{"id":180408,"date":"2009-06-01T00:00:00","date_gmt":"2009-05-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rahul-pant-anr-vs-state-ors-on-1-june-2009"},"modified":"2018-04-11T09:01:53","modified_gmt":"2018-04-11T03:31:53","slug":"rahul-pant-anr-vs-state-ors-on-1-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rahul-pant-anr-vs-state-ors-on-1-june-2009","title":{"rendered":"Rahul Pant & Anr vs State & Ors on 1 June, 2009"},"content":{"rendered":"
Jammu High Court<\/div>\n
Rahul Pant & Anr vs State & Ors on 1 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n ;??HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.             \nOWP No. 855 OF 2007 AND OWP No. 507 OF 2008 AND OWP No. 850 OF 2007            \n1.Rahul Pant & anr\n2.Raj Kumari \n3.National Finance Company  \n4.Anil Modi\n5.Ashok Kumar  \n6.Anil Modi\n7.M\/s Vardman Bartan Store  \n8.Raman Aggarwal & anr.  \n9.M\/s AGM Sales Corporation  \n10.Anand Rathi Securities Ltd.\n11.Bal Krishan Gupta \n12.Rajinder Gupta\n13.Kapil Salathia & anr.\n14.Raj Kumar Gupta & anr. \n15.Ashwani Kumar Bali  \n16.Tarun Bali\n17.Sanjeev Kumar  \n18.Majid Farid Shapoo \n19.Som Kumar Gupta & anr.   \n20.Mufti Sharifu Din\n21.Sahil Mahajan \n22.Abhiney Gupta \n23.Arwan Kumar  \n24.Sajjad Ahmad Bhat  \nPetitioners\nState & Ors.\nRespondent  \n!M\/s U.K.Jalali, A.V.Gupta,D.C.Raina,Sunil Sethi Senior Advocates,D.K.Khajuria\n& D.S.Thakur,P.N.Raina, M. L.Gupta,F.S.Butt,M.K.Riana and I.H.Bhat, Advocates.  \n^M\/s Seema Shekher, AAG, Adarsh Sharma & A.G.Sheikh Advocates.      \n\nMr. Justice J.P.Singh, Judge.\nDate: 01\/06\/2009 \n:J U D G M E N T :\n<\/pre>\n
OWP No. 855\/2007 & CMP No. 1243\/2007
\nOWP No. 507\/2008 & CMP No. 786\/2008
\nOWP No. 850\/2007 & CMP No. 1238\/2007
\nOWP No. 851\/2007 & CMP No. 1239\/2007
\nOWP No. 852\/2007 & CMP No. 1240\/2007
\nOWP No. 853\/2007 & CMP No. 1241\/2007
\nOWP No. 854\/2007 & CMP No. 1242\/2007
\nOWP No. 856\/2007 & CMP No. 1244\/2007
\nOWP No. 857\/2007 & CMP No. 1245\/2007
\nOWP No. 858\/2007 & CMP No. 1246\/2007
\nOWP No. 859\/2007 & CMP No. 1247\/2007
\nOWP No. 860\/2007 & CMP No. 1248\/2007
\nOWP No. 861\/2007 & CMP No. 1249\/2007
\nOWP No. 862\/2007 & CMP No. 1250\/2007
\nOWP No. 863\/2007 & CMP No. 1251\/2007
\nOWP No. 866\/2007 & CMP No. 1254\/2007
\nOWP No. 868\/2007 & CMP No. 1256\/2007
\nOWP No. 869\/2007 & CMP No. 1257\/2007
\nOWP No. 870\/2007 & CMP No. 1258\/2007
\nOWP No. 884\/2007 & CMP No. 1280\/2007
\nOWP No. 890\/2007 & CMP No. 1291\/2007
\nOWP No. 896\/2007 & CMP No. 1299\/2007
\nOWP No. 902\/2007 & CMP No. 1306\/2007
\nOWP No. 904\/2007 & CMP No. 1308\/2007
\nOWP No. 905\/2007 & CMP No. 1309\/2007
\nOWP No. 934\/2007 & CMP No. 1355\/2007     <\/p>\n
       Allotments for 31 Shops\/Halls situated at Bahu Plaza
\nComplex, Jammu, made by the Jammu Development
\nAuthority were found to have been made without following
\nthe procedure of Open Auction. The Jammu and Kashmir
\nGovernment, in exercise of power, under Section 37 of the
\nJammu and Kashmir Development Act, 1970, hereinafter to
\nbe referred as b\ufffdthe Actb\ufffd, therefore, issued directions vide
\nGovernment Order No. 1126-GAD of 1997 dated 22.09.2007
\nto the Jammu Development Authority to cancel the
\nallotments and take appropriate steps for restoration of the
\nproperty.\n<\/p>\n
       The Government Order aforementioned has been
\nquestioned in all these writ petitions which, taken up for joint
\nconsideration, are being disposed of by this judgment.\n<\/p>\n
                                3<\/span><\/p>\n
      Justifying the allotments of the Shops\/Halls made in
\ntheir favour, the petitioners have, inter alia, pleaded that the
\nGovernment Order impugned in the writ petitions, cancelling
\ntheir allotments, was illegal and unwarranted, in that, it had
\nbeen issued without complying with the statutory requirement
\nof issuing notice to them, in terms of the Proviso to Section
\n37 of the Act, before issuing directions which affect their
\nrights, And that the State Government had initiated action
\ndirecting cancellation of the allotments, on the basis of
\ntruncated information which the Vice Chairman of, the
\nJammu Development Authority, hereinafter to be referred as
