Jammu & Kashmir High Court
Paramjeet Singh vs State Of J&K And Others on 25 February, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LAKAKH
AT JAMMU
THROUGH VIRTUAL MODE
Reserved on: 27.01.2022
Pronounced on: 25 .02.2022
OWP 1054/2013
IA 1459/2013
c/w
OWP 1483/2010
IA 1978/2010
Paramjeet Singh ....Petitioner(s)
Through:- Mr. S. M. Chowdhary, Advocate
v/s
State of J&K and others
.... Respondent(s)
Through:- Mr. Adarsh Sharma, Advocate for R-1 to 3
Mr. Rohit Kohli, Advocate for R-4
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. The instant petitions raise akin and analogues issues, as such, are disposed of together.
2. The factual matrix of the matter as detailed out in the petitions (supra) would reveal that Jammu Development Authority (for short 'JDA') issued Auction Notice on 12.04.1999, inviting applications therein for auction allotment of various vacant plots of land in Trikuta Nagar, Housing Colony, including Plot No. 244 measuring 30' x 60'( 1800 Sfts) (for short the plot) with a minimum reserve price for the said plot at Rs. 4.67 Lacs.
3. The petitioner herein is stated to have participated in the auction process (supra) offering an amount of Rs. 8.30 Lacs for the plot being highest bidder. An amount of Rs. 10,000/- is stated to have been deposited on 03.06.1999, as earnest money as also an amount of Rs.
2 OWP Nos. 1054 0f 2013 & 1483 of 20103,80,000/- and Rs. 25,000/0 on 23.06.1999, respectively in response to the letter dated 26.05.1999, issued by respondent No. 2 herein. The petitioner is stated to have deposited 50% of the total bid price of the plot and that the balance amount of Rs. 4.15 Lacs was to be deposited within six months and in the event of failure, the petitioner had to pay 18% interest on the delayed payment.
4. It is being stated that on 02.05.2001, the respondents asked the petitioner that a proper agreement/lease deed has been executed and the petitioner was asked to deposit Rs. 5,36,164/- in the office of the respondents within a specific period of 21 days, failing which it will be presumed that he is not interested to liquidate the said amount and the same shall be recovered from the petitioner as arrears of 'Land Revenue'.
5. It is being next stated that all the relevant documents of the petitioner were received by the official respondents and a lease deed was prepared by them as well, however, the respondents 2 and 3 avoided the execution of the lease deed on one pretext or the other, despite being approached by the petitioner, so much so, avoided handing over the possession of the plot to the petitioner.
6. It is further stated that the petitioner thereafter was never asked by the official respondents to come for execution of the lease deed or taking over of the possession of the plot despite the fact that the petitioner offered the balance payment to the respondents 2 and 3 which is stated to have been avoided by the official respondents on one pretext or the other.
7. It is being next stated by the petitioner that the respondents again issued an auction notice dated 08.12.2010 for various plots of land in various sectors of Trikuta Nagar, Housing Colony including Plot No. 244, fixing the date of auction on 20.12.2010. Upon coming to know about the said auction notice, it is being stated that the petitioner filed writ petition being OWP No. 1483 of 2010 before this Court (accompanying petition) and challenged the auction notice in question. Upon consideration of the said petition by this Court, it is 3 OWP Nos. 1054 0f 2013 & 1483 of 2010 stated that an order of status quo was passed on 21.12.2010 in respect of the plot in question.
8. It is being further stated that upon filing of the objections to OWP No. 1483/2010 (supra) by the respondents, it was averred that the allotment of the plot for which the petitioner was highest bidder stands cancelled vide letter No. JDA/TN/244/1/272 dated 02.08.2001 and the amount deposited by the petitioner stands forfeited pursuant to auction notice dated 08.12.2010 and that upon re-auction of the plot, Rs. 38 Lacs have been received for the said plot.
9. It is being next stated that the cancellation letter dated 02.08.2001 mentioned in the objections by the respondents filed to OWP No. 1483/2010 (supra) was neither conveyed to the petitioner nor placed before the Court along with the objections by the respondents and that during the pendency of the petition (supra) one Vivek Mahajan (respondent No. 4 herein) filed an application for impleadment as party respondent and was subsequently, impleaded thereto as party respondent No. 4 vide order dated 10.03.2014, passed in CMA No. 201/2014 (in OWP No. 1054/2013).
10. It is being further stated that during the course of consideration of the OWP No. 1483 of 2010 (supra) on 09.07.2013, counsel for the respondents was directed by this court to provide copy of the cancellation order dated 02.08.2001 to the counsel for the petitioner, enabling him to work out his remedy and thereafter copy of the said cancellation order is stated to have been obtained by the petitioner from the office of respondents 2 and 3.
