Jammu & Kashmir High Court
Changa Ram vs State Of J&K on 25 February, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 1386/2016 Reserved on: 07.02.2026
Pronounced on: 25.02.2026
Uploaded on: 26.02.2026
Whether the operative part or full
judgment is pronounced: Full
Changa Ram, Aged 59 years,
S/o Kasturi Lal,
R/o Parwah, P/o Sangram Pur,
Tehsil Marh, District Jammu
.... Petitioner(s)
Through:- Mr. Himanshu Beotra, Advocate.
Vs.
1. State of J&K,
Through Commissioner/Secretary
Housing & Urban Development,
Civil Secretariat, Jammu
2. Jammu Development Authority,
Through its Vice Chairman,
Rail Head Complex, Jammu
3. Vice Chairman,
Jammu Development Authority,
Rail Head Complex, Jammu
4. Secretary,
Jammu Development Authority,
Rail Head Complex, Jammu
5. Director Land Record,
Jammu Development Authority,
Rail Head Complex, Jammu
6. Chief Town Planner,
Jammu Development Authority,
Rail Head Complex, Jammu
.....Respondent(s)
Through:- Mr. Sachin Dogra, Advocate
with Mr. Rahul Parihar, Adv.
OWP No. 1386/2016 Page 2 of 32
CORAM: HON‟BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
Prayer:
1. The petitioner, through the medium of the present petition, has sought
the following reliefs:
“a) Mandamus commanding and directing the respondent no. 2,
3 and 4 to execute necessary documents for allotment, lease,
handing over the possession etc. of the auctioned site i.e. land
measuring 5.38 kanals falling in Khasra Nos. 92 & 94 situated
at Chinor Chowk, Bantalab (Chak Changarwan), Jammu, in
favour of the petitioner after accepting the balance bid amount.
b) Mandamus commanding and directing respondents No. 2, 3 and 4 to
hand over free and vacant possession of land measuring 5.38 kanals
falling in Khasra No. 92 & 94 situated at Chinor Chowk, Bantalab
(Chak Changarwan), Jammu, auctioned in favour of the petitioner.
c) Mandamus commanding and directing respondents No. 2, 3 and 4
not to cancel the Letter of Intent No. JDA/Land/8254-62 dated
11/02/2011 and JDA/LS/5278-86 dated 12-09-2011 issued by
respondent no. 4 in favour of the petitioner vis-a-vis land measuring
5.38 kanals falling in Khasra No. 92 & 94 situated at Chinor
Chowk, Bantalab (Chak Changarwan), Jammu.”
Brief Facts:
2. Before adverting to the merits of the controversy, it would be apt to
give brief factual background of the case.
3. The respondent No. 2-Jammu Development Authority (hereinafter
referred to as „JDA‟), by way of auction advertisement notice dated
24.01.2011, invited bids for auction of land measuring 5.38 kanals
falling under Khasra Nos. 92 and 94, situated at Chinor Chowk (Chak
Changarwan), Bantalab, Jammu.
4. It is the case of the petitioner that he participated in the aforesaid auction
and, being the highest bidder, offered an amount of Rs. 41.00 lakhs per
kanal, i.e., Rs. 2,20,58,000/- in total. The petitioner also deposited earnest
money amounting to Rs. 5,00,000/- vide Demand Draft No. 038186.
OWP No. 1386/2016 Page 3 of 32
5. According to the petitioner, the aforesaid plot of land measuring 5.38
kanals was proposed to be allotted by the JDA in his favour, and Letter
of Intent No. JDA/Land/8254-62 dated 11.02.2011 was issued in favour
of the petitioner. In terms of the said letter, respondent No. 4 directed the
petitioner to deposit Rs. 20,50,000/- on or before 11.03.2011 and Rs.
15,50,000/- on or before 10.08.2011 without penal interest, or between
11.08.2011 to11.10.2011 with penal interest at the rate of 18% per
annum.
6. The petitioner, in furtherance of the aforesaid allotment, deposited the
first instalment of Rs. 20,50,000/- on 10.03.2011 in favour of respondent
No. 4, and the receipt dated 10.03.2011 evidencing the said deposit has
been placed on record along with the present writ petition.
7. After depositing the first instalment, when the petitioner visited the
auction site at Chinor Chowk, it came to his knowledge that the land put
to auction had been under encroachment since 2008-2009 and that the
JDA was not in possession of the entire land measuring 5.38 kanals as
advertised.
8. The petitioner, in the month of April 2011, immediately approached the
JDA, more specifically respondent Nos. 3 and 4, and represented his
grievance regarding the measurement of the auction site and the
encroachment existing thereon, which was allegedly visible at the site
and included pucca houses, lanes and a gate.
9. It is the further case of the petitioner that an assurance was extended to
him by respondent No. 6-Chief Town Planner (CTP) that he would
inspect the site to verify the measurement and the extent of
encroachment.
10. It is further submitted that, as per a local inquiry conducted by the
petitioner, it came to his knowledge that the land put to auction had
been under encroachment since 2008-2009, which fact, according to
the petitioner, was within the conscious knowledge of the
respondents. Despite this, the respondents issued the auction notice in
the year 2011 in respect of the encroached land, allegedly concealing
the factum of encroachment over the said land.
OWP No. 1386/2016 Page 4 of 32
11. The petitioner has taken a specific stand that, in the month of
September 2011, the respondents, instead of admitting that they had
auctioned encroached land to the petitioner and made him deposit a
substantial amount, issued another letter vide N. JDA/L-S/5278-86
dated 12.09.2011. In terms of the said letter, the petitioner was
informed that, due to an oversight, an incorrect amount had been
reflected in the earlier payment schedule contained in the letter dated
11.02.2011, and he was called upon to deposit a total amount of Rs.
2,20,25,800/- as per the revised payment schedule mentioned therein.
12. After receipt of the aforesaid communication, the petitioner
approached respondent Nos. 2, 3 and 4 and submitted that he had
already deposited an amount of Rs. 25,50,000/- in respect of the
auctioned land, which was not free from encumbrances even prior to
issuance of the auction notice, and this fact was within the knowledge
of the respondents since the year 2008.
13. The further case of the petitioner is that, asking the petitioner to
deposit an additional amount of Rs. 2,15,08,000/- (Rupees Two
Crores Fifteen Lakhs Fifty-Eight Thousand) for an encroached land,
possession whereof the respondents knew could not be handed over,
clearly reflects the arbitrary action of the respondents in proceeding
with the auction. In order to fortify his claim, the petitioner has also
placed reliance on photographs showing the encroachment at the site,
which were shown to respondent No. 3, who assured the petitioner
that respondent No. 2 would take immediate remedial steps to remove
the encroachment.
14. The petitioner, who had deposited a substantial amount, i.e., Rs.
5,00,000/- as earnest money and Rs. 20,50,000/- as the first instalment
as directed by respondent No. 4, was regularly approaching the
respondents for redressal of his grievance. The petitioner categorically
conveyed to the respondents that the balance amount would be paid
only after removal of encroachment from the site and re-measurement
thereof.
