The High Court of Jammu & Kashmir and Ladakh at Jammu Bench has asserted that where a migrant allottee had abandoned industrial operations due to compelling circumstances arising from threat to life and limb, the State and its instrumentalities were under an obligation to protect and preserve his vested leasehold interest, and could not lawfully treat him as a fresh allottee or impose altered and burdensome terms for alternate allotment.
The Court held that cancellation and re-allotment of the petitioner’s industrial shed in such circumstances, without due regard to the petitioner’s forced migration and without adherence to natural justice, amounted to unfair and inequitable treatment requiring judicial correction.
Accordingly, the Court directed the official respondents to carry forward the allotment of two sheds at Industrial Estate, Rangret, if available, or otherwise allot new sheds, without charging premium, and without insisting on arrears, with rent payable only prospectively from the petitioner’s entry into use and occupation.
A Single Judge Bench of Justice Rahul Bharti found that the official respondents had “played upon the misery” of the petitioner’s proprietor, who had migrated from Kashmir under compelling circumstances for safety of life and limb, even though his leasehold estate in Shed No. 5 was required to be protected and preserved for his benefit.
The Bench observed that instead of protecting the petitioner’s interest, the respondents exploited his absence by cancelling the allotment of Shed No. 5 and re-allotting it to respondent No. 6, while offering alternate sheds at Rangret as if the petitioner were a new allottee rather than an original allottee entitled to continuation on the same terms and conditions.
The Bench expressly held that the State, instead of acting as a protector of the petitioner’s property, acted as a “predator,” and that the petitioner had been subjected to unfair and inequitable treatment by the official respondents.
The Bench further observed that the rules of natural justice were thrown to the winds in prejudicing the petitioner’s vested claim and entitlement in respect of Shed No. 5. It held that, in the prevailing turmoil, the respondents could not have expected the petitioner to return to Kashmir and resume industrial activity when his safety and security were not assured.
Briefly, the petitioner is a registered small scale industrial unit whose sole proprietor is K. L. Ambardar, and it had been allotted Shed No. 5 with land underneath at Bagh-i-Ali Mardan Khan Industrial Area, Srinagar for manufacturing activity. The unit is stated to have commenced installation of machinery and started manufacturing activity by the end of 1989.
The proprietor migrated from Kashmir to Jammu during the mass migration of Kashmiri Pandits for safety, which resulted in abandonment of the industrial activity at the allotted shed along with stock in trade. Thereafter, on March 31, 1991, a fire allegedly broke out in the industrial area, causing extensive damage to the petitioner’s factory unit, shed and stock in trade.
The grievance of the petitioner arose when the very same Shed No. 5 came to be allotted to respondent No. 6, compelling the petitioner to file petition, which was allowed on January 31, 2000 with a direction to allot a similar shed to the petitioner within six months, and failing that, to cancel the allotment made to respondent No. 6 and restore possession of Shed No. 5 to the petitioner.
Pursuant thereto, by order dated June 22, 2000, two sheds bearing Nos. DS/NB 7 and 8 at Rangret were purportedly allotted to the petitioner, but premium of Rs. 15,000 and rent of Rs. 2,625 per shed per month were demanded. Though later the premium condition was deleted by order dated March 26, 2003, the petitioner was still required to pay advance rent for one year at the prevalent rate instead of the original rent of Rs. 150 per month applicable to Shed No. 5.
During pendency of contempt proceedings, the General Manager (ROK), JK SIDCO, by order dated April 06, 2004, cancelled the allotment of the two sheds on the ground that the petitioner had failed to complete formalities such as payment of premium and annual shed rentals, execution of lease deed, and taking over charge of the sheds. The petitioner therefore instituted the present petition challenging the cancellation order and seeking restoration of Shed No. 5.
Appearances:
Senior Advocate P. N. Goja and Advocate Abhinav Jamwal, for the Petitioner
NA, for the Respondent
