Jammu & Kashmir High Court
Jagdev Singh vs State Of J&K; And Others on 14 July, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No.392/2016
MP No.1/2016
Date of order:14.07.2017
Jagdev Singh v State of J&K and others.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner(s) : Mr. Ashok Mishra, Advocate.
For the Respondents(s) : Mr. S.S.Nanda, Sr. AAG for R-1 to 5
Mr. Rajnesh Oswal, Advocate for R-6 & 7.
i/ Whether to be reported in : Yes
Press/Media
ii/ Whether to be reported in : Yes
Digest/Journal
1. The petitioner is aggrieved of Order No.240-DULBJ of 2016 dated 02.03.2016 issued by respondent No.4, whereby he has modified its earlier order issued vide Order No.204-DULBJ of 2004 dated 22.07.2004 read with Order No.362-DULBJ of 2004 dated 25.11.2004 and has accorded sanction to the allotment of four shops on the ground floor and three shops at first floor in the shopping complex belonging to the Municipal Council, Doda contiguous to the site of booking office counter at Bus Stand, Doda on proprietary basis equally i.e. half share to each in favour of the writ petitioner and legal heirs of Late Sh. Krishan Singh i.e., respondent Nos. 6 and 7.
2. The grievance projected by the petitioner in the writ petition precisely is that land measuring 8 kanal 3 marlas belonging to one Sh. Dharam Singh, father of the petitioner and OWP No.317 of 2016 Page 1 of 19 grandfather of respondent Nos. 6 & 7 was acquired at the instance of Department of Local Bodies for construction of new bus stand at Doda and an award in this regard was made by the Collector on 05.03.1985. It is claimed by the petitioner that father of the petitioner challenged the initial notification issued by the Collector under Section 4 of the Land Acquisition Act in this Court by way of a writ petition being OWP No.211/1981 (Dharam Singh v. Collector Doda and others), which was disposed of by this Court vide order dated 10.07.1986 with a direction to the Collector to consider the prayer of the petitioner therein for retention of some portion of the land acquired. In compliance to the aforesaid order of this Court, the Government vide order No.REV(MDJ) 42 of 1992 dated 06.04.1992 leased out land measuring 8 marlas comprising in Survey No.326 min situated at Doda for a period of 40 years to the petitioner and his brother, Sh. Krishan Singh, the father of respondent Nos. 6 & 7. As is apparent from a bare reading of the aforesaid order, no premium for the allotment of the aforesaid 8 marlas of land was charged by the government for the reason that the interested persons i.e., Krishan Singh and Jagdev Singh, sons of Late Sh. Dharam Singh had not been paid any compensation for their land, which had been acquired at the instance of Director Local Bodies.
OWP No.392 of 2016 Page 2 of 19
It is further submitted by the petitioner that on 03.07.1992, an agreement was executed between the petitioner on one part and the District Development Commissioner, Doda on other part, by virtue of which the petitioner was allowed to construct shops/residential house in the said leased land and accordingly, a mutation was also attested in favour of the petitioner. Although, the petitioner has claimed that it was an agreement between him and the District Development Commissioner, Doda, yet a bare perusal of the agreement, appended as Annexure-B with the writ petition, it would transpire that his brother, Krishan Singh was too party in the agreement along with the petitioner. The petitioner, therefore, submits that after taking over the possession of 8 marlas of land, he applied for permission for construction of shops on the aforesaid land leased out to him by the government. He got all No Objection Certificates as are required under law from different departments and was thereafter accorded the requisite permission. The petitioner further submits that pursuant to the permission granted, he laid the plinth of five shops in April, 1993 on the land falling into his share, which has been determined mutually between the petitioner and his brother, namely Krishan Singh. He then submits that in the month of December, 1994, Chairman/ Administrator, Notified Area Committee, Doda started digging footpath in front of his OWP No.392 of 2016 Page 3 of 19 proposed shops for laying foundation of shopping complex to be constructed by the Notified Area Committee, which constrained the petitioner to file a civil suit for declaration and permanent prohibitory injunction against the Notified Area Committee, Doda. Again, although, the petitioner claimed that the suit was filed by him alone but copy of the order passed in the aforesaid suit placed on record by the petitioner himself as Annexure-E with the writ petition, clearly reveals that the said suit was filed jointly by Jagdev Singh and Krishan Singh. Thus, there appears to be a deliberate attempt to conceal the truth and misrepresent the facts on the part of the writ petitioner.
