JUDGEMENT 1. Heard learned counsel for the parties. 2. Availability of a discretion with respect to decision making, be it judicial, quasi-judicial or administrative side, is law given whereas exercise of a given discretion is always reason guided. If a given discretion is exercised without an enabling reason, then the decision of an authority exercising the discretion invites scrutiny on the challenge of being an arbitrary and unfair exercise of discretion vitiating the decision itself. 3. The present case is the one in which a decision in exercise of discretion by the Jammu Development Authority (JDA) aiming to deny formal allotment of a hall premises for delay in payment of last installment of premium on the part of the petitioner is being called in question. 4. The respondent no. 1-Jammu Development Authority (JDA) is the developer and promoter of a shopping complex known as "Bahu Plaza" situated at Rail Head Complex, Jammu. A premises in the form of a Hall No. 306(B-1) North Block measuring 711.56 square feet at the 3rd floor of Block B-1 came to be allotted on premium with rent basis in favour of the petitioner. Total premium payable was Rs. 11,56,500/- which was to be payable in five installments of Rs. 2,31,300/- each as per the schedule stipulated in an allotment letter no. JDA/3P/1, dated 01.04.2006 issued by the Secretary of the respondent no. 1-Jammu Development Authority (JDA) to the petitioner. 5. With respect to the payment of premium installments, one of the attending instructions in said allotment letter dated 01.04.2006 is that delay in the payment of any given installment was to attract penal interest @ 18% per annum for the maximum period of three months beyond which any delay was to empower the respondent no. 1-Jammu Development Authority (JDA) to cancel the allotment and forfeit the installment/s paid. 6. It is this discretion vested condition which purportedly came into play against the petitioner on account of delay of three months on his part in tendering the payment of last installment of Rs. 2,31,300/-, while all the four earlier installments made by the petitioner were on time, resulting in purported cancellation of his allotment of said premises. 7. 6. It is this discretion vested condition which purportedly came into play against the petitioner on account of delay of three months on his part in tendering the payment of last installment of Rs. 2,31,300/-, while all the four earlier installments made by the petitioner were on time, resulting in purported cancellation of his allotment of said premises. 7. The facts of the case in their plain setting are that pursuant to an advertisement published in a newspaper Daily Excelsior dated 05.02.2005 with respect to allotment of shops/hall premises in Bahu Plaza Rail Head Complex, Jammu floated by the respondent no. 1-Jammu Development Authority (JDA), the petitioner came to be apprised about allotment of the hall bearing no. 306 (B-1) North Block measuring 711.56 sq.ft. at the 3rd floor of Block B-1, Bahu Plaza Rail Head Complex, Jammu in terms of allotment letter no. JDA/BP/1, dated 01.04.2006 issued by the Secretary of the respondent no. 1-Jammu Development Authority (JDA). 8. In terms of the aforesaid letter of allotment, the schedule of payment of premium installments was set out in terms whereof the payment of first installment of Rs. 2,31,300/- by the petitioner to the respondent no. 1 was acknowledged to have been received and balance amount of premium of Rs. 2,25,200/- was scheduled to be payable in four installments of Rs. 2,31,300/- each with the time schedule given therein. The allotment of the aforesaid business premises in favour of the petitioner on lease hold basis was meant to be for a period of forty years. 9. In terms of this letter of allotment, condition no. 4 was stated that delay in the payment of any installment was to attract penal interest @ 18% per annum for a maximum period of three months beyond which the delay is to empower the respondent no. 1-Jammu Development Authority (JDA) to cancel the allotment and forfeit the first installment. In terms of Clause-V, the handing over of the possession of the premises was to take place upon execution of the requisite deed. 10. It is an admitted fact that the petitioner made timely payments of installments no. 2, 3 & 4 to the respondent no. 1. However, with respect to the matter of payment of last payment of Rs. 2,31,300/- the petitioner came forward to tender the same on 08.03.2007 in terms of his letter addressed to the Vice Chairman of the respondent no. 2, 3 & 4 to the respondent no. 1. However, with respect to the matter of payment of last payment of Rs. 2,31,300/- the petitioner came forward to tender the same on 08.03.2007 in terms of his letter addressed to the Vice Chairman of the respondent no. 1-Jammu Development Authority (JDA) accompanied with a Pay Order No. 157295, dated 08.03.2007 for an amount of Rs. 2,31,300/- drawn on OBC Bank Trikuta Nagar, Jammu. 