Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Sofi vs State Of J&K And Others Registered As Owp ... on 10 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No.198 of 2009 CMP No. 310 of 2009 Mushtaq Ahmad Sofi Petitioners State of J&K and others Respondents !Mr. M.A.Qayoom, Advocate ^Mr. S.A. Vakil, Advocate Mr. B.A. Khan, Advocate Honble Mr. Justice M.M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:10/07/2012 : J U D G M E N T :
1) Letters Patent Appeal on hand is directed against the Writ Court Order dated 4th August 2009 in writ petition titled Mushtaq Ahmad Sofi versus State of J&K and others registered as OWP No.529/2007, whereby the Writ Court has held the appellant not entitled to the reliefs sought in the petition and dismissed the writ petition.
2) The background facts are as under:
3) The State Government vide Order No.314-HUD/LSG of 1988 dated 28th October 1988 granted lease of piece of land measuring 1520 square feet opposite Air Cargo Complex adjacent to Sher-i-Kashmir Park owned by Srinagar Municipality (now Srinagar Municipal Corporation) in equal shares in favour of appellant and one Mr.Abdul Hamid Zargar resident of Silver House, Rajbagh. The Executive Officer, Srinagar Municipality, pursuant to aforesaid Government Order, issued Order No.849 of 1988 dated 10.11.1988, wherein the period of lease and other conditions subject to which lease was granted, were set out. The appellant and Mr.Zargar, as a follow up to the Government Order No. 314-HUD/LSG of 1988 dated 28th October 1988 read with Order No.849 of 1988 dated 10.11.1988, issued by Executive Officer, Srinagar Municipality, on 15th November 1988 executed a Lease Agreement in favour of Srinagar Municipality, wherein the conditions governing the lease, were detailed and agreed to by the parties. The agreement was duly registered by Sub Registrar, Srinagar, on 21st November 1988. The appellant deposited the part of the premium amount on 15th November 1988 and 20th November 1988. However, the State Government immediately after the parties completed the necessary formalities in connection with allotment of land, decided to give a second look to the allotment. The decision was taken against the backdrop of instruction issued by the Chief Minister to keep the area open and remove whatever structure was existing on spot. The Secretary to Government, Housing and Urban Development Department, vide No.LSG-23/SMC/88 dated 17.02.1989, accordingly, issued a Notice to the present appellant and Mr.Zargar, requiring them to show cause within three days as to why Government Order No. 314-HUD/LSG of 1988 dated 28th October 1988 was not revoked. This was followed by Government Order No.49-HUD/LSG of 1989 dated 21.02.1989, whereby the Government Order No. 314-HUD/LSG of 1988 dated 28.10.1988 was rescinded with immediate effect.
4) The Deputy Secretary to Government, Housing & Urban Development Department, on 21st February 1989 itself informed the Administrator, Srinagar Municipality, that as per the order of the Honble Chief Minister four shops and Linz Cafe opposite Air Cargo Complex adjacent to Sher-i-Kashmir Park were to be removed immediately and land underneath these shops and Cafe including land leased out to present appellant and Mr.Zargar, left open as Green Belt to save the Sher-i-Kashmir Park. The Administrator, Srinagar Municipality, was further directed that the owners of these shops and Cafe be provided some other place. The Administrator was also informed that the Government order dated 28.10.1988 had been revoked.
5) The Appellant on 27th February 1989 questioned the Order No.49- HUD/LSG of 1989 dated 21.02.1989 in writ petition registered as OWP No.242/1989. The Writ Court on 03.09.1998 set-aside order impugned in the petition and disposed of the writ petition with a direction to respondents to pass order afresh in accordance with law. The parties were directed to maintain status quo till order was passed afresh.
6) Mr.Zargar questioned order No.49-HUD/LSG of 1989 dated 21.02.1989, in a separate writ petition registered as OWP No.351/1989. The writ petition was disposed of on 19th December 2005 by the following order:
For what has been stated above while setting aside order assailed hereunder, the petition is disposed of with an express direction to respondents for passing afresh orders regarding cancellation/substance of the lease granted in petitioners favour along with the aforesaid Mushtaq Ahmad in terms of the lease deed within three months from now. Failure to pass orders as such would be deemed to reflect some undisclosed interest on their behalf in matters, as being in direct conflict with the public interest and Govt. policy.
