Jammu & Kashmir High Court
Irtiza Mushtaq vs State Of J&K And Others on 28 April, 2021
Bench: Chief Justice, Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Reserved on: 06.04.2021
Pronounced on: 28.04.2021
CJ Court
Case: PIL No. 33 of 2017
(through video conferencing)
Irtiza Mushtaq ...Petitioner(s)/Appellant(s)
Through: Sh. S. S. Ahmed, Advocate
and Ms. Supriya Chouhan,
Advocate
v/s
State of J&K and others .... Respondent(s)
Through: Sh. S. S. Nanda, Sr. AAG for
respondent No. 2
Sh. Sachin Gupta, Advocate for
respondent No. 3
Sh. Abhinav Sharma, Sr. Advocate
with Ms. Parkhi Parihar, Advocate
for respondent No. 5
Sh. R. K. Gupta, Sr. Advocate with
Sh. Ratish Mahajan, Advocate for
respondent Nos. 6 and 7
Sh. K. K. Jandiyal, Advocate for
respondent No. 8
Sh. Adarsh Sharma, Advocate for
respondent Nos. 9 and 10
Sh. Ajay Bakshi, Advocate for
respondent No.11
Sh. U. K. Jalali, Sr. Advocate with
Ms. Poonam Kaul, Advocate for
respondent No.12
Sh. S. K. Anand, Advocate for
respondent No.13.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The petitioner, a practicing lawyer of this Court claiming to be a Right to Information (RTI) activist as well, has filed the present petition in public interest, wherein a challenge has been thrown to the allotments made by the 2 PIL No. 33 of 2017 respondent No. 3 in favour of respondent Nos. 5 to 13 by virtue of various allotment orders spanning from the year 1993 till 2015 and simultaneously, the petitioner has prayed for the eviction of the private respondents from the Municipals Flats situated at Gandhi Nagar Jammu and also for recovery of rent at the market value from the respondent Nos. 5 to 13. Yet another prayer has been made to direct State Vigilance Organization (Now Anti Corruption Bureau) to register an FIR under section 5(2) of the Jammu and Kashmir Prevention of Corruption Act.
2. It is stated that the Jammu Municipal Corporation has adopted a pick and choose policy for the purpose of allotment of Municipal Flats/Quarters located at posh locality of Gandhi Nagar Jammu in favour of its officers who had served its senior positions and later superannuated and the allotments have been extended for a further period of 40 years at a meager rent of Rs. 600/- to Rs. 900/- per month. It is also the case of the petitioner that the Municipal Corporation has allotted the Municipal Flats/Quarters at Gandhi Nagar, Jammu to some private persons as well at a meager rent arbitrarily just on the basis of pick and choose policy without adopting any rational criteria. The petitioner claims to have obtained an information under RTI Act, regarding the allotments made by the Jammu Municipal Corporation.
3. The following instances of illegal allotments have been narrated by the petitioner.
(a) That vide order No. ME/Estt/6466-67 dated 08.10.1993, a Municipal Flat at Gandhi Nagar, Jammu was allotted in favour of respondent No. 5 and the order was issued without mentioning the status of the beneficiary who at that point of time was a senior KAS Officer and 3 PIL No. 33 of 2017 later respondent No. 5 has remained as Municipal Commissioner, Jammu and also served as Commissioner/Secretary to Government of Jammu and Kashmir, Housing and Urban Development Department. As per the Rent Deed dated 20.12.2012, the lease of the aforesaid Municipal Flat has been executed for a term of 40 years with effect from 20.12.2012 at a monthly rent of Rs. 1000/- only with escalation of rent by at least 15% for a further period of 2 years.
It is further stated that the said IAS Officer has succeeded in inducting his nephew, namely, Rahul Gupta S/o Sh. K. L. Gupta as one of the beneficiaries of the above mentioned property as lessee along with him.