\nb\ufffdthe Authorityb\ufffd, had supplied to it. It is stated that the decision
\ntaken by the Board of Directors of the Authority in its 65th
\nmeeting providing for its earlier Board Resolution for making
\nthe allotment of Shops\/Halls on First Come First Served,
\nbasis, to remain operational until all the Shops\/Halls were
\nallotted, had not been brought to the notice of the
\nGovernment by the Vice Chairman of the Authority.\n<\/p>\n
      According to the petitioners, the Government had
\ncancelled the allotments to avoid embarrassment to the
\nChief Minister whose brother had been allotted space at
\n                                4<\/span>
\nBahu Plaza Complex Jammu, in violation of the decision of
\nthe Authority to follow the First Come First Served, rule.\n<\/p>\n
      The State Government has justified the impugned
\nGovernment Order saying that the Board Resolution of the
\nAuthority adopted in its 65th meeting was unwarranted, in
\nthat, it had been taken without holding any deliberations on
\nthe subject, and the fact situation, that the area had been
\nfully developed and the Authority would get better price for
\nthe Shops and Spaces at Bahu Plaza Complex, Jammu had
\nnot been taken into consideration. The 65th meeting of the
\nBoard of Directors, where the post facto approval of the
\nBoard had been obtained, is stated to have been a result of
\nthe non-application of mind by the Authority. It is further
\nstated by the State-respondents that the Authority had not
\ngiven publicity to its policy of First Come First Served, in
\nthe matter of allotment of Shops\/Spaces available at Bahu
\nPlaza Complex so as to provide opportunity to all those who
\nwere interested in availing the opportunity, the allotments
\nwere, therefore, illegal and improper.\n<\/p>\n
      The specific plea raised by the petitioners in their writ
\npetitions that the Government had not heard them before
\n                                5<\/span>
\nissuing directions under Section 37 of the Act, has not been
\nadverted to by the State-respondents and all that has been
\nsaid in this respect is that the Government had issued the
\nimpugned order after due application of mind and in terms of
\nthe provisions of Section 37 of the Act, which, according to
\nthem, would not prejudice the petitioners because they can
\nproject their grievance, if any, while responding to the show
\ncause notice which has been issued by the Jammu
\nDevelopment Authority to them pursuant to the Government
\nOrder in question.\n<\/p>\n
      I have considered the submissions of learned counsel
\nfor the petitioners, the counsel for the Authority and learned
\nAdditional Advocate General appearing for the State-
\nrespondents.\n<\/p>\n
      The first issue that falls for consideration in these
\npetitions is as to whether the Government was obliged to
\nhear the petitioners before issuing directions for cancellation
\nof their allotments?\n<\/p>\n
      According to the petitioners, the Government was
\nrequired to hear them before issuance of the order impugned
\n                                   6<\/span>
\nin the writ petitions as mandated by the Proviso appearing in
\nSection 37 of the Act.\n<\/p>\n
      The State Counsel, on the other hand, contends that
\nthe State Government was not required to hear the
\npetitioners before passing the impugned order, in that,
\nopportunity of hearing contemplated by the Proviso would
\napply only when the Government passes an order prejudicial
\nto any person, and not in a case where only directions were
\nissued to the Authority to pass requisite orders under the
\nDevelopment Act. Learned counsel submitted that as the
\nAuthority, in terms of the order impugned in the writ petition,
\nhad yet to pass final orders pursuant to the notices issued to
\nthe allottees requiring them to Show Cause as to why their
\nallotments be not cancelled, the petitioners plea that action
\nof the State Government in issuing directions to the Authority
\nwas violative of the principles of natural justice, was
\nuntenable, in that, issuance of notice by the Authority to the
\npetitioners, would satisfy the principles aforementioned.\n<\/p>\n
