Jagdish Raj vs Jammu Development
2021 Latest Caselaw 228 j&K

                                                                  Sr. No. 203

              HIGH COURT OF JAMMU AND KASHMIR
                       AT JAMMU
CJ Court
Reserved on: 03.03.2021
Pronounced on: 19.03.2021
Case : LPAOW No.106 of 2017


Jagdish Raj                                               .... Appellant(s)


                                Through:-   Sh. R.S.Thakur, Sr.
                                            Advocate with Sh. Pankaj
                                            Jamwal and Sh. Vasharan
                                            Thakur, Advocates.

                          V/s


Jammu Development                                       .....Respondent(s)
Authority & ors.

                                Through:- Sh. Adarsh Sharma,Advocate.

      CORAM :
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                                JUDGMENT

Per Sharma-J.

1. This Letters Patent Appeal is preferred against the judgment dated

23rd October, 2017 passed in OWP No.561 of 2016, whereby the

writ petition filed by the appellant has been dismissed.

2. The Vice Chairman, Jammu Development Authority (for short

hereinafter to be referred as the 'JDA') vide order dated

18.09.2002 conveyed his agreement to allot 900 sq. ft. of

commercial land out of Khasra No.327 at Village, Channi Rama

situated opposite Jammu Railway Station near Tube Well to the

appellant Jagdish Raj. Consequent upon the receipt of the letter of

allotment, the appellant deposited Rs.833350/- for 900 sq. feet of

land on 27.09.2002 and perpetual lease deed was executed in his

favour on 09.10.2002. The appellant was put in possession of the

allotted land as per letter dated 22.02.2003 addressed to Secretary,

JDA by the Executive Engineer, JDA.

3. The JDA in terms of order dated 12.09.2015 has cancelled the

allotment of aforesaid plot in view of the decision of the Board of

Directors adopted in their 74th meeting held on 11.06.2015. The

order dated 12.09.2015 cancelling the allotment of the appellant

was challenged by him in OWP No.561 of 2016 and the same was

dismissed by the writ court vide its order dated 23.10.2017.

4. This order is assailed in the present appeal on the ground that the

order of cancellation of allotment of plot is arbitrary, unfair and

unreasonable as the appellant was not provided an opportunity of

hearing either before the Board of Directors or by the Vice

Chairman, JDA before cancellation of his allotment. It is also

submitted that there is no irregularity in the allotment, also, there

is no basis for its cancellation as the appellant was eligible for

allotment and that the JDA is bound by the covenants made in the

lease deed which are still intact.

5. In the objections filed by the respondents to the writ petition, the

only fact disclosed therein is regarding constitution of the

committee to enquire the irregular allotments of the plots made by

the then Vice Chairman, JDA Shri Mohd. Aslam Qureshi. This

report of the committee was discussed in the various Board

meetings and finally in a meeting of the Board of Directors held

on 11.06.2015 and it was decided to cancel all irregular allotments

made by the then Vice Chairman JDA.

6. The question which arises for consideration is whether the

appellant was ever heard by the committee or the Board of

Directors before passing the order of cancellation of allotment .

7. The appellant admittedly has not been heard either by the

committee or by the Board of Directors, and the order of

cancellation of allotment of plot was passed without providing any

opportunity hearing to him.

8. The writ court assumed fraud and collusion between the parties

but there is not even a whisper in the objections filed by the

respondents about the collusion between the parties. If that be so,

the next question is whether there is an infraction of Article 14 of

the Constitution of India. The appellant is in possession of the

plot since 2003. He has paid Rs.8,33,350/- as premium and

Rs.6,671/- as ground rent, therefore, his rights have been infringed

by cancelling the allotment after more than 12 years after the

allotment of plot in his favour. This apart, para-IV of the lease

deed provides procedure for forfeiture of the lease, therefore, the

cancellation of the allotment does not automatically results in

cancellation of the lease deed, that too without the refund of the

premium amount paid with interest.

9. It is, therefore, a clear case of violation of Article 14 of the

constitution of India because the order dated 12th September, 2015

has been passed at the back of the appellant without affording any

reasonable opportunity of being heard and it attracts application of

para-23 of judgment reported as State of U.P vs. Sudhir Kumar

Singh, AIR 2020 SC 5215, which is reproduced below;

"23. It may be added that every case in which a citizen/person knocks at the doors of the writ court for breach of his or its fundamental rights is a matter which contains a "public law element", as opposed to a case which is concerned only with breach of contract and damages flowing therefrom. Whenever a plea of breach of natural justice is made against the State, the said plea, if found sustainable, sounds in constitutional law as arbitrary State action, which attracts the provisions of Article 14 of the Constitution of India - see Nawabkhan Abbaskhan v. State of Gujarat (1974) 2 SCC 121 at paragraph 7. The present case is, therefore, a case which involves a "public law element" in that the petitioner (Respondent No.1 before us) who knocked at the doors of the writ court alleged breach of the audi alteram partem rule, as the entire proceedings leading to cancellation of the tender, together with the cancellation itself, were done on an ex parte appraisal of the facts behind his back"

10. Although the allotment of plot of the appellant has been cancelled

but same was followed by a lease deed which creates rights of the

appellant in the immovable property. Assuming that the allotment

was irregular but the right created under the lease deed can be

withdrawn only after giving a notice to the appellant and also by

providing an opportunity of being heard to him. The order of

cancellation, thus, visits the petitioner with serious civil

consequences affecting the rights of the appellant to which he had

acquired in the allotted property. There is, as such, violation of

principle of audi alteram partem, which the learned writ court has

failed to notice.

11. In view of the aforesaid discussion, we allow this appeal, set aside

the impugned judgment dated 23rd October, 2017. The writ

petition OWP No.561 of 2016 is allowed and the order of

cancellation of allotment of plot dated 12.09.2015 is also quashed.

The respondents are, however, free to consider the issue of

irregular allotment of plot made and pass appropriate order in this

behalf as per law, after affording reasonable opportunity of

hearing to the appellant.

12. Disposed of in the terms aforesaid.

                                           (SINDHU SHARMA)                    (PANKAJ MITHAL)
                                                 JUDGE                          CHIEF JUSTICE


                  JAMMU
                  19.03.2021
                  Ved-Secretary

                                                 Whether the order is speaking     :    Yes/No
                                                 Whether the order is reportable   :    Yes/No




VED PARKASH
2021.03.19 13:14
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