(b) That vide order No. JMC/RB/1053-55 dated 10.02.2016, the Jammu Municipal Corporation, respondent No. 3 herein, allotted a cattle pound illegally numbered as Municipal Quarter No. 10 in favour of respondent No. 6 herein, who retired from the office of the Jammu Municipal Corporation in August, 2017 and at the fag end of his service, the then Municipal Commissioner, Ms. Mandeep Kour gifted the said Quarter, originally a cattle pound, in favour of her subordinate i.e. respondent No. 6 herein and before handing over the possession, the respondent No. 3 spent lakhs of rupees on repair/renovation and a rent agreement was executed between the respondent No. 3 and the respondent No. 6 wherein rent of Rs. 1000/- per month was fixed.
(c) That vide order No. MJ/Estt/8880-84 dated 16.02.1993 the then Executive Officer, Jammu Municipality, Sh. Jeet Lal Gupta, respondent No. 5 herein, allotted a Municipal Quarter in favour of 4 PIL No. 33 of 2017 Madan Mohan Khajuria (then PA to Administrator, Jammu Municipality), respondent No. 7 herein.
(d) That vide order No. JMC/RB/4995-96 dated 26.03.2013, the respondent No. 3 allotted a Municipal Quarter in favour of respondent No. 9 herein, PSO to then Commissioner/Secretary to Government, Housing and Urban Development Department, respondent No. 5 herein and the rent was fixed at the rate of Rs. 200/- per month. It is submitted that the store was specifically converted and renovated as a residential house in order to accommodate the said PSO of respondent No. 5. The respondent No. 9 has also succeeded to execute a rent deed with the respondent No. 3 for a term of 39 years at the rate of Rs. 200/- per month.
(e) That vide order No. JMC/RB/19050-54 dated 16.11.2015, the respondent No. 3 allotted a Municipal Quarter at Gandhi Nagar, Jammu in favour of respondent No. 10 i.e. Driver, SUDA(H&UDD). The said allotment was also made at the behest of the then Commissioner/Secretary to Govt. H&UDD and rent in this case was fixed at the rate of Rs. 720/- per month. The respondent No. 10 directly wrote a letter to the then Commissioner Secretary H&UDD and the benevolent Administrative Secretary directed the Commissioner, Jammu Municipal Corporation to look into the matter and that culminated into allotment of flat at Gandhi Nagar, Jammu at the rate of Rs. 720/- per month. It is further stated that the respondent No. 10 has himself admitted in his application that presently he is paying Rs. 6,000/- per month for a rental accommodation at Gandhi Nagar, Jammu.
5 PIL No. 33 of 2017
(f) That vide order No. JMC/RB/293-95 dated 20.04.2013, the Jammu Municipal Corporation allotted a Municipal Quarter to Narinder Sharma, respondent No. 11 herein, at Gandhi Nagar, Jammu, President of a NGO, namely, „PEACE‟. The rent was fixed in this regard at the rate of Rs. 600/- per month.
(g) That vide order No. MJ/RB/879-82 dated 27.11.2002 the then Administrator, Municipality Jammu allotted a Municipal Quarter in favour of Chain Singh, respondent No. 12 herein, a private person at the rate of Rs. 100/- per month.
(h) That vide order No. JMC/RB/240-42 dated 20.05.2014, a Municipal Flat at Gandhi Nagar, Jammu which was originally allotted to Arjun Singh, was allotted and transferred to Kharati Lal, respondent No. 13 herein at the rate of Rs. 1025/- per month.
4. The petitioner has placed on record information obtained by him under RTI Act, in which it is evident that besides the above mentioned persons, one Bharat Bhushan was also an allottee of Municipal flat at Gandhi Nagar Jammu. Further the petitioner also claims to have issued the notice requesting the respondent Nos. 1 and 2 for taking appropriate action with regard to the illegal allotments made by respondent No. 3 but no action has been taken, as such, the petitioner was compelled to approach this Court.