11. Following this tender of Pay Order No. 157295, dated 08.03.2007, the petitioner came to submit a representation dated 11.08.2007 asking for handing over of the possession of the premises in reference and also apprised the Vice Chairman of the respondent no. 1-Jammu Development Authority (JDA) about the cause of delay in the matter of tendering of the last installment of Rs. 2,31,300/- on account of health issues attending the petitioner in the form of multiple surgery of his both eyes. 12. Instead of an order of delivery of possession being served in favour of the petitioner, he came to be visited upon by an Order No. JDA/BP-2445-49, dated 01.09.2007 from the end of the Collector Land Acquisition, Jammu Development Authority (JDA) purportedly cancelling the allotment of the hall in favour of the petitioner by forfeiting the first of the four installments so made by the petitioner, and returning the demand draft no. 157295, dated 08.03.2007 for Rs. 2,31,300/- to the petitioner. 13. This letter of cancellation was issued by the Collector Land Acquisition of the respondent no. 1-Jammu Development Authority (JDA) acting on his own without any reference to any order of the competent authority of the respondent no. 1-Jammu Development Authority (JDA) to announce the cancellation of allotment of hall in reference to the petitioner. 14. Being confronted with the prospect of losing the allotment of the hall in reference in the face of said purported order of cancellation, the petitioner filed a writ petition OWP No. 769/2007 before this Court in which, vide an interim order dated 14.09.2007, the respondent no. 1-Jammu Development Authority (JDA) was kept on a restraint from allotting the hall in reference to any other person and simultaneously mandating the respondent no. 1-Jammu Development Authority (JDA) to consider the representation of the petitioner made on 11.08.2007 which was already pending consideration. 15. 1-Jammu Development Authority (JDA) was kept on a restraint from allotting the hall in reference to any other person and simultaneously mandating the respondent no. 1-Jammu Development Authority (JDA) to consider the representation of the petitioner made on 11.08.2007 which was already pending consideration. 15. Coinciding with the case of the purported cancellation of allotment of hall in reference of the petitioner was a situation of an identical nature attending one Brij Lal Sharma and Kulbushan Gupta at the hands of the respondent no. 1-Jammu Development Authority (JDA) in writ petition OWP No. 344/2007 and OWP No. 692/2006 having an interim direction of like nature and response to which the respondent no. 1-Jammu Development Authority (JDA) came to favour said two writ petitioners Brij Lal Sharma and Kulbushan Gupta with Orders No. 209-JDA of 2007, dated 16.07.2007 and 214-JDA of 2007, dated 17.07.2007 by revoking the cancellation orders with respect to the respective allotted shops in Bahu Plaza Complex, Jammu. 16. The petitioner's said writ petition OWP No. 769/2007 came to be disposed of vide a judgment dated 15.12.2009 thereby directing the respondent no. 1-Jammu Development Authority (JDA) to treat the said writ petition of the petitioner as a representation and accord consideration. In this judgment dated 15.12.2009 there is a reference found with respect to the cases of the aforesaid two writ petitions of Brij Lal Sharma and Kulbushan Gupta meaning thereby that the respondent no. 1-Jammu Development Authority (JDA) was to remain conscious of the parity aspect obtaining between the case of the petitioner as well as of the said two persons. 17. Despite the said direction imparted in the judgment dated 15.12.2009 in the petitioner's said writ petition OWP No. 769/2007, the needful consideration remained not accorded at the end of the respondent no. 1-Jammu Development Authority's (JDA) officials resulting in filing of a contempt petition no. 61/2010 in which vide an order dated 11.05.2011 a direction for compliance came to be issued. 18. The respondent no. 1-Jammu Development Authority (JDA), purportedly acting in response to the writ court direction given in terms of judgment dated 15.12.2009 in the petitioner's writ petition OWP No. 769/2007 read with direction dated 10.05.2011 in the contempt petition no. 61/2007, came forward with an impugned Order No. JDA/BP/1196-99, dated 28.05.2011 with an outcome which is reproduced as under: "1. 