Punjab-Haryana High Court
Samarth Raj Mehta And Anr vs State Of Punjab And Ors on 15 September, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 15.09.2014
CWP No.13248 of 2007(O&M)
Samrath Raj Mehta and another ...Petitioners
Vs.
State of Punjab and others ...Respondents
Present: Mr.S.R.Mehta - petitioner No.1 in person and as an Advocate
for the other petitioners.
Mr.P.S.Bajwa, Addl. A. G. Punjab.
Mr. Rajiv Atma Ram, Sr. Advocate with
Mr. Sube Sharma, Advocate, for respondent no.3
CWP No.76 of 2011(O&M)
Nav Parkash Joshi and another ...Petitioners
Vs.
State of Punjab and others ...Respondents
Present: Mr.S.R.Mehta, Advocate, for the petitioners.
Mr.P.S.Bajwa, Addl. A. G. Punjab.
Mr. Sanjeev Sharma, Sr. Advocate, with
Mr. Vikram Vir Sharda, Advocate, for respondent.
CWP No.1717 of 2013(O&M)
Ajay Bakshi ...Petitioner
Vs.
State of Punjab and others ...Respondents
Present: Mr.S.R.Mehta Advocate for the petitioners.
Mr.P.S.Bajwa, Addl. A. G. Punjab.
Mr. Rupinder Khosla, Sr. Advocate, with
Mr. Aman Sharma, Advocate, for GMADA.
Mr. Amrinder Singh, Advocate for respondent no.2
Mr. S.K.Monga, Advocate for respondent no.3
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Chandigarh
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CWP No.19207 of 2011(O&M)
Samrath Raj Mehta and another ...Petitioners
Vs.
State of Punjab and others ...Respondents
Present: Mr.S.R.Mehta petitioner no.1 in person and as an Advocate for
the other petitioners.
Mr.P.S.Bajwa, Addl. A. G. Punjab.
Mr. Rupinder Khosla, Sr. Advocate with
Mr. Aman Sharma, Advocate, for GMADA
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
HEMANT GUPTA, J.
This order shall decide aforementioned four writ petitions filed by the applicants desirous of obtaining plots from the private developers such as M/s EMAR MGF Land Pvt. Ltd. - respondent No.3 in CWP No.13248 of 2007. For facility of reference, the facts are taken from the said writ petition.
Petitioner No.1 is an Advocate, who is appearing in person though he has put in appearance on behalf of other petitioners as their advocate.
The claim of the petitioners is that they applied for allotment of plots advertised by respondent No.3, a private company permitted to sell plots in terms of Punjab Apartments and Property Regulations Act, 1995 (for short "the Act"). The petitioners claim that respondent No.3 is an instrumentality and agency of Government of Punjab as it is conducting all operations under the supervision and authorization of Punjab Urban VIMAL KUMAR Planning Development Authority.
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The grievance of the petitioners is that they applied for a plot in Sector 105, Mohali but has been given plot in Sector 109, Mohali. It is inter alia alleged that letter of intent and agreement to sell in respect of plots of Sector 109, Mohali was signed prior to grant of licence to respondent No.3, therefore, it is a pre-launch allotment violating the provisions of Sections 5 and 6 of the Act.
At the very outset, learned counsel for respondent no.3 has pointed out that CWP No.19291-2011 titled 'Veena Kumari & another Vs. State of Punjab & others' in respect of other private developers such as M/s JTPL (one of the respondents in present set of writ petitions) was dismissed by Division Bench of this Court on 14.10.2011. Petitioner no.1 was the counsel for the petitioner in the aforesaid case. It has been held therein that the dispute raised by the petitioner is purely of private nature, having no public law element. It was held that if respondent no.3 has violated any contractual obligation, the petitioners have ample remedy under the general law and that if respondent No.3 has violated the terms and conditions of the licence granted to it, the petitioners can approach the authorities under the Punjab Regional and Town Planning and Development Act, 1995 and/or the Punjab Apartments and Property Act, 1995, but no writ petition is maintainable.
