Jagdish Raj vs Jammu Development Authority & Ors

This Letters Patent Appeal is preferred against the judgment dated 23rd October, 2017 passed in OWP No.561 of 2016, whereby the writ petition

filed by the appellant has been dismissed.

The Vice Chairman, Jammu Development Authority (for short hereinafter to be referred as the ‘JDA’) vide order dated 18.09.2002

conveyed his agreement to allot 900 sq. ft. of commercial land out of Khasra No.327 at Village, Channi Rama situated opposite Jammu Railway

Station near Tube Well to the appellant Jagdish Raj. Consequent upon the receipt of the letter of allotment, the appellant deposited Rs.833350/- for 900

sq. feet of land on 27.09.2002 and perpetual lease deed was executed in his favour on 09.10.2002. The appellant was put in possession of the allotted

land as per letter dated 22.02.2003 addressed to Secretary, JDA by the Executive Engineer, JDA.

The JDA in terms of order dated 12.09.2015 has cancelled the allotment of aforesaid plot in view of the decision of the Board of Directors adopted

in their 74th meeting held on 11.06.2015. The order dated 12.09.2015 cancelling the allotment of the appellant was challenged by him in OWP No.561

of 2016 and the same was dismissed by the writ court vide its order dated 23.10.2017.

This order is assailed in the present appeal on the ground that the order of cancellation of allotment of plot is arbitrary, unfair and unreasonable as

the appellant was not provided an opportunity of hearing either before the Board of Directors or by the Vice Chairman, JDA before cancellation of his

allotment. It is also submitted that there is no irregularity in the allotment, also, there is no basis for its cancellation as the appellant was eligible for

allotment and that the JDA is bound by the covenants made in the lease deed which are still intact.

In the objections filed by the respondents to the writ petition, the only fact disclosed therein is regarding constitution of the committee to enquire the

irregular allotments of the plots made by the then Vice Chairman, JDA Shri Mohd. Aslam Qureshi. This report of the committee was discussed in the

various Board meetings and finally in a meeting of the Board of Directors held on 11.06.2015 and it was decided to cancel all irregular allotments

made by the then Vice Chairman JDA.

The question which arises for consideration is whether the appellant was ever heard by the committee or the Board of Directors before passing the

order of cancellation of allotment .

The appellant admittedly has not been heard either by the committee or by the Board of Directors, and the order of cancellation of allotment of plot

was passed without providing any opportunity hearing to him.

The writ court assumed fraud and collusion between the parties but there is not even a whisper in the objections filed by the respondents about the

collusion between the parties. If that be so, the next question is whether there is an infraction of Article 14 of the Constitution of India. The appellant

is in possession of the plot since 2003. He has paid Rs.8,33,350/- as premium and Rs.6,671/- as ground rent, therefore, his rights have been infringed

by cancelling the allotment after more than 12 years after the allotment of plot in his favour. This apart, para-IV of the lease deed provides procedure

for forfeiture of the lease, therefore, the cancellation of the allotment does not automatically results in cancellation of the lease deed, that too without

the refund of the premium amount paid with interest.

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 elementâ€, 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 â€" 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 backâ€​

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.

In view of the aforesaid discussion, we allow this appeal, set aside the impugned judgment dated 23rd October, 2017. The writ petition OWP

No.561 of 2016 is allowed and the order of cancellation of allotment of plot dated 12.09.2015 is also 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, after affording reasonable opportunity of

hearing to the appellant.

Disposed of in the terms aforesaid.