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Judgment
Barin Ghosh, C.J.—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.
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.
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
Wakaf 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J&K Wakaf Act 1978 was repealed and by the later Act the appellate authority was changed, where a provision was also inserted under Sub-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.
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 allotment of the land in question in
favour of the private respondent in the manner the same was done. The learned Judge held that since the Government order dated August 24,
2000 was based on the Cabinet decision dated August 18, 2000 and since that Cabinet decision had not been challenged, the writ petition of the
said appellant, challenging the Government order, cannot stand.
In the writ petition filed by the appellant in LPAOW No. 38/2008, it was contended that the piece of land which has been allotted to the private
respondent, was meant for a play field but the same has, in violation of the original scheme, been allotted to the private respondent for establishing
a school. The learned Judge went through the site plan and found that the land in question as well as the contiguous land were shown in the plan to
be used for play field and school. The learned Judge, therefore, felt that there was no violation of the site plan or of the scheme. In addition to that,
the learned Judge felt that the Government order cannot be assailed without assailing the Cabinet decision and since the Cabinet decision had not
been challenged, the writ petition was not maintainable.
We have considered the pleadings, respective contentions and submissions, as well as records produced by the parties and, in particular, by the
State Government and the private respondent. We have seen, and there appears to be, no dispute that the private respondent is the owner of an
educational institution known as J. S. Luthra Academy. As the proprietor of the said institution, the private respondent was a tenant of a premises
situate at Wazarat Road, Jammu which property is an Auquaf property. On December 27, 1995, the Chairman, Tehsil Committee directed
eviction of the private respondent from the said premises. As discussed above, private respondent has preferred an appeal against the said order
of eviction in which he had obtained an order of stay of eviction which stands vacated in terms of the provisions of law indicated above and the
learned Judge, while dealing with the writ petition of the private respondent, by the judgment and order under appeal, directed hearing and disposal
of the said appeal on merit and till then maintained status-quo as regards the said premises.
While the stay of eviction granted by the Appellate Authority was continuing, the private respondent on December 15, 1997 applied to the
Chief Minister of the State in reference to a meeting held by the private respondent with the Chief Minister of the State. The subject of the said
letter was shifting of the school of the private respondent, namely, Luthra Academy. In that it was stated that a piece of land measuring about 15
Kanals be allotted to the private respondent on nominal development charges out of which 2 to 4 Kanals would be set aside free of cost. It was
stated that the land may be made available in order of preference at Gandhi Nagar (4 Kanals); Trikota Nagar (4 to 6 Kanals) and at Channi
Himmat area (15 to 20 Kanals). With that, a further request was made in the said letter to provide interest free loan, or loan on nominal interest,
from the Housing Department, Government Financial Institution or building grant from the Education Department for construction of the school
building. That part, permission for shifting of the school from the present premises to the new one was also solicited. This letter does not at all
describe the length and breadth of the existing school. There is not a single whisper as to what kind of school the private respondent was running. It
was, however, stated that the request made was for the greater interest of Wakaf in general and Jamia Masjid in particular. On this letter, an
endorsement was made on May 10, 2000 to the effect ""kindly give 2 Kanals paid and 2 Kanals free"" with further endorsements ""as already
ordered"" and ""immediate orders be issued and orders of H.C.M. be implemented"". Prior to the said endorsement, on July 30, 1999, the OSD to
the Minister for Housing and Urban Development, Government of J&K, by a letter informed the Managing Director of J&K Housing Board that
no piece of land is to be offered / allotted free of cost to the private respondent. It appears that the J&K Housing Board, thereupon held out that it
has a piece of land measuring about 4 Kanals at Channi Himmat in Sector-II, earmarked for school, which can be considered for allotment at the
rate of Rs. 8.00 lacs per Kanal. It further appears that the J&K Housing Board made an offer to the private respondent on April 24, 1999
whereby a request was made to him to deposit Rs. 16.00 lacs to J&K Housing Board, Jammu on account of 50% of the total cost of 4 Kanals of
land in Sector-II, Channi Himmat Housing Colony, Jammu within a period of one month and the balance within three months from the date of the
said offer. It does not appear that the private respondent accepted the said offer. On the other hand, instead the Principal Secretary to the
Government, Housing and Urban Development Department, prepared a memorandum for submission to the Cabinet. The said memorandum is as
follows:
Government of Jammu & Kashmir Civil Sectt, Housing & Urban Dev. Deptt. Memorandum for submission to the Cabinet The Luthra Academy
which is an Education Institution is in possession of some Aquaf land at Wazarat Road, Jammu. This Aquaf land is required by Aquaf
Organization, Jammu for their own use and the Revenue Department has already directed the Special Officer Aquaf, J&K to take steps to evict
the Land from the said Academy.
