HC quashes JDA’s order of Cancellation, directed to regularize possession in favour of petitioner as per allotment letter of 2007

"Ordinarily, Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same, inter-alia, appears to have been without jurisdiction." holds HC

24/07/2024

JAMMU, Jul 23: The High Court of J&K and Ladakh Bench comprising of Justice Wasim Sadiq Nargal has quashed the order of cancellation passed by the Jammu Development Authority (JDA) and directed the JDA to directed to regularise possession in favour of petitioner as per allotment letter of 2007.
This order was passed by the High Court in a petition filed by Kamran Ali Khan, through: Mr. Pranav Kohli, Sr. Advocate with M/S Aftab Malik, Arun Dev Singh & Anuj Dewan Raina, Advocates against the UT of J&K and JDA represented by Mr Adarsh Sharma, Advocate.
The High Court observed that the petitioner through the medium of instant amended petition has called-in-question the order No. JDA/LS/40-42 dated 11.04.2012, whereby, according to the petitioner, the land allotted and duly leased in favour of the petitioner has been cancelled without any cogent or valid reason in law. Besides this, the petitioner is seeking a Writ in the nature of Prohibition, restraining the respondent-authorities from taking the possession of the land from the petitioner, which otherwise has been given to the petitioner after completion of all the necessary formalities. The petitioner is also seeking a Writ in the nature of Mandamus, commanding the respondents to account for the losses and damages suffered by the petitioner on account of the illegal acts of the respondents and also permit the petitioner to make use of the said land for the purpose in addition to the
purpose for which it has been allotted by way of additional or alternative relief.
It was contended in the petition that allotment was made in favour of the petitioner in respect of the land falling under Khasra No. 179 measuring 01 Kanal 16 Marlas and 208 Sq. feet and the petitioner had fulfilled all the necessary formalities vis-à-vis payment of cost of the land, as fixed by the respondent-authorities as also, shifting of HT/LT Line passing over the land. The counsel for the petitioner submits that the petitioner has been enjoying the possession of the land in question for about more than five years and even the cost of the land amounting to ?36,76,471/- (Rupees Thirty Six Lacs, Seventy Six Thousand, Four Hundred and Seventy One) has also been paid by the petitioner to the respondent-Jammu Development Authority (in short, the "JDA"). The specific case of the petitioner is that the JDA, without any authority of law and after a lapse of five years, has issued a show cause notice dated 17.12.2012 Vide No VC/DS/2012/70, which has been placed on record and subsequently, the respondent has issued the cancellation order dated 11.04.2012, which is impugned in the present amended petition. It is pleaded by the Learned sustainable in the eyes of law.
It was further contended in the instant petition that the petitioner belongs
to Scheduled Tribe Category and, as such, had applied for the award of Retail Outlet Dealership of Bharat Petroleum Corporation Limited (hereinafter referred to as the "BPCL") on 29.12.2004 and after qualifying the interview and fulfilling all the mandatory formalities, and other prerequisites, the BPCL issued a letter of Intent dated 08.08.2005 in favour of the petitioner, wherein it proposed to offer its Retail Outlet Dealership at Circular Road, District Jammu in favour of the petitioner. The respondent-Authorities while allotting the land in question in favour of the petitioner, imposed certain conditions and pre-requisites upon the petitioner, which included the expenditure for shifting the HT/LT line passing over the land in
question and depositing of an amount of ?36,76,471/- on account of cost of the land. The petitioner in furtherance of the said allotment order and the conditions laid down therein, deposited the whole amount, as demanded by the JDA- authorities vide DD No. 335112 dated 30.04.2007 amounting to ?7.00 lacs, DD No. 810766 dated 20.06.2007 amounting to ?15.00 Lacs and further DD No. 0256236 dated 09.08.2007 amounting to ?43,700/- for shifting of HT/LT lines with the Elect and M&RE Division II, Jammu and the petitioner has placed on record the receipts in this regard.
It is also the case of the petitioner that the respondent-JDA after obtaining the payment for the complete cost of the land and other formalities, as envisaged in the allotment order, entered into a lease deed dated 30.04.2008, which was duly registered with the Sub-Registrar, Sub Judge, Jammu on 06.05.2008, on which date, the petitioner paid the requisite registration/Court fees amounting to ?4,80,000/-. With a view to fortify his claim, the petitioner has placed on record the duly registered lease deed on 06.05.2008. It was also urged by the Counsel for the petitioner that after the petitioner completed all the necessary formalities, the possession of the plot was formally handed over to him on 17.05.2008, as is evident from a bare perusal of the Communication No. JDA-1/662-70 dated 06.05.2009, which has been placed on record along-with the instant petition.
It is further pleaded in the instant petition that the land allotted to the petitioner falls under two Khasra numbers, i.e., 179 & 180 measuring 01 Kanal 16 Marlas and 208 Sq. ft., but due to an error or omission on part of the respondent- authorities, only one Khasra number, i.e., 179 was mentioned in the allotment order and despite the fact that the land measurement had been correctly shown in the allotment order as well as the lease deed as 01 Kanal 16 Marlas and 208 Sq. ft, the authorities deliberately skipped the reference of Khasra No. 180. The petitioner after becoming aware of the aforesaid error, which crept in the record, immediately approached the respondent-authorities as well as the revenue authorities and requested for rectification/modification of the Khasra numbers in the said allotment order/lease deed verbally as well as in writing. The further case of the petitioner is that he was served with a show cause notice thereafter on 17.02.2012, asking him as to why the allotment order in his favour should not been put to auction.