11. The cancellation letter dated 02.08.2001 is stated to be illegal, un-constitutional having been issued arbitrarily against the principles of natural justice and never communicated to the petitioner. The cancellation letter is stated to have been deliberately, knowingly and intentionally concealed even before this Court while filing objections to OWP No. 1483/2010 (supra) by the respondents. The cancellation letter is stated to have been issued at the back of the petitioner, without providing him an opportunity of being heard and without 4 OWP Nos. 1054 0f 2013 & 1483 of 2010 following established procedure. The cancellation order further is stated to have been issued without any competence and also that there had been no stipulation either in the auction notice dated 12.04.1999 or in letter dated 02.05.2001, issued to the petitioner by the official respondents, except that in the event of failure of the petitioner to pay the balance amount, same shall be recovered as arrears of 'Land Revenue'.
12. The petitioner thus, seeks quashment of impugned order dated 02.08.2001, issued by respondent No. 3, auction notice dated 08.12.2010 besides praying for a direction to the official respondents to execute lease deed in respect of the plot with the petitioner and to handover the possession of the same to him while accepting the balance payment of the plot.
13. Per contra, objections have been filed by respondent No. 4, to OWP No. 1054/2013, whereas right to file reply by the respondents 1 to 3 stands closed thereto in terms of order dated 17.12.2014. However, official respondents i.e., respondents 2 and 3, Vice Chairman, Jammu Development Authority and Secretary, Jammu Development Authority have filed reply to OWP No. 1483/2010 so also has been filed by respondent No. 4 as well.
14. Official respondents in the response filed to OWP No. 1483/2010 (supra) though have admitted that the plot No. 244 was allotted to the petitioner as per the standard terms and conditions at a premium of Rs. 8,30,000/- on lease hold basis vide letter dated 26.05.1999 and that the petitioner deposited 50% amount but failed to deposit the rest of the 50% amount after issuance of several letters/notices and that taking a liberal view, respondents gave him more time than the stipulated period mentioned in the allotment letter for depositing the balance amount and upon his failure to deposit the same, allotment of the petitioner was cancelled after a gap of more than two years of allotment and that the plot in question was again put to auction vide notice dated 08.12.2010 published in Daily Excelsior on 11.12.2010 and that a highest bid for the said plot was received. The officials 5 OWP Nos. 1054 0f 2013 & 1483 of 2010 respondents in the objections have denied that the petitioner ever approached them for depositing the balance amount even in response of the communications issued to him and that the petitioner was not interested in the plot and that his entitlement towards plot in question got extinguished pursuant to communication order dated 02.08.2001. It is being further denied that the action taken by the respondents in this regard has neither been arbitrary, illegal and unconstitutional nor against the principle of natural justice, as after giving sufficient opportunity to the petitioner, cancellation order was issued.
15. Respondent No. 4 in his objections filed to both the petitions has contended that the petitions of the petitioner are barred by delay and latches and that the plot in question stands allotted to him by the official respondents upon issuance of letter of intent dated 22.12.2010, and that 3rd party interest had been created upon depositing of an amount of Rs.2,71,600/- as earnest money for the plot in question i.e., Plot No. 244. It is being further contended in the objections that final authority issued cancellation order dated 02.08.2001, whereby the allotment of the petitioner has been cancelled for non-performance of the terms and conditions of the letter of intent issued in his favour on 26.05.1999, after the petitioner failed to deposit the 2nd installment of 50% of the amount for the plot in question. It is further averred in the objections that none of the statutory, fundamental or legal rights of the petitioner have been infringed by the official respondents and that therefore, disputed question of facts involved in the petitions warranting its dismissal, as such.
16. It is pertinent to mention here that having regard to the facts and circumstances of the case, the counsel for the official respondents produced original record pertaining to the case of the petitioner and respondent No. 4 in compliance to order dated 27.01.2022.
17. Heard learned counsel for the parties and perused the record.
18. Indisputably, the petitioner has been allotted plot No. 244 by the official respondents in terms of letter of intent dated 26.05.1999, after 6 OWP Nos. 1054 0f 2013 & 1483 of 2010 the petitioner was found to be the highest bidder after the plot was put to auction pursuant to Notice dated 09.04.1999. The petitioner admittedly deposited 50% of the bid amount of the plot as also an amount of earnest money of Rs. 10,000/- as acknowledged by the official respondents.
