Mohd Rafi Khan vs Vice Chairman
2021 Latest Caselaw 1468 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                    OWP No. 370/2007
                                                    IA No. 557/2017
                                                    IA No. 1/2017
                                                     c/w
                                                    OWP No. 358/2007
                                                    IA No. 4/2017
                                                    IA No. 545/2007

                                             Pronounced on:16.11.2021

Mohd Rafi Khan                                            .... Petitioner (s)

                               Through:-     Mr. S. S. Ahmed, Advocate

                         V/s

Vice Chairman, Jammu                                     .....Respondent(s)
Development Authority,
Jammu

                               Through:-     Mr. Adarsh Sharma, Advocate

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

This common judgment shall dispose of two writ petitions bearing

OWP No. 370/2007 and OWP No. 358/2007.

OWP No. 370/2007

01. The petitioner has assailed the order dated 15.02.2007 whereby

his allotment of Kiosk No. 3(B-1) North Block, Bahu Plaza Complex,

Jammu has been cancelled by the Jammu Development Authority.

02. Briefly stated the facts arising in this petition are as under, the

petitioner was allotted Kiosk No. 3(B-1) North Block, Bahu Plaza

Complex, Jammu vide order No. JDA/BP/493 dated 28.07.2005 in

pursuance of auction held by Jammu Development Authority. The

allotment of the said Kiosk to the petitioner was on the following terms and

conditions:

"i) To begin with the Shop/Hall shall be allotted to you on lease hold basis for a period of 40 years.

ii) A total premium of Rs. 4,62,000/- shall be charged in remaining four monthly installment in the shape of Bank Draft in the name of Vice Chairman, JDA as per the schedule given below:-

a) 2nd installment of Rs. 92,400/- within 30 days from the date of issuance of this letter.

b) 3rd installment of Rs. 92,400/- within 60 days from the date of issuance of this letter.

c) 4th installment of Rs. 92,400/- within 90 days from the date of issuance of this letter.

d) 5th installment of Rs. 92,400/- within 120 days from the date of issuance of this letter.

iv) Delay in the payment of any instalment shall attract penal interest @ 18% p.a for a maximum period of three months beyond which the delay shall empower the authority to cancel the allotment and forfeit the first instalment.

v) In addition to payment of premium, a monthly rent @ Rs. 5/- per sft. shall be charged from the allotee. The rate of rent shall be subject to a revision of minimum 10% after every three years. You shall procure the rent/lease deed forms & return to this office after filling it immediately after payment of last instalment. The handing over possession of the premises allotted to you depends on expeditiously execution of the deed in the court. The entire process must be completed with 30 days from the payment of last instalment falling which rent of the premises shall become payable even without taking over the possession if the delay is not due to this office.

Other terms and conditions shall be the same as mentioned in NIT."

03. Jammu Development Authority had cancelled the allotment

made in favour of the petitioner vide impugned order dated 15.02.2007, as

the petitioner had violated the Clause (iv) of Allotment Letter on the

ground that he had not deposited all the installments as per given schedule.

04. According to the petitioner, he had deposited the earnest money

amounting to Rs. 92,400/- vide Demand Draft No. 000180 dated

04.07.2005 drawn on HDFC Bank. The one installment of Rs. 95,000/- was

also deposited by him vide Demand Draft No. 550638 dated 25.08.2005

drawn on Canara Bank when the respondents have suddenly cancelled his

allotment. The petitioner was willing to deposit the entire premium amount,

in one installment but the respondent-JDA without considering the same

have cancelled his allotment vide impugned order dated 15.02.2007 and the

premium paid for first installment was also forfeited.

05. The petitioner, thus, seeks quashing impugned order No.

JDA/BP/1165-70 dated 15.02.2007 on the ground that the same being

arbitrary, illegal and against the principles of natural justice. He also seeks

a direction commanding the respondents to hand over the possession of

Kiosk No. 3(B-1) North Block, Bahu Plaza Complex, Jammu to the

petitioner.

06. The contention of the petitioner is that respondents have

cancelled the allotment forfeited the first installment without issuing any

notice to him regarding deposit of the balance amount and giving him any

opportunity of hearing, thus, violated the principles of natural justice.

