HC directs acquisition proceedings

Board of Directors of JDA itself held that the strips including the strips-in-question have illegally been allotted by some officers of the JDA and that after the decision of Board of Directors on 24-2-1993 to cancel all such allotments

12/02/2018

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dated:02.02.2018
OWP No.746/2002
c/w
CPOWP No.120/2016

Sunil Arora versus JDA & ors.
Coram: Mr. Justice Tashi Rabstan.
Appearing counsel
For petitioner(s) : Mr. Aditya Gupta, Advocate.
For respondent(s) : Mr. Adarsh Sharma, Advocate, for 1 & 2.
Mr. R.K. Gupta, Sr. Advocate with Mr. Ratish Mahajan, Advocate, for 3 & 4.
i. Whether to be reported in Press/Media : Yes
ii. Whether to be reported in Digest/Journal : Yes
(Continued from previous issue)……
Further, it is his specific case that after hue and cry in various newspapers, the Board of Directors of JDA met on 24.02.1993 and decided to cancel the allotment of said strips including the strips of land allotted in favour of respondents 3 & 4 herein and not to accord building permission for these strips, rather these strips were decided to be developed as green belts in the Colony.
12. Respondents 1 & 2 in their objections though have denied that these strips including the strips-in-question were allotted illegally, however, in paragraph-9 thereof they have admitted that the Board of Directors of Jammu Development Authority had decided to cancel the allotment of these strips including the strips allotted in favour of respondents 3 & 4 herein and the same is a matter of record; meaning thereby the Jammu Development Authority as well as Chief Town Planner, JDA, respondents 1 & 2 herein, have themselves admitted that the allotment of these strips including the strips allotted in favour of respondents 3 & 4 herein came to be cancelled by the Board of Directors of JDA. Once it is the admitted stand of Chief Town Planer, JDA, Jammu that the strips of afore-stated land allotted in favour of respondents 1 & 2 have already been cancelled by the Board of Directors of JDA in its meeting held on 24.02.1993, then how and under what authority the Chief Town Planner has accorded sanction for construction of residential buildings over these strips-in-question.
13. Now, it would be relevant to reproduce hereunder decision No.45.21 taken by the Board of Directors of JDA in its 45th meeting held on 24.02.1993:
“45.21 Allotment of strips in Trikuta Nagar Housing Colony:
“The Board decided that action shall be taken against the officers responsible for illegal allotment. No building permission shall be granted to the lessees in the residential areas. Allotment of these strips in commercial areas shall be considered on its merits as per rules. In case the lessees are so willing, the money along with interest of 9% shall be refunded to them and the lease deed be cancelled; otherwise land be acquired by the JDA at the same rate it was leased out.”
14. Thus, from the above decision of Board of Directors of JDA, it is crystal clear that the Board had decided to cancel the allotment of these strips and action was also decided to be taken against those officers responsible for these illegal allotments. Once the Board of Directors had found that these were illegal allotments, then how, in the present writ petition, JDA as well as Chief Town Planner could claim that there was no illegality in allotting these strips. Even in the said meeting it was decided that no building permission shall be granted to the lessees for these strips.
15. Even petitioner has also quoted the decision of Board of Directors in paragraph-9 of the writ petition. While replying to the said paragraph, respondents 1 & 2 have also admitted that the Board of Directors had cancelled the allotment of these strips and the same is a matter of record. Thus, once the Board of Directors had decided to cancel allotment of these strips and not to grant building permission to the lessees of these strips, as the same were allotted illegally by some officers of the JDA, which fact has also been admitted by respondents 1 & 2 in their objections, then no question arises to accord sanction by the Chief Town Planner for construction over the said strips, that too, when, after the decision of Board of Directors of JDA to cancel all such allotments, all these illegal allotments ceases to exist. Thus, after such a decision, actually neither any allotment exists in favour of respondents 3 & 4 herein nor exists in favour of those allottees/ lessees, who have illegally been allotted such strips in Trikuta Nagar locality by some officers of the JDA. Thus, this action on the part of Chief Town Planner, JDA, Jammu comes within the scope of corrupt practices.
16. Further, in the said meeting of Board of Directors, it was decided to give an option to the lessees of these strips to take their money back along with 9% interest and, in that eventuality, lease deeds made in their favour were to be cancelled, or, JDA was directed to acquire the said land at the same rate it was leased out.
17. Even a coordinate Bench of this Court on 09.03.1995 while dismissing OWP No.634/92 filed by Shanti Sarup Kapoor, the original allottee of Plot No.110-P, has held that the petitioner shall be within his right to either claim cancellation of allotments made in favour of Ganesh Kumar Gupta and Ashok Kumar, respondents 4 & 5 herein, or alternatively claim compensation for any alleged damage having been done to his interests, if any; meaning thereby at that point of time too the Court was of the view that the allotments-in-question in favour of respondents 4 & 5 along with other such allottees had been made illegally. Further, it is very strange that once the allotment orders have already been decided to be cancelled by the JDA-Board, then how and under what capacity respondent No.2 has accorded sanction in favour of respondents 3 & 4 herein for construction of residential buildings over strips-in-question.
18. Here, in the objections fled by respondents 1 & 2, time and again the lone ground taken in support of orders impugned is that the same were issued after the judgment passed by a Division Bench of this Court in LPA (OW) No.739/1993 decided on 10.03.2000. Actually, it is not LPA(OW) No.739/1993, rather it is OWP No.739/97 decided by a coordinate Bench of this Court on 10.03.2000. Learned counsel for respondents 1 & 2 without applying application of mind has everywhere in the objections written wrong figures. However, be that as it may, since respondents 1 & 2 have tried to justify the impugned orders only by taking the plea of decision of this Court in OWP No.739/1997 decided on 10.03.2000, it would be appropriate to reproduce hereunder relevant portion of said judgment hereunder:



“As a consequence of aforesaid draft award No.JDA/Collector/Acq./235 dated 4th July, 1996, Annexure-U to the writ petition and all proceedings which was taken prior to it on the basis of notification 4 of the J&K Land Acquisition Act so far it relates to the two strips of petitioners is hereby quashed and set aside. However, the respondents are at liberty to acquire this property after following the procedure prescribed by law, if they so choose.”
19. The afore-quoted order clearly reveals that there was no such direction to respondents 1 & 2 herein to give sanction to respondents 3 & 4 herein for construction of residential buildings over the strips-in-question, rather respondents 1 & 2 were given liberty to acquire the strips-in-question after following the procedure prescribed by law. Since respondents 1 & 2 had failed to follow the procedure prescribed by law in making the draft award dated 04.07.1996, only on that count the draft award came to be quashed reserving liberty to respondents 1 & 2 to acquire the strips-in-question after following the proper procedure.
20. Even the appeal, being LPA(OW) No.147 /2000, filed by Jammu Development Authority against the order dated 10.3.2000 passed in OWP No.739/1997, came to be dismissed with a direction that the appellants, if they so choose, may initiate fresh proceedings strictly in terms of Section 4 Clauses (a), (b) & (C) of the Act.
21. Therefore, it is clear that respondents 1 & 2 have tried to mislead the Court so as to justify their illegal acts by taking a stand that the impugned orders came to be issued only after the judgment passed by a Coordinate Bench of this Court in OWP No.739/1997. Thus, the afore-discussed facts clearly reveal that the strips-in-question have illegally been allotted in favour of respondents 3 & 4 as well as other such allottees in Trikuta Nagar locality. Respondent No.1 instead of taking action against those officers responsible for all these illegal allotments of strips in Trikuta Nagar locality, is now trying to justify the illegal acts of such officers thereby intentionally interpreting the judgment in a wrong way. Therefore, on this score alone the writ petition deserves to be allowed.
22. The next contention of learned counsel for petitioner is that the plot allotted to him is a corner plot for which he had paid extra premium and if construction is allowed to be raised on the strips-in-question, adjoining his plot, his plot shall cease to be a corner plot.
23. Before proceeding further, it would be appropriate to reproduce hereunder Condition-5 of terms and conditions of Perpetual Lease Deed executed by Shanti Sarup Kapoor, the original allottee, with Jammu Development Authority on 08.03.1984:
“An additional amount of Rs.10% of the tentative premium of the respective plot shall be payable for preferential plots marked 'P' on the lay out plan.”
24. It is the specific case of petitioner that an additional amount of 10% of the tentative premium was paid to the JDA for his plot, which comes under the category of preferential plots, i.e., a corner plot. Even the respondents have not denied that the plot of petitioner comes under the category of preferential plots as the same is a corner plot nor disputed the fact that 10% of the tentative premium was paid extra for the plot belonging to the petitioner.