19. Perusal of the letter of intent dated 26.05.1999 issued in favour of the petitioner though in explicit terms provided that the 50% of the premium has to be deposited within 30 days from the date of issuance of letter of intent and the balance amount i.e., 50% within 60 days thereafter and in case the first installment is not paid within the stipulated time, the offer will be withdrawn and the earnest money along with the payment of 1st installment shall stand forfeited and that in case balance 50% is not paid within 60 days from the date fixed for 2nd installment, 18% interest shall be charged on delayed payment and that in case of default beyond 06 months, the allotment shall be cancelled, yet the conditions (supra) stand modified by the official respondents upon issuance of letter No. JDA/TN/2214/I/4 dated 02.05.2001, issued by respondent to the petitioner while providing that a proper agreement/lease deed stands executed, calling upon the petitioner to make the payment of the outstanding premium amounting to Rs. 5,36,164/- within a specific period of 21 days and in the event of failure, it will be presumed that the petitioner is not interested in liquidating the said amount and action warranted under rules to recover the said amount as arrears of 'Land Revenue' shall be initiated against the petitioner at his own risk and cost.
20. It is also an admitted fact that the allotment of the petitioner has been cancelled pursuant to cancellation order dated 02.08.2001, while forfeiting 50% amount paid by him as also the earnest money. The said cancellation order fundamentally has been issued on the premise that the petitioner had failed to deposit the balance 50% of the premium, despite service of various notices from time to time ignoring the fact that the official respondents themselves virtually and essentially not only superseded and condoned the conditions 7 OWP Nos. 1054 0f 2013 & 1483 of 2010 stipulated in the allotment letter issued in favour of the petitioner dated 26.05.1999 which conditions inter-alia provided for cancellation of the allotment and forfeiture of the earnest money as also the payment of first installment, upon issuance of letter dated 02.05.2001 whereby it was provided that in case the petitioner fails in liquidating the balance amount of Rs. 5,36,167/- same shall be recovered as arrears of land revenue, but also created a legally enforceable substantive right in the petitioner qua the plot. Therefore, in this view of the matter there was no reason or occasion for the official respondents to issue cancellation letter dated 02.08.2001 while relying on terms and conditions stipulated in allotment letter dated 26.05.1999 or else to proceed with re-auctioning of the plot in question.
21. A bare perusal of the record of the official respondents would reveal that the letter of intent dated 26.05.1999, issued by the official respondents in favour of the petitioner reflects his address as 3/574, Trikuta Nagar, Extension, Jammu and the same address is reflected in the receipt form issued by the official respondents while acknowledging the earnest money deposited by the petitioner on 03.06.1999.
22. Further perusal of the said record would reveals that various notices have been issued from time to time by the official respondents to the petitioner including the notice dated 02.05.2001, supra (forming page 15 of the record produced by the respondents pertaining to the case of the petitioner) whereby the petitioner was called upon to deposit the payment of Rs. 5,36,164/- within 21 days, failing which the said amount was proposed to recovered as arrears of 'land revenue' and reflects the address of the petitioner as 574/3 Ext. Trikuta Nagar (over written).
23. Further perusal of the said record would reveal that the original cancellation letter dated 02.08.2001 has been received back by the respondents un-served to the petitioner with the endorsement on its envelop 'addressee not known'. The said letter the postal envelope 8 OWP Nos. 1054 0f 2013 & 1483 of 2010 as also A/D in original is part of the record produced by the respondents pertaining to the record of the file respondent No. 4 Vivek Mahajan and are attached at pages 15- 18. The said letter, the envelope and the A/D however, bears the address of the petitioner as 574/3 Nanak Nagar, Jammu. The said position has been over- looked by the official respondents, despite having received a representation dated 23.05.2001 made by the petitioner for making payment of the balance amount, wherein the address of the petitioner is reflected as Trikuta Nagar, Extension, 3/575 Bhawani Nagar, Jammu and is attached as page 12 in the record file of the respondent No. 4. Interestingly the note sheets of the said file at pages 7 and 8 at notes 33 and 34 dated 16.08.2001 and 18.08.2001 respectively provides as under:-
"33. Cancellation of allotment notice, issued vide this office letter No. JDA/TN/244/1/272 dated 02.08.2001, through registered post has come back undelivered placed across the file."
"34. Present address quoted by the applicant as Trikuta Nagar, Extension 575 Bhawani Vihar, Jammu as the earlier notices has been sent to him on the old address"
24. What emerges from above is that the official respondents have had been fully aware about the actual residential address of the petitioner and also of the fact that the notices issued to the petitioner from time to time including the cancellation letter dated 02.08.2001 had been sent to him not on the said actual address i.e. Trikuta Nagar Jammu but on the address of Nanak Nagar Jammu. Therefore, it can safely be said without any iota of doubt that the official respondents deliberately ignored the same and acted in the matter hastily without application of mind arbitrarily and in the process condemned the petitioner unheard violating fundamental principles of natural justice which concept of doctrine of principles of natural justice-Audi 9 OWP Nos. 1054 0f 2013 & 1483 of 2010 Alteram Partem and its application in judicial, quasi judicial and administrative system is not new. It no doubt is a procedural requirement, but it ensures a strong safeguard against any juridical or administrative order or action adversely affecting the substantive rights of an individual.
