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UT of J&K & Others v/s Satya Gupta

    LPA No.106/2021 in OWP No. 647 of 2016 CM Nos. 8209 of 2021 & 7967 of 2021
    Decided On, 12 May 2022
    At, High Court of Jammu and Kashmir
    By, THE HONOURABLE MR. JUSTICE DHIRAJ SINGH THAKUR & THE HONOURABLE MR. JUSTICE RAHUL BHARTI
    For the Appellant: Amit Gupta, AAG. For the Respondent: Anil Mahajan, Advocate.


Judgment Text
Rahul Bharti, J

1. The facts and the circumstances of the case, in the light of which the adjudication of the present Letters Patent Appeal (LPA) has to proceed, need to be set out.

2. The respondent in the case is the widow of one Kuldeep Kumar Gupta. The respondent’s husband Kuldeep Kumar Gupta, upon coming across with an advertisement issued by the appellant no.2 i.e., J and K Housing Board, Jammu meant for allotment of developed residential plots at Housing Colony, Channi Himmat Jammu on 20 years lease basis, had come to apply for allotment of a plot. It was somewhere in October 1980 that the respondent’s husband Kuldeep Kumar Gupta had so applied to the appellant no.2 which, vide its letter no. CH/11/903 dated 18.07.1983, came to order an allotment of a plot of 30’x55’ dimension in favour of the respondent’s husband Kuldeep Kumar Gupta.

3. After a while, the respondent’s husband Kuldeep Kumar Gupta, by his application dated 13.10.1984, had applied to the appellant no.2 for the allotment of a regular size plot measuring 40’x80’, than the plot 30’x55’ so allotted, in response where to the appellant no.2 had called upon the respondent’s husband Kuldeep Kumar Gupta to pay the enhanced cost for the allotment of the said sized plot of 40’x80’.

4. Having done the needful by the respondent’s husband Kuldeep Kumar Gupta, the appellant no.2, vide its letter no.HD/CH/II/903 dated 26.06.1987, had notified the allotment of plot no.139 measuring 40’x80’ in Sector-I in the Housing Colony, Channi Himmat, Jammu which resulted in execution of a registered lease deed dated 04.10.1989 in favour of the respondent’s husband Kuldeep Kumar Gupta for a period of 20 years, upon the expiry of which, the provision for transferring the ownership rights qua the demised plot was provided. The respondent’s husband Kuldeep Kumar Gupta had paid a premium of Rs.40,000/- in the year 1987 for being conferred with the leasehold rights quo the said plot. Consequent upon the execution of lease deed, the possession of the said plot No.139, Sector-I Channi Himmat Jammu was also handed over to the respondent’s husband Kuldeep Kumar Gupta in August, 1991.

5. The respondent’s husband Kuldeep Kumar Gupta came to expire on 02/02/1994 constraining the respondent to apply to the appellant no.2 for change of name of her deceased husband and insertion of her name as lessee of the plot no.139 Sector-I Channi Himmat Jammu in the record of the appellant no.2. It was upon so approached by the respondent that the appellant no.2, instead of incorporating the name of the respondent in place of her deceased husband as lessee of the plot No.139, Sector-I Channi Himmat, Jammu, came to pass an order no.179 of 2006 dated 11.12.2006 issued vide communication no. HB-2128-29 dated 12.12.2006 by the Secretary of the appellant no.2 to the effect that the respondent’s husband Kuldeep Kumar Gupta had filed a false affidavit and obtained allotment by misrepresentation/suppression of facts and fraud and as such the allotment made was cancelled and the premium forfeited.

6. The issuance of this communication along with order from the appellant nos. 2 and 3’s end had led the respondent to file a writ petition OWP no.953/2006 before the then the High Court of Jammu and Kashmir, which came to be disposed of vide a judgment dated 14.10.2015 by which the said order no.179 of 2006 dated 11.12.2006 was quashed on the ground that the appellant no.2 had not adhered to the procedure for effecting the cancellation of the allotment and further the same was done at the back of the respondent without affording her an opportunity of being heard.