This being so, the Principal of the said Academy submitted a representation dated 15.12.1997 to the Hon'ble Chief Minister for allotment of
land who on 12.1.1998 observed thereon as under:
Kindly examine this and give them site for School.
Accordingly the case was examined and the Luthra Academy was offered 4 kanals of land at Channi Himmat in the consideration of Rs. 8 lacs
per kanal by the Managing Director, J&K Housing Board, Jammu.
Subsequent to this vide his endorsement No. HB-5168 dated 24.2.2000, the Managing Director J&K Housing Board intimated to the
Minister for Housing and Urban Dev. Deptt (Chairman J&K Housing Board) that as approved by the J&K Housing Board, land measuring 4
kanals was offered to Luthra Academy @ Rs. 8.00 lacs per kanal in Housing Colony Channi Himmat Jammu vide his office No. HB-950-52
dated 29.4.1999. The Luthra Academy was required to pay 50% of the cost within a period of one month and the balance 50% of the cost three
months from the date of issue of offer. The allottee has not deposited the requisite amount. Since the allottee failed to deposit the requisite amount
within the stipulated period, the land offered was cancelled vide No. HB/1681-82 dated 3.6.1999.
11 .The Institute had represented to the Hon'ble Minister for providing land free of cost. J&K Housing Board being a Commercial Organization
running without any budgetary support from the Government, can neither allot any land free of cost nor wait for indefinite period for payment. The
then Hon'ble Minister turned down the request of the allottee to allot the plot free of cost.
On 10.5.2000, the Hon'ble Chief Minister ordered on a copy of the earlier representation submitted to him by the Principal Luthra Academy
Jammu to allot 4 kanals of land (2 kanals paid and 2 kanals free) in favour of the said Academy.
Accordingly, in view of the specific orders of the Hon'ble Chief Minister vide this Department letter No. UD-89/99-JDA dated 24.5.2000 the
Managing Director, J&K Housing Board has been asked to issue necessary orders and place the matter before the Board of Directors in its next
meeting for their approval.
However, since the J&K Housing Board is an autonomous Organization and commercial in nature as such in case 2 kanals of land at Channi
Himmat Jammu is allotted to the Academy free of premium, the Housing Board needs to be compensated by the Government equivalent to the
cost of the premium of 2 kanals of the said land. Besides, the land proposed to be allotted was acquired by the Housing Board.
The Principal Secretary to Government, Housing and Urban Development Department accordingly submits the case to Cabinet with the prior
approval of the Minister Incharge for consideration and approveal of the following resolution:
Sanction is accorded to the allotment of 4 kanals (2 kanals paid and 2 kanals free) of land at Channi Himmat in favour of Luthra Academy Jammu
in relaxation of rules and the Government shall compensate the Housing Board equivalent to the cost of the premium of 2 kanals of the said land.
On the basis of the said memorandum, Cabinet decision dated August 18, 2000 was taken. The said Cabinet decision is as under:
Proposal approved. The JDA shall be compensated in kind by allotment of alternative land and not in cash.