Petitioner No.1, who is appearing as counsel for the others, argued that said judgment is per incuriam as the Division Bench neither considered the objects and reasons of enacting the said Act nor Section 35 of the Act. He has also argued that respondent no.3, in the present writ petition, is a foreign company and has violated conditions of Press Note No.4 (2001 series) permitting foreign direct investment in certain sectors including in VIMAL KUMAR 2014.09.29 12:44 I attest to the accuracy and real estate.
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We find that the present set of writ petitions is gross abuse of process of law, after the writ petition claiming similar relief stands dismissed by the Division Bench of this Court. The Division Bench has noticed the relevant statute and recorded a categorical finding that no writ petition is maintainable against respondent No.3, who is neither performing any public function nor discharging a public or statutory duty. The petitioners in the aforesaid case have filed a special leave petition before the Supreme Court, which was also dismissed on 17.07.2012.
It may be noticed that petitioner No.1, who appears in person today and as counsel for the other petitioners, was the counsel for the petitioner in the aforesaid writ petition. It was the bounded duty of the petitioner as a counsel representing the petitioner to raise all arguments at the time of hearing of the earlier writ petition. Since the writ petition was found to be not maintainable, the petitioner has now sought to raise an additional ground to say that the judgment is per incuriam simply because an argument was not raised. Once the Court has passed an order considering the provisions of statute, even some provisions are not referred, it is presumed to be in the knowledge of Bench.
The Hon'ble Supreme Court in State of Bihar Vs. Kalika Kuer @ Kalika Singh & others AIR 2003 SC 2443 was examining the Full Bench decision of Patna High Court holding that different aspects of the validity of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 were not raised before the earlier Full Bench judgment in Ramkrit Singh Vs. State of Bihar AIR 1979 Patna 250. The Court found that the judgment cannot be said to be per incuriam only for the reason that the possible aspect of the matter was not considered or not raised VIMAL KUMAR 2014.09.29 12:44 I attest to the accuracy and integrity of this document Chandigarh 5 before the Court or more aspects should have been gone into by the Court deciding the matter earlier. The Court observed as under:
"10. Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that decision in the case of Ramkrit Singh Vs. State of Bihar AIR 1979 Patna 250 was rendered per incuriam. On the other hand, it was observed that in the case of Ramkrit Singh (supra) the Court did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition."
We also do not find that Section 35 of the Act has any relevancy to the issues raised by the petitioners. Section 35 of the Act relates to 'bar of jurisdiction of the Civil Court', whereas Section 35 of the Punjab Regional and Town Planning and Development Act, 1995 deals with 'power of the Authority to require local authority to assume responsibility of amenities in certain cases'. Both the situations are not arising in the present set of cases. We also find that neither the objects and reasons enacting a VIMAL KUMAR 2014.09.29 12:44 I attest to the accuracy and integrity of this document Chandigarh 6 Statute are relevant to interpret the provisions of the Act, more so when the plain language of the Statute does not require any external aid.
The Press Note permitting for foreign direct investment does not render respondent No.3 as an agency or instrumentality of a State. The press note is a regulating provision permitting investment in a specified area including real estate. Any violation of the press note, if any has to be brought to the notice of the Finance Ministry. The argument raised in the present writ petition is another desperate attempt to get over the binding judgment. The petitioners were allotted plots in response to their applications for the allotment of plot. The petitioners cannot allege violation of the Press Note, after they sought benefit from respondent No.3.
Insisting upon the present writ petitions in the face of the order passed by the Division Bench is an abuse of process of law and is wastage of public time. Consequently, all the writ petitions are dismissed with costs of Rs.25,000/- in each case. Costs shall be paid within one month to Punjab State Legal Services Authority failing which the petitioners shall be liable to be proceeded against for contempt of Court.
(HEMANT GUPTA) JUDGE (MAHAVIR S. CHAUHAN) JUDGE September 15, 2014 mamta/Vimal VIMAL KUMAR 2014.09.29 12:44 I attest to the accuracy and integrity of this document Chandigarh