3. Be that as it may, the petitioner further submits that in the aforesaid civil suit, the matter landed in this Court by way of a revision petition being civil revision No.26/1995, which came to be disposed of with a direction to settle the matter in the light of proposal given by the official respondents in the aforesaid revision petition. Pursuant to the settlement arrived at between the petitioner and the Notified Area Committee, Doda and to settle the controversy once for all, respondent No.4 vide his order No.204-DLUBJ of 2004 dated 22.07.2004 read with order NO.362-DULBJ of 2004 dated 25.11.2004 allotted four shops at the ground floor and three shops at the first floor in favour of the petitioner Sh. Jagdev Singh on proprietary basis with easement OWP No.392 of 2016 Page 4 of 19 right of the premises on the back side of the shops in lieu of 8 marlas of his proprietary land. On the basis of the aforesaid facts and the documents annexed with the petition, the petitioner contends that he has been in possession of the aforesaid shops for the last more than 12 years and that his possession on the aforesaid shops is continuous and settled and respondent No.4 could not have reviewed his own order and unsettle the settled position by giving half of the share in the aforesaid shops allotted exclusively to the petitioner on proprietary basis, to respondent Nos.6 & 7. He therefore, challenges the impugned order on several grounds but the grounds, which were projected during the course of arguments, may be noticed as under:-
i) Order issued in the year 2004 could not have been modified by respondent No.4 after a gap of about 12 years, particularly when neither respondent Nos. 6&7 nor their late father Sh. Krishan Singh had ever objected to the allotment and exclusive possession of the petitioner.
ii) Order impugned is actuated by malafide considerations inasmuch as respondent No.6, who is working in the office of respondent No.3 has manipulated all this by filing a representation before respondent No.3 and getting a favourable report prepared in his favour, which report OWP No.392 of 2016 Page 5 of 19 ultimately was made basis for issuance of the order impugned by respondent No.4.
iii) Allotment made in the year 2004 was to the petitioner to the exclusion of his brother, Sh. Krishan Singh or his legal representatives, therefore, in the year 2004 itself respondent Nos. 6 & 7 lost their right in the property and therefore, could not have been allowed to agitate the same after a lapse of more than 12 years.
iv) Order impugned suffers from total non-application of mind and the same could not have been issued by respondent No.4, who could not have sat over the matter as an appellate authority.
v) Dispute between the petitioner and respondent Nos. 6 & 7 was the one which could have been decided by a Civil Court only and therefore, respondent No.4 had no authority to allocate the share in the property, which was allotted in favour of the petitioner exclusively on proprietary basis, without there being any decree of the civil court in this regard.
It was lastly contended by the learned counsel for the petitioner that the shops were being raised by the petitioner on 2 ¼ marlas out of 8 marlas of land allotted to the petitioner and OWP No.392 of 2016 Page 6 of 19 his brother, Late Sh. Krishan Singh, therefore, the same was within his share and shops i.e, four on the ground floor and three on the 1st floor of the shopping complex constructed by NAC, Doda were allotted to the petitioner in lieu of his land measuring 2 ¼ marlas only. Therefore, respondent Nos. 6 & 7 had no claim on the shops so allotted by respondent No.4 vide order dated 22.07.2004 read with order dated 25.11.2004.
4. Per contra, learned counsel appearing for respondent Nos. 6 & 7 has stated that the allotment dated 22.07.2004 was obtained by the petitioner by fraud and misrepresentation. Father of respondent Nos. 6 & 7 had died in the year 2001 and taking benefit of his demise, the petitioner though well aware that the land measuring 8 marlas had been allotted to him alongwith his brother, Late Sh. Krishan Singh, yet misrepresented before the authorities as if after the demise of Krishan Singh, the petitioner alone was entitled to own and possess the aforesaid land measuring 8 marlas, which was initially allotted by the government in the year 1992. It is, thus, submitted by the learned counsel for respondent Nos. 6 & 7 that order dated 22.07.2007 had been obtained by the petitioner by sheer deceit and fraud, therefore, nothing prevented respondent No.4 to revisit the aforesaid order and modify the same so as to do justice with respondent Nos. 6 & 7, OWP No.392 of 2016 Page 7 of 19 who are none other than the sons of Krishan Singh, late brother of the petitioner. Learned counsel for respondent Nos. 6 & 7 further submits that since the petitioner was real uncle of respondent Nos. 6 & 7, therefore, they never doubted his intention nor had they any inkling that their uncle had managed allotment in his name to their exclusion. It was only when they started asserting their right, the petitioner told that they had no right, title or interest in the aforesaid shops as the same had been allotted to him exclusively. Aggrieved, respondent Nos. 6&7 submit that they filed a detailed representation before the District Development Commissioner, Doda on 24th December, 2013. The matter was enquired into by the Additional Deputy Commissioner, Doda, who vide his communication No.342- 43/SQ dated 13.06.2014 has submitted his report to respondent No.4 and requested him to issue necessary corrigendum to the order issued in the year 2004 on misrepresentation made by the petitioner. It is, thus, contended by learned counsel for respondent Nos. 6 & 7 that on the basis of aforesaid fact finding enquiry conducted by the Additional Deputy Commissioner, Doda the matter was considered by respondent No.4, who after affording reasonable opportunity of being heard to the petitioner passed the order impugned, which does not suffer from any legal infirmity. Learned counsel further submits that the aforesaid order was necessitated to undo the OWP No.392 of 2016 Page 8 of 19 wrong done to the respondent Nos.6 & 7 on account of sheer misrepresentation made by the petitioner before the authorities.
