Jammu Fruit Association vs J.D.A and Others

S.K. Gupta, J.—By means of this petition, Jammu Fruit Association has challenged the action of the respondents-1 to 3 in carving out a

non-plan shop site adjoining to shop No. 20 in phase -I of the Fruit Market Complex, Narwal, Jammu and allotting the same in favour of

respondent-6 in illegal and wrongful manner, in mala fide exercise of authority by respondent-2. According to the averments made in the writ

petition, the shop site no. 20 is the last shop site in the first row of shop sites laid out in phase-I and the next row starting from shop site No. 21

which is the office of the petitioner. It is further submitted that there is no shop site intervening which makes it abundantly clear that there is no such

site in existence or ear-marked for allotment to any person. The alleged shop site has been created by the respondents-1 to 3 with purposive intent

to favour respondent-6 and subsequently allotted the same to him in clear violation of revised lay out plan of phase-I of the Fruit Market Complex.

Further case of the petitioner is that respondent-2, in exercise of his own discretion, allotted a shop site adjoining to shop No. 20 without the

involvement of the administration as well as the allotment committee of the said complex in decision making process. Mere glance of revised lay out

plan clearly shows that it does not admit the existence of shop site adjoining to shop No. 20 in phase-I of the said complex and the manner in

which the respondent-6 has been favoured with the allotment of the said shop site speaks of volumes of the mala fide and arbitrary conduct of

respondent-2.

That the respondents-1 to 5 have made allotment of the shop site in favour of respondent-6 by by-passing the allotment committee and in clear

violation of the procedure provided for such allotment.

It is legitimately expected of the public authorities, managing public properties for public purposes, to follow due procedure and process laid

down for the purpose. No public notice for such allotment was ever given, inviting offers from prospective buyers as normally the procedure is

adopted in case of allotment or lease of the public properties and colourable exercise of the authority in making the allotment of the shop site in

favour of respondent-6 without adopting due procedure provided for such cases vitiates the allotment of the shop site being inherently illegal and in

breach of the lay out plan of phase-I of the Fruit Market Complex and, thus, petitioner sought quashment of letter No. JDA/FM/167-68 dated

13/08/2003 issued by respondent 3.

The respondents in their detailed reply submitted that the strip of land adjoining to the shop No. 20, PhaseI at Fruit Market Complex has been

carved out and allotted to respondent-6 after receiving premium already fixed in this area and handed over its possession to him on the execution

of the lease deed. Further plea put across by the respondent is that allotment has been made to respondent-6 being a fruit growing person having

his own orchard and dealing in fruit trade for the last 20 years and also a victim of bomb blast. It is also stated that no public interest element is

involved in the writ petition as the land belongs to Jammu Development Authority and none of the members of the petitioner's registered body has

any right of claim over it. No favour has been shown to the petitioner while making allotment and handing over possession of it to respondent No.

6 on a premium already fixed in the area. The only consideration which weighed with the respondents at the time of the allotment was that the

petitioner was fruit grower and the victim of bomb blast. The allotment was made after obtaining the approval of the Hon'ble Chairman Jammu

Development Authority. The strip of land which is allotted to respondent No. 6 was lying vacant which was made available without causing any

obstruction / inconvenience to the petitioner to utilize the shop sites allotted to them earlier. The respondents further stated that allottees of the shop

sites in phase-I and phase-II, are governed by the terms and conditions of their agreements and cannot claim right over any other strip of land that

belongs to Jammu Development Authority. In the best interest of the Association, Jammu Development Authority can utilize any other strip of land

for allotment to fruit traders and fruit growers in phase-I and phase-II. The respondents in their reply further submitted that the allotment of the

shop sites to various categories under the discretionary quota of the Chairman, Jammu Development Authority/Hon'ble Minister, Housing and

Urban Development Department, have been made vide Government Order dated 27-7-1987. Copy of the Government Order in support of their

submissions has also been placed on record as annexure-R2.

Respondent-6 to whom the shop site is stated to have been allotted and is the beneficiary of the impugned order, in its reply stated that he has

passed M.Sc. in Applied Chemistry and was seriously injured in the bomb blast in the year 1991. He has become handicapped and is dependent

on others. Further plea put across by the respondent-6 is that it has been the policy of the Government to rehabilitate the victims of militancy and

he having good experience of trading in fruit, as he has own orchard at Bharderwah, intended to do the same work and live honorably, was

allotted a small strip of land measuring 15""x 60"" at market rates and that too on 10% hike from the premium paid by others. In pursuance of the

policy of the Government to rehabilitate the victims of militancy, respondent No. 2 considered the claim of the respondent-6 sympathetically and

made the allotment of strip of land in his favour adjoining to the shop site No. 20 phase-I, Fruit Market Complex. It is further stated that the land

belongs to the Jammu Development Authority and the Traders Association cannot claim to have been delegated with the job of allotment of the

sites to them in the phase-I, Fruit Market Complex. That the respondent-6 has been validly allotted the strip of land and has deposited the amount

of premium and executed the lease deed. The possession of the allotted strip has also been handed over to respondent-6 by the Jammu

Development Authority. The action of the Government was on rationale basis in making the allotment of the strip of land and that too with 10%

hike premium than obtained from other shop-keepers under the policy to rehabilitate the victims of militancy and educated unemployed youth and

respondent No. 6 having become handicapped on account of the aforesaid event, so that he may earn his livelihood to feed his family and live

honorably. The Jammu Development Authority has carved out un-used strip of land and the petitioner-association cannot claim to have been left

with this job with them. To support the aforesaid claims, the respondents further stated to have annexed the photographs showing that respondent-

6 is handicapped by serious injuries in his legs on account of bomb blast.