25. Admittedly, the plot of petitioner has roads on two sides. Even Annexure "I" and "J" to OWP No.739/97, decided on 10.03.2000, filed by respondents 3 & 4 herein, i.e., , which are the site plants of both the strips-in-question, adjoining Plot No.110 of petitioner, clearly reveal that if construction is allowed to be raised on both the strips-in-question, then the plot of petitioner, bearing No.110, shall cease to be a corner plot and shall not come under the category of preferential plots, for which the Jammu Development Authority had taken 10% extra of the tentative premium. Thus, if construction is allowed to be raised on the strips-in-question, the nature of petitioner's plot shall be changed, besides it will also violate his easementary rights.
26. Further, one of the conditions of Perpetual Lease Deed is that the lessee shall not deviate in any manner from the lay-out plan nor alter the size of residential plots, whether by sub-division or amalgamation or otherwise. Similarly, this condition also applies to the Jammu Development Authority that the JDA is also bound not to change or alter the lay-out plan of Trikuta Nagar locality, that too by resorting to illegal means. Otherwise too, since JDA has taken extra amount for allotting Plot No.110, belonging to the petitioner, being a preferential/corner plot, JDA is bound not to change or alter the nature of plot. Further, for the illegal and corrupt practices of some of the officers of JDA, the petitioner cannot be made to suffer.
27. Therefore, in view of what has been discussed above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed and both the orders bearing No.RB/CB/BPC/272 dated 27.7.2002 and No.RB/CB/BPC/273 dated 27.7.2002 issued by Chief Town Planner, JDA, Jammu is hereby quashed.
28. Since it has been established by the Board of Directors of JDA itself that the strips including the strips-in-question have illegally been allotted by some officers of the JDA and that after the decision of Board of Directors on 24.02.1993 to cancel all such allotments, actually, thereafter, neither any allotment exists in favour of respondents 3 & 4 herein nor exists in favour of those allottees/lessees, who have illegally been allotted such strips in Trikuta Nagar locality, therefore, JDA, in the given situation, has no other option but is bound to initiate acquisition proceedings in respect of which a decision, bearing No.45.21, was taken by the Board of Directors in its 45th meeting held on 24.02.1993. It is, ordered, accordingly. Further, it is directed that fresh exercise of acquisition proceedings in respect of all such strips in terms of decision No.45.21 (supra) be initiated by the Jammu Development Authority within a period of eight weeks from today after following proper procedure as prescribed by law. JDA is also directed to take appropriate action against all such officers responsible for allotting all these strips illegally, even if they have retired as on date and, if required, take legal recourse against them. Respondent No.1 is directed that action taken report in respect of such officers as well as action taken on initiation of acquisition proceedings be submitted before the Registrar (Judicial) of this Court within a period of eight weeks from today. Registrar (Judicial) is also directed to ensure that the said reports are submitted before him within the time prescribed. Further, respondents 3 & 4 are also at liberty to claim damages as well as compensation from the JDA and JDA is bound to pay the same. Miscellaneous petition(s), accordingly, stands disposed of.
29. In view of allowing of writ petition, Contempt petition(OW) No.120/2015 shall stand discharged.
Jammu (Tashi Rabstan)
Dated:02.02.2018 Judge
(Anil Sanhotra)

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