Full Judgment
T.S. Doabia, J.
1. A piece of land measuring 38600 sq. feet located at Railway Head Complex was offered to the prospective purchasers in an open auction to be conducted by the Jammu Development Authority (hereinafter as referred to as Development Authority). Petitioner took part in the process. He was the highest bidder. His bid was accepted. He was directed to deposit 1/4 of the amount. Remaining amount was to be deposited in three instalments. Petitioner obtained possession of the site. He started the construction process in the year 1986. There is no dispute so far as this auction and obtaining possession of the land referred to above to the petitioner is concerned.
2. What led the petitioner to file this petition was alleged denial of some promise said to have been extended to him, Petitioner submits that the Development Authority assured the petitioner that adjoining plot measuring 4.5. kanals would also be allotted to him for Hotel purposes. It is stated that the site in question is ideally meant for the above purpose. Proximity to Railway Station existence of other hotel buildings is being projected in this regard. According to the petitioner he came in possession of this site ten years back. As to how he entered in possession is not clear. As the petitioner was unable to get a formal letter of allotment in his favour, he is said to have represented to the then Chief Minister of the State. His application is said to have been processed.
3. It appears that the land in dispute measuring 4-5 kanals was meant for cinema site. As construction of cinema site was not permissible, the respondent authorities expressed a tentative opinion that this site can be used for hotel purpose. The matter was examined by Vice Chairman of Jammu Development Authority. Proposal was brought before Jammu Development Authority for allowing 4-5 kanals of land for construction of Moderate Hotel. It was suggested that the site should be disposed of by open auction. There is, however, absolutely no suggestion any where that site in question was ever to be allotted to the petitioner.
4. Narration of facts as given in the writ petition can be summarised as under :
(i) that the petitioner purchased a piece of land measuring 38,600 sq. feet,
(ii) land was purchased in open auction.
(iii) Petitioner wanted adjoining piece of land also. This is the site in dispute. He made a request for conversion of its user to a hotel site.
(iv) that the proposal was considered at various levels but no positive decision was taken in favour of the petitioner.
5. Objections have been filed by the respondents. It is stated that no right came to vest in the petitioner. It is stated that claim of the petitioner for the site in dispute was expressly rejected. Cabinet decision taken in this regard has been placed on the record as annexure R/A. Land was ordered to be disposed of by open auction. It is further stated that minimum price for the land was fixed at 10 lacs per kanal. State Bank of India had also approached Jammu Development Authority for the site in question. Offer made by the State Bank of India in this regard has been placed on record as annexure R/3. It is categoric stand of the Jammu Development Authority that separate piece of land nothing to do with the land in dispute was allotted to the petitioner. Petitioner has constructed hotel in that plot. This construction has been raised in violation of Town Planning Act. Stand taken is that the site in dispute is ideally located for Banking business. Building constructed by Reserve Bank of India exist on the adjoining plot. The Jammu Development Authority has stated that organised planned development of city does require construction of banking complex and the site in dispute is best suited for this purpose.
6. It is also indicated that the petitioner is defaulter, qua the site measuring 38,600 sq. feet. A sum of Rs. 35 lacs was payable by him on the date when objections were filed. These objections were filed in the month of October 1992. Instead of making payment he has taken resort to law Courts. He wants default committed by him to be regularised. It is stated that when the petitioner started construction on the site allotted to him, he wanted to keep construction material on a piece of land owned by the Development Authority measuring 20x50 feet. Permission was granted. This permission was only for six months. Petitioner did not vacate the premises. Eviction proceedings were initiated against him. He has filed a civil suit seeking permanent injunction. This is said to be pending in the Court of Munsiff of Jammu. Appeal against the interim order is also said to be pending in the Court of Second Additional Judge. Permission which was granted to the petitioner for keeping building material has been placed on the record as annexure R/C. The petitioner did not abide by the terms of the permission. It is under these circumstances it is submitted that the petitioner has no right to seek allotment in question. This stand taken is :
(i) that the matter regarding allotment of the site in question was considered by the State Cabinet. This prayer was declined.
(ii) Petitioner is defaulter-qua plot measuring 38,600 sq. feet.
(iii) site in question is not suitable for hotel site as there already exist two hotels. Requisite infrastructure to meet traffic rush, parking places etc. is not available.
(iv) site in question would be ideal for locating a Bank building. This is because building of Reserve Bank of India already stands constructed.
(v) Assurance was never given to the petitioner that the site in dispute would be allotted to him.
(vi) that the petitioner has encroached upon a piece of land and has perpetuated his illegal possession by taking recourses to the filing civil suit. It is stated that only a licence was created in favour of the petitioner for limited period.
