Punjab-Haryana High Court
Gurmukh Singh vs State Of Punjab & Ors on 27 April, 2009
Equivalent citations: AIR 2010 (NOC) 144 (P. & H.)
Author: Surya Kant
Bench: Surya Kant
CWP NO. 4242 OF 1985. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.W.P. No. 4242 of 1985.
Date of Decision: 27th April, 2009.
Gurmukh Singh ....Petitioner through
Mr. Man Mohan Singh, Sr. Advocate
with Mr. M.P.Gupta, Advocate.
Versus
State of Punjab & Ors. ..Respondents through
Mr. G.S.Atttariwala, Addl.AG, Punjab.
Mr. T.S.Gujral, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J.
This order shall dispose of CWP Nos.4242, 5631 to 5633 of 1985, 2127 of 1986 and 1505 of 1989 as common questions of law and facts are involved in these cases. For brevity, the facts are being extracted from CWP No. 4242 of 1985.
[2]. The petitioner - Gurmukh Singh, [since deceased and is represented by his legal heirs] seeks quashing of Memo dated 27.12.1984 [Annexure P-2] whereby his claim for allotment of a plot in the category of Local Displaced Persons, has been turned down. While questioning the vires of Rule 2[a] and 7[1][a] and [b] of the Utilization of Allotment of Plots by the Improvement Trust Rules, 1975, the petitioner has also sought a direction to the Improvement Trust, Ropar to allot him a residential plot.
[3]. The petitioner along with 15 others purchased land comprised in Kh. Nos.18/9,18/2/4,18/13/1,18/8/2 in January, 1972 situated in Ropar Town, with a view to construct their residential CWP NO. 4242 OF 1985. ::-2-::
houses. The aforesaid land was surrounded by a residential colony of the District Administration Officers, Hospital, Shivalik Public School and Ram Bagh Colony etc. The petitioner and his co-purchasers divided the purchased land into 11 plots of one Kanal each and 8 plots of half Kanal each. These plots were surrounding an open space measuring 525 square yards which was to be developed as a park. They named the proposed residential colony as "Shivalik Colony".
[4]. On 30.7.1973 the Improvement Trust, Ropar held a meeting and resolved to frame a Development Scheme covering about 100 acres of land by acquiring the same. The proposed Scheme also included the land which the petitioner and his 15 co- purchasers had purchased in January, 1972. Pursuant thereto, a notice under Section 36 of the Punjab Town Improvement Act, 1922 [for short 'the 1922 Act'] was got published three times in the Daily Tribune dated 11.8.1973, 21.8.1973 and 28.8.1973. The aforesaid Scheme was finally sanctioned by the Government of Punjab vide Notification issued under Section 46 of the 1922 Act on 17.12.1974 [Annexure P-8].
[5]. The undisputed facts are that even before resolving to frame the Scheme on 30.7.1973, the respondent - Improvement Trust had, vide its resolution No. 2 dated 15.7.1973, adopted the Rules framed by the Ludhiana Improvement Trust under Section 4 of the 1922 Act. Thereafter, vide Resolution No. 5 dated 12.5.1974, the respondent - Improvement Trust framed its own Rules and forwarded the same to the State Government for approval. It appears CWP NO. 4242 OF 1985. ::-3-::
that besides questioning the very formation of the Development Scheme by the Improvement Trust, the petitioner simultaneously sought enhancement of compensation for his acquired land and filed a Reference Petition under Section 18 of the Land Acquisition act, 1894. He also applied for allotment of a residential plot being the Local Displaced Person [LDP]. As no action was taken on the petitioner's application for allotment of a plot or for making reference under Section 18 of the Land Acquisition Act, he approached this Court in CWP No. 1258 of 1984 seeking quashing of the Development Scheme itself as well as a direction to make reference under Section 18 of the Land Acquisition Act and to rehabilitate him in terms of Section 26 of the 1922 Act. The aforesaid writ petition was disposed of by a Division Bench of this Court vide order dated 26.9.1984 in the following terms:-
"Three relies are claimed in this petition, namely, [i] the quashing of the scheme, [ii] a Mandamus for making reference u/s 18 of the Land Acquisition Act and [iii] rehabilitating the petitioner under Section 26 of the Punjab Town Improvement Act. So far as the first relief is concerned, the scheme in this case was framed in the year 1973 and notified in the year 1975. There is no reason to entertain the grievance after nine years of the notification u/s 42 of the Punjab Town Improvement Act. As regards the making of the reference, the learned counsel for the Improvement Trust has undertaken that the reference will be made within two months from today. Similarly, it has been stated at the Bar that the case of the petitioner for his rehabilitation under Section 26 of the said Act would be considered within four months.
