Rakesh Kumar v. State of J&K

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 has invoked the jurisdiction of this Court under Article 226 of the Constitution of India, for quashing order No. JDA/TPT/2497- 99 dated 15.09.2015 (though the impugned order is dated 12.09.2015, it is incorrectly mentioned as 15.09.2015 in the petition), issued by the Jammu Development Authority, whereby Shop Site No. 25 measuring 15' x 40' in Yard No: Extension II, situated at Nehru Market, Transport Nagar, Jammu, allotted to the petitioner, has been canceled.

The grievance of the petitioner is that as he was in possession of Kokha/Space at Old Transport Yard, Nehru Market, Transport Nagar, Jammu, as such, the respondents persuaded him to accept the allotment of a commercial site at Transport Nagar, Bye-pass, Jammu and Shop Site No. 25 was allotted to the petitioner in lieu of his Kokha/space at Nehru Market, Transport Nagar, Jammu, vide allotment order dated 29.12.2001, on a premium of Rs. 4.00 lacs.

The petitioner deposited an amount of Rs. 44,445/- the said amount, and a lease deed was executed between the parties, which was duly Michal Sharma I attest to the accuracy and authenticity of this document. Jammu 27.09.2024 16:34 OWP No. 1737/2015 registered. The possession of Shop Site No. 25 was handed over to the petitioner on 04.06.2002. The petitioner also renovated the said shop site and has been conducting business there for the past fourteen years.

It is stated that on 12.09.2015, the respondents arbitrarily cancelled the allotment made in favor of the petitioner without affording him an opportunity of being heard. It is also urged that this impugned order was passed without due application of mind by overlooking facts, as such, the petitioner cannot be deprived of the property for which there is a registered lease deed in his favour.

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 of hearing 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:

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 Michal Sharma I attest to the accuracy and authenticity of this document. Jammu 27.09.2024 16:34 OWP No. 1737/2015 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 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. Michal Sharma I attest to the accuracy and authenticity of this document. Jammu 27.09.2024 16:34 OWP No. 1737/2015

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