5. To the similar effect is the reply submitted by the official respondents, who have maintained that order of allotment passed in the year 2004 in favour of the petitioner exclusively to the exclusion of respondent Nos. 6 & 7 was on account of misrepresentation by the petitioner, who had all along asserted himself to be the exclusive allottee in possession of 8 marlas of land, which was admittedly allotted by the government to both the petitioner and Late Sh. Krishan Singh, the sons of one Dharam Singh, whose agricultural land had come under acquisition. Mr. S.S.Nanda, learned senior AAG, appearing for respondent Nos. 1 to 5, therefore, submits that no fault can be found with the order impugned and the same cannot be held to be bad only on the ground that there was delay of 12 years in correcting the error. He, as such, explains the delay of 12 years by contending that the allotment made in the year 2004 exclusively in favour of the petitioner was on account of sheer misrepresentation and the fraud played by the petitioner with the official respondents. It is only when they received representation along with report of the Additional Deputy Commissioner, Doda that a fraud and misrepresentation made by the petitioner came to be unearthed, immediately remedial OWP No.392 of 2016 Page 9 of 19 measures were taken and before the order impugned was passed, the petitioner was given ample opportunity to show that he was entitled to the allotment of shops in the shopping Complex at bus stand, Doda constructed by the Municipal Committee, Doda exclusively. Despite opportunity granted to him, he could not substantiate his claim, therefore, the order impugned was passed.
6. Both the counsels appearing for the respondents, therefore, vehemently submit that in case an order is obtained by a party by deceit and misrepresentation the same cannot be allowed to subsist and exist only on the ground that the fraud and misrepresentation has remained unnoticed for a pretty long time. Learned counsel for the respondents, therefore, contend that there is nothing wrong in modifying the order and doing justice to the person, who was wronged at the behest of the petitioner, who had misrepresented the facts and had obtained allotment of shops exclusively in his favour by sheer deceit.
7. Heard learned counsel for the parties and perused the records.
8. Admittedly, the land of Th. Dharam Singh, father of the petitioner and grandfather of respondent Nos. 6 & 7, came to be acquired by the Collector Land Acquisition, Doda at the instance of Director, Local Bodies. An award was made by the OWP No.392 of 2016 Page 10 of 19 Collector on 09.03.1981 by virtue of which the land of Th. Dharam Singh measuring 8 kanal 3 marlas falling in Khasra No.326 min situated at New Bus Stand, Doda was acquired. Being aggrieved, Late Sh. Dharam Singh had challenged the initial notification issued by the Collector, Land Acquisition under Section 4 of the Land Acquisition Act by filing OWP No.211/1981. It is also not in dispute that this Court while disposing of the aforesaid writ petition vide order dated 10.07.1986 had directed the Collector to consider the request of the petitioner therein for retention of some portion of the acquired land. The matter appears to have been considered by the government and vide government order dated 06.04.1992, in lieu of the land of Late Sh. Dharam Singh, having been acquired, land measuring 8 malras falling under survey No.326 min was allotted in favour of the petitioner and his brother, Sh. Krishan Singh, as by that time their father Sh. Dharam Singh had already expired. As is evident from the perusal of the records, an agreement came to be executed between the petitioner and his brother late Krishan Singh on part and the District Development Commissioner on the other hand, as a result whereof the petitioner and his brother were allowed to construct the shops/residential house in the aforesaid 8 marlas of land, leased out to them vide government order dated 06.04.1992. Pursuant to the agreement aforesaid, it appears OWP No.392 of 2016 Page 11 of 19 that the petitioner applied for building permission and after completion of requisite formalities he was allowed to raise construction of the shops in the aforesaid 8 marlas of land. It further transpires that while the petitioner was laying plinth for construction of the shops somewhere in April, 1993 the Chairman/Administrator, Notified Area Committee started digging footpath in front of the proposed shops of the petitioner for laying foundation of the shopping complex. The petitioner along with his brother, namely, Krishan Singh filed a civil suit for declaration and permanent prohibitory injunction against the Notified Area Committee, Doda and the District Development Commissioner, Doda in the Court of learned Sub Judge (Chief Judicial Magistrate), Doda. Against the interim order passed by the Court below, the matter appears to have landed in this Court by way of a revision petition being Civil Revision No.26/1995, which was ultimately disposed of by this Court with a direction to the respondent-Notified Area Committee to provide suitable piece of land in bus stand area to the petitioner and his brother and settle the matter once for all.
