Jammu & Kashmir High Court
R.S. Auto Engg. And Ors., Etc. vs The State And Ors. on 27 February, 1997
Equivalent citations: AIR1998J&K5, AIR 1998 JAMMU AND KASHMIR 5
ORDER B.A. Khan, J.
1. O.W.P. No. 401/95 was listed along with the record of OWPs No. 828 and 97 of 1995. In both petitions, OWPs 401/95 and 828/95, petitioners are represented by Mr. N. P. Kotwal, advocate. OWP No. 828/95 also carries an order of the Court lor joint consideration of OWPs 95/95, 401/95 and 828/95. Therefore, it was deemed proper to take up all these petitions for disposal by one common judgment as they raise identical questions of law and facts as also on the request of parties after treating, them admitted to hearing.
2. Petitioners claim that they Were allotted shops at Nehru Market in Warehouse, Jammu, by the Estates Department and have remained in possession for the last about 30 years carrying on their business. In or around 1987, the Jammu Development Authority (JDA) is said to have prepared a masterplan for development of the Jammu city whereby it was decided to shift the warehouse to New Transport Nagar at Narwal and to establish a Bus stand at the Warehouse for Kathua and R. S. Pura stations. In the meanwhile shops and godowns ete. owned by the Estates Deptt. were transferred to the JDA vide Govt. Order No. 266-Estt of 1994 dated 22-11-1994 whereby JDA was empowered toevict the traders from the shops and godowns and it was provided that the shops in question after eviction would be put to auction and the revenue generated thereof utilised for the development of the Bus Stand as per the proposal of M/S RITES. A committee was accordingly constituted to prepare a scheme for rehabilitation of the shop-keepers who were running their shops at the Warehouse and subsequently the JDA reportedly entered into some negotiations with the shop-keepers and obtained undertakings from them to vacate the shops in their occupation in lieu of the alternate shop sites to be allotted to them at the New Transport Nagar, Narwal. Petitioners' grievance is that instead of allotting them shops at Narwal. JDA had only allotted them shop sites against the payment of regular premium and rent which was not in tune with the spirit of their rehabilitation and as such undertakings obtained from them on misrepresentation of facts were void. They pleaded that they remained in possession of the shops at Warehouse because of this and paid rent to the JDA and that the undertakings executed by them had no sanctity. They also pleaded that under the approved plan, structures in the Warehouse were required to he demolished. But now the plan had undergone a change as the Bus Stand was near completion and the shops in their occupation were not to be demolished. So much so that the shops at the back of Asia Hotel were allotted by the JDA on the first come first served basis and that the shops in their possession were also required to be auctioned. They apprehended forcible eviction from the shops from the JDA and filed these petitions for the issuance of a writ of prohibition restraining the respondents from evicting them from the shops under their possession and from interferring in their business in any manner pursuant to Govt. Order No. 266-Estt of 1994 dated 22-11-1994.
3. The writ petitions are resisted by the IDA on the plea that the same were not maintainable as the petitioners had already filed a civil suit on the subject-matter and on the ground that the petitioners stood allotted shops sites at Transport Nagar, Narwal on a nominal price in lieu of the shops under their possession at Warehouse, whereupon they had already constructed their shops and were running their business. They had also executed an undertaking with the JDA to vacate their shops as soon as their shops and structures were complete on the alternate shop sites allotted to them at Transport Nagar, Narwal but had now resorted to litigation to go back on their word. It is explained that different surveys and studies were conducted by various agencies with a view lo tackle the multifarious problems faced by Jammu city and in this connection comprehensive plan submitted by M/s RITES was ultimately accepted and was i n the process of implementation. The recommendations made in this report include widening of roads, shifting of the Bus Stand etc. from Jammu city to other suitable place. The Bus Stand for Kathua and R. S. Pura routes was suggested to be shifted to Warehouse and accordingly considerable amount of money was required for establishment of this Bus Stand. Additionally, most of the structures in Warehouse were required to he partly removed, changed and modified as per the requirements o| the Bus Stand and in conformity with the plan lay out. It was in this background that the JDA was authorised vide Govt. Order dated 12-11-1994 to evict the shop-keepers including the petitioners in Warehouse after they were allotted alternate shop sites at Narwal and put such shops to auction as were not required to be demolished for financing the Bus Stand Project for which the Government had declined to lend any finance. It was in this background that the shop-keepers in the Warehouse including the petitioners were required to surrender the possession of the shops and to stand by their commitment made in their undertakings.
