Tilak Raj v. Vice Chairman, JDA & Ors

Deed was executed on 17.02.2003. The contention of the petitioner is that the respondents are depriving him from 3 his lawful possession. The petitioner, thus, prays for a direction to restrain the respondents from cancelling the allotment of the petitioner and further to grant sanction of the site plan; (iv) The petitioner in OWP No. 302/2006 was allotted Plot No. 21 Sec 7 Ext measuring 1375 sqft. at EWS Colony Opposite Roop Nagar Colony Jammu vide allotment letter No.JDA/EWS/RN/295 dated 21.01.2003. The petitioner was allotted on leasehold basis for 40 years for consideration of rupees 95,700/- which was deposited on

23.01.2003. The letter of handing over the possession issued vide letter no.JDA/EWS/RN/361-62 on

25.02.2003 and Lease Deed was executed on 17.02.2003. The petitioner after taking possession approached the respondents for processing the case of approval of the site plan but the respondents instead of approving the same have threatened to cancel the allotment. The petitioner, thus, prays for a direction to restrain the respondents from depriving his possession and sanction the site plan; (v) The petitioner in OWP No. 378/2007 was allotted Plot No. 8A sec 1A extension measuring 40 X 80 at Bantalab (Rajinder Nagar) Housing Colony, Jammu vide allotment letter No.JDA/plots/BT/910 dated 07.02.2003 for which an amount of Rs.1,90,000/- was deposited on 15.02.2003. The Lease Deed was executed on 16.04.2003. it is submitted that the respondents are bent upon to depriving him from his lawful possession without any authority. The petitioner, thus, prays for a direction to restrain the respondents from cancelling the allotment of petitioner and further to grant sanction of the site plan; (vi) The petitioner in OWP No. 408/2006 was allotted plot measuring 43 X 35 i.e., 2365 sqft. at EWS Roop Nagar Housing Colony Jammu No. N-4 vide allotment letter 4 No.JDA/EWS/RN/81 dated 18.06.2002 for which an amount of Rs. 1,05,350/- was deposited on 06.07.2002. Lease Deed was executed on 30.09.2002 and Power of Attorney was executed on 09.07.2005. It is contended that the respondents are depriving him from his lawful possession. The petitioner, thus, prays for a direction to restrain the respondents from cancelling the allotment of the petitioner and further to grant sanction of the site plan; (vii) The petitioner in OWP No. 752/2007 was allotted land measuring 02 kanals 15 marlas & 241 sqft. at Roop Nagar (Paloura) Jammu vide allotment letter No. JDA/Gen/988 dated 08.10.2002 for which an amount of Rs. 9,11,000/- on 23.10.2002 and Rs. 9,11,000/- on

15.01.2003 total Rs. 18,22,000/- was deposited. Cancellation Order No.JDA/Land/167/1040-45 was served on him dated 26.04.2007. The allotment of the land in favour of the petitioner was cancelled by respondent No. 3 vide order No. JDA/land/167/1040-45 dated 26.04.2007 without issuing any show cause notice to him or affording any opportunity of hearing. The petitioner, thus, seeks quashing of the order dated

26.04.2007 vide which allotment of the plot in favour of the petitioner has been cancelled. (viii) The petitioner in OWP No. 335/2006 was allotted Plot No. 18 Sec 7 Ext measuring 1350 sqft. at EWS Housing Colony Opposite Roop Nagar Colony, Jammu vide allotment letter No.JDA/EWS/RN/300 dated 25.01.2003 for which an amount of Rs. 93,960/- was deposited on

30.01.2003 and Letter of handing over the possession was issued vide letter No.SD/II/50 on 06.05.2003 and Lease Deed was executed on 17.02.2003. The contention of the petitioner is that the respondents are depriving the petitioner of rightful possession of plot allotted to the 5 petitioner and also in the process of cancelling the allotment made in his favour. The petitioner, thus, seeks a direction to the respondents to process the case of the petitioner for sanction of the site plan of the plot allotted to the petitioner; (ix) The petitioner in OWP No. 401/2006 was allotted Plot No. N-5 Sec 1 measuring 43 X 35 i.e., 2365 sqft. at EWS Housing Colony Opposite Roop Nagar Colony, Jammu vide allotment letter No. JDA/EWS/RN/231-32 dated

21.11.2002 for which, an amount of Rs. 1,05,350/- was deposited and Letter of handing over the possession was issued vide letter No.JDA/Div-II/ECOS/1191-96 on

11.02.2003 and Lease Deed was executed on 10.12.2003. The contention of the petitioner is that the respondents are depriving the petitioner of rightful possession of plot allotted to the petitioner and also in the processing of cancelling the allotment in his favour. The petitioner, thus, seeks a direction to the respondents to process the case of the petitioner for sanction of the site plan of the plot allotted to the petitioner; (x) The petitioner in OWP No. 464/2007 was allotted Plot No. 05 Sec 4 measuring, 1300 sqft. at EWS Colony Opposite Roop Nagar Colony, Jammu vide allotment letter No. JDA/EWS/RN/243 dated 09.12.2002 for which an amount of Rs.91,000/- was deposited on 20.01.2003 and Cancellation Letter No. JDA/EWS/RN/92-97 was served upon him on 21.04.2007. The petitioner submits that the respondents without issuing any notice or affording any opportunity of hearing to the petitioner canceled allotment vide Order No. JDA/EWS/RN/92-97 dated 21.04.2007. The petitioner, thus, prays for quashing of Order dated 21.04.2007 vide which his allotment of plot No. N-5 at EWS Colony 6 Opposite Roop Nagar Colony, Jammu has been cancelled; (xi) The petitioner in OWP No. 409/2007 was allotted a residential Plot No. 8-A sector No.1-A measuring 40 X 80 at Bantalab (Rajinder Nagar) Housing Colony, vide allotment letter No. JDA/Plots/BT/910 dated 07.02.2003 and an amount of Rs.1,90,000/- was deposited for the same on 15.02.2003 and Lease Deed was executed on

16.04.2003 cancellation letter No. JDA/P/RN/CL/869-74 dated 26.04.2007 was issued. The petitioner received an Order No. JDA/P/RN/CL/869-74 dated 26.04.2007 vide which he was informed that the allotment of his plot has been cancelled. The petitioner, thus, prays for quashing the order dated 26.04.2007 vide which allotment made in favour of the petitioner has been cancelled without issuing notice to him or affording any opportunity of hearing and prays for quashing of cancellation order dated 26.04.2007; and (xii) The petitioner in OWP No. 465/2007 was allotted plot at measuring 40/80 at Rajinder Nagar Bantalab Jammu vide allotment letter No.JDA/plots/BT/844 dated 09.12.2002 for which an amount of Rs.95,000/- was deposited on

24.12.2002 and further an amount of Rs. 47,000/- and Rs. 48,000/- was subsequently deposited on 13.04.2007 and Letter for regularization the possession was written to the minister concerned on 15.04.2007. The contention of the petitioner is that the respondents are depriving the petitioner of rightful possession of plot allotted to the petitioner and also trying to cancel the allotment in his favour and the petitioner seeks a direction to restrain the respondents from cancelling the plot.

#03. The petitioners in all these petitions are aggrieved of the decision of the Board of Directors, Jammu Development Authority for cancellation of 7 their allotment by which, the authority has decided to cancel the allotment of the petitioners, on the ground that all the allotments made in their favour are irregular. In these petitions, a direction is sought by them to restrain the respondents from cancelling their allotments as well as from interfering in their possession and also grant approval to the site plans and also to quash the cancellation order issued against the petitioners.

#04. Jammu Development Authority in its reply to all the petitions has taken the stand, that all these allotments, have been made without adopting guidelines fixed for such allotments and without approval of the competent authority. These allotments were made by the then Vice Chairman Jammu Development Authority i.e., Mohammad Aslam Quresh, without adopting the guidelines, as such, the Government ordered the same to be kept in abeyance and as such, they were treated as illegal allottees vide Government Order No.104-HUD of 2003 dated 05.05.2003.

#05. This issue regarding their allotments was placed before the Board of Directors of Jammu Development Authority in its 63rd meeting held on 19th of January, 2004 wherein it was decided to cancel all these allotments. The Board again discussed this issued in their subsequent Board meeting, and a decision was taken to categorize all these irregular allotments in four categories i.e., I, II, III & IV, taking into consideration the stage of each allotment i.e., simply issuance of letter of allotment, execution of Leased Deed and handing and taking over of the possession as well as raising the construction, if any. In pursuance to the above decision, all these irregular allotments were divided into four categories. 8

#06. The authority after completing the exercise of categorization of their allotments placed this matter again before the Board of Directors in its 66th board meeting held on 06.01.2007 decided to cancel all allotments/offers falling under categories (ii), (iii), (iv) and the cases/offers of allotments falling under category (i) were directed to be re-examined on the basis of merit of each case and in pursuant to the decision of the Committee vide order No. VC/395-400/PS dated 05.06.2007, the each case was to be decided on the facts.

#07. So far as the petitioners are concerned, the Jammu Development Authority has admitted, the allotment of plots in their favour but has submitted that since the allotment was without adopting guidelines or approval of the competent authority, therefore, the authority decided to cancel the same and cancellation orders had also been issued. The petitioners in these cases, thus, seek a direction to the respondents to restrain them from depriving the petitioners for this possession over the plots and in some cases from restraining the respondents from taking any steps to cancel the allotment of petitioners and with a further prayer to process their cases for approval of the site plan and in others for quashing the cancellation orders.

#08. The contention of learned counsel for the petitioners is that the order of cancellation of allotments of plots was arbitrary, unfair and unreasonable as the petitioners have not been provided any opportunity of hearing by the Jammu Development Authority either before the Board of Directors or by the Vice Chairman Jammu Development Authority. The petitioners were, thus, not afforded with a fair opportunity of being heard. 9

#09. The contention of the petitioners is that in all their cases, allotment letters have been issued in their favour, the amount prescribed by the authority stands deposited. The possession has been taken and even the Lease Deed also stands executed. The petitioners, thereafter were entitled to proceed with the allotments but the respondents without any reason and without affording any opportunity of hearing has termed their allotments as illegal and has taken a decision to cancel the same and, in some cases, even issued the letters of cancellation., therefore, there was no irregularity in allotments as the petitioners were eligible for allotments. The Jammu Development Authority itself is bound by the Lease Deed between the petitioners and the authorities which is still intact.

#10. The respondents submit that it is only because of the irregular allotments made by the then Vice Chairman Jammu Development Authority that they have decided to cancel all irregular allotments made pursuant to the Board decision so far as category Nos. (II), (III) & (IV) are concerned.

#11. The petitioners were never heard either by the respondents before the order or decision of cancellation of plots was passed. No opportunity of hearing was provided to the petitioners. The petitioners are in possession of the plots as per the allotment orders and have paid the premium as well as executed the Lease Deeds. The respondent/Jammu Development Authority has taken a decision to cancel the allotments without providing them a reasonable opportunity of hearing.

#12. The only issue which arises for consideration is whether the petitioners have been provided with an opportunity of hearing before passing the order of cancellation either by the committee of the Board of Directors or 10 by the Vice Chairman Jammu Development Authority. The admitted case of the parties is that they have not been provided with an opportunity of hearing before the order of cancellation on their plots was done. The petitioners submits that since they have executed the Lease Deed which had created rights in their favour in immovable property, therefore, it was incumbent upon the authority to provide an opportunity of hearing before passing the order of cancellation.

#13. Similar issue on identical facts was already considered by the Division Bench judgment titled Jagdish Raj versus Jammu Development Authority (LPAOW No. 106/2017 decided on 19.03.2021) in which the Division Bench has held as under:- “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 4 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” 11

#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.”

#14. In State Bank of India & ors. vs. Rajesh Agarwal & ors. reported as (2023) 6 SCC 1, the Hon’ble Apex Court has observed as under:- “We need to bear in mind that the principles of natural justice are not mere legal formalities. They constitute substantive obligations that need to be followed by decision-making and adjudicating authorities. The principles of natural justice act as a guarantee against arbitrary action, both in terms of procedure and substance, by judicial, quasi-judicial, and administrative authorities. Two fundamental principles of natural justice are entrenched in Indian jurisprudence: (i) nemo judex in causa sua, which means that no person should be a judge in their own cause; and (ii) audi alteram partem, which means that a person affected by administrative, judicial or quasi- judicial action must be heard before a decision is taken. The courts generally favor interpretation of a statutory provision consistent with the principles of natural justice because it is presumed that the statutory authorities do not intend to contravene fundamental rights. Application of the said principles depends on the facts and circumstances of the case, express language and basic scheme of the statute under which the administrative power is exercised, the nature and purpose for which the power is conferred, and the final effect of the exercise of that power.”

#15. Thus, the Division Bench has held that the allotment of plots were followed by the Lease Deed which had created the rights of the petitioners and even if the allotments were held to be irregular, the same could be 12 cancelled/withdrawn only after providing an opportunity of hearing to the petitioners.

#16. In view of the aforesaid facts and circumstances of the case, these petitions are allowed. The orders of cancellation impugned in these petitions issued qua the petitioners are quashed. It is, however, open for the respondents to consider the issue on irregular allotment of plots made and pass an appropriate order in this behalf as per law after providing the reasonable opportunity of hearing to the parties. (SINDHU SHARMA) Judge JAMMU 18.12.2023 RAM MURTI/PS Whether the order is speaking Whether the order is reportable : : Yes/No Yes/No