HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 1903/2020
Pronounced on: 31.01.2024
Sanjana Gupta
…. Petitioner/Appellant(s)
Through:- Mr. Sunny Mahajan, Advocate.
V/s
UT of J&K and others
…..Respondent(s)
Through:- Mr. Suneel Malhotra, G.A.
Mr. Rahul Pant, Sr. Advocate with
Mr. Dhruv Pant, Advocate.
CORAM: RS. JUSTICE SINDHU SHARMA, JUDGE
HON’BLE M
JUDGMENT
01. The petitioner has invoked the writ jurisdiction of this Court for
quashing order dated 07.03.2020, whereby Shop Site No. 71 has been
allotted to respondent No. 6 with a further direction to the official
respondents to hand over the possession of Shop Site No. 71 which was
allotted to her husband, deceased Ravi Shanker, being his legal heir.
02. The Directorate of Horticulture Planning and Marketing, issued an
advertisement notice for allotment of shop sites at fruit and vegetable market in
Udhampur vide Advertisement Notice No. DHPM/701/2004/984 dated
14.06.2004. In terms of the notice, offers were invited on the prescribed form
addressed to the Director, Horticulture Planning and Marketing from Vegetable
Growers/ Traders/ Commission Agents/ Joint Firms/ Societies / Federations/
Corporation and other Non-Governmental organizations dealing in the trade for
allotment of shop sites at Fruit and Vegetable Markets in Charaisharief,
Shopian, Handwara, Kainspora, Pressue, Kupwara, Kathua, Udhampur and
Samba as per the terms and conditions given in the allotment notice.
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03. The advertisement notice dated 14.06.2004, was issued for
allotment of shop sites to the eligible Fruit and Vegetable Growers/ Traders/
Commission Agents/ Joint Firms/ Societies / Federations/ Corporation and
other Non-Governmental organizations dealing in the trade for allotment of
shop sites at Fruit and Vegetable Markets in Charaisharief, Shopian, Handwara,
Kainspora, Pressue, Kupwara, Kathua, Udhampur and Samba. In response to
the said notification 274 application forms were received from various
Districts of Jammu Division.
04. The scrutiny of the application, after various committees, was finally
concluded by the Scrutiny Committee constituted by the Director of
Horticulture (P&M), Jammu. The Committee finally recommended 85 eligible
applicants for allotment of shop sites in the first phase held on 13.12.2010.
05. This allotment process was challenged by some of the applicants
who were aggrieved of rejection of their cases by filing writ petitions,
which resulted in the stay of the process of allotment of shop sites at Fruit
and Vegetable Market, Udhampur. These writ petitions, by seventeen
petitioners in nine petitions, i.e., OWP Nos. 1479/2010, 1533/2010,
1539/2010 and OWP Nos. 84/2011, 85/2011, 334/2011, 1076/2011,
1196/2011and OWP No. 947/2012, were considered and disposed of vide
common judgment/order dated 29.08.2013 by directing as under:
“(i) Let individual case of all the petitioners herein be considered by
respondent No. 2 herein for allotment of shop sites provided their case falls
within the eligibility criteria. Since the matter has already been delayed and
some shops are lying vacant, the said exercise shall be carried out within a
month‟s time only from the date, copy of the order is made available to the
concerned by either side.
(ii) District Development Commissioner, Udhampur and Director, Horticulture
Planning and Marketing, Jammu shall look into the grievance of the petitioners
with regard to the allotment of some of the shops out of the slot of 85 shops to
certain ineligible persons as stated hereinabove and ensure that if any shop is
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allotted to any ineligible person, his allotment order be cancelled without any
waste of time. This exercise shall also be carried out within the aforesaid
period only.
(iii) If the concerned Department is considering the other applicants hailing
from other Districts, any of the petitioners, if falls in that category, his case
shall also be considered on the same touchstone.
9. Interim directions stand vacated.”
06. In pursuance to the directions of this Court, the Director, Horticulture
Planning and Marketing issued various notices to all the applicants, who had
applied for allotment, from time to time through print media vide different
notices dated 01.10.2013, 03.10.2013 in the newspaper to register their
grievance for allotment at Udhampur Market. Those applicants who had
filed different writ petitions and other persons who had applied for allotment
of shop sites at newly development Fruit and Vegetable market and were
seeking consideration of their claim were asked to deposit their relevant
record, i.e., Income Tax Returns, Bank Account Statements for a period of
th
five years before 15 October, 2013. The final notice in this regard was
given on 24.10.2013 in Daily Excelsior newspaper inviting their claims for
eligibility as per the notification.
07. In response to the notices issued by the Director, Horticulture
Planning and Marketing, all the grievances received by them were
considered and examined. Report regarding the verification of grievances
received from the applicants for shop sites was submitted to the Deputy
Director, Horticulture (P&M), Jammu on 05.11.2013.