5. The response stands filed by respondent No. 3 i.e. Jammu Municipal Corporation, in which it is admitted that respondent No. 3 did not have any policy or procedure for allotment/cancellation/transfer etc, of assets of the Municipal Corporation. It was further stated that the Commissioner of Jammu Municipal Corporation has constituted a committee for framing a policy with regard to cancellation/allotment/transfer of the Municipal assets/properties. The respondent 6 PIL No. 33 of 2017 No. 3 in its response substantiated the allotments made to respondent Nos. 5 to 13 as pleaded by the petitioner in the instant writ petition filed in public interest. It was also pleaded that the revision of rent is under process and respondent No. 3 has initiated the process to assess the market rate of the rent. It is further stated by the respondent No. 3 that the allotments made in favour of the private respondents are old allotments made at that relevant time. Alongside, the respondent No. 3 has placed on record the relevant documents regarding the allotments of flats/quarters in question in favour of respondent Nos. 5 to 13.
6. The respondent No. 4-State Vigilance Organization in its response has reiterated what has been stated by respondent No. 3 and has additionally submitted that the probe is still under progress and some more documents and particulars of the officers/officials who remained associated with the constructions of the flats and allotments thereof, are being scrutinized to ascertain the criminal liabilities of the public servant, if any, and as soon as the records and particulars are received, the verification shall be finalized on merits.
7. The respondent No. 5 in his objections has submitted that the petitioner has not approached the Court with clean hands as the petitioner has thrown a challenge to the allotments made to the nine persons only and besides them, there are more than 500 allottees of not only Municipal flats, but even commercial shops and halls as well, but the petitioner has not arrayed them as party respondents and it shows that the petitioner has some personal vendetta against the answering respondent and the others. It is further submitted that the allotments were not made on the basis of pick and choose policy but the allotments were made keeping in view the services rendered by the officers and employees of the Jammu Municipal Council subsequently converted into Corporation. It is also stated that the order dated 08.10.1993 was issued in favour 7 PIL No. 33 of 2017 of the answering respondent when he was serving as Executive Officer of the Jammu Municipality and the said allotment was made on the representation of the answering respondent and aforesaid allotment was made pursuant to the approval accorded by the then Administrator of Jammu Municipality, keeping in view the dedicated services rendered by him. It is stated that the answering respondent has been paying rent ever since 15.02.1994 and after the answering respondent got superannuated in 2013, he was recommended for appointment as Chairman, Property Tax Board and in February, 2017, the answering respondent was appointed a Chairperson of State Commission for backward classes and thereafter, the State Government appointed the answering respondent as Chairman, Tribunal for settlement of Payment Claim in respect of Shri Mata Sukrala Devi Ji and Shri Mata Bala Sundri Shrine and against the aforesaid assignment, the answering respondent was entitled to House Rent Allowance (HRA) at the rate of Rs. 24,000/- per month, which the answering respondent did not receive because of the Municipal accommodation allotted to him for which the answering respondent is paying rent at the rate of Rs. 1000/- per month as well. Precisely, it is the stand of the respondent No. 5 that because of his subsequent assignment, he was entitled to HRA but he did not receive the same in lieu of the Municipal accommodation allotted to him by the Municipal Corporation. It is further stated that the Nephew was added as a joint allottee of the Municipal Flat as he has been residing with respondent No. 5 for the last many years as one of the members of his family. The respondent No. 5 has denied that he ever recommended the case of Surinder Kumar for allotment as he was working with the answering respondent as PSO. The respondent No. 5 has also denied that he allotted the flat to his personal assistant, namely, Madan Mohan 8 PIL No. 33 of 2017 Khajuria in the year, 1993 and rather the allotment was issued to him pursuant to the approval granted by the then Administrator.
8. The respondent No. 6 has in fact reiterated the stand taken by respondent No. 5 and additionally he has submitted that he requires to be deleted from the array of respondents as he was served with the eviction notice by the Municipal Corporation dated 21.12.2017 and he had challenged the same before the Jammu and Kashmir Special Tribunal, Jammu and the same has been stayed. It is submitted by him that in the year 2016, he has made an application to the Municipal Corporation for appropriate accommodation and on the basis of report of the Corporation, the quarter No. 10 at Gandhi Nagar, Jammu that was vacant and needed repair at that time, was allotted to him. The respondent No. 6 has admitted that there was no fixed policy in vogue of the Corporation for allotment/cancellation/transfer etc of its properties situated in Jammu.