7. The appellant no.2 had taken the said judgment dated 14.10.2015 passed in OWP no.953/2006 in a Letters Patent Appeal (LPA) before the Division Bench of this High Court which confirmed and upheld the said judgment dated 14.10.2015 of the writ Court with liberty to the appellant no.2 to issue notice to the respondent for filing objections and pass fresh order within a time bound schedule. The Division Bench of this Court came to dispose of the said Letters Patent Appeal vide its judgment dated 01.02.2016.

8. After a lapse of almost two months period from the date of judgment dated 01.02.2016 of the Division Bench in LPA(OW) no.D-3/2016, the appellant no.2 acting through appellant no.3, came to issue a show cause notice no. HB/9217-18 dated 28.03.2016 addressed to the respondent thereby putting the respondent on a show cause with respect to the intended cancellation of the allotment of the plot in reference in the name of the respondent’s husband Kuldeep Kumar Gupta. The premise upon which the show cause notice dated 28.03.2016 was so issued by the appellant no.2 purportedly rested on the fact that the respondent’s husband Kuldeep Kumar Gupta had come to have another allotment of plot no.38 (30’x60’)Sector 6 in JDA Housing Colony, Trikuta Nagar Jammu vide an allotment letter no. JDA/PAS/30x60/1426 dated 24.11.1983 issued by the Jammu Development Authority (JDA) and as such the respondent’s husband Kuldeep Kumar Gupta had procured the allotment of plot no.139, Sector-I Housing Colony, Channi Himmat, Jammu from the appellant no.1 by use of a false affidavit in the year 1991 submitted for obtaining possession.

9. The said show cause notice dated 28.03.2016 of the appellant no.2 came to be countered by the respondent by her detailed reply dated 09.04.2016 stating therein the facts and circumstances attending the allotment of the two plots in reference. The appellant no.2 came to issue a letter No. HB/558-59 dated 23.04.2016 addressed to the respondent ordering thereby that after considering the reply of the respondent in response to the show cause notice, the competent authority of the appellant no.2 was of the opinion that the allotment sought by late Kuldeep Kumar Gupta was based on a false affidavit given in 1991 for obtaining possession by misrepresentation/suppression of facts and fraud as such the allotment of plot no.139 was liable to be cancelled and forfeited.

10. It is against this order dated 23.04.2016 of the appellant no.2 that the respondent came to file the writ petition OWP no.647/2016 out of which the impugned judgment of the writ court came to be passed and same is now the subject matter of the present Letters Patent Appeal.

11. The writ court, in its judgment dated 17.12.2020, has made a very close and careful examination of the pleas of the two sides in the matter and came to the conclusion that the respondent’s husband Kuldeep Kumar Gupta by reference to an affidavit in question had not made any misrepresentation to or any concealment of or played any fraud upon the appellant nos. 2 and 3 and as such the cancellation effected vide order dated 26.04.2016 by the appellant no.2 was misconceived and based on wrong premises. The writ Court came to quash the order dated 23.04.2016 and further came to direct the appellant no.2 to accord consideration to the case of the respondent for change/substitution of her name in place of her deceased husband and confer ownership rights qua the plot No.39 Sector-I Housing Colony Channi Himmat Jammu in her favour in accordance with law, rules and regulations within two months time from the date of passing the impugned judgment.

12. The writ court in the adjudication of the writ petition and passing of the judgment dated 17.12.2020 had referred to the original record produced by the appellant no.2 through its learned counsel.

13. Heard learned counsel for the appellants as well as for the respondent.

14. The moot point in the case is that as to what was that representation of the respondent’s husband late Sh. Kuldeep Kumar Gupta in the matter of seeking allotment of plot from the appellant no.2 in the Housing Colony at Channi Himmat, Jammu which, after the demise of said Kuldeep Kumar Gupta, was found and reckoned by the appellant no.2 to be a misrepresentation/suppression of facts/fraud on his part so as to enable the appellant no.2 to no other course of action but to order the cancellation of the said allotment of plot No. 139 Sector-I Channi Himmat Jammu.

15. The sequence of facts, as has also been observed and set out by the writ court in its judgment, has a bearing in dealing with the said moot point. In the relevant notice, on the basis of which the appellant no.2 had come to offer the allotment of plots in favour of the prospective allottees in its residential colony known as Housing Colony, Channi Himmat, Jammu, the appellant no.2 had prescribed a condition therein that the applicant must be a permanent resident of Jammu and Kashmir State and there in case if belonging to Jammu city the applicant should have no residential house or plot in his/her name or in the name of any member of his/her family, or if belonging to a place other than Jammu city but living in Jammu city for the last more than seven years then the applicant was to have no residential house or residential plot in his/her name or in the name of his/her family so as to be eligible to apply for the allotment.