      In order to deal with the rival contentions of the parties,
\nregard needs to be had to the provisions of Section 37 of
\nAct, which for facility of reference is reproduced hereunder:-\n<\/p>\n
            b\ufffd 37. Control by Government b\ufffd
\n                                        7<\/span>
\n           (1)    The Authority shall carry out such direction as
\n           may be issued to it from time to time by the
\n           Government for the efficient administration of this
\n           Act.\n<\/p><\/blockquote>\n
           (2)    If in, or in connection with, the exercise of its
\n           powers and discharge of its functions by the
\n           Authority under this Act, any difference or dispute
\n           arises between the Authority and the Government,
\n           the decision of the Government on such differences
\n           or dispute shall be final.\n<\/p><\/blockquote>\n
           (3)    The Government may, at any time, either on
\n           its own motion or on application made to it in this
\n           behalf, call for the records of any case disposed of
\n           or order passed by the Authority for the purpose of
\n           satisfying itself as to the legality or propriety of any
\n           order passed or direction issued and may pass such
\n           order or issue such direction in relation thereto as it
\n           may think fit.<\/p><\/blockquote>\n
           Provided that the Government shall not pass an
\n           order prejudicial to any person without affording
\n           such person a reasonable opportunity of being
\n           heard.b\ufffd
\n      Plain reading of Section 37 of the Act demonstrates
\nvesting of plenary power in the Government to call for the
\nrecords of any case disposed of, or order passed by the
\nAuthority, for the purpose of satisfying itself as to the legality
\nor propriety of any order passed or direction issued by the
\nAuthority and passing such order or direction as it may deem
\nfit.\n<\/p>\n
      The orders passed and the directions so issued by the
\nGovernment under Section 37 of the Act, are required to be
\ncarried out by the Authority in terms of Section 37 (1) of the
\nAct.\n<\/p>\n
                                8<\/span><\/p>\n
      The Proviso appended to Section 37 of the Act casts
\nstatutory obligation on the Government not to pass any order
\nprejudicial to any person without affording such person a
\nreasonable opportunity of being heard.\n<\/p>\n
      I do not see any merit in the State Counselb\ufffds
\nsubmission that the rider aforementioned provided in the
\nProviso would not be applicable when the State Government,
\nintends only to issue directions to the Authority, and that the
\nrider would have application only when a final order had to
\nbe passed by the Government itself. This is so because the
\nexpression b\ufffdshall not pass any order prejudicial to any
\npersonb\ufffd appearing in the Proviso would, in my opinion,
\ninclude passing of directions too by the State Government,
\nwhich may be prejudicial to the person against whom such
\ndirections had been issued. The expression b\ufffdshall not pass
\nany order prejudicial to any personb\ufffd appearing in the Proviso,
\nmay not admit of any restrictive or literal meaning which the
\nlearned State Counsel wants the Court to ascribe to the
\nexpression b\ufffdorderb\ufffd appearing in the Proviso not including in
\nits fold, the b\ufffddirectionsb\ufffd which may be issued by the State
\nGovernment for compliance by the Authority.\n<\/p>\n
                                9<\/span><\/p>\n
     In order to understand the true meaning and import of
\nthe expression b\ufffdorderb\ufffd appearing in the Proviso, the intention
\nof the legislature to include directions issued by it under
\nSection 37 of the Act too, in it, becomes explicit, on a bare
\nreading of the provisions of Section 37 (3) of the Act, in
\nterms whereof after examining the legality or propriety of any
\norder passed or direction issued by the Authority, the State
\nGovernment may either pass the order itself, or issue such
\ndirections in relation to the act(s) of the Authority, as it may
\nthink fit.\n<\/p>\n
     Passing of orders or issuance of directions by the State