9. The respondent Nos. 7 and 8 have in fact taken a similar stand to that of respondent No. 6. The respondent Nos. 9 and 10 have not chosen to file the objections.
10. The respondent No. 11 in his objections has reiterated the stand taken by respondent No. 5 and additionally he has submitted that the property has been allotted to the NGO, namely, „PEACE‟ in the year, 2013 and the said organization has been working in the field of education sector, child protection, health, cultural, tourism, environmental sector and disaster management sector and initially the NGO was allotted accommodation at Krishna Nagar, Jammu in the year, 2013 and thereafter, on the application of the President of the organization, the present accommodation at Gandhi Nagar was allotted and later rent was fixed at the rate of Rs. 600/- per month and was subsequently enhanced to Rs. 720/- per month with effect from 2015.
9 PIL No. 33 of 2017
11. Respondent Nos. 12 and 13 have also taken a similar stand in objecting the writ petition filed by the petitioner and has made additional averments those are not necessary for adjudicating the present controversy.
12. Mr. Sheikh Shakeel Ahmed, learned counsel for the petitioner has vehemently argued that in absence of the policy, the Municipal Corporation has adopted a pick and choose policy in allotting the flats/quarters to the blue eyed persons and the Municipal assets being a public property could not have been distributed in a manner as has been done by the respondent No. 3 and rather the allotments were required to be made by auction only so as to enable the wider participation of the common public insofar as allotments to private persons are concerned. So far as employees are concerned, it were not only the respondents 5 to 10 who being the officials were entitled to accommodation but there were other officials also, who too had right to be allotted the Municipal assets.
13. On the contrary, learned counsels appearing for the respondents argued that the petitioner has no locus standi to file the present petition in public interest being an advocate and further that the petitioner is himself guilty of adopting pick and choose policy as he has not challenged more than 500 other allotments made in similar fashion in favour of the other persons.
14. Heard learned cousnel for the parties, considered the matter and perused the record.
15. One of the objections raised by the respondents 5 to 13 though half heartedly, is with regard to the locus standi of the petitioner to file the present petition in public interest as the petitioner is an advocate.
16. It is not in dispute that to invoke the jurisdiction under Article 226 of the Constitution of India, the petitioner has to demonstrate his locus standi, however, in the public interest litigation or in petition likes habeas corpus or quo- 10 PIL No. 33 of 2017 warranto, this rule has been relaxed. Constitutional Courts even suo motu can take cognizance of a matter if the public interest is involved and even when no one espouses the said cause. Once the Court comes to the conclusion that there is manifest arbitrariness in the decisions of the Administrative Authority, it hardly matters as to who has approached the court. Otherwise also, objections with regard to the locus of the petitioner, pales into insignificance in view of the law laid down by the Apex Court in "Chairman, Railway Board and others v Chandrima Dass (Mrs) and others, (2000) 2 SCC 465", as such, the first objection raised by the respondent Nos. 5 to 13 deserves to be rejected. The Apex Court has held in the aforesaid judgment as under:
"The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, may be of a minimum nature , may give locus standi to a person to file a writ petition, but the concept of "locus standi" has undergone a sea change. There has been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone which is not mere "busybody".
Public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi or the absence of personal loss or injury. In this case the reliefs which were claimed in the petition included the relief for compensation. But many other reliefs as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station were also claimed. The true nature of the petition, therefore, was that of a petition filed in public interest. Having regard to the nature of the petition filed by the respondent and the reliefs claimed it is clear that this petition was filed in public interest which could legally be filed by the respondent and the argument that she could not file that petition as there was nothing personal to her involved in this petition must be rejected."
