Jammu, July 6: In OWP No. 470/2007 IA No. 706/2007 titled Kaka Singh V/s State and others after hearing HON’BLE MR. JUSTICE MOHAN LAL, JUDGE ORDERED as:-
1. The present petition has been filed impugning cancellation of allotment Order No. JDA/P/RN/Ch./887-92 dated 26.04.2007 issued by the respondents, whereby Plot No. 294A/P Sector 3 measuring 3567 Sft. at Rajinder Nagar, Bantalab, Phase-II, Housing colony, Jammu, allotted in favour of the writ petitioner has been cancelled and further prayer to direct the respondents to execute the Lease Deed and hand over the possession of Plot No. 294A/P Sector 3 measuring 3567 Sft at Rajinder Nagar, Bantalab, Phase-II Housing Colony, Jammu.
2. It is averred in the petition that the petitioner applied for allotment of a housing plot on lease hold basis at Ban Talab in the year 2003 before the Minister for Revenue/Housing & Urban Development Department, who endorsed the application of the petitioner to respondent No.2-Vice Chairman, Jammu Development Authority for doing the same; that respondent No.2- Vice Chairman, Jammu Development Authority vide letter No. JDA/Plots/BT/894 dated 25.01.2003 conveyed his agreement to allot Plot No. 294A/P Sector 3 measuring 3567 Sft at Rajinder Nagar, Bantalab, Phase-II. Pursuant to the allotment letter referred above, the petitioner fulfilled all the required formalities and also deposited an amount of Rs.2,32,000/- ( Rupees Two Lacs and Thirty Two Thousand only); that after receipt of the premium amount of Rs.2,32,000/- (Rupees Two Lacs and Thirty Two Thousand only), the petitioner kept on approaching the respondent Nos. 2 & 3 for execution of lease deed as well as handing over the possession of aforementioned Plot No. 294A/P Sector 3 measuring 3567 Sft at Rajinder Nagar, Bantalab, Phase-II, Housing Colony Jammu but unfortunately respondents 2 and 3 kept on dilly dallying the matter on one pretext or the other and instead of executing the lease deed and handing over the possession of aforementioned plot, they (respondent Nos. 2&3) started extending threats to the petitioner to the extent that the Plot No. 294A/P allotted in favour of the petitioner shall be cancelled and ultimately the petitioner received communication No. JDA/P/RN/Ch./887-92 dated 26.04.2007 from respondent No.1 whereby the petitioner has been informed that Plot No. 294A/P Sector 3 measuring 3567 Sft at Rajinder Nagar, Bantalab, Phase-II, Housing Colony Jammu allotted in favour of the petitioner stands cancelled.
3. Feeling aggrieved, the petitioner challenges the cancellation of allotment Order No. JDA/P/RN/Ch./887-92 dated 26.04.2007 issued by the respondents, inter alia on the following amongst other grounds: (a) that the impugned cancellation of allotment Order No. JDA/P/RN/Ch./887-92 dated 26.04.2007 issued by the respondents is against law and facts of the case and, as such, the same cannot be sustained in the eyes of law and deserves to be quashed; (b)that the impugned cancellation of allotment order No. JDA/P/RN/Ch./887-92 dated 26.04.2007 issued by the respondents, deserves to be quashed as the same is in violation of principles of natural justice inasmuch as no opportunity of being heard has been offered to the petitioner before passing the order impugned; (c) that the impugned cancellation of allotment order No. JDA/P/RN/Ch./887-92 dated 26.04.2007 issued by the respondents deserves to be quashed because the respondents have mentioned in the order impugned that the case of the petitioner falls under Category 3 of the decision taken but have not mentioned about the other categories of allotments made by the then Vice-Chairman of Jammu Development Authority which shows that the impugned cancellation or allotment order is an outcome of non-application of mind and has been passed with malafide considerations; (d) that the impugned cancellation of allotment order deserves to be quashed because the same is against all the cannons of law as well as the provisions of the Constitution of India.
Even otherwise the impugned order issued by the respondents thereby cancelling the allotment of aforementioned plot violates Article 300-A of the Institution of India, the right of the petitioner for holding of residential Plot No. 294A/P has an equal right to property which is a fundamental right in the State of Jammu and Kashmir as the 44th amendment of the Constitution of India is not applicable to the State of J&K.
4. The respondents have filed objections wherein it is stated that there is no violation of any rights of the petitioner much less the fundamental rights of the petitioner as such the writ petition is not maintainable in the present form; that the writ petition is liable to be dismissed on the sole ground that the allotment made in favour of the petitioner vide order No. JDA/Plots/BT/894 dated 25.01.2003 was without adopting the guidelines fixed for such allotment and also without approval of the competent authority; that all these allotments made by the then Vice-Chairman, Mr.Mohd Aslam Qureshi, were ordered to be kept in abeyance by the Government vide order No. 104-HUD of 2003 dated 05.05.2003, thereafter the matter was placed before the Board of Directors of Jammu Development Authority in its 63rd meeting held on 19.01.2004 wherein it was decided to cancel all these allotments including the allotment of the petitioner; that the matter was again placed and accordingly discussed before the number of Board meetings and ultimately it was finally decided to cancel allotment made in favour of petitioner which falls under CategoryIII; that in pursuance of above referred decision taken in the different Board meetings, the respondent authority issued the order/communication being communication No. JDA/P/RN/Ch./887-92 dated 26.04.2007 whereby irregular allotment made in favour of the petitioner stands cancelled/withdrawn, prayer has been made for dismissal of writ petition.
5. Heard and considered. 6. Learned counsel for the petitioner has argued, that Vice Chairman, Jammu Development Authority vide letter No. JDA/Plots/BT/894 dated 25.01.2003 allotted Plot No. 294A/P Sector 3 measuring 3567 Sft at Rajinder Nagar, Bantalab, Phase-II in favour of the petitioner and pursuant to the allotment letter referred above, the petitioner fulfilled all the required formalities and also deposited an amount of Rs.2,32,000/- (Rupees Two Lacs and Thirty Two Thousand only). It is argued, that after receipt of the premium amount of Rs.2,32,000/-, petitioner approached the respondent Nos. 2 & 3 for execution of lease deed as well as handing over the possession of aforementioned plot, but unfortunately they instead of executing the lease deed and handing over the possession of aforementioned plot, started extending threats to the petitioner to the extent that the Plot No. 294A/P allotted in favour of the petitioner shall be cancelled, and ultimately the petitioner received communication No. JDA/P/RN/Ch./887-92 dated 26.04.2007 from respondent No.1 whereby the petitioner has been informed that Plot No. 294A/P Sector 3 measuring 3567 Sft at Rajinder Nagar, Bantalab, Phase-II, Housing Colony Jammu allotted in favour of the petitioner stands cancelled. In support of his arguments, learned counsel for the petitioner has relied upon the judgment of Hon’ble the Division Bench of this Court rendered in LPAOW No. 106/2017 in case titled “Jagdish Raj vs Jammu Development Authority & Ors” wherein Hon’ble the Division Bench while issuing consideration order in favour of the petitioner in the said writ petition regarding allotment of plot, in para 9 of the said order 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 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” 7.
As a sequel to the aforesaid discussion and the Division Bench judgment laid down as above, this petition is allowed. Impugned order of cancellation of allotment Order No. JDA/P/RN/Ch./887-92 dated 26.04.2007 is 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 within a period of three months from the date a copy of this order is made available to them, after affording reasonable opportunity of hearing to the petitioner.
8. Disposed of in the aforesaid terms
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