4. Broadly the case of the petitioners is that Govt. Order NA. 266 of 1994 was issued with ulterior motive to evict them and the undertakings obtained from them by the JDA wore on misrepresentation of facts and at a time when the shops in their possession still belonged to the Estates Department and as such these undertakings had no sanctity and could not be enforced against them. It is also projected that since they had remained in occupation of the shops after the execution of the undertakings when allotment of shop sites to them at Narwal was made, and had paid rent to the JDA. as such they had acquired the status of licensees under the JDA and were required to be evicted only in accordance with the provisions of law it is also pleaded that alternate shop sites given to them at Narwal were, in the normal course, allotted to them and not as a matter of rehabil italion and that the shops under their possession which were earlier required to be demolished for establishing a Bus Stand were now to be auctioned to fetch a better price which was not a public purpose. They were prepared to pay some more rent to the JDA to retain possession of these shops.
5. Petitioners' counsel, Mr. Kotwal has cited a number of judgments of the Supreme Court and various High Courts including AIR 1979 SC 1628, AIR 1980 SC 1628 (sic). AIR 1981 SC 136, AIR 1977 SC 1496, AIR 1982 SC 121, AIR 1986 SC 180, AIR 1989 SC 1834. AIR 1990 SC 1402, AIR 1987 All 56. AIR 1981 Raj 217 and AIR 1989 Pat 269.
6. The stand of the JDA. on the other hand, is that the petitioners had gone aback on their word in disregard of their undertakings and had grabbed the alternate shop siles allotted to them besides retaining the possession of the shops at Warehouse. It is submitted that the alternate shop sites were allotted to them at nominal price in lieu of the shops under their occupation at Warehouse which were required for the establishment of a Bus Stand in accordance with the provisions of plan according to which shops and other facilities had to be created therein in conformity with the terms of such plan. It is contended that acceptance of any rent from the petitioners by the JDA did not confer any status of licensee on them and did not come in the way of their eviction pursuant to the undertakings executed by them. In short, it is made out that the petitioners were liable to eviction from the shops in tune with the Devclopmenl Plan of the Jammu city and had no right to retain possession of the shops in Warehouse, moreso, after they were allotted alternate shops at Narwal where they had constructed shops and carrying on their business.
7. All that remains to be seen in this context is: whether the JDA could be restrained by a writ of prohibition from evicting the petitioners from the shops in question?
8. It is not in dispute that the petitioners have been occupying the shops under the Estates Deptt. and paying rent, though the orders of the allotment are not available to ascertain the exact nature of their status. It is also a common ground that after these shops were transferred to the JDA by Govt. Order No. 266 of 1994 dated 22-11-1994, they were approached for vacation of these shops on being allotted alternate shop sites at New Transport Nagar, Narwal, pursuant whereto they executed undertakings with the JDA to vacate their respective shops in lieu of the allotment of shops at Narwal with fixed terms and conditions which stand allotted to them and upon which they had reportedly constructed their shops and were running their business. It is also true that this Govt. order envisaged reauctioning of these shops wherever needed to generate revenue for establishment of a Bus Stand at wherehouse. Therefore, normally the parties should have struck to their respective positions as reflected in terms of Govt. Order aforesaid and the undertakings furnished by the petitioners.
9. But, it is not difficult to gather that the petitioners, perhaps, on their change of mind, entertained second thought with the sole object of retaining the possession of shops at Warehouse and resorted to litigation in Civil Court and in this Court and obtained interim orders perpetuating their hold on the shops at Warehouse. Their action cashing on the technical use of the process of law, is only aimed at having best of all the worlds. They firstly succeeded by getting alternate shop sites at New Transport Nagar, Narwal, reportedly on nominal price, set up their shops and are running their business there and at the same time, took recourse to litigation to retain their possession of shops at Warehouse by going back on their commitment reflected in the undertakings executed by them with the JDA. This inconsistency in their word and action imparts no fairness and honesty to their action. It seems that they expect fairness from the JDA without applying that norm to themselves.