9. As is evident from the perusal of the order of respondent No.4 dated 22.07.2004, the matter was ultimately resolved in the meeting on 13.12.2003 held in the office chamber of Minister of State, Housing and Urban Development Department OWP No.392 of 2016 Page 12 of 19 that the petitioner would be given proprietary rights of four number of shops on the ground floor and three number of shops on the 1st floor subject to the condition that petitioner would withdraw all pending cases pertaining to the property and that the petitioner would have no further claim of any sort with regard to the property in question. It is here the petitioner played mischief. As noted above, the brother of the petitioner, namely Krishan Singh, had died in the year 2001 and therefore while negotiating with the official respondents, the petitioner presented himself to be exclusive stake holder in 8 marlas of land, which had admittedly been allotted to the petitioner as well as his brother, late Sh. Krishan Singh and after his demise, as a necessary consequence devolved upon respondent Nos. 6 and 7. It clearly transpires that it was not brought to the notice of the official respondents and may be the official respondents were in connivance and therefore, while issuing order dated 22.07.2004, four shops at the ground floor and three shops at the first floor in the shopping complex constructed by the Municipal Committee, were allotted exclusively in favour of the petitioner and respondent Nos. 6 & 7, who were legitimate legal heirs of other co-sharer, namely Sh. Krishan Singh were excluded. Later on, corrigendum to the aforesaid order was issued and instead of allotment of shops on lease hold basis, OWP No.392 of 2016 Page 13 of 19 the proprietary rights along with other easement rights too were granted in favour of the petitioner.
10. As is rightly contended by the learned counsel for the private respondents that since the petitioner was real uncle of respondent Nos.6 & 7, as such, they never doubted his intentions and were all along under the impression that the shops are jointly owned by their uncle, the petitioner and respondent Nos. 6 & 7. It was only in the year 2013 when respondent Nos. 6 & 7 asserted their right and asked for their share, they were told by the petitioner that the shops aforesaid had been allotted to him exclusively and that they had no right, title or interest in the aforesaid shops. This is how the allotment made in the year 2004 came into light, immediately respondent Nos. 6 & 7 submitted a representation before the District Development Commissioner, Doda, who had initially acquired the land, to intervene in the matter and to do justice with them. On the basis of the representation made by respondent Nos. 6 & 7, the matter was referred to the Additional Deputy Commissioner, Doda for enquiry, who made fact finding enquiry and submitted his report to respondent No.4.
11. From the perusal of report submitted by the Additional Deputy Commissioner, Doda dated 13.06.2014, respondent No.4 found that the shops four at the ground floor and three at OWP No.392 of 2016 Page 14 of 19 the 1st floor of the shopping complex at Bus Stand, Doda belonging to Municipal Council, Doda had been wrongly allotted exclusively to the petitioner on account of sheer misrepresentation and fraud played by the petitioner. Accordingly, proceedings were initiated and the petitioner was put on notice and was granted opportunity to substantiate his claim. He, however, failed to do so and accordingly, order impugned was passed on 02.03.2016 holding respondent Nos. 6 & 7 entitled to the half share in the aforesaid shops allotted in favour of the petitioner on proprietary basis.
12. The contention of the petitioner that he had raised construction of shops only on 2 ¼ marlas of land out of 8 marlas of land allotted to him along with his brother, therefore, allotment of shops in question was only in lieu of that land, which was within his share and had been occupied by him with the consent of his brother, cannot be accepted even on its face value. As taken note of herein above, it was the land of the father of the petitioner and grandfather of respondent Nos. 6 & 7, which was acquired by the official respondents for construction of bus stand and in lieu of the compensation which was payable under the provisions of Land Acquisition Act, the petitioner and his brother, Krishan Singh, were held entitled to the allotment of 8 marlas of land, as by that time their father Sh. OWP No.392 of 2016 Page 15 of 19 Dharam Singh had expired. This is how the government order dated 06.03.1992 came to be passed. There is nothing on record to show that this land was ever partitioned between the petitioner and his brother, Krishan Singh during his life time and even thereafter between the petitioner and respondent Nos. 6 &
7. It is also not disputed by the petitioner that Sh. Krishan Singh, the father of respondent Nos. 6 & 7 died in the year 2001 and before that both petitioner and late Sh. Krishan Singh had filed a civil suit in which ultimately settlement was arrived at that in lieu of 8 marlas of land allotted, the Notified Area Committee/Municipal Council, Doda was allowed to construct shopping complex and four shops on the ground floor and three at first floor of the shopping complex, constructed by the respondents at Bus stand Doda were allotted in favour of the petitioner.