07. The respondent in their objections submit that petitioner was

under an obligation to deposit the entire premium amount in terms of the

Allotment/Letter in five equal installments of Rs. 92,400/- as per the

schedule of allotment. After the deposit of earnest money, the petitioner

deposited only one installment of Rs. 95,000/- on 25.08.2005, thereafter,

discontinued the payment of remaining three installments. The petitioner

failed to deposit the remaining amount even after ½ years if the schedule

dates are, thus, defaulted in making payment and respondent authority was

well within its right to cancel the said allotment.

08. The terms and conditions of the Letter of Allotment clearly

provided that the petitioner was to deposit the entire amount in five equal

installments as per the scheduled time provided in the same. Though, the

petitioner deposited the first installment and the second installment within

the stipulated time. The 3rd , 4th and 5th installments were to be deposited

within 60, 90 and 120 days from the date of issuance of letter of

Intent/Allotment dated 28.07.2005 which he failed to deposit.

09. It was next argued by the learned counsel for the petitioner that

as per Clause IV, delay in payment of any installment would only attract

penal interest @ 18% per annum, therefore, the respondent should have

charged penal interest but the allotment, therefore, could not be cancelled.

The condition No. IV of the of the Allotment Letter clearly stipulates that

delay in the payment of any installment would attract 18% penal interest

but the same is only for a maximum period of three months and delay

beyond this period shall empower the authority to cancel the allotment and

forfeit the first installments. The petitioner, thus, has admitted that he did

not deposit the remaining three installments within the stipulated time of

120 days from the date of allotment i.e., 28.07.2005, as such, the

respondent was well within its right to invoke this Clause and cancel the

allotment as well as forfeit the first installment.

10. It is further submitted by learned counsel for the petitioner that

he was not given any notice for handing over the possession of the said

Kiosk, therefore, he could not deposit the remaining amount, but this

contention is without any basis, since the Allotment order itself provides

that only after the payment of the last installment, the handing over of the

possession of the premises allotted would depend on the expeditious

execution of the deed in the court and the entire process must be completed

within 30 days from the payment of last installment.

11. The petitioner by his own admission has failed to pay the

remaining installments within 120 days‟ from the date of issuance of letter

of allotment and also failed to complete the process, due to which, neither

the lease deed could be executed nor the premises could be handed over to

him. Since handing over of the possession of the premises is specifically

mentioned in terms of Letter of Intent/Allotment and same was to be

completed within 30 days from the payment of the last installment and as

the petitioner having failed to fulfill the terms of the Letter of

Intent/Allotment, therefore, he cannot turn around to take this plea.

12. The petitioner in any case has woken up from slumber after 1 ½

years was ready to deposit the amount after the allotment made in his

favour was cancelled. The condition to deposit all the installments was a

condition precedent for execution of lease deed and possession. The

petitioner having defaulted the aforesaid condition, the respondent has

rightly invoked the condition of allotment and cancelled the same on the

ground that delay would empower the authority to cancel allotment and

forfeit the premium paid in one installment. It has been held by the Hon‟ble

Apex Court in Skyline Contractors Pvt. Ltd. & anr. vs. State Of U.P.&

Ors. (2008 (8) SC 265) that „in case a allottee fails to deposit the

installment as per the terms and conditions of the allotment letter, then the

authority is entitled to cancel the allotment.‟

13. The only other contention of the petitioner is that no opportunity

of hearing was provided to him before cancellation. But if on admitted and

undisputed facts only one view is possible that it is not necessary to quash

the impugned notice even if no opportunity of hearing was provided to him.

14. In „Aligarh Muslim University Vs. Mansoor Ali Khan', (2000)

7 SCC 529, it has been held:

" 23. Chinnappa Reddy, J. in S.L.Kapoor's case, laid two exceptions (at p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception."

15. The petitioner had also filed an application on 09.05.2017,

whereby sought disposal of the writ petition in the light of order No. 209-

JDA of 2007 dated 16.07.2007 vide which, the cancellation order issued

against similarly situated person namely Brij Lal Sharma was revoked .

The interim order dated 27.04.2007 was passed by this Court in OWP No.

344/2007 in the case of Brij Lal Sharma but there was no interim direction

issued in favour of the petitioner in this case and, therefore, consideration

of petitioner‟s case in the light of Brij Lal Sharma‟s case, cannot be granted

at this belated stage.