15. Since the grievance of the petitioner was not redressed despite repeated
requests, the petitioner, having been left with no option, submitted a
OWP No. 1386/2016 Page 5 of 32
detailed written representation in the month of February 2012 to
respondent No. 3. Through the said representation, the petitioner
requested respondent No. 3 to demarcate and inspect the auctioned land
to ascertain whether the possession of the JDA was over the entire
auctioned land measured 5.38 kanals or was less than that, and also to
verify the factum of encroachment at the site. It was further requested
that the demarcation and inspection report be communicated to the
petitioner within one week, so that the balance auction amount could be
deposited without further delay.
16. In response to the aforesaid representation, the petitioner was informed
vide communication dated 17.09.2012 that respondent No. 4 had
directed the Chief Town Planner, JDA, and the Superintendent
Engineer, JDA, to measure the auction site in the presence of the
petitioner. Thereafter, vide communication dated 07.10.2013, the
Senior Town Planner, JDA, called upon the petitioner to attend the
office of the JDA on 09.10.2013 for measurement of the site in
presence of the petitioner.
17. It is the specific case of the petitioner that at the time of measurement
of the site in his presence, it was found that the auctioned land
measuring 5.38 kanals was not free from encumbrances but was
encroached, upon which buildings and structures were in existence.
According to the petitioner, the encroachments existing on the said land
were also noted by the officials of the JDA, who visited the site on his
complaint. However, till June 2014, nothing in writing was
communicated to the petitioner except oral assurances that the JDA had
initiated action for removal of such encroachments.
18. It is further the case of the petitioner that a substantial amount of his
money had been lying with the JDA since 2011, while he was regularly
approaching the respondents for removal of the encroachments from
the spot and for proper measurement of the auctioned site. Despite
repeated representations and reminders, the respondents failed to
redress his grievance and, feeling aggrieved thereof, the petitioner has
preferred the instant writ petition.
OWP No. 1386/2016 Page 6 of 32
19. It has also been pleaded that the petitioner filed an application under the
Right to Information Act dated 15.05.2016 relating to the aforesaid
auction and sought information on various points to facilitate proper
adjudication of the controversy involved. In response to the said RTI
application, the reply was furnished by the respondents along with
relevant documents vide communication dated 22.06.2016, wherein the
respondents admitted that encroachment from the auctioned land had
been removed in the month of June 2016. The respondents also
acknowledged that the petitioner had been approaching them from time
to time.
20. It is the specific case of the petitioner that in the month of June 2016,
it came to the knowledge of the petitioner from the office of
respondent No. 2 that the respondents had removed encroachment
from a major portion of the auctioned site. Accordingly, the petitioner
again approached respondent No. 3 by way of a written representation
dated 04.06.2016, requesting that possession of the vacant and un-
encroached site be handed over to him and that the balance payment
be accepted as per the actual measurement of the site.
21. The petitioner, in order to substantiate his claim, has also placed on
record the official notings of the JDA on the representation and
complaint submitted by him in connection with the auctioned land. The
said record, according to the petitioner, supports his stand that the land
put to auction was already under encroachment prior to the issuance of
the auction notice dated 24.01.2011, i.e., since 2008-2009. The record
further demonstrates that the petitioner had been regularly approaching
the JDA for removal of such encroachments and for acceptance of the
balance payment in accordance with the actual status and measurement
of the land.
22. The record further reveals that the present petition was filed before this
Court on 20.09.2016 and this Court, vide order dated 22.09.2016, in
view of the assurance extended by learned counsel appearing for the
respondents-JDA, Mr. Raghu Mehta, restrained the respondents from
cancelling the allotment in question, which order continues to be in
operation as on date.
OWP No. 1386/2016 Page 7 of 32
Submission on behalf of the petitioner:
23. Learned counsel for the petitioner, Mr. Himanshu Beotra, has submitted
that an amount of Rs. 25,50,000/- has been lying with the JDA since
2011, which the petitioner could otherwise have utilized for his business
purposes or earned interest upon. It is contended that the petitioner had
been regularly approaching the respondents for removal of the
encroachment from the auctioned land and had been requesting them to
accept the balance payment after removal of such encroachment, but to
no avail. The petitioner was also constrained to issue a legal notice to the
respondents; however, till date the grievance of the petitioner has not
been redressed. Aggrieved of the same, the petitioner has preferred the
instant petition.
24. It is stated that when the petitioner came to know about the removal of
encroachment, he immediately approached respondent No. 2 for
issuance of a communication confirming removal of encroachment, for
acceptance of the balance amount, and for execution of the necessary
documents of lease and handing over of possession of the plot in
question. However, it came to the knowledge of the petitioner that the
respondents were contemplating cancellation of the offer of allotment
with a view to re-auction the site for obvious reasons.
25. This fact came to his knowledge upon receipt of a copy of the caveat dated
22.08.2016 filed by respondent No. 2 before this Court, wherein it was
mentioned that respondent No. 2 was in the process of cancelling the
allotment/Letter of Intent issued in favour of the petitioner, despite an
amount of Rs. 25,50,000/- having already been deposited. It was in these
circumstances that the present petition came to be filed, and this Court,
being prima facie satisfied, restrained the respondents from cancelling the
allotment.
26. In the aforesaid backdrop, learned counsel for the petitioner has urged
that the action of the respondents in not accepting the balance amount
after removal of the encroachment and in refusing to execute the formal
documents of allotment, lease and possession in favour of the petitioner
is illegal, arbitrary and liable to be set aside.
OWP No. 1386/2016 Page 8 of 32
27. It has further been submitted that the fault, if any, lies with the
respondents, who are stated to have been aware of the fact that the
auctioned land was not free from encumbrances and was under
encroachment, yet proceeded with the auction in the year 2011, leading
the petitioner to believe that the land was free from all encumbrances.
Consequently, the petitioner was compelled to part with a substantial
amount of Rs. 25,50,000/-, which continues to remain with the
respondents as on date.
28. Learned counsel has also submitted that instead of handing over
possession to the petitioner, the respondents were contemplating
cancellation of the Letter of Intent for extraneous reasons, which fact
was noticed by this Court while passing the interim order restraining
cancellation of the allotment. It is further argued that the balance auction
amount was rightly withheld by the petitioner on legal and cogent
grounds, as the plot in question was encroached at the time of auction.
29. It has also been urged that once the Letter of Intent was issued and the
terms and conditions thereof were complied with by the petitioner in
letter and spirit, no fault can be attributed to him.
30. The specific case of the petitioner is that the lapse, if any, was on the
part of the respondents in auctioning an encroached plot. Therefore,
the petitioner states that he withheld the balance amount for valid and
justifiable grounds till the encroachment was removed and the plot
was made free from all encumbrances, which fact was never properly
conveyed by the respondents and, for any inaction on the part of the
JDA, the petitioner cannot be penalized.
31. Learned counsel for the petitioner, in support of his claim, has placed
reliance upon a judgment passed by the Delhi High Court in WP(C) No.