08. After considering all the grievances, representations, and other
documents submitted by the stakeholders in support of their eligibility, the
committee was constituted for reviewing and finalizing the allotment of shop
sites on 07.02.2014, consisting of (i) Deputy Commissioner, Udhampur, (ii)
Director, Horticulture Department (P&M), (iv) Deputy Director, Horticulture
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Department (P&M) (co-opted member), (v) Area Marketing Officer,
Horticulture Department (P&M), Jammu (co-opted member).
09. The Director, Horticulture Planning and Marketing, Srinagar,
approved 110 applications of the applicants belonging to different categories,
i.e., (i) wholesale Fruit and Vegetable traders affected by shifting of market;
holesale dealers in Dry
(ii) those eligible in Growers‟ category; (iii) eligible w
Fruit category; (iv) wholesale Fruit and Vegetable dealers from other
Districts eligible for allotment and; (v) Fruit and Vegetable growers under
Cooperative Marketing Societies (Tandhar, Chenani). The final
recommendation for allotment of shops was only of 85 eligible applicants.
10. The claims of the candidates who did not turn-up despite notices
were unanimously rejected by the Committee. Out of the seven Dry Fruit
Dealers of Udhampur, approved for allotment by the allotment committee in
its meeting convened on 13.12.2010, only two dealers submitted their record
and were recommended for allotment.
11. Thereafter some of the applicants again preferred a writ petition
bearing OWP Nos. 888/2013, 380/2014 and 766/2014 by raising the
grievance regarding their non-consideration in allotment process and
dropping of their names from the list. The petitions, i.e., OWP Nos.
380/2014 and 888/2013 were disposed of by directing the respondents to
consider the petitioners for allotment of shop sites-in-question. OWP No.
766/2014 was disposed of by directing the respondents to consider the
petitioners for allotment in terms of the eligibility criteria.
12. In these petitions, a direction was issued to the respondents to
consider the claim of the petitioners for allotment of shop sites in question.
Pursuant to the direction of this Court, the Committee under the supervision
of the Deputy Director, Horticulture (P&M), Jammu was reconstituted to re-
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verify the credentials of the petitioner on 11.01.2020 by appointing
Tehsildar, HAQ, DC Office, Jammu, AGO Udhampur, AGMO Udhampur,
AMO Udhampur, GMI Reasi, and GMI Udhampur as members. This
Committee was subsequently reframed on 12.02.2020 vide order No. 08 of
2020. The Committee issued notice dated 22.02.2020 and directed the
applicants to remain present for finalization of their allotment. The
Committee, on 02.03.2020, considered the allotment of shop sites No. 21,
33, 58, 68, 65, 71, 76, 115, 116 and 117 by following the procedure of draw
of lots and the same was deferred for seeking the legal opinion. The
petitioners in OWP No. 380/2014 opposed the same on the ground that they
were to be allotted the same shop sites that were allotted to them in 2010.
The respondents meanwhile received an order of stay of allotment of shop
sites No. 33, 77, 76, 58 and 21 passed in OWP No 677/2020.
Subsequently, the allotment was deferred and rest of the six shops were
allotted as per the draw of lots. Accordingly, Shop Site No. 71 was allotted
to respondent No. 5 in terms of order dated 07.03.2020.
13. The contention of the petitioner is that her husband, deceased Ravi
Shanker, was dealing as a commission agent/wholesale business of dry fruits
Mohan Prakash Ravi Shanker'. He expired on
and was the proprietor of „M/s
03.03.2016 and after his death, the business is being run by the petitioner.
The deceased Ravi Shanker had also applied for allotment of a site shop at
new fruit and vegetable market at Kallar Himati, Udhampur, pursuant to
Advertisement Notice No. DHPM/701/2004/984 dated 14.06.2004. The
respondents had accepted the application form and the same was considered
and his name figured at Serial No. 133 in the allotment list for shop site. This
is also reflected in the minutes of meeting dated 13.12.2010.
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14. The site shop bearing No. 71 was duly sanctioned and approved by
the respondents, but the physical possession of the same was not handed
over to her husband and the same was delayed but no modification or
cancellation of allotment was made. Some of the similarly situated persons,
aggrieved of the arbitrary action of the respondents, filed a writ petition
bearing OWP No. 380/2014 titled and
‘Kishori Lal Vaid vs. State of J&K’
sought a direction for allotment of their respective shops in Fruit and
Vegetable Market Udhampur on the basis of their eligibility and entitlement.
This writ petition was taken up for consideration on 15.10.2019, and this
Court had directed the respondents to consider the allotment of shop sites in
question within a period of three months to those petitioners who were
eligible for allotment but had not deposited their relevant record in terms of
notice dated 01.10.2013.