17. Now we have to consider as to whether the allotments have been made by the officers of the Municipal Corporation-respondent No. 3 is in accordance with law or not. The respondent No. 3 has very fairly conceded that there was no policy for the allotment of the Municipal assets, when the allotments impugned were made in favour of the private respondents and the respondent No. 11 PIL No. 33 of 2017 3 in its objections has not been able to demonstrate as to on which basis the said allotments were made in favour of the private respondents. When there is no policy for the allotment of the Municipal assets, that left the allotment/distribution of Municipal assets at the sole discretion of the officer concerned at the helm of affairs at the relevant point of time and absolute discretion gives birth to nepotism, arbitrariness and corruption. The discretion if at all is required to be exercised, that must be within some parameters and not unbounded discretion that is prone to misuse giving rise to despotism and corruption.
18. It would be apt to note decision of Apex Court in "Shivsagar Tiwari v Union of India and others, (1996) 6 SCC 558" in which the Hon‟ble Supreme Court while cancelling allotments of shops/stalls allotted by Minister of Urban Development to his own relatives/employees/domestic servants without following any policy or norm, has quoted "Edmund Burke" as under:
"Edmund Burke stated as early as 1777: "Among a people generally corrupt, liberty cannot long exist." In 1778, he observed: "An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will, who did not soon find that he had no end but his own profit."
19. In Common Cause, A Registered Society v Union of India and others, (1996) 6 SCC 530, the Hon‟ble Apex Court while cancelling the allotments of retail outlets for petroleum products made by the then Minister of State for petroleum and Natural Gas, exercising the powers of Central Government, has held as under:
"Such a discretionary power which is capable of being exercised arbitrarily is not permitted by Article 14 of the Constitution of India. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members 12 PIL No. 33 of 2017 belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two eminent sportsmen in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes nepotism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the state of calling for the applications up to the stage of passing the orders of allotment. The names of allottees, the orders and the reasons for allotment should be available for public knowledge and scrutiny. Without imposing any procedure on the government, any procedure laid down by the Government must be transparent, just, fair and non- arbitrary. Leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatorily."
20. It is evident from the record produced by the respondents that allotments were made to its officers, other Government servants and the private persons just on their asking and there was no policy for the allotment of the flats/quarters. No advertisement was ever issed for the purpose of inviting applications for allotment of flats/quarters so as to enable other eligible persons to participate in the allotment process. Rather no procedure was followed by the respondent No. 3 in allotment of Municipal Assets. The assets being the public property could not have been allotted in a manner as has been done by the respondent No. 3 in an arbitrary and opaque manner.
21. The respondent Nos. 5, 6, 7 and 8 were the officers/officials of the Municipal Corporation. So far as the respondent No. 5 is concerned, he was initially allotted quarter in question in the year 1993 by Secretary, of then Jammu Municipality and strangely enough in 2012, when he was at the verge of his retirement, the rent deed for 40 years was executed, not only in his favour but also in favour of his Nephew.
13 PIL No. 33 of 2017
22. Likewise, the flat/quarter was allotted to respondent No. 6 when he was at the fag end of his service and for that purpose cattle pound was converted into a residential accommodation.
23. Similarly, quarter was also allotted to respondent No. 7, Madan Mohan Khajuria by respondent No. 5 in December 1983 and as already noted above the Respondent No. 5 obtained allotment for himself from Secretary of Jammu Municipality in October 1983.
24. Respondent No. 8 in similar fashion has been allotted an accommodation on the same terms and conditions as that of earlier allottee in the year, 1988. Thus, it is evident whosoever was at the helm of affairs of the Jammu Municipality, later on Jammu Municipality Corporation, the said officers/officials at their sweet will distributed/allotted the Municipal assets to the persons either of their choice or chosen by their superiors.
25. So far as the other persons, who though are not employees of respondent-Corporation but employees of Administrative Department i.e. Housing and Urban Development Department or other department, too have been allotted the residential accommodation in a similar manner. So far as the allotment made to NGO „PEACE‟ i.e. respondent No. 11 is concerned, it too has been allotted the residential accommodation, just on the asking of the respondent No. 11.