1-Jammu Development Authority (JDA), purportedly acting in response to the writ court direction given in terms of judgment dated 15.12.2009 in the petitioner's writ petition OWP No. 769/2007 read with direction dated 10.05.2011 in the contempt petition no. 61/2007, came forward with an impugned Order No. JDA/BP/1196-99, dated 28.05.2011 with an outcome which is reproduced as under: "1. Your request for revocation of cancellation order issued vide this Office No. JDA/BP/2445-49, dated 01.09.2007 cannot be agreed to. 2. However taking a lenient view the said property can be offered to you at the reserve price of JDA which is Rupees 40.00 lacs against the highest bid of Rupees 46.00 lacs received for similar property. 3. The offer given at serial no. 2 shall be valid for 30 days from the date of issue of this letter." 19. The present writ petition is now addressed against the respondent no. 1-Jammu Development Authority (JDA), purported decision as embodied in the said Order No. JDA/BP/1196-99, dated 28.05.2011 as the petitioner reckons the decision making at the end of the respondent no. 1-Jammu Development Authority's (JDA) to be unfair, arbitrary and inequitable. 20. When this Court examines and evaluates the attending facts and circumstances of the case, more particularly, the fact that the petitioner was regular in the matter of payment of four installments of the premium amount payable in five installments and the reason attending the delay on the part of the petitioner in tendering the last installment payment, this Court is left convinced that the decision making at the end of the respondent no. 1-Jammu Development Authority (JDA) has been faulty and unfair at two relevant points of time i.e. firstly, when the Collector Land Acquisition of the respondent no. 1-Jammu Development Authority (JDA) in terms of his letter no. JDA/BP/2445-49, dated 01.09.2007 had purportedly cancelled the allotment of the petitioner by forfeiting the first installment and return of the demand draft for an amount of Rs. 2,31,300/- meant for the last installment payment and, secondly, when the respondent no. 1-Jammu Development Authority (JDA) acting through its Secretary, Jammu Development Authority came to revise a demand unto the petitioner to avail the allotment of the hall in reference at the price of Rs. 40,00,000/- as against the original allotment deal between the petitioner and the respondent no. 1-Jammu Development Authority (JDA). The end intent of the respondent no. 1-Jammu Development Authority (JDA) acting through its Secretary, Jammu Development Authority came to revise a demand unto the petitioner to avail the allotment of the hall in reference at the price of Rs. 40,00,000/- as against the original allotment deal between the petitioner and the respondent no. 1-Jammu Development Authority (JDA). The end intent of the respondent no. 1-Jammu Development Authority (JDA) is obvious and which is to frustrate the allotment of the hall in reference in favour of the petitioner on one pretext or other. 21. On both the occasions, the respondent no. 1-Jammu Development Authority (JDA) and its official concerned were amiss in dealing with the situation as to why they were not inclined to consider and accept the reason for the delay on the part of the petitioner in coming forward with the payment of the last installment and that reason being related to the health condition of the petitioner. 22. Once, there was a discretion available with the respondent no. 1-Jammu Development Authority (JDA) in terms of the condition spelt out in letter of allotment of no. JDA/BP/1, dated 01.04.2006 in terms whereof the respondent no. 1-Jammu Development Authority (JDA) reserved unto itself a discretion to condone the default in payment of any installment for any genuine and bona fide reason on the part of the prospective allottee then why said discretion was left unused & unexercised and the decision to cancel the allotment was taken at the first catch. 23. It is important to bear in perspective that the condition no. 4 of the said letter of allotment envisages that the delay in payment of any installment empowering the respondent no. 1-Jammu Development Authority (JDA) to cancel the installment and forfeit the first installment is carrying within itself a discretion vesting with the respondent no. 1-Jammu Development Authority (JDA) to condone the default in the matter of payment of installment. The reason for this Court to say so is that if the delay/ default in the matter of payment of any installment was meant to invite an automatic cancellation of the allotment, then the wording of the condition no. 1-Jammu Development Authority (JDA) to condone the default in the matter of payment of installment. The reason for this Court to say so is that if the delay/ default in the matter of payment of any installment was meant to invite an automatic cancellation of the allotment, then the wording of the condition no. 4 would have been expressly written so for lending out a clear caveat to the prospective allottee that timely and scheduled payment of installments is sine qua non of earning the final allotment of the premises and any default in payment of any installment notwithstanding any genuine reason attending the default is not to be excused. 