However, prior to August 18, 2000, J&K Housing Board, by order dated June 28, 2000, held out that as desired by the Housing and Urban
Development Department and in compliance to specific orders of the Chairman / Minister for Housing and Urban Development, endorsed by the
Housing and Urban Development Department, 2 Kanals of land at a cost of Rs. 16.00 lacs (Rs. 8.00 lacs per kanal) and 2 Kanals free of cost is
allotted in favour of the private respondent in Housing Colony at Channi Himmat, Jammu. Thereupon, on August 24, 2000 the impugned
Government order was issued by the order of the Government of Jammu and Kashmir by the Principal Secretary to the Government, Housing and
Urban Development department. The text of the said order is as follows:
Sanction is accorded to the allotment of 4 kanals (2 Kanals paid and 2 Kanals free) of land at Channi Himmat in favour of Luthra Academy,
Jammu in relaxation of rules.
It is further ordered that the Government shall compensate the Housing Board, J&K by allotment of an alternative land and not in cash."" By a
corrigendum dated November 16, 2000, Luthra Academy was replaced by J. S. Luthra Academy in the Government order dated August 24,
2000.
From what has been stated above, there is no dispute that the land in question vested in the Housing Board, which is a body corporate
incorporated and established by and under the Jammu and Kashmir Housing Board Act, 1976. There is also no dispute that the land in question is
situate within the area of an approved housing scheme. Section 31 of the said Act authorized the Board to lease, sell, exchange or otherwise
dispose of the land in question subject to the rules made by the Government under the Act. Section 59 of the Act has authorized the Government
to make rules. At the same time, there is no dispute that the rules have not been framed by the Government. Section 66 of the said Act authorizes
the Government to give to the Board such directions as in its opinion are necessary or expedient for carrying out the purpose of the Act and
imposes a corresponding duty upon the Board to comply with such directions.
Before we deal with the matter further, it would be appropriate on our part to refer to a decision of the Government dated September 20,
1991 which provides how the rates of charges of land costs of different categories of beneficiaries and costs of plots of already developed, but not
yet disposed of, are to be ascertained. It directs that the base price shall comprise of the cost of the land and the cost of development of internal
infrastructure. The said Government order further directs that for secondary schools the price of the land shall be 50% of the base cost. It is
nobody's case that, while the scheme was made, it was indicated that 4 kanals out of about 30 kanals of land situate in the area comprised in the
subject housing scheme would be available for establishing a secondary school. As noted by the learned Single Judge, the plan prepared in
connection with the scheme earmarked the entire 30 Kanals of land for play field / school. The scheme prepared did not depict that the school to
be established on a part of the said land would be set up on 4 Kanals of land or that the same would be available to the person intending to set up
the school at 50% of the base price. There is no dispute at the same time that the scheme was not altered in accordance with the provisions
contained in Section 18 of the said Act. There is also nothing on record to suggest that an attempt was made to alter the scheme which alteration,
according to the opinion of the Board and the Government, was minor in character, and, accordingly, could be effected without preparing a
supplementary scheme as provided in Section 18 of the Act. In any case, the records do not show or suggest that the original scheme in which the
land in question is situate was altered in any manner, whatsoever, either proceeding on the basis that such alteration is minor in character or
considering the same as a major alteration.
Assuming that in terms of the provisions contained in Section 66 of the Act, having regard to the decision of the Government contained in its
order dated August 24, 2000, the Government could direct that the land in question should be leased by the Board upon accepting 50% of the
cost thereof as premium and, for that matter, to compensate the Board in the manner the government decided to do by the said Cabinet decision
followed by the subject Government order, but the question is whether for the purpose of carrying out the object of the said Act, the government
could direct the Board to make allotment of the land in question in favour of the private respondent.
Assertions made by the appellants, that residential plots situate in the area comprised in the subject scheme were leased by the Board by
allotments upon advertisement and commercial plots by public auction, have not been denied by the Government or by the Board.
It was contended on behalf of the respondent-State and the private respondent that the land in question was leased in favour of the private
respondent as and by way of a policy decision; whereas it was contended by the Board that since the Government wanted the land in question to
be leased or granted in favour of the private respondent, the same was leased or granted in favour of the private respondent in terms of the
decision of the Government.