26. The private persons i.e. respondent Nos. 12 and 13 too are also beneficiaries of similar type of orders passed by then officers of the Municipal Corporation. It is not only the respondent Nos. 5 to 13 who could have been allotted the Municipal assets but there could have been other contenders as well and the manner in which the allotments have been made, have deprived the similarly situated persons of their right of consideration as well and such type of 14 PIL No. 33 of 2017 allotments do not stand the principal of equality as enshrined under Article 14 of the Constitution of India.
27. The Apex Court in Akhil Bhartiya Upbhokta Congress v. State of M.P., reported in (2011) 5 SCC 29 has held as under:
"50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/or its agencies/instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law."
"65 What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State."
66 We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or 15 PIL No. 33 of 2017 for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution."
28. Further the Supreme Court while taking note of its numerous earlier decisions, in Lok Prahari v State of Uttar Pradesh and others, (2018) 16 SCC 1 struck down the Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 that provides for allotment of residential accommodation to Ex-Chief Ministers as unconstitutional and observed as under:
"38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The "Doctrine of Equality" which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is on a par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality."
29. In view of the law laid down by Apex Court, We have reached to an un-escapable conclusion that impugned allotments are illegal and contrary to principle of equality as enshrined in Article 14 of the constitution of India.
30. Vide status report filed by respondent No. 3 pursuant to order dated 02.03.2020, the respondent No. 3 has submitted the details of the Municipal Shops, flats, and garages, those are in occupation of the different allotees. It is further submitted in the said status report that a team of officers was constituted by the answering respondent vide order dated 27.01.2020 to submit a physical 16 PIL No. 33 of 2017 verification of the each property in tabulated form. The said committee till date has not furnished the report.
31. During the pendency of this petition, respondent Nos. 1 to 3 have placed on record the Bye-laws i.e. the Jammu and Kashmir Allotment of Municipal Corporation Residential Accommodation Bye-laws, 2020 (for short the Bye-laws) issued by the Municipal Corporation. The PART-12 with heading "Miscellaneous" of the Bye-laws provides that the allotments made by the Municipal Corporation from time to time for the residential accommodation of the Corporation in possession of any employee/ non-employee /retiree or any other person which are not eligible under these Bye-laws shall be deemed to be unauthorized except in the case of presently serving employees in the Corporation and that too shall be re-visited and further continuation/allotment to be made afresh on year to year basis as per these Bye-laws. However, for the continuance of allotment in respect of non-employees /retired persons or any other person in possession of the residential accommodation of the Corporation, they shall be charged license fee at market rates. The said Bye-laws virtually legalizes the allotments made earlier by the Corporation without any policy/rules governing the same. Once this Court has held that the initial allotments were illegal allotments, they cannot be legalized further. No benefit of this Policy can be granted to an employee who was put into occupation of the Municipal premises through impugned allotment orders as other employees of the Corporation too were/are entitled to be considered for the said allotment. Similarly, occupants other than the employees in occupation of the Municipal premises cannot be granted the benefit of the Policy on the same analogy. All the allotments made in their favour are violative of the Article 14 of the Constitution of India and the 17 PIL No. 33 of 2017 respondent Nos. 1 to 3 cannot legalize the illegal allotments through the medium of present Policy. Otherwise also, Section 157, of Chapter X of the Jammu and Kashmir Municipal Corporation Act, 2000 deals with the properties and contracts with regard to the Municipal Corporation and section 160 deals with the mode of executing contracts. Section 157 reads as under:
"157. Disposal of property.-With respect to the disposal of property belonging to the Corporation, the following provisions shall have effect, namely :-
(a) The Commissioner may, with the prior approval of the Corporation :-
(i) dispose of, by sale or otherwise, any movable property belonging to the Corporation the value of which does not exceed one lakh rupees; or
(ii) grant a lease not exceeding a period of ten years, of any immovable property belonging to the Corporation; or
(iii) sell or grant a lease in perpetuity of any immovable property belonging to the Corporation the value of which does not exceed fifty lakh rupees or the annual rent of which does not exceed five lakh rupees;
(iv) in cases not covered by clause (a) the Commissioner may, with the sanction of the Government un recommendation of the Corporation lease, sell, let out on hire or otherwise transfer any property moveable or, immovable belonging to the Corporation;
(v) the consideration for which any immovable property may be sold, leased or otherwise transferred shall not be less than the value at which such immovable property could be sold, leased or otherwise transferred in normal and fair competition;
(vi) the sanction of the Government under the aforesaid clauses may be given either generally for any class of cases or specially for any particular case;
(vii) subject to any condition or limitation that may be specified by or under any other provision of this Act, the foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under, or for any purposes of this Act."