24. Since that is not the intent and import of condition no. 4 as set out in letter of allotment and therefore, this Court is reading vesting of a discretion reserved by the respondent no. 1-Jammu Development Authority (JDA) unto itself to deal with a case of default in the matter of payment of installment. 25. This Court is supported in making the understanding of condition no. 4 from the attending two cases of Brij Lal Sharma and Kulbushan Gupta in which the respondent no. 1-Jammu Development Authority (JDA) came forward with condonation of default in the matter of payment of installments by accepting the delayed payment and confirming the allotment of the respective premises in favour of the said two respective allottees. Same treatment ought to have been extended in favour of the petitioner on self reminder to itself by the respondent no. 1-Jammu Development Authority (JDA) and its officials. 26. Same treatment ought to have been extended in favour of the petitioner on self reminder to itself by the respondent no. 1-Jammu Development Authority (JDA) and its officials. 26. Concept-wise, the discretion is best defined by Lord Cairns L.C. in Julius v. Lord Bishop of Oxford, (1880) 5 AC 214 "but there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so." This conceptualization of discretion has been extended approval by the Hon'ble Supreme Court of India in many of its pronouncements which includes the case of Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and S.P. Gupta v. Union of India, AIR 1982 SC 149 . 27. In the case of National Insurance Co. Ltd. v. Keshav Bahadur and Ors., the Hon'ble Supreme Court of India has dealt with the understanding of discretion and the relevant para is reproduced herein below:- "9. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking of haste; evidently, therefore, a discretion cannot be arbitrary bust must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judgment is the law of tyrants; it is always unknown. It is different in different men. It is casual and depends upon constitution, temper, passion. In the best it is often time caprice; in the worst it is every vice, folly and passion to which human nature is liable" said Lord Camden, L.C.J. in Hindson and Kersey, (1680) 8 How, St. Tr. 57”. 28. In the present case, the discretion reserved by the respondent no. 1-Jammu Development Authority (JDA) in the context of condition no. In the best it is often time caprice; in the worst it is every vice, folly and passion to which human nature is liable" said Lord Camden, L.C.J. in Hindson and Kersey, (1680) 8 How, St. Tr. 57”. 28. In the present case, the discretion reserved by the respondent no. 1-Jammu Development Authority (JDA) in the context of condition no. 4 of the letter of allotment was meant to be exercised with an application of open mind to the facts and circumstances of a given case and the discretion embedded in said condition is not a mechanical driven discretion as may be applied at the end of the officials of the respondent no. 1-Jammu Development Authority (JDA). 29. Accordingly, this Court holds that the decision at the end of the respondent no. 1-Jammu Development Authority (JDA) in the shape of impugned Order No. JDA/BP/1196-99, dated 28.05.2011 is arbitrary, unfair and inequitable which is, accordingly, quashed. The petitioner's tendering of payment of last installment even though delayed ought to have been accepted and should be accepted by the respondent no. 1-Jammu Development Authority (JDA) with a corresponding conferment of formal allotment of leasehold rights in favour of the petitioner for the full duration for which the same was intended to come into existence. 30. Thus, this writ petition is allowed and the respondent no. 1-Jammu Development Authority (JDA) is directed to accept the tender of payment of last installment due from the petitioner within the time as may be fixed by the respondent no. 1-Jammu Development Authority (JDA). Upon timely deposit of said installment, the formal allotment of leasehold rights with respect to the hall premises in reference in favour of the petitioner shall take place. Writ petition is, accordingly, disposed of.