In view of the above undertakings, there is no need CWP NO. 4242 OF 1985. ::-4-::
to pass any order with respect to the second and third reliefs and this petition is accordingly disposed of. No costs".
[6]. It is thereafter that the respondent - Trust passed the impugned Memo-cum-Order dated 27.12.1984 [Annexure P-2] and turned down the petitioner's claim for allotment of a residential plot on the ground that since he was not the owner of the land for a period of two years prior to the first publication of the notice under Section 36 of the 1922, the petitioner did not fall within the category of LDP as defined under Rule 2[a] of the Utilization of Land and Allotment of Plots by the Improvement Trust Rules, 1975 [for short 'the 1975 Rules], framed by the State of Punjab in exercise of its powers under Section 73 of the 1922 Act.
[7]. Aggrieved, the petitioner has approached this Court. [8]. The petitioner's precise case is that his eligibility for allotment of a plot in the category of LDP has to be determined as on the date when the notice under Section 36 of the 1922 Act was issued and that the allotment is required to be made in accordance with the Ludhiana Improvement Trust Land Disposal Rules, 1964 [for short 'the 1964 Rules] which had been adopted by the Improvement Trust, Ropar vide Resolution dated 15.7.1973 and were in vogue at that relevant time.
[9]. Relying upon the expression 'LDP' as defined under Rule 2[b] of the 1964 Rules, the petitioner claims that there was no requirement of at least two years old ownership preceding the notice under Section 36 of the 1922 Act. According to the petitioner, till the 1975 Rules came into force vide notification dated 18.9.1975, the CWP NO. 4242 OF 1985. ::-5-::
1964 Rules were holding the field and in terms thereof, he was fully eligible.
[10]. The Improvement Trust and Municipal Council, Ropar have filed their respective counter-affidavits. Respondent No. 2 - Improvement trust, besides taking preliminary objections regarding delay and laches and concealment of facts, has further averred that the petitioner had applied for allotment of a plot as LDP on 11.8.1981 in accordance with the provisions of the 1975 Rules. It is maintained that before any allotment could be made to the LDPs under the 1964 Rules, the State Government notified the 1975 Rules which have an over-riding effect over the Rules, if any, framed by the Ludhiana Improvement Trust and adopted by the respondent - Trust. [11]. Before adverting to the merits of the issues involved, it would be appropriate to deal with the preliminary objections raised on behalf of the respondent - Improvement Trust. It was urged that the petitioner's land was acquired in the year 1973-74 whereas he applied for allotment of the plot as a LDP in the year 1981. The writ petition has been filed in the year1985 and, thus, the claim of the petitioner suffers from delay and laches. There is no dispute over the fact that the acquisition process stood finalized on 16.12.1974 when the Development Scheme was duly sanctioned by the State Government under Section 42 of the 1922 Act. It is also not in dispute that at that point of time, the 1964 Rules as adopted by the respondent - Improvement Trust were in force. Rule 6 of the 1964 Rules categorically contemplates that the Chairman of the Trust shall ask the Land Officer to publish a Public Notice in an appropriate CWP NO. 4242 OF 1985. ::-6-::
form ........ inviting applications from LDPs in Form 'A'. On a query, learned counsel for the Improvement Trust could not dispute that no Public Notice inviting applications from the LDPs was ever issued by the Improvement Trust prior to the year 1981. The petitioner had, thus, no occasion to apply and stake claim for allotment of the plot as a LDP. It is also beyond any doubt that the application moved by the petitioner in the year 1981 has been disposed of vide the impugned order dated 27.12.1984 [Annexure P-2] only in deference to the undertaking given before this Court in CWP No. 1258 of 1984 decided on 26.9.1984. The petitioner has approached this Court within a period of less than one year after rejection of his claim, therefore, the objection regarding delay and laches on the part of the petitioner is wholly untenable and is accordingly rejected. [12]. Similarly, the objection against maintainability of the writ petition too is misconceived. In the previous writ petition [CWP No. 1258 of 1984], the petitioner's claim for allotment of the plot being LDP was never decided on merits. The filing of the said writ petition neither attracts the principle of res-judicata nor it estops the petitioner from impugning the order dated 27.12.1984 [Annexure P-2]. [13]. This takes us to one of the main issue, namely, as to whether or not the petitioner is a LDP and has got locus standi to claim allotment of a plot in that category?
[14]. Rules 2[b], 5 and 6 of the 1964 Rules as adopted by the respondent - Improvement Trust on 15.7.1973, are relevant in the context of the present controversy and the same read as follows:-
"2[b] Local Displaced Person means a person whose CWP NO. 4242 OF 1985. ::-7-::
land has been acquired by the Trust for the execution of any scheme under the Punjab Town Improvement Act, 1922.
