RESIDENTS OF CHANNI HIMMAT Vs. STATE OF JANDK

JUDGEMENT

(1.) BY the judgment and order under appeal in these two appeals, two writ petitions have been dismissed. These two writ petitions addressed the same cause. We have, therefore, heard both the appeals analogously with the consent of the parties appearing before us. The judgment and order under appeals dealt with three writ petitions: one filed by the private respondent in these appeals and the two others by the appellants in these two appeals. For the reasons separately recorded, while the writ petitions filed by the appellants in these appeals were dismissed, the writ petition filed by the private respondent in these appeals was allowed. The private respondent in these appeals contended in the writ petition filed by him that he is running an educational institution from a Wakaf property wherefrom he has been directed to be evicted by an order dated December 27, 1995 passed by the authority constituted by the Jandk Wakaf Act, 1978; as a result the private respondent preferred an appeal before the Jandk Special Tribunal against the said order of eviction and therein prayed for stay of the order of eviction which was granted on January 9, 1996. It was contended that, by the Jandk Wakaf Act, 2001, the Jandk wakaf Act 1978 was repealed and by the later Act the appellate authority was changed, where a provision was also inserted under sub-section (3) of section 54 to the effect that in case appeal is not decided within 90 days, the stay order, if any passed by the Appellate Authority, shall automatically stand vacated, though there is a mandate in section 54 (3) that the appeal shall be disposed of by the Appellate Authority within 90 days from the date of the appeal. It was contended that the appellate Authority, in view of the new law, by order dated July 6, 2004, observed that the said order passed by the Special Tribunal stood automatically vacated, and, accordingly, eviction should be proceeded with. This order dated July 6, 2004 was assailed in the writ petition filed by the private respondent. The learned Single judge, while dealing with the said writ petition, felt that since an appeal was pending with the Appellate authority, the proper course for the Appellate Authority would be to hear the appeal and dispose of the same on merits, and that ends of justice demanded that till the appeal is disposed of, status-quo should be maintained in the matter. The learned Judge accordingly ordered. No appeal has been preferred against that part of the judgment and order under appeal. Shri Naresh Kumar, appellant in LPAOW no. 39/2008, in the writ petition filed by him, contended that out of a plot of land measuring, approximately, 30 to 32 kanals situate in Channi Himmat Housing Colony, jammu, earmarked for school and play field, 4 Kanals have been allotted in favour of the private respondent by government order dated August 24, 2000 without any just or sufficient reason and without taking the usual step of auctioning the same. He, therefore, prayed for quashing of the Government order dated August 24, 2000. He contended that he has also set up a school in channi Himmat Housing Colony, Jammu and, to upgrade the same to higher secondary level, he requires additional space and if the plot in question had been auctioned, he could also make an effort to take the land in question. While opposing the said writ petition, the Government stated before the learned Single Judge that the Government order dated August 24, 2000 is based on the Cabinet decision dated August 18, 2000, the Jandk Housing Board contended that the Government order dated August 24, 2000 stood complied with and possession of the land in question has already been handed over to the private respondent in the year 2001. In their opposition, the State Government also contended that it was competent to make such allotment. The learned Single Judge, while disposing of the writ petition, did not go into the question whether the Government was competent to make the allotment of the land in question in favour of the private respondent in the manner the same was done. The learned Judge held that since the government order dated August 24, 2000 was based on the Cabinet decision dated August 18, 2000 and since that Cabinet decision had not been challenged, the writ petition of the said appellant, challenging the government order, cannot stand. In the writ petition filed by the appellant in LPAOW no. 38/2008, it was contended that the piece of land which has been allotted to the private respondent, was meant for a play field but the same has, in violation of the original scheme, been allotted to the private respondent for establishing a school. The learned Judge went through the site plan and found that the land in question as well as the contiguous land were shown in the plan to be used for play field and school. The learned Judge, therefore, felt that there was no violation of the site plan or of the scheme. In addition to that, the learned Judge felt that the Government order cannot be assailed without assailing the Cabinet decision and since the Cabinet decision had not been challenged, the writ petition was not maintainable. We have considered the pleadings, respective contentions and submissions, as well as records produced by the parties and, in particular, by the State government and the private respondent. We have seen, and there appears to be, no dispute that the private respondent is the owner of an educational institution known as J. S. Luthra Academy. As the proprietor of the said institution, the private respondent was a tenant of a premises situate at Wazarat Road, Jammu which property is an Auquaf property. On December 27, 1995, the Chairman, Tehsil Committee directed eviction of the private respondent from the said premises. As discussed above, private respondent has preferred an appeal against the said order of eviction in which he had obtained an order of stay of eviction which stands vacated in terms of the provisions of law indicated above and the learned Judge, while dealing with the writ petition of the private respondent, by the judgment and order under appeal, directed hearing and disposal of the said appeal on merit and till then maintained status-quo as regards the said premises. While the stay of eviction granted by the Appellate authority was continuing, the private respondent on december 15, 1997 applied to the Chief Minister of the state in reference to a meeting held by the private respondent with the Chief Minister of the State. The subject of the said letter was shifting of the school of the private respondent, namely, Luthra Academy. In that it was stated that a piece of land measuring about 15 kanals be allotted to the private respondent on nominal development charges out of which 2 to 4 