7. It is under circumstances, it is stated that the petitioner is not entitled to any relief. No legal right of his has been infringed.
8. It is further stated that before a writ of mandamus can be issued a citizen must establish some legal right. In this case it is urged that as no legal right has been established therefore none can be enforced. As such it is submitted that no mandamus can be issued to the Jammu Development Authority to allot the site in dispute to the petitioner. His prayer in the form of representation in this regard was considered. This was rejected. Cabinet decision so taken has been placed on the record. The petitioner never came in possession of the site in dispute. As petitioner has failed to establish any legal right of his own, writ directing Jammu Development Authority to allot the site in question to the petitioner be not issued.
9. It be seen that question as to whether site has to be allotted to petitioner or not is a matter on which decision is basically to be taken by the Jammu Development Authority. Planned organised development of the area is a paramount consideration. This is to be taken note of and decided upon by Jammu Development Authority. This authority has taken a categoric stand that another hotel site is not required at the place. It is stated that this would lead to additional traffic in the area and this additional traffic cannot be absorbed by the existing system. Existing facilities such as parking place etc. are not sufficient. This aspect of the matter has been considered by Jammu Development Authority. A decision has also been taken by State Cabinet for not allotting the site in question for hotel purposes. Thus the stand taken by the Jammu Development Authority is :
(i) the petitioner was never allotted the site in question.
(ii) He never came in possession of the site.
(iii) His representation was rejected by the State Cabinet.
(iv) the Site is ideally meant for a complex from where a bank should operate.
(v) Site is not suitable for a hotel. Two hotels are already in existence. The infrastructure existing in the locality cannot take additional burden.
10. I am of the opinion that above stand taken by the Jammu Development Authority is a stand to which no exception can be taken. Whether the planned Development requires another hotel or not in the area is a question which is to be decided by the above authority. This Court would not sit as a Court of appeal and substitute its opinion for the one expressed by the above authority. A decision so taken is bona fide. As no legal right of the petitioner has been violated, therefore no mandamus can be issued.
11. Before parting with case it be observed that an interim order was passed by this Court. The Supreme Court of India in case reported as Mahadeo Savlaram Shelke v. Pune Municipal Corporation (1995)3 SCC 33 : (1995 AIR SCW 1439) has observed that whenever injunction is granted in such a situation the fact that the public purpose is likely to suffer should be taken note of. It was further indicated that in the event of person moving the Court is unsuccessful in the legal battle then there should be enough safeguard for protecting the right of the person against whom injunction has operated. The observation made by the Supreme Court of India are as under (at Pages 1445-1446; of AIR SCW):
'While exercising discretionary power, the Court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the Court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the Court. The pecuniary jurisdiction of the Court of first instance should not impede nor be a bar to award damages beyond its pecuniary jurisdiction. In this behalf the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the Court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the Court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariably sought for in laying the suit in a Court of lowest pecuniary jurisdiction even when the claims are much larger then the pecuniary jurisdiction of the Court of first instance may be for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the Court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the Court and adequately compensate the damages or injury suffered by the defendant by act of Court at the behest of the plaintiff.
Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction for 24 years the public purposes was delayed. As consequence execution of the project has been delayed and the costs now stand mounted. The Courts in the cases where injunctions are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief. In the event of the plaintiffs losing the suit ultimately, they should necessarily bear the consequences, namely escalation of the cost or the damages the Corporation suffered on account of injunction issued by the Courts.'
12. This matter is left as it is.
13. However, the trial Court where the suit filed by the petitioner is pending would take notice of above decision and now take appropriate remedial measures.
14. It is also worthwhile to mention that the Jammu Development Authority in this case has taken a just and proper decision for the planned development of the city. This is a must. Jammu Development Authority as well as Municipal authorities would see to it that whenever any construction is permitted to be raised, there is sufficient infrastructure for parking vehicle. This facilities should be provided in the complexes to be raised by business houses. Fire fighty facilities should also exist. Fire tender should be in a position to have free access. This aspect of the matter should be taken note of by all agencies dealing with the development of the city. Some of the bazars of Jammu are blocked by parked vehicles. What to talk of fire tender, it is difficult to walk on foot, Jammu Development Authority an also Municipal authorities shall show their concern for this and take remedial measures. Parking of vehicles should not be there in the narrow bazars. Steps should be taken to provide separate parking places.
15. Copy of this order be sent to District Judge Jammu. This be circulated among the other officers. They would take guidance from the law laid down in Mahadev Savlaram Shelke's case in matters involving grant of injunctions.
16. This petition is found to be without merit and is dismissed.