7) The respondents did not take any step to pass orders afresh in compliance of the Writ Court order dated 03.09.1998 in OWP No.242/1989. However, order dated 19.12.2005 in OWP No.351/1989 filed by Mr.Zargar, prompted respondents to issue the show-cause notice vide No.HUD/LSG/23/68 dated 20.12.2006 to both the allottees. It is pertinent to point out that the Writ Court, while disposing of writ petition (OWP No.351/1989) filed by Mr.Zargar, directed respondents to pass afresh orders as regards Mr.Zargar as well as Mr.Mushtaq Ahmad Sofi present petitioner. The appellant replied show cause notice through his counsel on 24th January 2007. The notice was also responded by Mr.Zargar. The respondent State on going through all relevant material including replies filed by appellant and Mr.Zargar, vide Government Order No.200-HUD of 2007 dated 25th June 2007 rescinded Government Order No.314- HUD/LSG of 1988 dated 28th October 1988.
8) The appellant assailed Government Order No.200-HUD of 2007 dated 25th June 2007 in writ petition OWP No.529/2007. The writ petition was dismissed on 4th August 2009. The Writ Court on consideration found the writ petition not maintainable and accordingly dismissed writ petition, opining that the order impugned in the petition did not warrant any interference.
9) The Writ Court order is assailed in the present Letters Patent Appeal primarily on the ground that the plot of land allotted to appellant and Mr.Zargar falls in a built up area as admitted in a communication addressed by Administrator, Srinagar Municipality, on 2nd March 2000 to the Secretary to Government, Housing & Urban Development Department and cannot be classified as Green Belt as claimed by the respondents.
The Master Plan of the Srinagar City prepared in the year 2000, it is contended, earmarks the area as commercial area though in the Master Plan of 1971 it was earmarked as open space. It is urged that the order impugned in the writ petition, whereby allotment has been cancelled, cannot be treated as one in the public interest so as to justify cancellation of allotment made in favour of appellant. It is next urged that the Writ Court has failed to appreciate that the objections filed by appellant to the show-cause notice were not at all considered by respondents and no reasons spelt out in the order impugned before the Writ Court to reject the reply to the show cause notice. The respondents while rejecting the said reply, are said to have also failed to deal with the appellants claim for allotment of alternative site against the background of communication dated 31st May 2004. The Writ Court is said to have erroneously relied upon Clause 15 of the Agreement executed by appellant in favour of Srinagar Municipality, least realising that the said Clause was not pressed into service by Srinagar Municipality while issuing notice to the appellant to show cause against the proposed cancellation of the allotment order nor was it mentioned in the notice that the allotment was being cancelled in public interest. The order impugned in the writ petition whereby allotment was cancelled, it is contended by the appellant, is in conflict with the show cause notice inasmuch as the reasons for cancellation detailed in the order do not find mention in the show cause notice. The Writ Court, according to appellant, has carved out a case which was not projected by respondents. The appellant reiterates that he would have no objection to handover the allotted space to the Municipality in the event it is required in public interest.
10) It needs to be pointed out that respondents did not file their reply to the writ petition before the Writ Court and the writ petition was dealt with in absence of their stand vis-a-vis the averments made in the writ petition. The respondents in the said background were permitted by the LPA Court to file their response. The respondents have filed their reply and the appellant has also filed his rejoinder.
11) The respondents, in their reply, insist that the order impugned in the writ petition was made in public interest and was permissible under Clause 15 of the Agreement executed by the parties. The respondents state that no ulterior motives were involved in cancellation of allotment made in favour of appellant. It is insisted that the decision was taken after the appellant was afforded an adequate opportunity to project his stand and on proper consideration of the reply so filed and all other relevant material. The respondents dispute the appellants claim to allotment of alternative site in lieu of the allotted space. The respondents state that the strip of land allotted to appellant is situated at a busy place and in view of a number of buildings already existing on spot and adjacent to it, the proposed shopping complex on the plot in question would lead to further congestion of already congested area. It is pointed out that having regard to the small area of the plot allotted to the appellant measuring 760 square feet and requirement of set-backs, fire gap, and permissible plinth area, it would be impossible for the Building Operation Controlling Authority (BOCA) to permit any construction on the plot and even difficult for the appellant to raise shopping complex.
12) The appellant, in his rejoinder to the reply filed by respondents, has reiterated his stand that the order impugned in the writ petition was not passed in public interest. It is disputed that the construction proposed to be raised on the plot allotted to the appellant would add to the congestion on spot. The area, according to the appellant, is a commercial area, where a number of buildings and shops have been raised without any objection from the respondents.
13) We have gone through the memorandum of Appeal, the writ record as well as the record made available by Mr.S.A.Vakil, Learned Additional Advocate General, appearing for respondents 1 to 3. We have heard counsel for the parties.
