Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 948 (JK)

Jagdish Raj v. Jammu Development Authority

2017-10-23

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : Dhiraj Singh Thakur, J. Petitioner questions the order dated 12th of September, 2015 passed by the Vice-Chairman, Jammu Development Authority whereby the allotment of a commercial plot made in his favour vide allotment order dated 18th of September, 2002 has been cancelled. 2. Briefly stated the material facts are as under: 3. A plot of land measuring 900 sq. ft., opposite railway station, came to be allotted in favour of the petitioner by virtue of allotment order dated 18th of September, 2002, which reads as under: “.... Please refer your application dated 24.12.2002 and 21.5.2002, addressed to the Hon'ble Minister for Housing and Urban Dev. Deptt. Regarding allotment of commercial plot opposite Jammu Railways Station near Tube Well. In this connection, I am directed to inform you that your request for allotment of 900 sflt. Land out of khasra No. 327 village Channi Rama is agreed to subject to the following conditions: 1. That premium of the land shall be charged Rs. 50 lacs per kanal which shall be paid within one month from the date of allotment. 2. File an undertaking to the effect that you do not own any commercial site in Jammu Urban area. 3. Furnish a copy of State subject certificate duly attested. 4. Produce two passport size photograph for execution of lease deed. 4. It is stated that pursuant to the aforementioned allotment order, a perpetual lease deed came to be executed between the petitioner and the Jammu Development Authority on 9th of October, 2002 and registered with Sub Registrar Mufassil on 12th of October, 2002. A formal possession of the plot in question was handed over to the petitioner on 17th of October, 2002. 5. It is further stated that by virtue of the order impugned dated 12th of September, 2015, the JDA suddenly cancelled the allotment of the petitioner. The order impugned is challenged on the ground that the same was in gross violation of principles of natural justice. 6. 5. It is further stated that by virtue of the order impugned dated 12th of September, 2015, the JDA suddenly cancelled the allotment of the petitioner. The order impugned is challenged on the ground that the same was in gross violation of principles of natural justice. 6. It was urged that the allotment had been made in the year 2002 and pursuant thereto, a lease deed had been executed in favour of the petitioner and he had been put in possession of the same and, therefore, in case, any of the rights that had already accrued to the petitioner had to be taken away, the same could have been taken only after affording the petitioner an opportunity of being heard. 7. Respondents in their objections have taken a stand that the allotment made in favour of the petitioner was one of the many irregular allotments made by the then Vice-Chairman of the Jammu Development Authority, namely, Mohd. Aslam Qureshi during his tenure w.e.f., November, 2001 to June, 2003. 8. It was stated that the Housing and Urban Development Department vide Govt. Order No. 104-HUD of 2003, dated 5th of May, 2003 had appointed an officer of the rank of a Special Secretary to Govt. Housing and Urban Development Department to enquire into the allegations of irregular allotments of shops' sites and plots made by the aforesaid Vice-Chairman and had also ordered that in the meantime, allotments if any, made would remain in abeyance. 9. It was also stated that all cases of irregular allotments, as in the present case, were required to be submitted to the Board of Directors. Reference was made to the order impugned in this regard, a perusal whereof would show that irregular allotments were specified in four categories, which are as under: Category I: In the cases where the persons have made payments executed lease deeds and taken over the possession. (158 cases) Category II: Persons who have made payment lease deed executed but possession could not be handed over. (22 cases) Category III: Persons who have made payment but lease deed could not be executed (54 cases) Category IV: Persons who have been issued letter of intent but payment not deposited (39 cases). 10. (158 cases) Category II: Persons who have made payment lease deed executed but possession could not be handed over. (22 cases) Category III: Persons who have made payment but lease deed could not be executed (54 cases) Category IV: Persons who have been issued letter of intent but payment not deposited (39 cases). 10. The details of all the irregular allotments were placed before the Board of Directors of the Jammu Development Authority, who, in their 63rd Board meeting held on 19.1.2004, decided as under: “That out of 4 categories proposed herein, all the allotments in category 2, 3 and 4 be cancelled forthwith. Full details with regard to category (1) be prepared and put up in the next Board meeting. Meanwhile, Building Permission in JDA and Jammu Municipal Corporation shall not grant any persons for construction on these plots.” 11. It appears that in the 64th meeting of the Board held on 11.6.2015, it was decided that all irregular allotments be cancelled as per the recommendations of the committee following which, the allotment made in favour of the petitioner was also cancelled by virtue of the order impugned. 12. Counsel for the respondents-JDA, urged that a criminal case had also been registered against the erstwhile Vice-Chairman. It was stated that the allotments including the one made in favour of the petitioner were irregular and an undue benefit had, in fact, been conferred upon the petitioner without considering all eligibles for allotments of the said commercial plot of land, which, if put to an open auction, could have fetched tremendous premium on account of its location being in close proximity to the Jammu Railway Station. 