15115/2004, titled „M/s Sewa Hotel and Resorts and others vs. DDA‘,
decided on 05.09.2005, wherein it was held that:
“14. DDA is obliged to ensure that development in Delhi is in
accordance with the notified Master Plan. DDA has complete
monopoly over land in Delhi. The monopoly status of DDA
requires a greater obligation to be put on the shoulders of DDA
when it comes to matters relating to land. In the facts of the two
OWP No. 1386/2016 Page 9 of 32instant cases, DDA cannot wish away its liability not to clear the
encroachments on public lands acquired for the purposes of
planned development of Delhi and placed at the disposal of DDA.
Lands are acquired out of public funds. Public authorities are
answerable to the citizens who are the ultimate beneficiaries as
also the owners of the public funds as these are created from the
contributions of the citizens, be it by way of taxation or levy of
fee. Public authorities are the trustees of these funds.”
32. Lastly, it has been submitted that the conduct of the respondents in not
formally communicating the removal of encroachment and in not
accepting the balance amount even thereafter, is loathed with mala fide
intent to frustrate the claim of the petitioner, despite the petitioner having
already deposited the earnest money and the first instalment, which
amount continue to remain with the respondents since 2011.
33. Mr. Himanshu Beotra, learned counsel for the petitioner, has drawn the
attention of the Court to the office notings of the JDA which have been
annexed with the instant petition. Though the source of the said notings
has not been disclosed by the petitioner, yet the learned counsel submits
that the same vindicates the stand of the petitioner.
34. According to the said notings, it appears that, as per the report of the
field staff and local inquiry conducted by the JDA, encroachment over
the land in question had been reported as far back as 2008-2009. The
factum of allotment of the plot measuring 5.38 kanals in the year 2011 is
also reflected therein. The noting further substantiates the claim of the
petitioner regarding shortage of land at the site in question. According to
the respondents, this fact was conveyed to the petitioner vide
communication dated 21.02.2012. It is also recorded that an area of
OWP No. 1386/2016 Page 10 of 32
approximately 3,451.5 square feet out of the total land had reportedly
been encroached.
35. The filing of representations by the petitioner, wherein he had clearly
conveyed in unambiguous terms the issue of shortage of land in
question, has also been admitted in the aforesaid notings as far back as
2011-2012.
36. For facility of reference, the relevant portion of the said noting is
reproduced as under:
“85. In reference to the observations of the worthy VC. JDA (N.P. 79)
ante, the para-wise reply to the said queries are submitted for needful
as under:
(i) As reported by field staff & local enquiry, it is intimated that the
reported encroachment had been attempted in the year 2008-09 &
perusal of the record available in case file/ main auction file on
subject appended with main file, reveals that the auction/allotment
for 5.38 kanals land to allottee made in the year 2011, on the site
plan/drawings provided by the CTP Section of year 2007 (dated
11.08.2007) available at Page No. 37 CF side (Flag -“A”).
Refer (NP 26) of Auction File dated 06.07.2011, states the case was
referred by Secy. JDA to CTP for measurement of site and shown to
the applicant. As such, the matter regarding short of land at site was
also brought to notice of the authorities by the allottee, vide his
letter dated 21.02.2012, page 36 CF side (Flag- “B”).
That CTP/SE JDA, letter dated 17.09.2012 regarding intimation to
get the site measured in presence of allottee, as reported there is
short of land (page 40 CF side) at site may kindly be perused.
That as per drawings provided by CTP Section dated 04.10.2013
(page 43 CF), has acknowledged that an area of 3451.5 Sq. ft. out
of 5.38 Kanals land has reportedly been encroached upon.
(ii) Refer NP 39, states that eviction proceedings had been
initiated against the encroacher for reclaiming 1976 sq. ft.
encroached land.
OWP No. 1386/2016 Page 11 of 32
(iii) The name of the encroacher as reported is Mehraj Krishan
Raina S/o Jai Lal Raina.
(iv) However, report in the matter is submitted to the higher
authorities from time to time and moreover no new construction
is reported on the said site thereafter.”
37. Another noting on which the learned counsel for the petitioner has
placed reliance is also reproduced as under:
“68. The allottee represented that when he visited the site, he
found the land in question is less than 5 kanals (against 5.38
kanals as mentioned in the bid) and rest of land is found under
encroachment, for which the allottee has requested for re-
demarcation of land, so that the balance auctioned amount be
deposited without any further delay with JDA. As per the noting
on the face of the representation of the allottee, the DLM IDA
directed for an early demarcation (refer page 36 C.F side).
38. Placing reliance on the aforesaid notings, Mr. Himanshu Beotra
further submits that not only the factum of encroachment has been
admitted by the respondents in the aforesaid notings, but the
encroacher has also been identified and eviction proceedings were
initiated against him. The encroacher is stated to be one Mehraj
Krishan Raina, S/o Jai Lal Raina, which fact finds mention in the
relevant paragraph of the said notings. In the aforesaid notings, the
respondents have further admitted that the portion of the land which
was auctioned by the JDA continued to remain under encroachment,
although eviction proceedings were stated to be underway at that
particular point of time.
Submissions on behalf of the respondents:
39. Objections have been filed on behalf of respondent Nos. 2, 3 and 4,
wherein it is their specific stand that the petitioner himself violated the
terms and conditions of the auction notice as well as the Letter of
Intent issued in his favour, and such violation itself entailed
cancellation of the Letter of Intent.
40. The respondents have admitted the auction proceedings and the fact
that the petitioner was the highest bidder, having offered a bid of Rs.
41.00 lakhs per kanal. It is stated that a Letter of Intent dated
OWP No. 1386/2016 Page 12 of 32
11.02.2011 was accordingly issued in his favour. However, the
respondents submit that in the payment schedule contained in the said
Letter of Intent, an amount of Rs. 20.50 lakhs was mentioned, but the
words “per kanal” were inadvertently omitted. According to the
respondents, the petitioner was required to deposit the said amount on
per kanal basis and not as a consolidated amount for the entire land
measuring 5.38 kanals.
41. It is further stated by the respondents that, in terms of the bid amount,
the minimum sum required to be deposited by the petitioner at the
relevant stage was approximately Rs. 1,10,29,000/-. Since the
petitioner deposited only Rs. 20,50,000/- by treating it as the amount
for the entire land, a further communication bearing No. JDA/L-
S/5278/86 dated 12.09.2011 was issued to him to deposit the same
within 30 days from the date of issuance of the said letter.
42. By virtue of the aforesaid communication dated 12.09.2011, the
petitioner was informed that due to an oversight, the earlier
communication had reflected Rs. 20.50 lakhs instead of Rs. 41.00
lakhs per kanal for land measuring 5.38 kanals, and a revised payment
schedule was conveyed to him. The petitioner was accordingly called
upon to deposit the balance amount within 30 days from the date of
issuance of the said letter.