13. That being the position, there was no reason or occasion for the petitioner to have allotment of the aforesaid shops made exclusively in his favour excluding the legitimate claim of respondent Nos. 6 & 7, who were entitled to the allotment of the shops to the extent of 50%. It is, thus, clear that order dated 22.07.2004 was obtained by the petitioner by sheer deceit and fraud by misrepresentation of facts. However, connivance of the official respondents at the relevant point of time also cannot be OWP No.392 of 2016 Page 16 of 19 ruled out. The petitioner has, therefore, taken the benefit of demise of his brother, who had all along contesting for the land along with the petitioner. Respondent Nos. 6 & 7 as is rightly contended by them did not doubt intentions of the petitioner, who had been representing the matter in different forums. It is only when they asserted their rights, they were told that they had lost all rights, title or interest in the property in view of the order issued by respondent No.4 dated 22.07.2004 read with order dated 25.11.2004, they rightly approached the District Development Commissioner, Doda, who constituted a fact finding commission and entrusted the job to the Additional Deputy Commissioner, Doda, who has made thorough enquiry and found that the order of allotment passed on 22.07.2004 read with corrigendum dated 25.11.2004 was obtained by the petitioner by deceit and was contrary to the records and sent the said report to respondent No.4. Respondent did not act upon the report but put the petitioner to notice and asked him to substantiate his claim. It is rightly not denied by the petitioner that he was heard in the matter or that he was put on notice before passing the impugned order. There is, thus, no infirmity in the order impugned, which has been passed only to meet the ends of justice and to undo the wrong what had been done to respondent Nos. 6 and 7 on account of deceit and sheer misrepresentation made by the petitioner, which had resulted OWP No.392 of 2016 Page 17 of 19 into issuance of the order of allotment dated 22.07.2004 read with order dated 25.11.2004, whereby allotment of four shops at ground floor and three at 1st floor of the shopping complex situated at Bus Stand, Doda was made exclusively in favour of the petitioner on proprietary basis, thus, seriously jeopardizing the rights of respondent Nos. 6 & 7, who were entitled to the aforesaid shops to the extent of their share i.e., fifty percent.
14. Though, from the records it is clear that the petitioner was given ample opportunity to substantiate his claim, yet learned counsel for the petitioner submitted that the order impugned has been passed without application of mind and that adequate opportunity was not granted to him to substantiate his claim. However, during the course of arguments, learned counsel for the petitioner was specifically asked to substantiate the petitioner's exclusive claim to the shops allotted to him in the year 2004 independent of the order impugned, but he miserably failed to do so. It was thus, found that even if petitioner would have been given better opportunity to present his case, respondent No.4 could not have passed better order than the one he has passed, which is impugned in this writ petition (See 2005(18) SCC 519; Dharampal Satya Pal Ltd. V. CCE).
15. The case of deceit and misrepresentation is fully established in the facts and circumstances of the case and is OWP No.392 of 2016 Page 18 of 19 otherwise apparent from a bare perusal of the documents and sequence of events that have preceded issuance of the order impugned. It is trite law that an order obtained by fraud and misrepresentation is nullity and void ab initio and therefore, plea of delay and latches in challenging such order is not available in law, more so when it has been amply explained. Viewed from any angle, the order impugned which has been issued to undo the wrong, done to respondent Nos. 6 & 7 at the behest of the petitioner, who succeeded in obtaining the allotment of shops in the shopping complex constructed by the Notified Area Committee/Municipal Council, Doda exclusively in his name on sheer misrepresentation of facts and to the serious detriment to the rights of respondent Nos. 6 & 7, cannot be found fault with and therefore, the same deserves to be upheld.
16. Consequently the writ petition, which is devoid of any merits, is dismissed along with connected MP.
(Sanjeev Kumar) Judge Jammu, 14 .07.2017 Vinod OWP No.392 of 2016 Page 19 of 19