SHANTI PRAKASH JAIN Vs. ADMINISTRATOR JAMMU MUNICIPALITY

JUDGEMENT

(1.) THESE two petitions raise common questions of law and will be disposed of by one judgment. The facts out of which the petitions arise may be summarized as follows: -

(2.) SOMETIME in the year 1956 the State of Jammu and Kashmir decided to establish a housing colony beyond the old railway station area to be named as Gandhinagar. For this purpose the Government set apart huge chunks divided into plots of various areas to be allotted to persons desirous of cons ­tructing dwelling houses thereon, so that a regular housing colony may be established in due course of time. In pursuance of this scheme to establish the Gandhinagar township, the Government specified persons belonging to certain categories in order to allot the plots to them : one class constituted Govern ­ment servants in low income group, and another class consisted of persons who had no houses of their own and wanted to cons ­truct houses for their residence. It was also decided as a part of the scheme that the plots would be sold to the allottees only on the condition that they constructed dwelling houses according to the plan approved by the Municipal Committee within a specified period. In other words although the transferees would have absolute title to the plots allotted to them, the sale would be subject to a subsequent condition, the failure to perform which would result in the plots reverting to the State and cancellation of the sale. In this connection the following Notification was issued by the Government: - "Government have decided to fully develop the area be ­yond the railway station into a new town -ship to be named Gandhinagar". All the amenities like the pro ­vision of water supply, street lighting, drainage, tarred roads, dispensary, school, market and a college are being provided there. The area has been divided into blocks and some of those blocks have been earmarked for allot ­ment to Government officials under the Low Income Group Housing scheme and other officers. One of the blocks consisting of 200 plots, each plots measuring 90X65 has been reserved for sale to the general public, at a cost of Rs. 2,000/ - per plot on proprietary rights The terms and conditions of sale of the plots will be as follows: - (1) The purchaser will have to commence the construc ­tion of the building within a period of three months from the date the possession, of the plot is handed over to him and to complete it within a period of 12 months. (2) The building will be constructed according to the plan and specifications approved by the Housing Department. (3) The purchaser will use the building for his personal use and occupation as a residence for himself or any of the members of his family and for no other pur ­pose. (4) The purchaser will be bound to complete the cons ­truction of the building according to the specifica ­tions and will not be entitled to transfer the plot as such without prior permission of the Housing Department. (5) The purchaser will undertake to carry out such ins ­tructions as may be laid down from time to time by the Housing Department or any other authority specially appointed for this purpose. (6) One family will be entitled to purchase one plot only. (7) Those desirous of purchasing the plots should apply to the undersigned by name on or before Monday the 6th February 1956 during the office hours. For any further information, the intending purchasers may contact the undersigned."

(3.) ONE Om Parkash, vendor of the petitioner S. P. Jain, applied for allotment of a plot in Gandhinagar and his applica ­tion was accepted by the Government, and accordingly plot No. 38 of block C Sector D was transferred to Om Prakash, resident of Kanak Mandi Jammu by a sale deed dated 21 -2 -59. Subsequently, however, Om Prakash transferred the plot by virtue of a registered sale deed dated 5 -1 -63 to the petitioner S. P. Jain for a consideration of Rs. 9,000/ -. It may be stated here that Om Parkash vendor of the petitioner had got the plot from the Government at a reduced and subsidized cost of Rs. 2500/ - only. The petitioner, after having taken the plot from his vendor Om Prakash, applied to the first respondent, Administrator Municipality, to permit the petitioner to cons ­truct a dwelling house. A plan was also submitted alongwith the application. The Administrator, however, after a good deal of delay refused permission to the petitioner to construct the house as he was directed to do so by virtue of a direction given by respondent 2. The main ground on which the permission was refused was that Om Prakash the original allottee had transferred his rights to the petitioner without fulfilling the conditions mentioned in the sale deed and therefore the transfer to the petitioner could not be recognized by the Municipality. The petitioner, however, submitted that Om Parkash, after exe ­cuting the sale deed was all along in possession of the plot until he transferred the same to the petitioner and the Government made no attempt to resume the plot, even though the conditions mentioned in the sale deed had not been fulfilled. The peti ­tioner further contends that any restriction or condition con ­tained in the sale deed by which the right of the vendor of the petitioner Om Prakash was defeated was void under S. 10 of the Transfer of Property Act (hereinafter to be referred to as the TP Act) and had to be ignored. It was further contended by the petitioner that the Administrator ought to have applied his mind to the plan submitted by the petitioner and unless it contravened any provision of the Municipal Act he was not competent to refuse permission to the petitioner to construct the house even on the direction of the second respondent. On these allegations the petitioner prayed for a writ of Mandamus directing the first respondent to grant permission to the petitioner to construct the house and to restrain the second respon ­dent from interfering with the property of the petitioner. These are the facts so far as the petition of S. P. Jain is concerned.