43. The respondents contend that despite the knowledge of the aforesaid
communication, the petitioner failed to deposit the requisite amount in
terms of the revised payment schedule contained in the letter dated
12.09.2011. According to the respondents, such failure constituted a
clear breach of the terms and conditions of the Letter of Intent,
resulting in its automatic cancellation in terms of the applicable
clauses.
44. The respondents have further stated that a portion of the auctioned
land was under encroachment by illegal occupants and that eviction
proceedings had already been initiated against such encroachers. It is,
however, contended that out of the total auction site, land measuring
5.01 kanals was available with the JDA.
OWP No. 1386/2016 Page 13 of 32
45. The further stand of the respondents is that possession of the available
land measuring 5.01 kanals could have been delivered to the petitioner
on proportionate cost, had he deposited the amount due in terms of the
Letter of Intent. Instead, according to the respondents, the petitioner
defaulted in payment of the instalment(s) due, which attracted the
clause relating to forfeiture of earnest money. It is also submitted that
the petitioner failed to justify the delay in payment and is, therefore,
not entitled to any relief.
46. The respondents have also alleged that the petitioner has sought to
rely upon internal office notings and documents of the department,
which, according to them, were obtained without authorization. It is
submitted that such material, being internal in nature, cannot be relied
upon by the petitioner to claim any equitable or legal relief. On these
grounds, the answering respondents have prayed for dismissal of the
writ petition, terming the same as misconceived, not maintainable and
devoid of merit.
47. Mr. Sachin Dogra, learned counsel for the respondents, has drawn the
attention of the Court to the advertisement which was issued way back
on 16th December, 2010 in some local daily newspapers wherein the
total area was specified as 5.38 kanals and the rate was shown as Rs.
40.00 lakhs per kanal. As per the terms of the advertisement, the
petitioner was under an obligation to deposit 10% of the minimum
price. Ground rent was shown as Rs. 5,000 per kanal per annum.
Through the said advertisement, sealed bids were invited for auction
of the land in question on the prescribed form. The notification further
stipulated that possession would be handed over only after payment of
the full premium and completion of legal formalities of the JDA, and
the allotment was to be made in favour of the highest bidder. Thus,
according to learned counsel for the respondents, from a bare perusal
of the aforesaid notification, it is clear that the land was notified at the
rate of Rs. 40.00 lakhs per kanal.
48. Learned counsel for the respondentshas also referred to the
communication dated 11.02.2011, issued by the Secretary, JDA,
whereby the petitioner was informed that land measuring 5.38
OWP No. 1386/2016 Page 14 of 32
kanalscould be allotted to him subject to fulfillment of the terms and
conditions which are enumerated as under:
“1. Production of original State Subject Certificate for verification.
2. Payment of bid amount as per the schedule given below:
S. No. Amount Due Last Date
1. 20.50 Lacs 11.03.2011
2. 15.50 Lacs (i) 10.08.2011 without penal interest
(ii) 11.08.2011 to 10.11.2011 with 18% per annum penal interest.
In case of any delay in payment of 1st Installment the earnest money
will be forfeited without issuing any further notice.
If you deposit full premium within 30 days from the date of Letter of
Intent, you shall be given rebate of 1% of the total premium.
Formal allotment shall be issued in favour only after receipt of entire
bid amount.
1st Instalment be deposited in JDA’s Saving Account No.
0022040100000342 S/B in J&K Bank, Branch Rail Head Complex in
favour of Vice Chairman, JDA under intimation to this office.”
49. It is the specific case of the respondents that there was an inadvertent
mistake in the aforesaid communication. Accordingly, another
communication dated 12.09.2011 was issued, i.e., after about seven
months, wherein, in continuation of the earlier communication dated
11.02.2011, the petitioner was intimated that due to oversight, the
payment had been reflected incorrectly, and that the correct
calculation was Rs.41.00 lakhs per kanal, totaling Rs. 2,20,58,000 for
5.38 kanals. A revised payment schedule was accordingly conveyed
as under:
S. No. Amount Due Due Date
1. 1,10,29,000 12.10.2011
2. 1,05,29,000 12.11.2011
50. When a specific query was put by this Court regarding the date of
alleged encroachment, learned counsel for the respondents submitted
that the land was encroached in the year 2013. In this regard, Mr.
Dogra, placing reliance upon the note, has drawn the attention of
this Court to Note No. 59 of the note sheet, which has been placed
OWP No. 1386/2016 Page 15 of 32
on record by the petitioner. A perusal thereof makes it clear that the
auction site was measured on 09.10.2013 in the presence of the
allottee and the dimensions were found to be as per the plan.
However, the note further records that a pucca house, boundary
walls and a gate had been constructed over the side plot shown in
the plan. It also records that one house had already been built at the
site, two lanes were opening into the plot in question, and a gate had
been fixed on the other side of the plot giving access to some other
property.Thus, according to Mr. Dogra, the stand of the respondents
is that the encroachment over the site arose in the year 2013.
51. The said stand has been refuted by Mr. Himanshu Beotra, learned
counsel for the petitioner, who submits that the note itself indicates
that the pucca structure was already in existence and, therefore, the
encroachment cannot be said to have originated in 2013.
52. Learned counsel for the petitioner in rebuttal has further drawn the
attention of the Court to the affidavit filed by the Vice Chairman,
JDA, on 13.08.2024 in compliance to the order dated 03.06.2024. A
perusal of the said affidavit reveals that the then Vice Chairman,
JDA, Mr. Bhawani Rakwal, has admitted on oath that there is no
record in their office indicating whether the auctioned land was
encroached upon prior to the auction or thereafter, with specific
date/month/year. The deponent, has further stated that in the absence
of record, he is unable to apprise the Court whether the land in
question was free from encumbrances prior to issuance of the
auction notice. The affidavit further indicates that as per the record
submitted by the Chief Town Planner, JDA, on 23.07.2015, two
compound walls, a pucca structure (built-up house) and a kacha path
existed within the auctioned land. The affidavit further states that
thereafter report of CTP on 08.12.2025 reflects that the land
measuring 5.01 Kanal is free from encroachment.
53. Lastly, learned counsel for the respondents submitted that the JDA,
being aggrieved of the order dated 01.02.2023 passed by this Court,
had preferred a Letters Patent Appeal bearing No. LPA No.
216/2013 before the Division Bench of this Court in which the
OWP No. 1386/2016 Page 16 of 32
Hon‟ble Division Bench, vide order dated 24.03.2025, has been
pleased to observe as under:
“6. Having regard to the nature of the controversy involved and
the order impugned passed by the learned Single Judge dated
01.02.2023 directing the appellants to hand over the possession
of the un-encroached portion of land measuring 5.38 Kanals
falling in Khasra Nos.92 & 94 situated at Chinore Chowk, Bantalab
Jammu on the payment of the price which was fixed at the time of
allotment i.e. in the year 2011, we are of the view that the writ
Court may proceed to dispose of the petition finally on merits
without insisting upon the execution/implementation of its order
dated 01.02.2023 till next date. Ordered, accordingly.