16. Going by the fact that it was in the year 1980 that the appellant no.1 had come forward with the said exercise for allotment of plot in Housing Colony Channi Himmat, Jammu, the state of affairs obtaining at the relevant point of time in the context of the respondent’s husband Kuldeep Kumar Gupta need to be kept in perspective. The very fact that the appellant no.2 came to hold Kuldeep Raj Gupta entitled to allotment of a plot in the said Housing Colony meant that late Sh. Kuldeep Raj Gupta was a person who was residing in Jammu city and was fulfilling the other attending requirements for the purpose of being eligible to seek the allotment.

17. The expression “Jammu City” per se was not defined in the terms and conditions for allotment of plot in the Housing Colony Channi Himmat Jammu issued by the appellant no.2 in the year 1980. The first affidavit upon the basis of which the respondent’s husband Kuldeep Kumar Gupta had come to apply to the appellant no.2 for the allotment of the plot in Housing Colony is of December, 1980 wherein late Sh. Kuldeep Kumar Gupta mentioned himself to be resident of Dhoundhali Bazar, Jammu swearing therein that neither he nor any member of his family had any residential house or residential plot in Jammu city or any other place in Jammu and Kashmir State or outside it. Said affidavit of late Sh. Kuldeep Kumar Gupta has not been controverted to be wrong/incorrect/misrepresenting by the appellant no.2. At the relevant point of time which was the time of allotment in the year 1980, the condition prescribed by the appellant no.2 was thus fully met by late Sh. Kuldeep Kumar Gupta for seeking the allotment of plot. It was at the date of making application for seeking allotment which was to be of relevance for an applicant as the time within which the process for allotment was to be concluded by the appellant no.2 was not to be in the hand of an applicant which in the present case was late Sh. Kuldeep Kumar Gupta and as such the sworn statement of late Sh. Kuldeep Raj Gupta was to be tested by the state of facts obtaining at the time of swearing the said first affidavit and which was by no stretch of understanding incorrect/misleading. The disability was that the applicant should not have the plot/house at the time of seeking the plot allotment, the disability was not that the applicant could not have an allotment in future.

18. The affidavit which came to be used by the appellant no.2 for passing on a judgment of guilt and misrepresentation/fraud against a deceased person to deal with the claim of the widow i.e., respondent is of the year 1991 when Kuldeep Kumar Gupta in connection with taking possession of the plot in reference had sworn an affidavit to the effect that he or any member of his family had not applied for any allotment from the Jammu Development Authority of a plot in the Roop Nagar Housing Colony, Jammu. It is a fact which is not disputed that the respondent’s husband Kuldeep Kumar Gupta had actually applied to another statutory authority i.e., the JDA for an allotment of the plot in Trikuta Nagar Housing Colony, Jammu in the year 1983 which came to be leased out to him vide lease deed dated 29.11.1983 which plot later on came to be transferred in the name of the son of the respondent after demise of her husband Kuldeep Kumar Gupta.

19. Now, whether in the year 1983 or in the year 1991, the Trikuta Nagar Housing Colony, Jammu, wherein its sector no.6 the respondent’s husband Kuldeep Kumar Gupta had come to be granted on leasehold basis a residential plot, was falling within the expression “Jammu City” was expected to be verified and examined by the appellant no.2 before making any opinion/decision about any misrepresentation/fraud against the respondent’s husband Kuldeep Kumar Gupta. The appellant no.2 at the very first instance when it had come to issue from its end the order dated 11.12.2006 no where mentioned therein as to how the JDA Housing Colony Trikuta Nagar, Jammu, was said to be falling within the scope of expression “Jammu City”. So much so, even in the second show cause notice dated 28.03.2016, the appellant no.2 did not spell out therein as to on what basis in the context of relevant point of time by reference to the year 1991, the Trikuta Nagar Housing Colony of the Jammu Development Authority (JDA), Jammu was to be said to be falling in the expression “Jammu City” so as to disqualify the respondent husband Kuldeep Kumar Gupta’s affidavit of the year 1991 and also of the year 1980.