16. In view of the aforesaid discussions, there is no merit in this

petition and the same is, accordingly, dismissed alongwith connected

application(s).

OWP No. 358/2007

17. In the present petition, petitioner was allotted shop No. 39(B-1)

North Block, Bahu Plaza Complex, Jammu by the Jammu Development

Authority vide order dated 03.06.2005 on first-cum-first basis for total

premium of Rs. 13,44,800/- on lease hold basis for a period of 40 years.

The total premium of Rs. 13,44,800/- was to be charged in four monthly

installments in the shape of Bank Draft in the name of Vice Chairman,

Jammu Development Authority as per the schedule given below:

"i) To begin with the Shop/Hall shall be allotted to you on lease hold basis for a period of 40 years.

ii) A total premium of Rs. 13,44,800/- shall be charged in remaining four monthly installment in the shape of Bank Draft in the name of Vice Chairman, JDA as per the schedule given below:-

a) 2nd installment of Rs. 3,36,200/- within 30 days from the date of issuance of this letter.

b) 3rd installment of Rs. 3,36,200/- within 60 days from the date of issuance of this letter.

c) 4th installment of Rs. 3,36,200/- within 90 days from the date of issuance of this letter.

d) 5th installment of Rs. 3,36,200/- within 120 days from the date of issuance of this letter.

iv) Delay in the payment of any instalment shall attract penal interest @ 18% p.a for a maximum period of three months beyond which the delay shall empower the authority to cancel the allotment and forfeit the first instalment.

v) In addition to payment of premium, a monthly rent @ Rs. 5/- per sft. shall be charged from the allotee. The

rate of rent shall be subject to a revision of minimum 10% after every three years. You shall procure the rent/lease deed forms & return to this office after filling it immediately after payment of last instalment. The handing over possession of the premises allotted to you depends on expeditiously execution of the deed in the court. The entire process must be completed with 30 days from the payment of last instalment falling which rent of the premises shall become payable even without taking over the possession if the delay is not due to this office.

Other terms and conditions shall be the same as mentioned in NIT."

18. The petitioner, however, failed to pay the entire amount and,

therefore, the respondent-JDA vide order dated 07.03.2007 cancelled the

allotment of said shop on the ground that the petitioner has failed to deposit

the balance premium as per the schedule given in the Allotment/Letter and

after a huge gap i.e, more than one year, the petitioner furnished Bank

Draft No. 256401 dated 08.02.2007 of Rs. 6,58,000/- beyond the period of

payment schedule mentioned in the allotment letter and in violation of the

same. The authority has also forfeited the first installment and returned the

Demand Draft to the petitioner.

19. The respondent cancelled the allotment vide order dated

07.03.2007 on the following grounds:

"1. Whereas on the basis of first-come-first, the shop No. 39(B-1) North Block, Bahu Plaza Complex, Jammu was offered/allotted in your favour vide this office letter No. JDA/BP/253 dated 3-6-2005 on a total premium of Rs. 16,81,000/- and 1st installments of Rs. 3,36,200/- was paid by you.

2. Whereas, the remaining amount of premium of Rs. 13,44,800/- was to be paid by you in four equal installments of Rs. 3,36,200/- as per schedule give in the Letter of Intent.

3. Whereas you have failed to deposit the balance premium as power the schedule given in the letter of intent/allotment letter and now after a huge gap of time you furnished a bank draft of Rs. 6,58,000/- dated 08.02.2007 bearing Draft No. 256401 beyond the period of payment schedule mentioned in the allotment letter which is in violation of clause-IV of Letter of Allotment and as such your payments cannot be accepted in light of clause-IV of the letter of intent/allotment letter.

4. Whereas, on scrutiny of the file, you are found defaulter in making the payment of premium in the light of clause-IV of the Letter of Intent/Offer which categorically empowers the authority to cancel you allotment and forfeit the 1 st installment.

Now, therefore, in pursuance of Clause-IV of the Letter of Intent/allotment letter mentioned herein above and its violation on your part, the allotment of shop No. 39(B-1) North, Block Bahu Plaza Complex, Jammu is hereby cancelled and 1st installment paid by you is forfeited and the Demand Draft furnished by you is hereby returned."

20. The petitioner submits that he had deposited an earnest money of

Rs. 4,22,000/- vide Demand Draft dated 27.05.2005 and thereafter

deposited the first installment of Rs. 3,00,000/- on 04.07.2005, also a

second installment of Rs. 1,00,000/- on 03.08.2005 and Rs. 2,00,000/- on

03.08.2005. Thereafter, the petitioner deposited the amount of Rs.

6,58,000/- vide Cheque No. 256401 dated 08.02.2007. According to him,

he had paid the entire amount to the respondent after raising a loan, as

such, the respondent was required to handover the possession of the shop to

him but the respondent instead of this, has cancelled his allotment on the

ground that he has failed to deposit the balance amount as per the schedule

given in Letter of Intent/Allotment.

21. Aggrieved of this order of cancellation and the petitioner has

assailed the same on the ground that the amount stands paid and accepted

by the respondent. After two months of the deposit of balance amount

which was accepted by the respondent, the order of cancellation is unjust

and arbitrary. The balance amount was returned to him without any

application of mind. The respondent without issuing any notice to the

petitioner has cancelled his allotment and, therefore, the impugned order is

illegal, arbitrary. Thus, the respondent has deprived the petitioner who is

unemployed youth to earn his livelihood. The impugned order has been

issued by the respondent without giving any opportunity of being heard to

the petitioner and, thus, has violated the principles of natural justice.

22. The respondent in its objections has submitted that the petitioner

has committed the default in payments as per terms and conditions of the

Letter of Intent/Allotment, as such, his allotment was cancelled. It is also

stated that the petitioner in terms of Letter of intent/Allotment had to

adhere to the schedule of payment and deposit the second installment

within 30 days from the date of issuance of Letter of Intent/Allotment dated

03.06.2005. The 3rd installment was to be paid within 60 days, 4th

installment within 90 days and the last installment was to be paid within

120 days from the issuance of this Letter of Intent/Allotment.

23. The petitioner deposited premium amount on 27.05.2005 and

next installment of Rs. 3,00,000/- on 04.07.2005 and thereafter moved an

application to deposit the third installment of three lakhs on 03.08.2005 and

thereafter, deposited Rs. 6,00,000/- on 08.02.2007 after the expiry of 120

days. The last installment of Rs. 6 lakhs was deposited on 10/2005 after

more than 1½ years of the expiry of the stipulated time, and as such, the

respondent had rightly considered him defaulter and cancelled his

allotment.

24. As per Clause IV, delay in payment of any installment would

attract penal interest @ 18% per annum for a maximum period of three

months beyond which the delay shall empower the authority to cancel the

installment and forfeit the first installment. The respondent is a public

authority and the funds raised by it are used for public welfare. AS the

terms and conditions of Letter of Intent/Allotment which was a condition

precedent for the allotment of the shop have been violated, therefore, the

petitioner cannot question the cancellation of the same as he failed to fulfill

the conditions and the respondent was well within its right to cancel the

same.

25. The Apex Court in Skyline Contractors Pvt. Ltd. & anr. vs.

State Of U.P.& Ors. (2008 (8) SC 265) has held that „in case a allottee

fails to deposit the installment as per the terms and conditions of the

allotment letter, then the authority is entitled to cancel the allotment.‟

26. The only other question is whether petitioner has not been

provided any opportunity of hearing before cancellation has resulted in the

violation of any of his right. The petitioner was well aware of the Letter of

Intent/Allotment and the conditions contained therein. In compliance to

this, he had also deposited initial installment but subsequently, choose to

violate them intentionally while as the Letter of Intent/Allotment also

contains clause of cancellation of the same on the ground of not submitting

the entire amount within stipulated time. If admitted and undisputed facts

only one view is possible that it is not necessary to quash the order even if

no opportunity of hearing was provided.

27. In „Aligarh Muslim University Vs. Mansoor Ali Khan', (2000)

7 SCC 521, it has been held:

" 23. Chinnappa Reddy, J. in S.L.Kapoor's case, laid two exceptions (at p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception."

28. In view of the aforesaid discussions, there is no merit in this

petition and the same is, accordingly, dismissed alongwith connected

application(s).

(Sindhu Sharma) Judge JAMMU 16.11.2021 SUNIL-II.

                                 Whether the order is speaking          :   Yes
                                 Whether the order is reportable        :   Yes




RAM MURTI
2021.12.01 14:27
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integrity of this document