The first principle of natural justice is that there should be no bias and the rule against the bias is expressed in maxim that "no one must be judge in his own cause."
The second broad principle of natural justice is that "no party should be condemned unheard." This right to be heard precisely would mean that the party must know the case he has to meet. The party must have reasonable opportunity to present his case. The requirement of a show cause notice flows directly from the above second principle.
A reference in regard to above herein to the judgment of the Apex Court in case titled as "Dharampal Satyampal Limited Vs. Deputy Commissioner of Central" reported in 2015 (8) SCC 519, would be advantageous and appropriate, wherein at paras 21, 24 and 28 following has been laid down:-
"21. In common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision-making by judicial and quasi-judicial bodies, has assumed a different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must give (sic an opportunity) to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as "natural justice". The principles of natural justice developed over a period of time and which is still in vogue and valid even today are: (i) rule against bias i.e. 10 OWP Nos. 1054 0f 2013 & 1483 of 2010 nemo debet esse judex in propria sua causa; and (ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a "reasoned order".
"24. The principles have a sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide a great humanizing factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take an administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision-making that a decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong."
"28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be 11 OWP Nos. 1054 0f 2013 & 1483 of 2010 noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not."
25. Further perusal of the original record pertaining to respondent No. 4 would reveal that upon re-auctioning of the plot No. 244 (supra), allotment letter has been issued by the official respondents in favour of the respondent No. 4 on 22.12.2010, without there being any document/instrument executed with respondent No. 4 for transferring interest thereof, the said plot in favour of respondent No. 4 or else handing over of the possession of it to respondent No. 4, overlooking the fact that this Court in terms of order dated 21.12.2010 had directed maintenance of status quo in respect of the plot in question manifestly suggesting that the respondents on one hand in breach and violation of the rights of the petitioner issued cancellation letter dated 02.08.2001 and on the other hand proceeded with the process of re- auctioning of the plot in question while issuing letter of allotment in favour of respondent No. 4 on 22.12.2010 in presence of the order of the status-quo passed by this court on 21.12.2010 which cannot be countenanced in law. The claim and defense setup by the official respondents as well as by respondent No. 4 as against the claim of the petitioner and the case set up by him cannot by any sense of imagination said to be potent enough to dislodge the claim of the petitioner setup by him in the instant petition.
The re-auctioning of the plot by the official respondents and process undertaken thereof inasmuch as consequential allotment made in favour of respondent No. 4 having admittedly originated from the illegal and arbitrary exercise of power as noticed in the preceding paras qua the petitioner in law, cannot sustain.
26. For all that has been observed, considered and analyzed hereinabove, the petitions succeeds and though warranting grant of the reliefs in 12 OWP Nos. 1054 0f 2013 & 1483 of 2010 favour of the petitioner as prayed in the petitions, yet having regard to the peculiarity of the facts and circumstances of the case and in order to do substantial justice in the matter, the court deems it appropriate to mould the reliefs and grant as under:-
a) By issuance of a writ of Certiorari quashing: -
i) cancellation letter No. JDA/TN/244/1/272 dated 02.08.2001
ii) Auction notice dated 08.12.2010 and
iii) letter of allotment letter No. JDA/TN/5261-66 dated 22.12.2010 issued in favour of respondent No. 4.
b) By issuance of a writ of Mandamus, official respondents are commanded to formally allot Plot No. 244 in Sector No. 1 measuring 30"x60" situated in Trikuta Nagar Housing Colony Jammu in favour of the petitioner subject to the payment by the petitioner of the outstanding bid amount along with simple interest @ 6% per annum w.e.f. the date same became due, within a period of 60 days from the date of demand in this behalf from the official respondents and subject to the fulfillment of requisite formalities, terms and conditions thereto occupying the field.
27. Disposed of along with connected CM(s).
28. Registry to place a copy of this order on file bearing OWP No. 1483/2010.
29. Record produced by the official respondents be returned back to Mr. Adarsh Sharma counsel for official respondents.
(JAVED IQBAL WANI) JUDGE SRINAGAR:
25.02.2022 Bir Whether the order is speaking: Yes /No Whether the order is reportable: Yes/No