15. It is submitted by the petitioner that her deceased/husband suffered
from various ailments, was bed-ridden for four years, and ultimately
succumbed to disease in the year 2016, due to which he could not follow up
on his case for the allotment of shop sites at Fruit and Vegetable Market,
Udhampur along with similarly situated persons in pursuance to the above
referred notification. The petitioner, thereafter, kept on approaching the
authorities about handing over the possession of shop site No. 71, but the
same was not handed over to her and was delayed on one pretext or another.
16. The respondent No. 5, in response to the application marked to him
by the Deputy Commissioner, Udhampur, for consideration of allotment of
shop sites at Fruit and Vegetable Mandi, Udhampur, on 06.02.2020 has
stated that her case cannot be considered for allotment.
17. As per communication dated 06.02.2020, the petitioner failed to
submit her claim of eligibility for allotment, as such, the same could not be
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considered by allotment the allotment committee. It also states that the claim
of the petitioner could not be considered at par with the applicants who have
received relief by virtue of order of this Court dated 15.10.2019.
18. The contention of the petitioner is that the respondents, vide
impugned order dated 07.03.2020, have made a fresh allotment of shop
site No. 71 to respondent No. 6, ignoring the fact that the same already
stood The impugned order of
allotted to the petitioner‟s husband.
allotment has been assailed by the petitioner on the ground that the
process of allotment of shops had concluded in the year 2010 and Late Sh.
Ravi Kumar being eligible and was allotted Shop No. 71. The
respondents, arbitrarily without cancelling or modifying the same have
allotted Shop No. 71 to respondent No. 6.
19. It is also submitted that the impugned order is also bad as it is against
the principles of natural justice, as the shop has been allotted to respondent
No. 6 without providing an opportunity of being heard to the petitioner and
there is no justification for fresh allotment also. The impugned order of
allotment is arbitrary being contrary to the process of allotment already
undertaken is required to be set aside and Shop No. 71 is required to be
handed over to the petitioner.
20. The respondents No. 1 and 3 in their objections have submitted
that the allotment has been made in terms of the directions of this Court in
different writ petitions and after issuing notices in newspapers for all the
stakeholders to produce the documents in support of their eligibility
claims. The husband of the petitioner did not approach the respondents
despite numerous opportunities, by way of notices to produce relevant
record of eligibility. The Committee decided to cancel his allotment and
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the impugned allotment was made in terms of the direction of the Court in
other set of writ petitions.
21. Learned counsel for respondent No. 7 has opposed the contentions of
the petitioner on the ground that the rights with respect to shop site No. 71
were never transferred in the name of the husband of the petitioner. The
husband of the petitioner has never raised or agitated issue with regard to
allotment or proved his eligibility during his lifetime, as no leasehold rights
were granted in his favour, therefore, the petitioner does not have any right
to question the allotment made in favour of respondent No. 6 or claim the
shop site. The order of allotment does not transfer any rights to the petitioner,
and for transfer of rights, a proper lease deed has to be executed. As per the
advertisement notice dated 14.06.2004, the allottee had to enter into a lease
deed with the respondents on prescribed form and the possession of the shop
will be handed over after the lease is executed.
22. It is further submitted that the husband of the petitioner was not
eligible for allotment of shop site as he did not meet the eligibility criteria
and, therefore, did not pursue the matter during his lifetime. The petitioner,
not being eligible, has filed this writ petition in a belated manner after the
shop site was allotted to respondent No. 6 and a lease deed was executed
between the parties.
23. The notice for allotment of shop sites at Fruit and Vegetable Market,
Udhampur, was issued on 14.06.2004, prescribing the following eligibility
critiera for allotment as under:
st
“i. Fruit Growers having minimum 2000 boxes of annual production for 1
more than two years keeping 2000-2002 as a base year to be certified by the
concerned Area Marketing Officer.
ii. Wholesale Fruit Traders/Commission Agents/Joint partnership firms
(Registered) having five years of experience and minimum 5000 boxes annual
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turnover keeping 1999-2000 as the base year to be identified by the
concerned registered Fruit Associations and further verified by the concerned
Area Marketing Officer of Horticulture Planning & Marketing Department.
iii. Fruit/Vegetable Growers Co-operative Marketing Societies (Registered)
having annually handled minimum 3000 boxes of fruit during last three years
keeping 2001-2002 as a base year to be certified by the concerned Area
Marketing Officer.
”
24. In the initial allotment, which was finalized and questioned by the
petitioners in OWP No. 1479/2010, it was noticed that there were
irregularities committed by the concerned Department while allotting shops
to certain people who were ineligible and leaving the applicants including
the petitioner who were eligible. This Court had, thus, directed the
respondents to consider the individual cases of all the petitioners and also to
look into the grievance with regard to the allotment of shops to certain
ineligible persons and ensure that if any shop is allotted to any ineligible
person, his allotment order will be cancelled without any waste of time.