It was submitted by the private respondent, which was supported by the State, that the private respondent was running a school which faced
imminent threat of eviction and, accordingly, considering the plight of the students of the school of the private respondent, by way of a policy
decision, the Government decided to allot the land in question in favour of the private respondent and as such issued a direction to that effect to the
Board which had been acted upon by the Board.
As aforesaid, from the records produced by the parties, including the private respondent and the state, it does not appear that the plight of the
students of the school or institution of the private respondent, was taken into consideration at or before the actions complained of were taken. On
the other hand, the consideration was that the private respondent was in occupation of a property belonging to Auqaf; he is to be removed
therefrom and, in order to expedite his removal, the private respondent be accommodated to the land in question. In terms of the Wakaf Act,
2001 the provisions contained therein apply to all Wakafs, including those which were created before the commencement of the Act, except to any
Shia Wakaf. According to the Wakaf Act, 2001, a Wakaf-ul-Aulad, which is created for maintenance and support, wholly or partially, of the
family, children or decedents of the creator of the Wakaf, out and out a private arrangement, is also a Wakaf within the meaning of the Act. The
provisions contained in the Wakaf Act authorize eviction of unauthorized occupants of any Wakaf premises / property by taking recourse to
summary proceedings provided in the Wakaf Act. In the event the private respondent is an unauthorized occupant of a Wakaf premises and,
accordingly, has exposed himself to eviction from such premises, can it be construed that the Government is entitled to accommodate only one of
such unauthorized occupants in a property belonging to the Government or to the Board and, while doing so, take into account the plight of
students studying in an institution established by a person in unauthorized occupation of a Wakaf property? The private respondent, however,
contends that he is a tenant of the Wakaf. Assuming such tenancy is revocable by the Wakaf Act, 2001, and such tenancy has come to an end by
reason of forfeiture, the question is whether the Government could at all accommodate such a person facing legal eviction by allotting a plot of land
in the manner the same has been done in the instant case?
The main thrust has been given that it is the decision of the Government based on a Cabinet decision and, accordingly, the same is a policy
decision. Though we have not been able to locate any policy behind the decision complained of, for, no policy has been enshrined therein, apart
from a decision to allot the land belonging to the Board - a public body - to the private respondent, but the larger question is whether a policy
decision can be taken to give a government largesse to a particular person or to a class of persons without their being any public element therein
and whether a policy taken for the benefit of one or for a class can direct relaxation of the established rules based on custom and usage as that of
public auction in the matter of allotment of land to be used for commercial purpose? It is true that reasonable classification can be made, but the
same must have nexus with the purpose to be achieved. The purpose sought to be achieved in the instant case was to accommodate a businessman
carrying on school business from a wakaf premises wherefrom he is likely to be evicted to a land belonging to a statutory Board. Can it be said
that there was, or is, any public element involved in enshrining such a classification made for one single person? Further more; assuming that the
policy is universal and can be applied to similarly circumstanced people, the question is whether such a policy can be said to be saved by
reasonableness?
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 obligation of the State and of the Board in relation to the land in question is to use the same for establishment of a school, for, that has
been notified to the people at large by adopting the scheme in question. 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 evictee 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.
In the circumstances, the orders, namely, Cabinet decision dated August 18, 2000 and the Government order dated August 24, 2000 based
on such Cabinet decision are declared bad and are quashed. At this juncture, it would be appropriate to point out that if an order is bad, which has
culminated from another bad order, a declaration, that the subsequent order is bad, would automatically render a declaration that the basis thereof
is also bad.
The question, however, is what relief should be granted to the appellants. The private respondent has contended that on the basis of the
sanction obtained, he has made constructions, some photographs whereof have also been produced, which suggest that some construction has
been made. We should not do something by reason whereof the investments made by the private respondent on the strength of the actions of the
Government and the Board as well as of the Development Authority, while granting sanction to construct, should be lost to him. We would,
therefore, direct the Board to return the sum of Rs. 16.00 lacs, received by it, to the private respondent forthwith. We also direct the 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. We further direct 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 is 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 is 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 is 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.
The appeals are thus disposed of.