14) The agreement executed by the appellant in favour of Srinagar Municipality on 15th November 1988 after the plot in question was allotted in favour of appellant vide Government Order No. 314-HUD/LSG of 1988 dated 28.10.1988 read with Srinagar Municipality Order No.849 of 1988 dated 10.11.1988, details the conditions subject to which the plot has been allotted to appellant. The appellant, of his freewill and volition in Para 15 of the Agreement, has agreed to return/handover the possession of the allotted plot to the Srinagar Municipality in the event Srinagar Municipality or the Government requires it for public purpose. It would be appropriate to extract hereunder the aforesaid Clause:
15- That in case the Sgr. Municipality or Government requires the leased land for public purpose, the lessee shall have no objection in handing over the possession of the land to Sgr. Municipality. However the Sgr. Municipality or the Government shall be liable to pay the compensation to the lessee for the structure raised on the leased land by the lessee.
15) The respondents a few weeks after the allotment order was made, agreement executed and 1/3rd premium deposited, realised that the plot allotted to appellant was required to be kept open in public interest. The respondents, accordingly, issued a notice No.LSG-23/SMC/88 dated 17.02.1988 to the appellant, requiring him to show cause against the proposed cancellation of the Government order, whereby the plot was allotted in his favour. This was followed by second show cause notice No.LSG-23/SMC/88 dated 20.12.2006 after the writ petitions filed by the appellant and Mr.Zargar were disposed of with the direction to respondents to pass orders afresh. The respondents passed Order No.200-HUD of 2007 dated 25.06.2007, only after the appellant was provided opportunity to show cause against the cancellation of allotment and the detailed reply filed by him was gone through and considered by the respondents.
16) There is no scope for any disagreement with the Writ Court that the order impugned in the writ petition was passed in exercise of option given to respondents by appellant and after affording him opportunity of being heard and that the order was not passed in violation of principles of natural justice. The plea that as the respondents have not spelt out the reasons for rejecting the reply filed by the appellant to the show cause notice, the impugned order depicted lack of application of mind, is devoid of any substance. It needs no emphasis that the Government Order No.200-HUD of 2007 dated 25th June 2007, a part of the order is not to be selectively read ignoring rest of it. When read as a whole, it become more than clear that the Secretary to Government, Housing & Urban Development Department, has spelt out the reasons that led her to conclude that no plausible grounds were projected in the reply and that the allotment was required to be rescinded having regard to the public interest and to keep the area as an open and green area, to save its environment for posterity and prevent it from becoming more and more congested. The reasons detailed depict and involve public interest. The argument that as the Writ Court while dismissing writ petition failed to appreciate that as evident from the record available on the writ file, the area was already built up and commercial area, the Writ Court order deserves to be overset, is bereft of any merit. Only because a building has been constructed by the Srinagar Municipality much before the allotment in question was made or that few other buildings exist on spot, does not mean that every inch of space left open and vacant should also be converted into built up area, endangering the environment, adding to the congestion and compounding problems faced by the general public.
17) Learned counsel for the appellant, referring to the record and in particular note para 290 as also communication No.LSG-23/SMC/88 dated 31.05.2004 addressed to Commissioner, Srinagar Municipal Corporation, states that respondent No.1 has already taken a decision to allot alternative plot/site to appellant and his colleague and that respondents in view of the decision taken conveyed to the Commissioner, Srinagar Municipal Corporation, are under obligation to allot alternative land/site to appellant in addition to the compensation due to him in terms of Clause 15 of the Agreement dated 15th November 1988. The respondents in terms of Clause 15 are under obligation to pay compensation to the appellant for the structure raised by him on the plot in question. This obviously would be in addition to the part of premium deposited by appellant with respondents. The Writ Court has already taken care of this aspect of the case and opined that the appellant has a cause to ask for compensation. However, it is open to respondents to accord consideration to grant of a benefit over and above to what they are entitled to in terms of Para 15 of the Agreement including the allotment of alternative shop/site to appellant having regard to their plight. The Writ Court judgement is not to stand in the way of respondents to take such a decision including one for allotment of alternative site in favour of appellant.
18) For the reasons discussed above, the appeal is devoid of any merit and no ground is made out to over-set the Writ Court Judgement. The appeal is accordingly dismissed alongwith CMP(s). Interim direction, if any, shall stand vacated.
( Hasnain Massodi ) ( M. M. Kumar )
Judge Chief Justice
Srinagar
10/07/2012
Ajaz Ahmad