10. The question is not of the petitioner's holding on to the shops at Warehouse by hook or crook. On the contrary, the issue is: whether petitioners in the facts and circumstances of the case, deserved be allowed to retain possession of their shops at Warehouse at the cost of the development of the Jammu city in equity? Their plea that the undertakings executed by them with the JDA carry no sanctity because at the time of execution, the shops belonged to the Estates Deptt. and they were told that these shops would be demolished to establish a Bus Stand, speaks volumes about their conduct and approach and their vested interests to blow not and cold in the same breath and to accept what suited them by rejecting what hurt them.
11. Mr. Kotwal's reliance in this regard on OlgaTellis v. V. Kupuswami, AIR 1986 SC 180, AIR 1990 SC 1402, AIR 1989 SC 1834 and other judgments referred to hereinabove, which enunciated the principle of observances of the rules of natural justice and fairly even in the administrative action, is rather misplaced. So are his pleas related to the estoppel and the worth of the undertakings executed by the petitioners.
12. It is true that an undertaking given by a citizen that he would not enforce his fundamental right including the right to livelihood or that he does not possess any such right, is not enforceable against him as held by the Supreme Court in Olga Tellis v. Kupuswami, AIR 1986 SC 180. But, the petitioners' case cannot be said to be covered by this principle. Firstly, the matter does not involve the question of their fundamental right or for that matter any right to retain possession of the shops which admittedly do not belong to them and which do not stand leased out to them by the JDA. Therefore, any undertakings executed by them to vacate the possession of these shops, cannot be said to be tantamounting to an undertaking whereby they had ignorantly foregone any of their right or a fundamental right. They had executed the undertakings consciously pursuant to negotiations and for a better bargain of getting an alternate shop sites at the New Transport Nagar, Narwal, on a nominal price.
13. Similarly the limitations imposed upon and referable to the rules of natural justice, are also not attracted in the present case. It is not understandable how [he petitioners expected to be afforded an opportunity of being heard for vacating the shops in question which they had undertaken to vacate on being allotted alternate shop sites. It cannot, therefore, be their case that they had any right to be allotted shop sites at Narwal upon which they had constructed shops and were running their business. They were allotted these shop sites only in lieu of their having agreed to vacate the shops at Warehouse which was proposed to be developed to accommodate a Bus Stand for the convenience and in the interests of the public. Therefore, they cannot be allowed to have best of all the world and to ward off their eviction by taking recourse to the technical niceties of the law.
14. It may as well be that they might have paid some rent to the JDA for these shops pursuant to the undertakings executed by them to vacate. But, that does not advance their case any further because any deposit of rent by them without any allotment made in their favour by the JDA or in the absence of any lease agreement, could not confer the status of a tenant or lessee on them to earn them a safeguard against their eviction. Their status for the present is no better than the encroacher of a public property which is required to be used for public purposes. As such they cannot expect the JDA to act fairly when they themselves have not acted so.
15. Added to all this is the fact that the petitioners are already before the Civil Court on the same subject-matter. They appear to have filed this petition as an added safeguard to benefit from the interim directions passed by this Court and to perpetuate their hold on the shops in the Warehouse. Their petitions on this count also deserves to be rejected.
16. Petitioners' prayer fora writ of prohibition is also misconceived because it is not a case where the JDA can be said to be acting without or in excess of any jurisdiction. The authority stands empowered to evict them by Govt. Order No. 266 of 1994 and has eversince been endeavouring to do so but for the litigation launched by the petitioners in the Civil Court and in this Court. Therefore, the question of issuing any writ of prohibition to the authorities does not arise.
17. Most of the judgments cited by learned counsel for the petitioner, Mr. Kotwal, have no bearing on the issues involved in the present controversy and, therefore, are not required to be referred to and extracted.
18. For the reasons given, I find no merit in these petitions which are dismissed and the interim directions vacated.
19. At this stage, 1/c for petitioner, Mr. Kotwal prayed that the operation of the judgment be suspended to enable the petitioners to seek consideration of the proposed appeal to be filed.
20. Counsel for the JDA, Mr. Adarsh Sharma responding to this submitted that JDA would not evict the petitioners pursuant to the judgment till 5th March, '97.
21. In the circumstances, the need for suspending the operation of the judgment is obviated.