7. We are persuaded to pass this order for the reason that with
regard to the land in question, the respondent has deposited only a
sum of ₹25,50,000/- since 2011 which does not even represent the
value of the land for 1 Kanal as it was the time of its allotment and
the order dated 01.02.2023 if implemented will finally disposed of the
writ petition.”
54. The said appeal was thereafter listed before the Hon‟ble Division
Bench on 04.11.2025, on which date it was disposed of in light of the
statement made by learned counsel for the appellants that since the
writ petition itself was ready for final hearing, the appeal may be
disposed of to enable the appellants to pursue the matter before the
learned Single Judge. While disposing of the appeal, it was made
clear that the interim order dated 24.03.2025 shall remain operative
till the decision of the writ petition by the learned Single Judge.
55. In compliance with the aforesaid order, this Court has taken up the
writ petition and this is how the matter has been heard.
Arguments on behalf of the petitioner by way of rebuttal:
56. In rebuttal, Mr. Himanshu Beotra, learned counsel for the petitioner,
submits that it is an admitted fact that pursuant to the communication
dated 11.02.2011, the petitioner deposited an amount of Rs.
20,50,000/-. He contends that when it came to the knowledge of the
petitioner that the site in question was encroached, the petitioner
OWP No. 1386/2016 Page 17 of 32
immediately approached the respondents-JDA and apprised them of
the said fact. However, no remedial measures were taken by the
respondents-JDA. According to learned counsel, in these
circumstances, the petitioner was not obliged to pay the remaining
amount as per the terms and conditions of the allotment.
57. It is further submitted that although the petitioner had already paid Rs.
20,50,000/- towards the auctioned land, which was under
encroachment, and had brought this fact to the knowledge of the
respondents-JDA, no effective steps were taken by the authority.
Instead, in the month of September 2011, the respondents issued
another communication whereby the payment liability was modified,
as pleaded by the respondents.
58. It is the specific case of the petitioner that he had brought the factum
of encroachment to the knowledge of the JDA in April 2011. This
assertion, though specifically pleaded in the writ petition, has neither
been admitted nor specifically denied by the respondents.
59. With a view to fortify his claim, learned counsel for the petitioner has
drawn the attention of the Court to the specific averments made in
paragraph 7 of the writ petition, wherein it has been pleaded that the
petitioner, in the month of April 2011, immediately approached the
JDA and represented his grievance regarding the measurement of the
auction site and the encroachment existing thereon.
60. It is pleaded that the encroachment was clearly visible at the site and
included a pucca house, lanes and a gate. It was further pleaded that an
assurance was extended to the petitioner by the section of respondent
No. 2 that they will visit the site to verify the measurement and the
encroachment.
61. Learned counsel submits that this specific averment has not been
denied by the respondents while filing reply affidavit.
62. On the other hand, in the reply affidavit filed by the JDA, while
responding to paragraphs 6 to 8 of the writ petition, it has been stated
that part of the land put to auction was encroached upon by illegal
occupants and that eviction proceedings had already been initiated. It
has further been stated that out of the auctioned site, land measuring
OWP No. 1386/2016 Page 18 of 32
5.01 kanals was available with the JDA and the same could have
been delivered to the petitioner on proportionate cost, had he
deposited the amount in terms of the Letter of Intent. The
respondents have also taken a specific stand that since the petitioner
defaulted in payment of the instalments, the same attracted forfeiture
of earnest money as per the terms and conditions of allotment.
According to the respondents, the petitioner has failed to justify the
delay in payment and is, therefore, not entitled to any relief.
63. In response, learned counsel for the petitioner submits that while the
respondents have taken a stand that 5.01 kanals of land was available
with the JDA and could have been delivered on proportionate cost,
however, the respondents have not specifically denied the assertion
of the petitioner that he had, in April 2011 itself, brought the issue of
encroachment and incorrect measurement to the notice of the JDA.
64. The factum of encroachment over the plot and stoppage of payment
has also been acknowledged by the respondents-JDA, which is
evident from Note No. 65 of the note sheet placed on record by the
petitioner in the instant petition.
65. At this stage, learned counsel for the parties have drawn the attention of
the Court to an application (CM No. 6152/2023) filed by the applicant
seeking impleadment in the main petition. Notice in the said application
had already been issued and time was granted to the non-applicant to
file response, which has since been filed and supplied to learned
counsel for the applicant. The record further reveals that the said
application was directed to be listed along with the main matter vide
order dated 29.12.2023.
66. Thereafter, the record shows that none appeared on behalf of the
applicant to pursue the said application. Although Mr. Nonu S. Khera
had appeared earlier, none has appeared on behalf of the applicant on
the last three consecutive dates. The matter had already been heard in
part by this Court on 05.02.2026, on which date also there was no
representation on behalf of the applicant, and the case was directed to
be listed today for further continuation. Even today, none has appeared
on behalf of the applicant. An inference, therefore, can be drawn that
OWP No. 1386/2016 Page 19 of 32
the applicant is not interested in prosecuting the said application. The
application (CM No. 6152/2023) is, accordingly, dismissed for non-
prosecution.
Legal Analysis:
67. After having heard the learned counsel for the parties at length and
perusing the record meticulously, this Court finds merit in the
submissions advanced by Mr. Himanshu Beotra that once the factum of
encroachment over the plot came to the knowledge of the petitioner, he
could not be compelled to pay the remaining amount until the
encroachment was removed by the respondents. From a bare perusal of
the record, it can safely be concluded that the respondents have put to
auction an encroached plot on which a pucca structure was existing and
thereby induced the petitioner to part with his hard-earned money to the
tune of Rs.25,50,000 way back in the year 2011, which amount
remained with the JDA for more than fifteen years.
68. The factum of encroachment was acknowledged by the respondents in
the year 2013, wherein it was recorded that a pucca structure was
already existing on the site. It can, therefore, reasonably be inferred that
the said structure had existed even prior to 2013. A duty was thus cast
upon the JDA to inform the petitioner about the encroached status of the
plot to the prospective bidders including the petitioner so that he/they
could have exercised his/their choice/option regarding participation in
the bid for the land in question. Had the petitioner been aware that the
plot was encroached, he would have been in a position to make an
appropriate and conscious choice regarding participation in the auction
and parting with an amount of Rs.25,50,000 in the year 2011, which
amount thereafter remained with the JDA for more than fifteen years.
69. Thus, the petitioner was induced by the respondents-JDA to participate
in the bid of an encroached plot. Once, the factum of encroachment
came to the knowledge of the petitioner in April 2011, he immediately
conveyed the same to the respondents-JDA and called upon them to
take remedial measures. In such circumstances, the petitioner was,
therefore, not obliged to pay the remaining amount in respect of the
encroached site in question.
OWP No. 1386/2016 Page 20 of 32
70. Significantly, the specific averment of the petitioner that he had
informed the JDA about the encroachment in April 2011 has not been
expressly denied in the reply affidavit. The absence of a categorical
denial lends credence to the petitioner‟s assertion and reinforces the
position that the respondents were aware of the issue at an early
stage.
