Excelsior Correspondent
JAMMU, July 22: Applying the law doctrine of “estoppel by acquiescence” and concept of “approbate and reprobate”, High Court of Jammu & Kashmir and Ladakh has quashed the order of cancellation of allotment of land by the Jammu Development Authority (JDA) with the direction for regularization of the possession.
The petitioner Kamran Ali Khan of Mohalla Dalpatian Jammu through the medium of petition called in question the Order No. JDA/LS/40-42 dated 11.04.2012 whereby the land allotted and duly leased in favour of the petitioner has been cancelled without any cogent or valid reason.
The petitioner belonging to the Scheduled Tribe category had applied for the award of Retail Outlet Dealership of Bharat Petroleum Corporation Limited 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 and the 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.
The allotment was issued in favour of the petitioner in 2007 but the impugned show cause notice was issued after five long years and subsequently the order of cancellation was issued on 11.04.2012. It was submitted by the counsel for the petitioner that respondents are estopped under law to question the allotment or the procedure after five long years through the medium of a show cause notice, which culminated into the cancellation order.
After hearing both the sides, Justice Wasim Sadiq Nargal observed, “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”.
“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”, High Court said, adding “careful examination of the show-cause notice reveals 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”.
“Even otherwise also, the respondents after having acquiesced the right in favour of the petitioner by executing lease deed in favour of the petitioner and keeping mum for five long years are estopped under law to question the validity of the allotment order or for that matter, execution of lease deed in favour of the petitioner”, High Court said, adding “thus, the law of estoppel by conduct and acquiescence holds good against the respondents. On this count, the action of the respondents in issuing the impugned cancellation order cannot sustain the test of law”.
Pointing towards numerous judgments of the Supreme Court, High Court quashed the impugned order of cancellation, which is an offshoot of the show cause notice and directed the petitioner to keep the amount of Rs 36,76,471 in the account of respondent JDA within a period of two weeks.
“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”, read the judgment of the High Court.
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