. 267 and there is no
question of transfer of Plot No. 267 in favour of the petitioner being legal heir of
deceased Munshi Ram.
9. Housing & Urban Development Department in the year 1988 decided to
shift inhabitants of Qasim Nagar and provided them alternate residential plots
for their rehabilitation and amongst others letter of intent was also sent to one
Munshi Ram, father of the petitioner for allotment of plot in lieu of his house at
Qasim Nagar, asking all the effected persons to submit an affidavit that they
shall surrender the land and house at Qasim Nagar before taking possession of
the residential plot at Bahu Fort, Housing Colony. The said Munshi Ram vide
letter No. JDA/QN/1444-45 dated 10.10.1988 was allotted plot No. 267
measuring 20′ X 40′ at New Bahu Fort, Housing Colony Jammu with the
condition that he shall surrender the possession of the land/house at Qasim
Nagar and execute the lease deed immediately after taking the possession. The
possession of Plot No. 267 was handed over to Munshi Ram by Executive
Engineer Division No. II JDA vide No. JDA/II/QN/25090-12 dated 02.11.1988.
10. Allottee, Munshi Ram after taking possession of Plot No. 267 made a
representation that any alternate plot be allotted to him as he did not wish to take
Plot No. 267 for personnel reasons as the adjoining plot was allotted to his
relative and he did not wish to reside near him. Respondent-authority allotted
Plot No. 312 on his request in lieu of Plot No. 267, as such, he had to vacate the
possession of Plot No. 267 for the reason that as per the rules/norms of JDA one
family was eligible for one plot only.
11. Petitioner on 23.09.2013 was stated to have filed a representation to
respondent-JDA for transfer of Plot No. 267 in his favour being legal heir of said
Munshi Ram as by that time, said Munshi Ram had died and petitioner had
obtained an order and decree from the Court. The stand of the respondent-
authority is that petitioner as legal heir of said Munshi Ram was not entitled to
allotment of Plot No. 267 as the said Munshi Ram in his life time had exchanged
Plot No. 267 against Plot No. 312 and the petitioner concealing the fact that his
father had constructed a house on Plot No. 312 obtained a decree from the Court
by misrepresenting the facts from the Court with regard to ownership of Plot No.
267 whereas said Munshi Ram had taken possession of Plot No. 312 in lieu of
Plot No. 267 in the year 1989. On a complaint received, matter was examined by
a Committee of Officers who detected that petitioner had played a fraud upon
the respondent-authority by projecting that after the death of original allottee,
Munshi Ram i.e. father of the petitioner, he was entitled to transfer of Plot No.
267 in his name as son of the original allottee. Respondent-authority on finding
that a fraud had been played with it, cancelled the lease deed registered in favour
of the petitioner on the basis of Court decree.
12. It is, however, an admitted fact that petitioner had not been associated
with any enquiry conducted by the respondent-authority as lessee of the plot in
question and his right of being heard has been violated by the respondent-
authority. Contention of the learned counsel for the respondent-authority that
lease can be cancelled in view of Clause 12(3) of the lease deed, as it was recited
in the Clause that in view of finding that lease has been obtained on
misrepresentation or suppression of facts or fraud, same can be cancelled, is a
question of law to be decided after hearing the petitioner.
13. Admittedly, petitioner had not been associated with the enquiry, if any,
conducted and was not heard before cancellation of allotment of plot leased out
in his favour by a registered lease deed. It is also settled law that a registered
lease deed cannot be cancelled, unilaterally by any of the parties, but its
cancellation can be obtained by following due process of law.
14. For the foregoing reasons and observation made hereinabove, the present
petition is allowed and the impugned order is set aside. Respondents are directed
to consider the matter afresh and proceed further in accordance with law after
issuance of notice of being heard to the petitioner.
15. With the aforesaid direction, the present petition is disposed of.
(MA Chowdhary)
Judge
Jammu
01.03.2024
Paramjeet
Whether the Judgment is speaking? Yes/No
Whether the Judgment is reportable? Yes/No