Further contention of the respondents is that no legally enforceable fundamental, constitutional or statutory right of the petitioner has been

violated so as to give them justifiable cause to maintain the writ petition.

I have heard the learned counsel appearing for the respective parties in extenso. The record produced by the respondents has also been

perused.

It is not in dispute that the respondent-6 is highly educated and has passed M.Sc. in Applied Chemistry. He had sustained injuries in bomb blast

and is still under medical treatment. It is also not in dispute that the petitioner has been rendered virtually handicapped. It is all along the policy of

the government to rehabilitate the victims of the militancy in the State in order to enable them to earn their livelihood and live honorably. It is also

borne out from the record and not disputed by the petitioner that in pursuance of the government policy to rehabilitate the victim of bomb blast,

respondent No. 6 was allotted small strip of land measuring 15"" x 60"" at market rates and that too on 10% hike from the premium paid by others.

According to the respondents, these were the basis, much less rationale basis, which prompted them to allot a strip of land adjoining to shop No.

20, phase-I to rehabilitate the victim of bomb blast and that too at a premium of 10% hike in price.

The concept of fairness in administrative action has been the subject-matter of considerable judicial debate but there is total unanimity on the

basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the

court and no strait-jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness and on the issue of

ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence

similarly placed. The existence of mala fide intent or biased attitude cannot be put on a strait-jacket formula but depends upon facts and

circumstances of each case. The only grievance projected by the petitioner-association is that the allotment has been made without taking into

confidence the members of the association and in violation of a lay out plan of phase-I and consequently defaced the complex. Ordinarily the

courts do not, in exercise of their power of judicial review, interfere with the policy decisions of the executive unless the policy can be faulted on

the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. However, if the policy cannot be faulted on any of these grounds, the

mere fact that it would hurt business interests of a party, does not justify invalidating the policy.

So far as arbitrary administrative action is concerned, it can be described as one that is irrational and not based on sound reason. It is also

described as one that is un-reasonable. In order to determine whether administrative action is arbitrary and tainted with mala fide, the test for the

purpose of articule-14 of the Constitution of India is whether it has a nexus with the objective intended to be achieved by administrative action.

Whether the administrative action is ""rational"" or ""reasonable"" and the test then is the Wednesbury test. The courts would then be confined only to

a secondary role and will only have to see whether administrative authority has done well in his primary role, whether the authority has acted

illegally or has omitted to consider relevant factors or has taken irrelevant factors into consideration.

Adverting to the facts of the case, the administrative action in making the allotment of the shop site adjoining to shop no. 20 phase -I, Fruit

Market Complex to respondent-6 does not appear to be either arbitrary exercise of powers or tainted with mala fide. The rationale behind this

allotment was the policy of the Government to rehabilitate the victims of bomb blast. The basis is reasonable, rationale and well intended to

accomplish the object behind the policy of the government. The administrative action of the government is for obvious reasons that the allotment

has been made on a premium at market rate that too 10% hike in price. This fact has not been disputed by the petitioner by filing any rejoinder. So

far as the authority of the respondents to make the allotment is concerned, it is not disputed that the land belongs to the Jammu Development

Authority. The respondent- Jammu Development Authority is well within its right and power to utilize and make best use of land by carving out

sites for its proper and profitable/advantageous utilization in the interest of the organization.

It is meaningful to point out that there has been a policy of the government to rehabilitate the victims of the bomb blast who have become

handicapped. The purpose apparent is to infuse life in them to live honorably by providing them sources of livelihood. The arbitrary action is

described as one that is irrational and not based on sound reasons.

On the overall global view of the matter in context of the factual matrix of the case and record of the file, I am clearly of the view that the

administrative action of the government was taken in pursuance of the policy to rehabilitate the victims of militancy by providing them sources or

earnings to feed their families.

In this case, the allotment has been made in all fairness on a premium at the market rate with 10% hike than obtained from other shopkeepers.

Therefore, it cannot be said that it is tainted with mala fide in any manner. This is not the first case of its kind, similar action has been taken by the

government, as is evidenced from the record produced by the respondents earlier also. The petitioner, therefore, has not succeeded in making out

a prima facie case to invoke the writ jurisdiction of the court in exercise of powers under Article 226 of the Constitution of India.

In the result the petition possesses no merit and is hereby dismissed at preliminary stage of admission. Interim direction dated 18.08.2003

passed in CMP shall stand vacated automatically in resultant thereof.