71. On the contrary, the respondents have admitted the factum of
encroachment and have even identified the encroacher, but have not
disclosed the exact date of encroachment, thereby attempting to shift the
burden onto the petitioner and to justify forfeiture of earnest money.
72. This Court, in the aforesaid backdrop, is of the considered view that the
petitioner cannot be placed in a disadvantageous position due to the
fault on the part of JDA in putting to auction an encroached property,
particularly when the petitioner, in a bona fide manner, deposited the
earnest money in compliance to the communication dated 11.02.2011.
Thus, whatever was required on the part of the petitioner in terms of the
said communication had been complied with. The record substantiates
that the later communication issued in September 2011 modifying the
demand came after the petitioner had already brought the encroachment
to the notice of the JDA. A corresponding duty was, therefore, cast
upon the JDA to take remedial measures, but the respondents-JDA
continued to proceed on the premise that the petitioner was in default of
instalments and sought to shift the onus onto him, so as to justify
forfeiture of earnest money. It is a very strange case that the
respondents-JDA utilized the huge amount of money of the petitioner
for more than 15 years without allotting the plot in favour of the
petitioner, even after the land, to the extent of approximately 5.01
kanals, was stated to be available which was free from all
encumbrances, for which the petitioner was willing to pay the cost even
as on today.
73. It is true that a Letter of Intent, by itself, does not create a concluded
contract unless followed by a formal allotment order in accordance
with law. However, where the authority accepts consideration
pursuant to such Letter of Intent and continues to retain the same for
OWP No. 1386/2016 Page 21 of 32
an inordinate period, without either cancelling the allotment in
accordance with law or refunding the amount, it cannot subsequently
rely upon the technical nature of the Letter of Intent to defeat the
legitimate rights of the allottee. A public authority, having accepted
and retained substantial amounts from a citizen, is under a
corresponding obligation to act fairly, transparently and within a
reasonable time, and cannot take advantage of its own inaction to the
prejudice of the allottee.
74. The contention of the respondents that the Letter of Intent stood
automatically cancelled and that the earnest money was liable to be
forfeited, cannot be accepted in the facts and circumstances of the
present case. Forfeiture clauses, though contractual in nature, cannot
be invoked mechanically or arbitrarily, particularly when the alleged
default itself is attributable to the authority. The Hon‟ble Supreme
Court in “Kailash Nath Associates v. Delhi Development
Authority“, (2015) 4 SCC 136, has held that forfeiture of earnest
money must satisfy the test of reasonableness and cannot be
sustained where the breach is not attributable to the allottee.
75. Thus, no fault can be attributed to the petitioner so as to justify
forfeiture of his earnest money or denial of allotment, especially when
the relevant notings placed on record support the stand of the
petitioner that the issue of encroachment had been raised by him at the
earliest point of time, which was also the reason for stoppage of
further payment. However, there is no denial on the part of the
respondents that the notings relied upon by the petitioner is not issued
from their office, rather,the learned counsel for the JDA, has also
relied upon the same notings to advance his case. The own record of
the respondents acknowledges the existence of a pucca structure on the
plot. Once, such a structure existed on the plot, it is not forthcoming
from the record as to how and under what circumstances, the same
was allotted to the petitioner. Throughout, the respondents have played
hide and seek with the petitioner regarding the actual date of
encroachment, with a view to defeat his right to obtain possession of
the said plot.
OWP No. 1386/2016 Page 22 of 32
76. The respondents have taken inconsistent stands regarding the date of
encroachment. In a later affidavit filed by the Vice Chairman, JDA,
the concerned officer has stated that the department is not aware of
the exact date of encroachment, whereas earlier records acknowledge
the existence of a pucca structure at the site. Thus, there is a
deliberate attempt on the part of JDA to mislead this Court by taking
contradictory stand. This shows absence of clarity on the part of the
JDA and the consequences thereof cannot be fastened upon the
petitioner. Accordingly, this Court is of the opinion that the
respondents-JDA, by no stretch of imagination, could have auctioned
the plot or accepted the earnest money of the petitioner and then
forfeited the same by shifting the onus onto the petitioner for such
default, when the fault, if any, was attributable to the JDA.
77. For any inaction or lapse on the part of the JDA in auctioning an
encroached plot, the petitioner cannot be penalized. Rather, this is a
fit case where the respondents-JDA deserves to be burdened with
costs for taking contradictory stand with a view to mislead this Court
and also for retaining the hard-earned money of the petitioner for
more than 15 years without handing over possession of the plot in
question, even after the land was stated to be free from
encumbrances. The delay in making further payment cannot be
attributed to the petitioner in respect of an encroached plot,
particularly when the JDA, being a public authority, ought to have
acted fairly and proceeded with the auction only if the plot was free
from all encumbrances. Such conduct cannot be countenanced in law
and must be examined in the light of the legal principles laid down
by the Hon‟ble Supreme Court governing the obligations of State
authorities and the rights of citizens in matters relating to property
and allotment.
78. The Hon’ble Apex Court in the case of “K. Jayaram and others vs
Bangalore Development Authority and others‟ 2022 (12) SCC
815, has held as under:
“38….As per settled law, the party who invokes the
extraordinary jurisdiction of this Court under Article 32 or of a
OWP No. 1386/2016 Page 23 of 32High Court under Article 226 of the Constitution is supposed
to be truthful, frank and open.
He must disclose all material facts without any reservation
even if they are against him. He cannot be allowed to play
“hide and seek” or to “pick and choose” the facts he likes to
disclose and to suppress (keep back) or not to disclose
(conceal) other facts. The very basis of the writ jurisdiction
rests in disclosure of true and complete (correct) facts. If
material facts are suppressed or distorted, the very
functioning of writ courts and exercise would become
impossible….”
79. Similar view was taken by the Hon‟ble Apex Court in case titled
“Dnyandeo Sabaji Naik and another vs. Mrs. Pradnya Prakash
Khadekar& Ors“. Reported in “2017 SCC (5) 496” wherein it was
held as under:
“13. This Court must view with disfavour any attempt by a
litigant to abuse the process. The sanctity of the judicial
process will be seriously eroded if such attempts are not
dealt with firmly. A litigant who takes briberies with the
truth or with the procedures of the Court should be left
in no doubt about the consequences to follow. Others
would not venture along the same path in the hope or on
a misplaced expectation of judicial leniency. Exemplary
costs are inevitable, and even necessary, in order to
ensure that in litigation, as in the law which is practised
in our country, there is no premium on the truth.”
80. This Court in „Fayaz Ahmed Ganie and another vs. UT of J&K and
others, WP(C) No. 2760/2025, decided on 12.11.2025, has held as
under:
“31. The Apex Court has time and again addressed the issue of
concealing material facts in petition, emphasizing the
importance of full disclosure of the material facts and the
potential consequences of suppression. When a party
suppresses material facts, it renders the proceedings a nullity.