20. The very fact that in its show cause notice dated 28.03.2016, the appellant no.2 was at loss to show the basis as to how the affidavit of Kuldeep Kumar Gupta, who himself was no more available to defend the statement so sworn by him, was amounting to misrepresentation/fraud was a fact sufficient enough in itself to dislodge the consequent issuance of the impugned order dated 23.04.2016 of the appellant no.2 purportedly cancelling the allotment of plot in the name of the deceased Kuldeep Kumar Gupta but nevertheless the writ Court even took the pain of examining the fact as to whether the Trikuta Nagar Housing Colony Jammu was falling under the expression “Jammu City” at the relevant point of time in the year 1991, which is the date of swearing of an affidavit by late Sh. Kuldeep Raj Gupta. The writ court came to finding a fact that it was by an issuance of SRO no.291 dated 05.09.2003 issued by the Housing and Urban Development Department, Jammu and Kashmir that both Trikuta Nagar Housing Colony and Channi Himmat Housing Colony were included in the municipal areas of the Municipal Corporation Jammu and as such the expression “Jammu City” examined through the context of municipal limits of the city was not having Trikuta Nagar as well Channi Himmat, Jammu within its sweep and therefore the affidavit of Kuldeep Kumar Gupta by no stretch of imagination could be blemished to be an act of misrepresentation/fraud on the part of the late Sh. Kuldeep Kumar Gupta.

21. A perusal of the record accompanying the objections submitted by the appellant nos. 2 and 3 on the file of the writ Court would exhibit nothing else but sheer unreasonableness and irrationality on the part of the public officials who at the relevant point of time came to set into affect the purported action for cancellation of the plot of the respondent husband.

22. To part with this judgment just by holding that the judgment of the learned writ Court is legally and factually correct would be to let an opportunity go waste to emphasis the fact that an administrative or statutory decision making done by a public authority/functionary in matters dealing with the citizens and their rights cannot be done/undertaken without a very alive application of mind to the facts and circumstances bearing upon the subject matter of a particular case. A decision making does not mean stitching of words to inflict an effect on a person/property, as is exemplified by the present case. We have not been able to trace out the basis upon which the appellant no. 2 and its officials came to hold Sh. Kuldeep Kumar Gupta being guilty of filing false affidavit and obtaining allotment by misrepresentation/suppression of facts and fraud. It is just by exploit of these expressions that the allotment of plot in favour of the respondent’s husband was sought to be undone. We did not come across with any fact recorded on the file of the appellant nos. 2 and 3 and also in their objections in the writ petition and LPA as well as to how the appellant nos. 2 and 3 first understood the expression “Jammu City” and then how the first affidavit of respondent’s husband namely Sh. Kuldeep Kumar Gupta given in the year 1980 was ignored from consideration and then the affidavit given in the year 1991 was picked up out of cont

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ext to be used for subjecting the widow of Sh. Kuldeep Kumar Gupta i.e. respondent-herein to sheer harassment when she had approached the appellant nos. 2 and 3 just for the purpose of substituting her name in the name of her deceased husband as a lessee of the said plot in reference. The unreasonableness and irrationality of an act on the part of the public functionaries/officials amounts of nothing but pleasure of misuse of public office and authority which burdens the affected citizen. The rule of law is left to suffer by such like indulgences on the part of public officials/functionaries who are otherwise supposed to exercise their powers/authority in the context of their public dealings/decisions making by being fully sensitive to the facts and circumstances of a given case with an open mind and not with their coloured vision and pre-conceived opinion. It is apt to reproduce the extract of judgment of Hon’ble the Supreme Court in Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223, which is in the following manner: “A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purse or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness.” 23. The pain of the respondent in the present case in getting confronted with character assassination of her husband’s bonafide at the hands of appellant no. 2 and its officials can be well imagined which may not admit of being put into words. The only manner in which the respondent can have reparation, that too, to a limited extent from this Court is award of costs. 24. In view of the aforesaid, the present Letters Patent Appeal (LPA) filed by the appellants is dismissed with costs of Rs. 50,000/- payable by the appellant no.2.
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