160. Mode of executing contracts. -
(1) The mode of executing contracts under this Act shall be prescribed bye-laws made in this behalf.
(2) No contract which is not made in accordance with the provisions of this Act, bye-laws made thereunder shall be binding on the Corporation.
18 PIL No. 33 of 2017
32. The bare perusal of aforesaid section would reveal that the Commissioner may with the prior approval of the Corporation, grant a lease not exceeding the period of 10 years of any immoveable property and sell or grant a lease in perpetuity of any immoveable property belonging to the Corporation the value of which does not exceed fifty lakh rupees or the annual rent of which does not exceed five lakh rupees. Further sub section (a) (v) of section 157 (supra) reveals that the consideration for which any immovable property may be sold, leased or otherwise transferred shall not be less than the value at which such immovable property could be sold, leased or otherwise transferred in normal and fair competition. Thus, the immovable Municipal assets can be sold, leased or otherwise transferred only for a consideration that the said asset would fetch in normal circumstances and in a fair competition. So the intention of the legislature behind incorporating this provision is to get the maximum value for the Municipal assets sought to be sold, leased or otherwise transferred. So far as the respondent Nos. 11, 12 and 13 are concerned, the said provision has been flagrantly violated and the properties have been rented out for peanuts. Likewise rent agreement executed by Respondent No. 5 for a period of 40 years and respondent No. 9 for a period of 39 years is violative of the section 157 of the Act (Supra). The Policy so far as pertain to legalizing the unauthorised occupation of the respondent Nos. 5, 9, 11, 12 and 13 is concerned, the same is contrary to the provisions of the Act referred above. No agreement has been executed by Respondent Nos. 7 and 10, though there was clause in the allotment order that agreement shall be executed with in the period of 7 days. We are at pains to observe and take note of the manner in which allotments have been made by the respondent No. 3 and subsequent inaction on the part of respondent No.3. 19 PIL No. 33 of 2017 Another aspect of the matter is that proviso to the Rule 7(i) of the Policy provides that no application shall be entertained for accommodation if the employee is retiring on superannuation in the next six months, meaning there by that the person who is nearing his retirement within the six months is not entitled to apply for allotment of residential accommodation. So when the employees who are at the verge of retirement cannot apply for allotment of residential premises, then we fail to understand as to how the respondent Nos. 5 and 6 can be granted the benefit of the Policy when they are no more the Employees of the Corporation.
33. In view of all what has been discussed above, the writ petition is allowed and is disposed of with the following directions:
i) The allotments as well as consequential rent deeds/ rent agreements made in favour of the respondent Nos. 5 to 13 are quashed.
ii) The respondent Nos. 5 to 13, are directed to vacate the premises in their respective occupation within a period of six months from the date of this order.
iii) So far as other Municipal shops, flats and garages are concerned, the respondent Nos. 1 to 3 are directed to examine the individual case and proceed in accordance with the law laid down by the Apex Court in numerous decisions mentioned above and take appropriate actions within a period of six months, extendable by another period of six months only.
34. Before parting, we would like to observe that we have examined the Bye-laws framed by the respondent Nos. 1 to 3 only for the purpose of examining the issue of the respondent Nos. 5 to 13 to continue in occupation of the premises 20 PIL No. 33 of 2017 in question and we have not expressed any opinion with regard to the legality of the Bye-laws.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
28.04.2021
Rakesh
Whether the order is speaking: Yes
Whether the order is reportable: Yes