OWP No. 1386/2016 Page 24 of 32
It is the duty of every litigant to disclose all material facts, as
withholding material facts from the Court not only undermines
the process of justice but is also violation of the principle of
“coming to the Court with Clean Hands.” The Apex Court has
further observed that failure to disclose material facts could
lead to the dismissal of the petition, even if it has merit
otherwise. Thus, the imposition of costs for concealment of
material facts has been used as a remedy to deter such
fraudulent practices.
……
35.Since the petitioners have approached this Court by
concealment of the facts, therefore, it is a fit case where costs
are required to be imposed upon the petitioners. Accordingly,
the petitioners are burdened with costs of Rs. 20,000/-, to be
deposited by the petitioners in the Advocate’s Welfare Fund,
within a period of two weeks. The costs have been imposed
upon the petitioners with a sole object to deter such
unscrupulous persons to approach this Court with unclean
hands, who try to mislead this Court.”
81. This Court in case titled “Fayaz Ahmad Rather v/s U.T of J&K and
ors.”, bearing LPA NO.20/2023 c/w LPA NO.46/2023 decided on
03.04.2023 has and observed as under:
“23…..A litigant is bound to state all facts which are material or
relevant to the litigation.” The litigant must candidly state all
the facts before the court without reservation. He cannot be
permitted to play “hide and seek” or to “pick and choose” the
facts he likes to disclose and keep back or conceal facts. Page
18 of 21 WP(C) 2760/2025 Page 19 of 21 WP(C) 2760/2025
Jugglery, manipulation, maneuvering or misrepresentation has
no place in equitable and prerogative jurisdiction. Suppression
of material facts, concealment of full details of litigation,
present and past, between the parties qua subject matter of
dispute, distortion or manipulation of relevant facts, misleading
the court by stating false facts or withholding true facts
OWP No. 1386/2016 Page 25 of 32disentitle a party to invoke equitable jurisdiction under Article
226 of Constitution of India.”
82. In similar circumstances this Court in Satpal Sharma and ors. v/s
State of J&K and others, OWP No. 2015/2018, decided on
20.09.2024, while dealing with a case involving misleading stand and
abuse of the process of law, imposed costs and held as under:
“66. Accordingly, with a view to deprecate such practice
of suppression of material facts, this Court imposes a cost
of Rs.50,000/- on the petitioners, to be paid jointly by
them, within a period of two weeks from the date of
pronouncement of this order, which is to be deposited in
the Advocates‟ Welfare Fund of this Court. It is made
clear that in case the costs imposed by this Court is not
deposited within the aforesaid period, the Registry will list
this petition after two weeks, only for this limited purpose
for compliance.”
The aforesaid judgments clearly lays down that where a party
misleads the court or adopts inconsistent stands, the Court can impose
the costs with a view to deter such practice and also to compensate
for the prejudice caused to the party with a view to preserve the
sanctity of judicial proceedings.
83. The facts and circumstances of the present case, coupled with the
material placed on record, clearly indicate lack of bona fides on the
part of the respondents-JDA from the very inception. The record
demonstrates that the respondents were aware of the encroached
status of the plot even prior to issuance of the auction notice, yet they
proceeded to advertise the said plot and induced the petitioner to
participate in the auction and deposit substantial amounts. Such
conduct, on the part of a statutory authority, reflects arbitrary and
unfair exercise of power and a conscious disregard of their duty to
ensure that only land free from encumbrances is put to auction. Such
conduct of JDA cannot be approved which caused grave prejudice to
OWP No. 1386/2016 Page 26 of 32
the rights of the petitioner, who has been made to suffer for the fault
and inaction of the respondents-JDA.
84. In light of the law laid down in similar facts and circumstances of the
case, it can safely be concluded that the respondent-JDA, in the
peculiar facts and circumstances of the present case, ought to have
given an alternate plot to the petitioner if the same was encroached, or
else refunded the amount to the petitioner. However, the respondents-
JDA haveunjustly enriched itself by retaining the money of the
petitioner unauthorizedly for more than fifteen years, and no offer
was even made to give an alternate plot to the petitioner in case, there
was any impediment in handing over the said plot to him. Both the
eventualities have not occurred, and the petitioner has been put in a
disadvantageous position for no fault of his. Thus, it is a fit case
where the JDA should be burdened with costs for such arbitrary use
of power. The petitioner was deprived of his hard-earned money for
more than fifteen years and simultaneously, deprived of the plot in
question as well. The respondent-JDA has placed itself in a win-win
situation, as it has neither given the plot to the petitioner nor refunded
the money and has retained the same unauthorizedly.
85. The aforesaid conclusion drawn by this Court is fully supported by the
settled legal position laid down by the Hon‟ble Supreme Court
governing the obligations of development authorities in matters of
allotment and delivery of possession. The Apex Court in „Bangalore
Development Authority vs. Syndicate Bank‟, 2007 SCC 6 711, has
held as under:
“10(a) Where the development authority having received the full
price, does not deliver possession of the allotted plot/flat/house
within the time stipulated or within a reasonable time, or where
the allotment is cancelled or possession is refused without any
justifiable cause, the allottee is entitled for refund of the
amount paid, with reasonable interest thereon from the date of
payment to date of refund. In addition, the allottee may also be
entitled to compensation, as may be decided with reference to
the facts of each case.”
OWP No. 1386/2016 Page 27 of 32
Thus, in light of the aforesaid authoritative pronouncement of the
Hon‟ble Supreme Court, the action of the respondents-JDA in
retaining the petitioner‟s money for an inordinate period without
handing over possession of the allotted land, is wholly unjustified
and arbitrary. The petitioner, therefore, cannot be made to suffer for
the lapses and inaction on the part of the respondents-JDA.
86. The Allahabad High Court in similar facts and circumstances in case
titled”Ganesh Prasad vs. Lucknow Development Authority and
others‟, Misc. Bench No. 281/1997a/w connected matters, decided
on 21.10.2011, has held as under:
“98. In the present case, the petitioners/allottees are fighting for
their rights since more than 25 years and have suffered not only
financial loss but mental pain and agony and failed to settle
themselves by constructing their house over the plot in question,
for more than 25 years. Hence, the
petitioner Ganesh Prasad seems to be entitled for exemplary
costs, apart from interest on the amount deposited to L.D.A, after
the allotment of plot.
99. Admittedly, the petitioner Ganesh Prasad has deposited the
entire cost of plot in the year 1984. The entire cost deposited by
the petitioner, is lying with the L.D.A On the one hand, the
petitioner has suffered mental pain, agony and financial loss and
could not get the possession of plot to construct his own house in
the city of Lucknow, on the other, from the money deposited by
the petitioner Ganesh Prasad, the L.D.A Invested the amount in its
business. It is the instance of unjust enrichment. Hon’ble Supreme
Court in the case reported in (2011) 8 SCC 161: Indian Council for
Enviro-Legal Action v. Union of India, has defined the “unjust
enrichment as under:
“UNJUST ENRICHMENT”
“152. ‘Unjust enrichment’ has been defined by the court as the
unjust retention of a benefit to the loss of another, or the
retention of money or property of another against the
OWP No. 1386/2016 Page 28 of 32fundamental principles of justice or equity and good conscience.
