Jammu & Kashmir High Court
Champa Devi vs State Of J&K And Others on 26 July, 2022
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 20.07.2022
Pronounced on : 26.07.2022
OWP No. 429/2014
IA No. 549/2014
Champa Devi ...Petitioner
Through :- Mr. V. R. Wazir, Sr. Advocate with
Mr. Abhishek Wazir, Advocate
V/s
State of J&K and others ....Respondents
Through :- Ms. Monika Thakur, Advocate vice
Mr. S. S. Nanda, Sr. AAG
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGEMENT
The petitioner is a holder of leasehold rights of a residential plot of land bearing no. 141, measuring 30×55, Sector 4 Housing Colony, Channi Himmat, Jammu. The lessor is the Jammu & Kashmir Housing Board, a body constituted under section 4 of the Jammu & Kashmir Housing Board Act, 1975. The respondent nos. 2 & 3 are the Managing Director, J&K Housing Board & the Secretary, J&K Housing Board respectively. 2 OWP No. 429/2014
The leasehold rights so held by the petitioner are coming forth from the registered tripartite agreement dated 20.09.2007 executed by and amongst the petitioner, the erstwhile original lease-holder namely Salman Ali and the lessor- Jammu & Kashmir Housing Board. Said tripartite agreement is a duly registered document before the Sub Registrar (Sub Judge) Jammu. In terms of the said tripartite agreement, the petitioner came to substitute the original lessee namely Salman Ali who was holding the leasehold rights qua the said plot by virtue of registered lease-deed dated 13.03.1999 executed by the Jammu & Kashmir Housing Board in favour of the said original lessee Salman Ali.
The transfer of the leasehold rights qua the said plot from original lessee Salman Ali to the petitioner had taken place with due consent of the lessor i.e. the Jammu & Kashmir Housing Board granted vide communication no. HB/673-75 dated 09.08.2007 and the lessor the Jammu & Kashmir Housing Board had charged and even earned a payment of transfer fee of Rs. 37,000/- from the petitioner.
Thus, on the basis of the said tripartite agreement the petitioner came to be the lessee of the said plot by reference to the original lessee dated 13.03.1999 and further the petitioner has a residential house built thereupon. The possession of the petitioner qua the said land is lawful by every stretch of claim and entitlement which at no point of time was ever subjected to any question mark by the lessor Jammu & Kashmir Housing Board. 3 OWP No. 429/2014
The grievance which brought the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India is a communication no. HB/5335-56 dated 11.01.2014 issued by the respondent no. 3, i.e. Secretary, J&K Housing Board in terms whereof the erstwhile leaseholder Salman Ali was sought to be notified that the allotment of said plot no. 141, Sector 4, Housing Colony, Channi Himmat Jammu has been cancelled. This purported cancellation as mentioned in the said communication is relatable to an after effect of the judgement of the High Court of Jammu and Kashmir in OWP No. 86/1999 read with judgement dated 20.11.2013 in LPA(OW) no. 213/2001. In the said impugned communication there is no whisper of reference as to the fact whether the petitioner was ever a party in the matter before the High Court of Jammu &Kashmir in the writ proceedings or in the Letters Patent Appeal proceedings.
A copy of the said communication stood forwarded to the petitioner which took her by surprise and left her with no other course of action except to file the present writ petition before this Court. By virtue of an interim direction dated 20.03.2014 this Court had directed status-quo to be maintained in the case, insofar as, it related to the petitioner.
In the objections filed on behalf of respondent nos. 2 & 3 to the writ petition said two respondent nos. 2 & 3 have avoided to attend the fact that in case if the allotment of the plot in reference to Salman Ali was in question all along to the extent of forming the subject matter in a pending writ petition then why the lessor i.e. the Jammu & Kashmir Housing Board 4 OWP No. 429/2014 proceeded ahead not only to accord permission for transfer of the leasehold rights in favour of the petitioner but even further execute and get registered a tripartite agreement. Thus, there is a deafening silence on the part of the said two respondents, who are the prime functionaries of the lessor - Jammu & Kashmir Housing Board to attend to the truth of the situation.
The situation so obtaining is a classic display of the principle of "Approbate and Reprobate" on the part of the Jammu & Kashmir Housing Board and its functionaries who are the respondent nos. 2 & 3. Said principle of Approbate and Reprobate if put into a common understanding means that a person/authority shall not be allowed to blow hot and cold in terms of his/her/its relationship/position vis-à-vis other person who get related to said relationship/position. Said principle aims to mean that an act of duality on the part of a person in his conduct/relationship vis-à-vis another person is nothing but dubious which no law can cherish particularly when it comes to the matter of public administration and the acts of public officials. The principle of Approbate and Reprobate has been well elucidated and explained by the Hon'ble Apex Court in cases titled "Nagubai Ammal and others Vs B. Shama Rao and others" reported in AIR 1956 SC 593, "Ram Vs B. Baijnath Singh and others" reported in AIR 1961 SC 1352, "Karam Kapahi and others Vs Lal Chand Public Charitable Trust and others"
reported in AIR 2010 SC 2077, "The Rajasthan State Industrial Development and Investment Corporation and others Vs Diamond and Gem Development Corporation Ltd. and others" reported in AIR 2013 SC 5 OWP No. 429/2014 1241 and "Bhagwat Sharan (Dead) through L.Rs Vs Purushottam and others" reported in AIR 2020 SC 2361.
Keeping in view the aforesaid facts coupled with the position of law it is rendered very clear that the leasehold rights vested in the petitioner qua the plot in reference cannot be subjected to any prejudice by reference to the judgement passed in OWP No. 86/1999 & LPA(OW) no. 213/2001. In the eyes of law, the petitioner is deemed to have become the original leaseholder by a proper procedure of law entitling her to and have hold the plot by reference by her own claim and not through Salman Ali, the original leaseholder who may have arranged the grant/allotment of the leasehold rights by means which by judgement of the High Court in OWP No. 86/1999 & LPA(OW) no. 213/2001came to be censured.
Thus, this writ petition is allowed and the impugned communication no. HB/5335-56 dated 11.01.2014 of the respondent no. 3 i.e. Secretary J&K Housing Board is hereby quashed.
The petitioner is held further entitled as consequence, to have her case considered for conversion of leasehold rights into freehold as per the rules attending the subject matter at the end of the lessor- Jammu & Kashmir Housing Board.
(Rahul Bharti) Judge Jammu:
26.07.2022 Muneesh Whether the order is reportable : Yes Whether the order is speaking : Yes