\nGovernment in respect of the orders\/directions issued by the
\nAuthority is contemplated only after the Government
\nexamines the legality or propriety of the Authorityb\ufffds act(s)
\nand in such view of the matter, no distinction can be
\ncontemplated     in  the   two    expressions   aforementioned
\nappearing in Section 37 (3) of the Act. Directions issued by
\nthe Government under Section 37 of the Act, if prejudicial to
\nthe person against whom these are so issued, would
\ncertainly require issuance of prior notice to him before
\nissuance of such directions so as to carry out the mandate of
\n                                10<\/span>
\nthe principle underlying the maxim audi alteram partem,
\nwhich the legislature in its wisdom has adopted by enacting
\nProviso to Section 37 of the Act.\n<\/p>\n
      Keeping the intention of the legislature in view, in this
\nregard, the only logical interpretation which emerges from
\nthe reading of the Section as a whole, would be that the
\nProviso contemplates affording of reasonable opportunity of
\nbeing heard to the person who is prejudicially affected by
\nany order or directions issued by the State Government in
\nexercise of powers under Section 37 of the Act.\n<\/p>\n
      The first contention raised by the learned State Counsel
\nthat the State Government was not required to hear the
\npetitioners before passing the Government order in question,
\ntherefore, fails and is, accordingly, rejected.\n<\/p>\n
      An ancillary issue which may require consideration
\nbefore answering the main issue, is as to whether or not the
\ndirections issued by the State Government are prejudicial to
\nthe petitioners and in this view of the matter, were they
\nrequired to be heard before issuance of the Government
\norder?\n<\/p>\n
                                11<\/span><\/p>\n
      The State Counsel, when asked to respond as to
\nwhether or not the directions issued were prejudicial to the
\npetitioners, admitted these to be prejudicial, and rightly so
\nbecause perusal of the fifth and the penultimate paragraph of
\nthe impugned Government order leaves no manner of doubt
\nthat the Government had, after coming to the conclusion that
\nthe allotments had been made without following the
\nprocedure of Open Auction, on the basis of the report of the
\nVice Chairman of the Authority, taken a decision that the
\nallotments being illegal and improper were required to be
\ncancelled. This decision of the Government certainly causes
\nprejudice to the petitioners who had not been heard by it
\nbefore taking the decision.\n<\/p>\n
      The Government order impugned in the petitions, even
\notherwise, leaves nothing with the Authority, except to pass
\nresultant order for cancellation of the allotments and initiation
\nof steps for restoration of the allotted property.\n<\/p>\n
      The order passed by the State Government, therefore,
\nvisits the petitioners with serious civil consequences
\naffecting the rights they had acquired in the allotted
\nproperties after paying money therefor.\n<\/p>\n
                                 12<\/span><\/p>\n
      The State Government was, therefore, required to
\ncomply with the requirements of the Proviso in providing
\nreasonable opportunity of hearing to the petitioners before
\npassing the impugned Government order which prejudicially
\naffects    the  rights  of   the    petitioners in the allotted
\nShops\/Space.\n<\/p>\n
      Even otherwise, before taking the decision which visits
\nthe petitioners with civil consequences regarding their rights
\nin the allotted properties, the State Government was required
\nto comply with the principles of natural justice in hearing
\nthem before contemplating cancellation of their allotments.\n<\/p>\n
      Another aspect which needs to be noticed is that the
\nState Government does not appear to have been apprised
\nby the Vice Chairman of the Authority about the decision
\nwhich Board of the Jammu Development Authority had taken
\nin its 65th meeting, as its records, produced for the
\nexamination of the Court during the course of hearing of the
\npetitions, so demonstrate.\n<\/p>\n