A person is enriched if he has received a benefit, and he is
unjustly enriched if retention of the benefit would be unjust.
Unjust enrichment of a person occurs when he has and retains
money or benefits which in justice and equity belong to another.”
87. The petitioner, having been declared the highest bidder and having
complied with the essential terms and conditions of the allotment,
had acquired a legitimate and enforceable right to seek allotment and
possession of the land in question. The said right, which was
expected to fructify into a vested right in property upon fulfillment
of the requisite formalities, was unjustly defeated due to the inaction
and arbitrary conduct of the respondents-JDA. As a result, the
petitioner was wrongfully deprived not only of the property to which
he had become lawfully entitled, but also of the substantial amount
deposited by him in furtherance of such allotment. The action of the
respondents-JDA, therefore, has the effect of infringing the
petitioner‟s valuable right to property, which could not have been
defeated except in accordance with law.
88. The Hon‟ble Apex Court in “State of U.P. and others vs. Manohar“,
(2005) 2 SCC 126, has held as under:
“6. Having heard the learned counsel for the appellants, we are
satisfied that the case projected before the court by the
appellants is utterly untenable and not worthy of emanating from
any State which professes the least regard to being a welfare
State. When we pointed out to the learned counsel that, at this
stage at least, the State should be gracious enough to accept its
mistake and promptly pay the compensation to the respondent,
the State has taken an intractable attitude and persisted in
opposing what appears to be a just and reasonable claim of the
respondent.
“7. Ours is a constitutional democracy and the rights available to the
citizens are declared by the Constitution. Although Article 19(1)(f)
was deleted by the Forty-fourth Amendment to the Constitution,
OWP No. 1386/2016 Page 29 of 32Article 300-A has been placed in the Constitution, which reads as
follows:
“300-A. Persons not to be deprived of property save by
authority of law.–No person shall be deprived of his property
save by authority of law.”
8. This is a case where we find utter lack of legal authority for
deprivation of the respondent’s property by the appellants who
are State authorities. In our view, this case was an eminently fit
one for exercising the writ jurisdiction of the High Court under
Article 226 of the Constitution. In our view, the High Court was
somewhat liberal in not imposing exemplary costs on the
appellants. We would have perhaps followed suit, but for the
intransigence displayed before us.”
89. The manner in which the respondents-JDA proceeded in the present
case reflects a disturbing lack of fairness expected from a public
authority. A statutory development authority, entrusted with
management of public land, is expected to act with transparency and
due diligence before putting property to auction. Auctioning land
which was not free from encumbrances, accepting substantial
amounts from a citizen, and thereafter attempting to shift the
consequences of its own lapses onto the allottee, does not comport
with the standards of fairness, reasonableness and accountability that
govern State instrumentalities.
90. The record also discloses a serious lapse in the discharge of statutory
obligations and an absence of the degree of administrative care
expected from a public body dealing with valuable public property.
Such functioning not only causes grave prejudice to individual
citizens but also undermines the credibility and institutional integrity
of public authorities entrusted with developmental functions. This
Court strongly disapproves such approach and expects the JDA to
exercise greater care, transparency and responsibility in future so that
recurrence of such situation is avoided.
OWP No. 1386/2016 Page 30 of 32
Conclusion:
91. In view of the aforesaid discussion and the findings recorded
hereinabove, this Court deems it proper to allow and dispose of the
petition with the following directions:
i) The respondents-JDA shall, within a period of one
week from the date of receipt of this order, calculate
the total sale consideration in respect of the land
originally auctioned in favour of the petitioner
measuring 5.38 kanals falling under Khasra Nos. 92
and 94, situated at Chinor Chowk, Bantalab (Chak
Changarwan), Jammu, pursuant to advertisement
notice dated 24.01.2011 and Letter of Intent No.
JDA/Land/8254-62 dated 11.02.2011 read with
communication No. JDA/LS/5278-86 dated
12.09.2011, strictly on the basis of the rates and
interest component applicable at the relevant time
when the allotment process was initiated and
culminated in the allotment order, and not on the
basis of the presently prevailing rates, as no fault is
attributable to the petitioner. While doing so, the
respondents shall prepare separate calculation sheets
indicating: (i) the sale consideration payable in
respect of the land measuring 5.01 kanals found
available and free from encumbrances, and (ii) the
sale consideration payable in respect of the
remaining land measuring approximately 0.37
kanals or equivalent area, which shall be allotted to
the petitioner in the same vicinity or nearest
available adjacent area in lieu of the encroached
portion, so as to ensure that the petitioner receives
the full extent of land originally auctioned in his
favour. The said calculation sheets shall clearly
reflect the total consideration, the amount already
deposited by the petitioner, and the balance amount
OWP No. 1386/2016 Page 31 of 32payable, and shall be communicated to the petitioner
through registered post within the aforesaid period.
ii) Upon receipt of the aforesaid calculation sheets, the
petitioner shall deposit the balance amount so
determined by the respondents-JDA, within a period of
one month thereafter.
iii) Upon receipt of the aforesaid amount and upon
completion of all requisite codal formalities, the
respondents-JDA shall, within a period of four
weeks thereafter, hand over possession of the land
measuring 5.01 kanals found free from
encumbrances, along with possession of the
equivalent land allotted in lieu of the encroached
portion measuring approximately 0.37 kanals, free
from all encumbrances.
iv) Having regard to the facts and circumstances of the
case, and taking note of the misleading stand adopted
by the respondents-JDA before this Court as well as
the inordinate delay caused in addressing the
grievance of the petitioner, which resulted in
prolonged and unwarranted litigation, this Court
deems it appropriate to impose costs on both counts.
Accordingly, costs of Rs. 25,000/- are imposed upon
the respondents-JDA for misleading this Court, which
shall be borne by the Officer/s who has/have filed
such wrong affidavit or taken contradictory stand with
a view to mislead this Court after conducting proper
enquiry by respondent No. 1.
v) Further sum of Rs. 25,000/- is imposed for the
inordinate delay and unjustified retention of the
petitioner‟s money. The aforesaid amount, in nutshell
to the tune of Rs. 50,000/-, shall be deposited by the
respondents-JDA with the Advocates‟ Welfare Fund
within a period of four weeks from the date of
OWP No. 1386/2016 Page 32 of 32
pronouncement of this order. It is made clear that in
case the costs imposed by this Court are not deposited
by the respondents-JDA within the aforesaid period,
the Registry is directed to list this petition after the
expiry of aforesaid period of four weeks only for this
limited purpose for compliance of this order.
92. The petition stands disposed of in the above terms.
(Wasim Sadiq Nargal)
Judge
Jammu:
25.02.2026
Michal Sharma/PSWhether the order is speaking : Yes
Whether approved for reporting : YesMichal Sharma
2026.02.26 12.52
I attest to the accuracy and
integrity of this document
Jammu