Kanals would be set aside free of cost. It was stated that the land may be made available in order of preference at Gandhi nagar (4 Kanals); Trikota Nagar (4 to 6 Kanals) and at channi Himmat area (15 to 20 Kanals ). With that, a further request was made in the said letter to provide interest free loan, or loan on nominal interest, from the housing Department, Government Financial Institution or building grant from the Education Department for construction of the school building. That part, permission for shifting of the school from the present premises to the new one was also solicited. This letter does not at all describe the length and breadth of the existing school. There is not a single whisper as to what kind of school the private respondent was running. It was, however, stated that the request made was for the greater interest of Wakaf in general and Jamia Masjid in particular. On this letter, an endorsement was made on may 10, 2000 to the effect "kindly give 2 Kanals paid and 2 Kanals free" with further endorsements "as already ordered" and "immediate orders be issued and orders of H. C. M. be implemented". Prior to the said endorsement, on July 30, 1999, the OSD to the Minister for Housing and Urban Development, Government of jandk, by a letter informed the Managing Director of Jandk housing Board that no piece of land is to be offered / allotted free of cost to the private respondent. It appears that the Jandk Housing Board, thereupon held out that it has a piece of land measuring about 4 Kanals at Channi himmat in Sector-II, earmarked for school, which can be considered for allotment at the rate of Rs. 8. 00 lacs per Kanal. It further appears that the Jandk Housing Board made an offer to the private respondent on April 24, 1999 whereby a request was made to him to deposit Rs. 16. 00 lacs to Jandk Housing Board, Jammu on account of 50% of the total cost of 4 Kanals of land in Sector-II, Channi himmat Housing Colony, Jammu within a period of one month and the balance within three months from the date of the said offer. It does not appear that the private respondent accepted the said offer. On the other hand, instead the Principal Secretary to the Government, housing and Urban Development Department, prepared a memorandum for submission to the Cabinet. The said memorandum is as follows: "government of Jammu and Kashmir civil Sectt, Housing and Urban Dev. Deptt. Memorandum for submission to the Cabinet the Luthra Academy which is an Education institution is in possession of some Aquaf land at wazarat Road, Jammu. This Aquaf land is required by Aquaf Organization, Jammu for their own use and the Revenue Department has already directed the Special Officer Aquaf, Jandk to take steps to evict the Land from the said academy. This being so, the Principal of the said academy submitted a representation dated 15. 12. 1997 to the Hon'ble Chief Minister for allotment of land who on 12. 1. 1998 observed thereon as under: 'kindly examine this and give them site for school'. Accordingly the case was examined and the luthra Academy was offered 4 kanals of land at channi Himmat in the consideration of Rs. 8 lacs per kanal by the Managing Director, Jandk Housing board, Jammu. Subsequent to this vide his endorsement no. HB-5168 dated 24. 2. 2000, the Managing director Jandk Housing Board intimated to the minister for Housing and Urban Dev. Deptt (Chairman Jandk Housing Board) that as approved by the Jandk Housing Board, land measuring 4 kanals was offered to Luthra Academy @ Rs. 8. 00 lacs per kanal in Housing Colony Channi Himmat jammu vide his office No. HB-950-52 dated 29. 4. 1999. The Luthra Academy was required to pay 50% of the cost within a period of one month and the balance 50% of the cost three months from the date of issue of offer. The allottee has not deposited the requisite amount. Since the allottee failed to deposit the requisite amount within the stipulated period, the land offered was cancelled vide No. HB/1681-82 dated 3. 6. 1999. The Institute had represented to the hon'ble Minister for providing land free of cost. Jandk Housing Board being a Commercial organization running without any budgetary support from the Government, can neither allot any land free of cost nor wait for indefinite period for payment. The then Hon'ble Minister turned down the request of the allottee to allot the plot free of cost. On 10. 5. 2000, the Hon'ble Chief Minister ordered on a copy of the earlier representation submitted to him by the Principal Luthra academy Jammu to allot 4 kanals of land (2 kanals paid and 2 kanals free) in favour of the said Academy. Accordingly, in view of the specific orders of the Hon'ble Chief Minister vide this Department letter No. UD-89/99-JDA dated 24. 5. 2000 the managing Director, Jandk Housing Board has been asked to issue necessary orders and place the matter before the Board of Directors in its next meeting for their approval. However, since the Jandk Housing Board is an autonomous Organization and commercial in nature as such in case 2 kanals of land at Channi himmat Jammu is allotted to the Academy free of premium, the Housing Board needs to be compensated by the Government equivalent to the cost of the premium of 2 kanals of the said land. Besides, the land proposed to be allotted was acquired by the Housing Board. The Principal Secretary to Government, housing and Urban Development Department accordingly submits the case to Cabinet with the prior approval of the Minister Incharge for consideration and approveal of the following resolution: 'sanction is accorded to the allotment of 4 kanals (2 kanals paid and 2 kanals free) of land at Channi Himmat in favour of Luthra academy Jammu in relaxation of rules and the Government shall compensate the housing Board equivalent to the cost of the premium of 2 kanals of the said land. '" on the basis of the said memorandum, Cabinet decision dated August 18, 2000 was taken. The said Cabinet decision is as under: "proposal approved. The JDA shall be compensated in kind by allotment of alternative land and not in cash. " however, prior to August 18, 2000, Jandk Housing Board, by order dated June 28, 2000, held out that as desired by the Housing and Urban Development Department and in compliance to specific orders of the Chairman / Minister for Housing and Urban Development, endorsed by the housing and Urban Development Department, 2 Kanals of land at a cost of Rs. 16. 00 lacs (Rs. 8. 00 lacs per kanal)and 2 Kanals free of cost is allotted in favour of the private respondent in Housing Colony at Channi Himmat, jammu. Thereupon, on August 24, 2000 the impugned government order was issued by the order of the government of Jammu and Kashmir by the Principal secretary to the Government, Housing and Urban development department. The text of the said order is as follows: