AND LADAKH AT JAMMU Sr. No. 80 OWP No. 519/2016 Mohd. Afzal & Ors. v. Jammu Development Authority" & Ors.

Through:- Ms. Monika Thakur, Assisting counsel to Mr. S.S. Nanda, Sr. AAG. Mr. Adarsh Sharma, Advocate. CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE ORDER

02.09.2024

Petitioner seeks quashing of order No. JDA/2256-58 dated

12.09.2015, issued by the Jammu Development Authority, i.e., respondent Nos. 2, 3 and 4, whereby Plot No. N-6 in Sector-I, measuring 43’ x 35’ at EWS Colony, Opposite Roop Nagar, Jammu allotted to the petitioner, has been canceled.

The petitioner was allotted a residential plot bearing Plot No. N-6 in Sector-I, measuring 43’ x 35’ at EWS Colony, Opposite Roop Nagar, Jammu, vide allotment letter No. JDA/EWS/RN/62-63, dated 10.06.2002, for which an amount of Rs. 1,05,350/- was deposited by him on

30.05.2002 and letter of handing over the possession was issued vide letter No. JDA/Div-II/EWS/511-16, dated 03.04.2002 and lease deed was executed on 30.07.2002.

The petitioner, after taking over the possession had also raised over the foundation over the land. The petitioner thereafter applied for OWP No. 519/2016 sanctioning of the site plan for raising construction over the plot allotted to him but the respondents did not process the same.

The respondents have issued the impugned order by which they are depriving the petitioner of his lawful possession, accordingly, a direction is sought to quash the impugned order dated 12.09.2015.

It is submitted that the impugned order, which is general in nature, was passed whereby all allotments made by the then Vice Chairman, JDA, were canceled pursuant to a decision taken in the 74th meeting of the Board of JDA. The impugned order is essentially assailed on the ground that the petitioner was never provided any opportunity to explain his position and justify his allotment.

Reliance has been placed by learned counsel for the petitioner upon the Division Bench judgment of this Court in LPAOW No. 106/2017 titled "Jagdish Roj vs. Jammu Development Authority and others", decided on 19.03.2021, wherein this Court, while dealing with similar issues, has held as follows in paragraphs 9 and 10: “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 the 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 there from. 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 OWP No. 519/2016 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.”

Although the allotment of the plot to the appellant has been cancelled, the same was followed by a lease deed which creates rights of the appellant in the immovable property. Assuming that the allotment was irregular, 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 which he had acquired in the allotted property. There is, as such, violation of the principle of audi alteram partem, which the learned writ court has failed to notice.”

In the instant case also, there is no allegation by the respondents of any fraud or collusion between the petitioner and the officials of Jammu Development Authority. It is also not in dispute that the impugned order was issued to the petitioner pursuant to a general decision taken in the 74th Board meeting of the Jammu Development Authority whereby all allotments made by the then Vice Chairman, JDA were directed to be cancelled.

Mr. Adarsh Sharma, learned counsel appearing for respondents Nos. 2, 3 and 4, submits that before issuing the impugned order and cancelling the allotment of the petitioner, no notice of being heard was given to the petitioner. OWP No. 519/2016