      It further comes out from the records that the State
\nGovernment had taken its decision directing cancellation of
\n                               13<\/span>
\nthe allotments, without noticing the resolution which the
\nBoard of the Authority had passed in its 65th meeting.\n<\/p>\n
     The stand taken by the State Government, in its
\nresponse to the writ petitions, that the Authority had not
\ngiven publicity to its policy decision of serving persons on
\nFirst Come First Served, basis for allotment of the premises
\navailable at Bahu Plaza Complex, Jammu and the allotments
\nbeing bad on that account, and no opportunity of hearing
\nwas required to be afforded to the petitioners, is thus not
\ntenable, in that, neither the Government Order indicates the
\nState Government to have issued the order on the basis of
\nthe Authority having not given publicity to its decision of
\nmaking allotments on First Come First Served, basis, nor
\ndo the records of the State Government indicate this stand of
\nthe State Government reflected in its pleadings. The State
\nGovernment had taken the decision to cancel the petitionersb\ufffd
\nallotments, only on the basis of the report of the Vice
\nChairman of the Authority, as it so appears from reading of
\nthe   impugned     order   and   the  records  of  the  State
\nGovernment.\n<\/p>\n
                                14<\/span><\/p>\n
      The issue raised is thus answered by holding that the
\nGovernment was under a statutory obligation to hear the
\npetitioners before issuing the impugned order directing the
\nJammu Development Authority to cancel the allotments of
\ntheir Shops\/Halls.\n<\/p>\n
      Thus found to have been issued in violation of the
\nmandatory provisions of the Proviso appended to Section 37
\nof the Act, the Government Order impugned in these
\npetitions, is liable to be quashed, additionally, because it is
\narbitrary and in violation of the principles of natural justice,
\noffending Article 14 of the Constitution of India.\n<\/p>\n
      The rest of the issues canvassed by learned counsel for
\nthe petitioners at the Bar that the impugned order of the
\nState Government was even otherwise unjustified, on merits,
\nmay not require consideration for the disposal of these
\npetitions, which are being allowed on the sole ground that
\nthe Government have erred in issuing the impugned
\nGovernment order without providing reasonable opportunity
\nof hearing to the petitioners in terms of the Proviso appended
\nto Section 37 of the Act.\n<\/p>\n
                               15<\/span><\/p>\n
      For all what has been said above, these petitions,
\ntherefore, succeed and are accordingly allowed, quashing
\nGovernment      Order    No.   1126-GAD        of   2007     dated
\n22.09.2007.\n<\/p>\n
      The State Government is, however, left free to examine
\nthe issue as to the impropriety or illegality of the allotments of
\nthe Shops\/Halls at Bahu Plaza Complex, Jammu made by
\nthe Jammu Development Authority and pass appropriate
\norders\/directions in this behalf as warranted under law, after
\naffording reasonable opportunity of hearing to those who
\nmay be prejudicially affected by the order which the
\nGovernment may consider passing in this behalf.\n<\/p>\n
      A copy of this judgment shall be placed on each file.\n<\/p>\n
                                                   (J. P. Singh)
\n                                                         Judge
\nJAMMU:\n<\/p>\n
01.06.2009
\nPawan Chopra  <\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Rahul Pant & Anr vs State & Ors on 1 June, 2009 ;??HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 855 OF 2007 AND OWP No. 507 OF 2008 AND OWP No. 850 OF 2007 1.Rahul Pant & anr 2.Raj Kumari 3.National Finance Company 4.Anil Modi 5.Ashok Kumar 6.Anil Modi […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-180408","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nRahul Pant & Anr vs State & Ors on 1 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rahul-pant-anr-vs-state-ors-on-1-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rahul Pant & Anr vs State & Ors on 1 June, 2009 - 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