Arun Prakash vs Jammu Dev. Authority and Others

O.P. Sharma, J.—The case of the petitioner is that his Unit, namely, M/s. Everest Service Station stands registered with the Industries

Department since 1985 and was thus entitled to allotment of one and half Kanals of land for establishing the said Unit: Accordingly, he applied for

allotment of land to respondent No. 1. However, while his application was pending, respondent No. 1 made allotment of land measuring 50' x

100' in favour of respondent No. 4 for running a Service Station at Transport Nagar, Jammu vide order dated 24-8-1988. During the pendency of

the petition, the respondents, it is also alleged, made further allotments in favour of respondents 5 to 8. The petitioner challenges the allotment of

land in favour of respondents 4 to 8 on the ground that it has been made without following any criteria in illegal and arbitrary manner. He also seeks

a direction against the official respondents to give him similar treatment by allotting land in Transport Nagar, Jammu.

In the counter filed on behalf of the official respondents, it is stated that the petitioner had submitted incomplete application for allotment of land

in the year 1989 by which time the plots had already been allotted. They have also stated that the petitioner was not eligible for allotment because

he was not carrying on transport business at all. The land, according to them, was allotted to those who were already in Transport business and

satisfied the eligibility criteria.

The private respondents have in their counter stated that they were carrying on business in Ware House, Jammu which was to be vacated and as

such were allotted alternate site in the Transport Nagar, Jammu for carrying on their business.

Mrs. Surinder Kour, learned counsel appearing for the petitioner, has argued that the official respondents had adopted the policy of pick and

choose in making the allotment for which no definite policy/criteria was followed. The allotments in favour of the private respondents, therefore,

according to her, is illegal and liable to he quashed. She has also prayed that the petitioner be allotted a plot in the same manner as in case of

others.

It is a settled law that discrimination is a positive concept and cannot be enforced in the negative form. So if the allotment in favour of the private

respondents is illegal it cannot be a ground to repeat the illegality by making allotment in the name of the petitioner. This principle was laid down by

the apex court in Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others, , which reads as under :--

In Coromandel Fertilizers Ltd. v. Union of India, it was held in para 13, that wrong decision in favour of any party does not entitle any other

property to claim the benefit on the basis of the wrong decision. In that case, one of the items was excluded from the schedule, by wrong decision,

from its purview. It was contended that authorities could not deny benefit to the appellant, since he stood on the same footing with the excluded

company. Article 14, therefore, was pressed into service. This court had held that even if the grievance of the appellant was well founded, it did

not entitle the appellant to claim the benefit of the notification. A wrong decision in favour of any particular party does not entitle another party to

claim the benefit on the basis of a wrong decision. Therefore, the claim for exemption on the anvil of Article 14 was rejected.

In Chandigarh Admn. v. Jagjit Singh, allotment of the sites was the subject matter under several proceedings in the High Court; ultimately some

persons had the benefit of allotment while others were denied of the same. When Article 14 was pressed into service, this Court in para 8 at p.

750 had held that the basis of the principle, if it can be called one, on which the writ petition had been allowed to be taken was unsustainable in law

and indefensible in principle. The mere fact that the respondent-Authority had passed a particular order in the case of another person similarly

situated, can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person

might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If

the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that

such illegal or unwarranted order could not be made the basis of issuing a writ compelling the respondent-Authority to repeat the illegality to cause

another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a

purpose.

So merely because allotment in favour of the private respondents was made in an arbitrary manner, is no ground for allotment of the plot in favour

of the petitioner.

It was next argued that the official respondents have made allotment of land in favour of private respondents on the directive of the Government,

though the latter was not competent to do so. The Government, according to the learned counsel for the petitioner, has shown undue favour to the

private respondents and, therefore, the said allotment is liable to be quashed.

Jammu Development Authority has been constituted u/s 3 of the Development Act of 1970. Section 17 of the said Act provides that the

authority may dispose of land subject to any direction given by the Government. It is the specific case of the petitioner that private respondents

have been allotted land under the directions of the Government. Incase the allotment has been made on the direction given by the Government, the

official respondents perhaps had no choice because Section 17 empowers the Government to issue directions for allotment of land. However, even

otherwise, the Jammu Development Authority (for short the JDA) develops land which is either acquired by compulsory acquisition or the Nazool

land which is entrusted to it by the Government. There is nothing in the petition as to whether the land allotted to the private respondents had been

acquired u/s 16 or was Nazool land entrusted to it u/s 18 of the Development Act. In case it was Nazool land the authority was obliged to deal

with it in accordance with the rules and direction given by the Government, as per Sub-section (3) of Section 18 of the Development Act. Since

the rules only provide that the land shall be allotted on lease basis and it is admitted that the lease agreement has been executed and premium so

fixed also received, so there is no contravention of the rules. But whether the allotment should be made by auction or otherwise is a matter of

policy. It would be ideal to invite applications after lying down a uniform criteria for eligibility. But since the allotment in this case has been made in

favour of the private respondents at the behest of the State Government, the Authority perhaps had no option but to comply the direction. Even the

letter of allotment specifically mentioned that the applications had been received from the Government for allotment of land in their favour. In doing

so, the Government appears to have acted under Sections 17(i) and 18(iii) of the Development Act. The legality of this action could be examined

only if the Government i.e. the State was impleaded as respondent in the petition. But it was not and hence the action of the Government in

recommending allotment in favour of the private respondents cannot be investigation. This, however, does not mean the Government in exercise of

power under Sections 17 and 18 of the Act can act arbitrarily. But assuming that the respondents acted illegally by implementing illegal direction of

the Government, even that is no ground to grant relief to the petitioner, in view of the law laid down by the apex court.

In view of the above, there is no merit in this petition, which is dismissed accordingly. No order as to costs.