25. The stand of official respondents is that the husband of the petitioner
was not fulfilling the eligibility criteria as a dealer, therefore, did not produce
his documents before the Committee pursuant to notices issued by them. The
committee constituted pursuant to the directions of this Court dated
07.02.2014 recommended only two dealers out of seven Dry Fruit Dealers of
Udhampur, as only they had submitted their relevant record.
26.
The first issue is whether the petitioner‟s husband was eligible for
allotment in terms of advertisement notice dated 14.06.2004. Perusal of the
record
reveals that the petitioner‟s husband's shop was registered under the
Jammu and Kashmir Shops and Establishment Act, 1966, under
Registration No. LD-SE-UDR-4275, as M/s Mohan Parkash Ravi Shanker,
and the nature of business trade or profession was „Jarti, Buti, and Kiryana
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Merchant‟, therefore, as per the registration, the petitioner did not fall
within the eligibility criteria to apply for allotment of shop sites.
27. Even if the contention of the petitioner is accepted for the same
arguments and held that the petitioner was a commission agent in terms of
the advertisement notice, although he has in his application submitted that
he is a dealer. Thus, for eligibil band
ity of allotment, the petitioner‟s hus
had to show that he had five years of experience and a minimum of 5,000
boxes of annual turnover, keeping 1999-2000 as the base year, to be
identified by the concerned registered fruit associations and further
verified by the concerned Area Marketing Officer of Horticulture
Planning and Marketing Department to enable him to be eligible for
allotment.
28. The record further reflects that the respondents had issued three
notices in various newspapers dated 01.10.2013, asking all the applicants
who had applied for allotment of shop sites at Udhampur Market to register
their grievances with regard to the eligibility of the persons approved for
allotment within a period of three days and also asking them to produce
documents including income tax returns, bank account statements, and
others for a period of five years on or before 15th October, 2013 before the
officers of the Horticulture Planning and Marketing Division to ensure
proper allotment to eligible persons.
29. The husband of the petitioner died in the year 2016, and the
notification was issued pursuant to the judgment of this Court in the year
2015. Subsequently, no steps were taken by the petitioner to produce
documents in support of his claim. This apart, the exercise for allotment
of shop sites was initiated in 2004 and finally culminated in 2023. The
petitioner has produced no document on record to reflect that eligibility of
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her husband for allotment of shop site, in fact, the original documents
produced by the respondents also reflect that he has applied for allotment
of shop site as a dealer, and in the category for eligibility, he had to
produce the certificates in terms of Clause-II, and having failed to produce
such, the petitioner was declared not eligible for allotment of shop site.
neither raised any issue in this regard during his
The petitioner‟s husband
lifetime nor has the petitioner produced record to support his eligibility for
allotment of shop site within time. As the petitioner was
‟s husband
ineligible to apply in terms of the original advertisement notice, therefore,
the petitioner cannot seek allotment for the same.
30. It is well settled proposition of law that merely because the
petition
er‟s husband had applied for allotment of shop, the same does not
confer any right to seek allotment of the same until the eligibility conditions
are satisfied.
31.
The Hon‟ble Apex Court in ‘Bihar State Housing Board and
others vs. Radha Ballabh Health Care a
nd Research Institute Pvt. Ltd.’,
2019 (10) SCC 483, held that:
“This, however, does not mean that the State can never allot land to the
institutions/organizations engaged in educational, cultural, social or
philanthropic activities or are rendering service to the society except by way
of auction. Nevertheless, it is necessary to observe that once a piece of land
is earmarked or identified for allotment to institutions/organizations
engaged in any such activity, the actual exercise of allotment must be done
in a manner consistent with the doctrine of equality. The competent
authority should, as a matter of course, issue an advertisement 1 (2011) 5
SCC 29 incorporating therein the conditions of eligibility so as to enable all
similarly situated eligible persons, institutions/organizations to participate in
the process of allotment, whether by way of auction or otherwise. In a given
case the Government may allot land at a fixed price but in that case also
allotment must be preceded by a wholesome exercise consistent
with Article 14
of the Constitution.”
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32. Learned counsel for the petitioner has submitted that the allotment
husband was never cancelled, therefore,
made in favour of the petitioner‟s
the same could not be issued in favour of any other person. This will not
come in aid of the petitioner as the entire process was reviewed and
recommendations for allotment were made only in favour of the eligible
persons only.
33. In view of the facts and circumstances of this case, this petition is
without any merit and the same is, accordingly, dismissed.
(Sindhu Sharma)
Judge
Jammu:
31.01.2024
Michal Sharma/PS
Whether approved for speaking : Yes
Whether approved for reporting : Yes