However, the allotment made by the respondent department was on the basis of the decision taken by 66th Board of Directors Meeting which by no stretch of imagination could have been over-ruled by Respondent Authorities that too after a lapse of five long years on the basis of the same authority.
"Further, the court observed that once, a decision to allot the land in question has been made in the 66th Board meeting, and the same has been implemented, the respondents after the lapse of five years after the possession of the land stood delivered to the petitioner on 17.05.2008, can't cancel the allotment made by the respondents in his favour which decision is neither prescribed under the law nor under rules. It goes without saying that the vested right had accrued in favour of the petitioner when the lease deed was executed in accordance with law and there has been no act of commission or omission on part of the petitioner to warrant the cancellation of the allotment already made." the Court observed.
" Upon careful examination of the show cause notice by this court, it
seems that same has been served by the respondents with a preconceived notion to cancel the allotment. It is evident from the record itself, that contents that have been used in the show-cause notice don't only reflect the reason to show cause but the hidden motive to cancel the allotment already made in favour of the petitioner.
The respondents with their eyes open, were aware of the policy framed by theGovernment, which finds mention in the Government Order dated 12.09.1991, whereby it was ordered that in future, the allotment of the housing plots/flats for residential and commercial purpose will be made in accordance with the procedure, and a complete mechanism has been laid down with regard to distribution of plots/flats in a housing colony in the said order. Thus, the Court is of the view that the respondent-JDA being aware of the said policy, promulgated through the medium of the aforesaid Government Order issued in the year 1991 took the decision to allot the said land in question in the year2007 with their eyes open." the Court observed.
Further the Court observed "It is settled proposition of law that once an order has been passed, by the respondents and subsequently the same stands implemented and accepted by the other party who derived the benefit out of it, the respondents are estopped under law to challenged the same as they have acquiesced their right. That would only mean that no party can be allowed to accept and reject the same thing, and thus "one cannot blow hot and cold" in the same breath. The principle behind the doctrine of election is inbuilt in the "Concept of Approbate and Reprobate". Once again, it is a principle of equity coming under the contours of common law."
The High Court further observed in the order " The respondent authority was fully cognizant of its right to object the allotment during the lapse of five years, but they ignored/neglected such enforcement of right. Therefore, the respondent authority by such inaction to object the allotment during five years, have waived their right. Waiver cannot always and in every case be inferred merely from the failure of the party to take the objection.
Waiver can be inferred, only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question."
The petitioner before filing the instant amended petition challenging the
cancellation order dated 11.04.2012 and also seeking a direction against the respondents to account for losses and damages, had filed petition challenging only the show-cause notice. Ordinarily, a Writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same, inter-alia, appears to have been without jurisdiction. When a show cause notice is issued by the respondent authority to any person, calling upon him to show cause, ordinarily the person must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law.
The Court held "Thus, the action of the JDA in issuing cancellation order was loathed with malafide consideration and with a view to deprive the petitioners of the said land which falls within the realm of violation of his constitutional right to property as envisaged under Article 300-A of the Constitution of India. The show cause notice is crucial as it upholds the principles of natural justice by affording the noticee an opportunity to respond to specific allegations and present his case. It ensures that the rights of the party to whom it is issued ,are protected and guarantees a fair hearing before any adverse action is taken. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent. In the instant case, the respondent authorities at no point of time gave
an effective opportunity of being heard to the petitioner to defend the land allotted in his favour, despite the fact that petitioner responded to the show cause notice which transpires that the show cause notice has been served for a mere formality so as to warrant the issuance of cancellation order. It appears to this court that the cancellation order has been passed in a hasty and slipshod manner without considering the genuineness of the allotment and the execution thereof."
Finally the High Court directed as follows" The impugned Order of Cancellation, which is an offshoot of the show cause notice, are hereby quashed. Petitioner is directed to keep the amount of ?36,76,471/- (Rupees
Thirty-Six Lacs, Seventy-Six Thousand, Four Hundred and Seventy-One) in the Account of respondent-JDA within a period of two weeks from today. Subject to doing the same, the respondent-JDA is, accordingly, directed to regularize the possession in favour of the petitioner on the basis of allotment order issued way back in the year 2007, followed by the lease deed issued in the year 2008, in favour of the petitioner and the petitioner is at liberty to use the property in question.
The writ petition is allowed in the manner as indicated above…”

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