13. From a perusal of the order of allotment, it appears that the order of allotment in regard to commercial plot of land was made on the basis of two applications dated 24.12.2002 and 21.5.2002, which were addressed to the Hon'ble Minister for Housing and Urban Dev. Department. 14. The plot in question on account of its strategic location being opposite to the railway station would undoubtedly have immense commercial value. The same was, however, allotted to the petitioner without adopting any fair procedure and without putting the same to auction or by a process of competitive bidding, which should have otherwise resulted in getting the maximum price for the said plot, thus, causing loss to the exchequer. 15. The same was, however, allotted to the petitioner without adopting any fair procedure and without putting the same to auction or by a process of competitive bidding, which should have otherwise resulted in getting the maximum price for the said plot, thus, causing loss to the exchequer. 15. The allotment of the plot in favour of the petitioner was nothing but is a result of collusion between the petitioner and the Vice-Chairman, who decided to confer the benefit on the petitioner to the exclusion of all others, who were eligible and perhaps willing to pay a much higher price for the same. It was also a fraud on the power held in trust by the Vice-Chairman. 16. It is trite law that fraud vitiates all acts and any benefit conferred upon any person on account of such an act would be non-est in the eyes of law. 17. In Smt. Shrisht Dhawan vs. M/s. Shah Brothers, AIR 1992 SC 1555 , the Apex Court in paragraph 20 held as under: “20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct” 18. In S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs., AIR 1994 SC 853 , the Apex Court observed that “Fraud avoids all judicial acts, ecclesiastical or temporal.” It was held: “8 A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage “ 19. In United India Insurance Co. Ltd. vs. Rajendra Singh and Ors., AIR 2000 SC 1165 , the Apex Court in paragraph 3 of the judgment observed as under: “3. “Fraud and justice never dwell together.” (Frans etjus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything “ 20. Lord Denning observed in a language without equivocation that no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything “ 20. The allotment made in favour of the petitioner to the exclusion of others runs in the face of Article 14 and the ratio of the judgment in “Ramana Dayaram Shetty vs. International Airport Authority of India and Ors.” (1979) 3 SCC 489 , wherein it was held:- “The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not-irrational, unreasonable or discriminatory.” 21. The instrumentalities and agencies of the government would also be subject to the same limitations as the government, as regard inhibiting arbitrariness, which is also a principle embodied in Article 14, as held in Royappa's case, 1974 (2) SCR 348 , wherein it was held that anything which is arbitrary was antithetic to Article 14 of the constitution. 22. In the present case, it is clear that the allotment made in favour of the petitioner was one of the series of the allotments made by the then Vice Chancellor, Jammu Development Authority, which, too have been cancelled by the JDA. The fact that the petitioner had paid the premium or had been put in possession after the execution of lease deed would not in any manner create any indefeasible right in his favour inasmuch as the order of allotment itself is found to have been bad, collusive and antithetic to Article 14 of the Constitution. The allotment made in favour of the petitioner, therefore, rightly stood cancelled. 23. The petitioner also challenges the order impugned on the ground that the same was in violation of the principles of natural justice as no opportunity of being heard was granted before issuing the orders of cancellation of the plot in question. The allotment made in favour of the petitioner, therefore, rightly stood cancelled. 23. The petitioner also challenges the order impugned on the ground that the same was in violation of the principles of natural justice as no opportunity of being heard was granted before issuing the orders of cancellation of the plot in question. However, it is settled law that where on the basis of admitted or undisputed facts only one view was possible, it would not be necessary to quash the order, which was passed in violation of the principles of natural justice. 24. In Aligarh Muslim University and ors. vs. Mansoor Adi Khan, (2000) 7 SCC 529 , the Apex Court reiterated the “useless formality” principle and followed the law as laid down in the case of S.L. Kapoor (supra) and in paragraphs 23 and 35 observed as under: “23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two exceptions (at SS p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L. Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr. Mansoor Ali Khan under Point 5.” 25. For the reasons mentioned above, the petition is found to be without any merit and is accordingly dismissed. The Jammu Development Authority would be at liberty to take necessary steps to take back the possession of the plot in question, if not already surrendered. 26. We hold against Mr. Mansoor Ali Khan under Point 5.” 25. For the reasons mentioned above, the petition is found to be without any merit and is accordingly dismissed. The Jammu Development Authority would be at liberty to take necessary steps to take back the possession of the plot in question, if not already surrendered. 26. Connected MP(s), if any, also stands disposed of accordingly.