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2009 Supreme(J&K) 125
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Barin Ghosh,Virender Singh, JJ.
Residents Of Channi Himmat & Anr. - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA(OW) No. 38/2008, CMP No. 43/2008 C/w LPAOW No. 39/2008 And CMP No. 44/2008
Decided On : 01 April, 2009
Advocate For Appellant: R.K. Gupta
Advocate For Appellant: S.K. Shukla
Advocate For Respondent: Seema Sheikher
Advocate For Respondent: K.S. Johal
Advocate For Respondent: D.S. Chouhan
Advocate For Respondent: Pavit Singh Katoch
Advocate For Respondent: N.A. Choudhary
Headnote:Constitution of India-Article 14 and 16- Reasonableness of a policy decision-A tenant of a premises or an unauthorized occupant of a premises, who knows that he may be evicted from the premises at any time, is always at the risk of eviction and if despite knowledge of the same he establishes a business in such premises, no public element can authorize any Government to give him a Government largesse by breaking the established procedure and settle him permanently as a lessee in a plot of land belonging to the public for the purpose of continuing such business. Similar would be the case of persons having business relationship with such a person, as that of the parents of students of the institution of the private respondent housed in the property from where the said respondent is likely to be evicted, for, in law, it must be construed that they had and have notice as to the right of the private respondent in the property. The students likely to be affected may have a right to be accommodated in other schools, but no right to have the same school shifted to another premises. It is trite law that while provisions contained in Chapter III of the Constitution of India are fundamental rights of the citizens, they are the fundamental obligations of the State and of instrumentalities of the State and, accordingly, no State or instrumentality of the State can propound a policy which is contrary to those obligations. Further more, being the repository of public faith and trustee of public properties, the Government cannot either by way of a policy or otherwise, deal with a public property except to benefit the public. The school to be established may be in the private sector or, may be, in the public sector. In the event the school is permitted to be established in the private sector, it is well within the competence of the State, in public interest, to invite an established and well reputed organization to set up the same, considering the benefit that can be extended thereby to the people living within the area of the scheme. Where the decision to that effect is taken, the main consideration would be to ascertain how good the school to be established by the organization to be so invited would serve the people. In the event that is not the consideration and a person or an organization in the private sector is to be permitted to establish the school on the land in question, consideration should be whose selection would suit the public the best and that can only be assessed on the basis of the price to be paid by the person or the organization concerned, for, the person or organization would set up the school, principally, for sub-serving its own interest and not the interest of the community as such, although establishment of any school would serve, to some extent, the people who would be able to afford to send their children to the school. That being the situation, and the policy being unreasonable and capricious, aimed at achieving no set object, except to accommodate the private respondent, who happens to be a likely evicted from an Auquaf property, the conclusion would be that the policy, if any, contained in the orders impugned, is illegal and has no force in law and no one can act thereon. However, directions were given to Housing Board to return the sum of Rs.16.00 . lacs, received by it, to the private respondent forthwith. Also directions were given to Government through its Public Works Department to make an assessment of the cost incurred by the private respondent in the construction made by him and at the same time also direct the Board, through its own officers, to make similar valuation. Further direction was given to the Government to have such valuation to be made through the valuation cell of the Income-tax Department situate at Jammu. Such valuations should be done as quickly as possible, but not later than three months from today. The Government directed to ascertain the average of such valuation and the same shall be treated as expenses incurred by the appellant in the construction made by him. The Board directed to hold public auction of the land for the purpose of leasing the same out on the same terms and conditions it had leased it to the private respondent, except that the premium thereof shall be fixed at the highest price to be obtained at such auction to be held by inviting people interested in setting up of a secondary school on the plot of land in question by publishing at least two advertisements in newspapers widely circulated in Jammu and also published therefrom. The Board directed to fix the minimum bid price at Rs.16.00 lacs plus the cost of construction ascertained in the manner as above. In the event the bid to be had at the public auction does not exceed the minimum reserved bid price, the Board shall execute a fresh lease in favour of the private respondent upon obtaining payment of Rs.16.00 lacs from him. In the event the bid price to be had at the auction exceeds the minimum reserved bid price and the same is not given by the private respondent, the Board shall give an opportunity to the private respondent to meet the same and, if he meets the same, to execute the lease in favour of the private respondent upon accepting the amount of such bid, less the cost of construction ascertained in the manner as above, as premium. In the event the private respondent fails to match the bid price, the Board shall grant the lease in favour of the highest bidder and from the amount so to be received, first pay the cost of construction ascertained in the manner as above to the private respondent.
1. By the judgment and order under appeal in these two appeals, two writ petitions have been dismissed. These two writ petitions addressed the same cause. We have, therefore, heard both the appeals analogously with the consent of the parties appearing before us.
2. The judgment and order under appeals dealt with three writ petitions: one filed by the private respondent in these appeals and the two others by the appellants in these two appeals. For the reasons separately recorded, while the writ petitions filed by the appellants in these appeals were dismissed, the writ petition filed by the private respondent in these appeals was allowed.
3. The private respondent in these appeals contended in the writ petition filed by him that he is running an educational institution from a Wakaf property wherefrom he has been directed to be evicted by an order dated December 27, 1995 passed by the Authority constituted by the J&K Wakafs Act, 1978; as a result the private respondent preferred an appeal before the J&K Special Tribunal against the said order of eviction and therein prayed for stay of the order of eviction which was granted on January 9, 1996. It was contended that, by the J&K Wakaf Act, 2001, the J&K Wakaf Act 1978 was repealed and by the later Act the appellate authority was changed, where a provision was also inserted under sub-section (3) of section 54 to the effect that in case appeal is not decided within 90 days, the stay order, if any passed by the Appellate Authority, shall automatically stand vacated, though there is a mandate in section 54 (3) that the appeal shall be disposed of by the Appellate Authority within 90 days from the date of the appeal. It was contended that the Appellate Authority, in view of the new law, by order dated July 6, 2004, observed that the said order passed by the Special Tribunal stood automatically vacated, and, accordingly, eviction should be proceeded with. This order dated July 6, 2004 was assailed in the writ petition filed by the private respondent. The learned Single Judge, while dealing with the said writ petition, felt that since an appeal was pending with the Appellate Authority, the proper course for the Appellate Authority would be to hear the appeal and dispose of the same on merits, and that ends of justice demanded that till the appeal is disposed of, status-quo should be maintained in the matter. The learned Judge accordingly ordered. No appeal has been preferred against that part of the judgment and order under appeal.
4. Shri Naresh Kumar, appellant in LPAOW no. 39/2008, in the writ petition filed by him, contended that out of a plot of land measuring, approximately, 30 to 32 Kanals situate in Channi Himmat Housing Colony, Jammu, earmarked for school and play field, 4 Kanals have been allotted in favour of the private respondent by Government order dated August 24, 2000 without any just or sufficient reason and without taking the usual step of auctioning the same. He, therefore, prayed for quashing of the Government order dated August 24, 2000. He contended that he has also set up a school in Channi Himmat Housing Colony, Jammu and, to upgrade the same to higher secondary level, he requires additional space and if the plot in question had been auctioned, he could also make an effort to take the land in question. While opposing the said writ petition, the Government stated before the learned Single Judge that the Government order dated August 24, 2000 is based on the Cabinet decision dated August 18, 2000, the J&K Housing Board contended that the Government order dated August 24, 2000 stood complied with and possession of the land in question has already been handed over to the private respondent in the year 2001. In their opposition, the State Government also contended that it was competent to make such allotment. The learned Single Judge, while disposing of the writ petition, did not go into the question whether the Government was competent to make the allotm