5.[i] The Trust shall there after fix the free-hold price or premium and/or ground rent at the market rates for all land available for disposal. Such fixation shall be made either by plot or far a group of plot or for an area as a whole.
[ii] The Trust shall similarly six a concessional price at which land comprised in a scheme will be sold to local displaced person. The concessional price shall not be less the cost price of the land to the Trust, i.e., the estimated cost of acquisition of the land plus development charges etc. Not more than one plot of land when demarcated in to plots, shall be sold to a local displaced person. The size of the plot to be allocated shall be in keeping with the quantum of land acquired and as for as possible, he will be accommodated near his own land. Only after the claims, if any, of this category of persons have been met, the land shall be sold to others.
6. The Chairman shall ask the Lands Officer to issue a public notice in an appropriate form in the manner prescribed by rules 9, 10 and 11 appearing hereinafter inviting applications from local displaced persons in Form 'A'."
[15]. It may be seen that a person whose land had been acquired by the Trust for execution of any Scheme under the 1922 Act is defined as a "LDP" irrespective of the period during which he remained owner of the acquired land. It is further apparent that the Trust is required to keep certain plots earmarked for the LDPs which are to be sold at a concessional price. It was only after satisfying the claims of the the LDPs that the left out plots could be sold to others. CWP NO. 4242 OF 1985. ::-8-::
The Rules further contemplate that the applications from all the LDPs are required to be invited in the prescribed Form and through a Public Notice. It is implicit in Rule 2[b] of the 1964 Rules that once the land has been acquired for the execution of a Scheme under the 1922 Act, the affected land owner becomes a LDP.
[16]. The expression 'acquisition', in my considered view, connotes a final decision taken by the Competent Authority and not a mere proposal under Section 36 of the Act. It would necessary mean that as soon as the State Government sanctions the Scheme and issues a notification in exercise of its powers under Section 42 of the 1922 Act, the acquisition attains finality. The date of issuance of notification under Section 42 of the 1922 Act shall, thus, be the relevant date to determine the status of a previous landowner as "LDP". I say so for the reason that Sections 36 and 42 of the 1922 Act are some-what similar and akin to the provisions of Sections 4 and 6 of the Land Acquisition Act. The Improvement Trust's resolution or consequential notice under Section 36 of the Act is merely a proposal for acquisition which may not necessarily materialize in every case. However, once the Government approves and accords sanction to the Scheme, followed by a notification under Section 42 of the 1922 Act, the Scheme and the acquisition both attain finality.
[17]. In the case in hand, the notification under Section 42 of the Act was issued on 16.12.1974. There is no denial to the fact that on that day, the 1964 Rules as adopted by the respondent Trust were applicable. As has been noticed earlier, the 1975 Rules framed CWP NO. 4242 OF 1985. ::-9-::
by the State Government were notified on 18.9.1975 only and as per Rule 1[2] thereof, these Rules came into force at once i.e., with effect from 18.9.1975 only.
[18]. The record further reveals that soon after resolving to frame the Development Scheme on 30.7.1973, the respondent Trust issued a Public Notice on 21.8.1973 in the Daily Newspaper "The Tribune" inviting applications for allotment of plots even when the Scheme was yet to be sanctioned or notified by the State Government. However, no applications from the LDPs were invited in total disregard to the 1964 Rules which contemplated that firstly the plots were required to be allotted to the LDPs and only left out plots could be offered to the general public. Had the respondent - Trust followed the Rules and firstly invited applications from the LDPs, the petitioner who was very much eligible would have got allotment of a plot in that category on a concessional price in terms of Rule 5[2] of the 1964 Rules.
[19]. At this stage, Rule 2[a] of the 1975 Rules may also be referred to which reads as follows:-
"[a] 'local displaced person' means a person who is the owner of a property acquired by the Trust for the execution of a Scheme and has been such owner for a continuous period of two years immediately before the first publication of the Scheme by the Trust under Section 36 of the Punjab Town Improvement Act, 1922".
[20]. It is true that 1975 Rules have repealed the 1964 Rules, however, with prospective effect only. These Rules could be applied in those cases only where acquisition of land for a Development CWP NO. 4242 OF 1985. ::-10-::
Scheme has attained finality after these Rules came into force. The 1975 Rules can not be interpreted to rob the petitioner of his eligibility acquired under the 1964 Rules. Since the subject Development Scheme was sanctioned, notified and the land for its implementation was acquired before the 1975 Rules came into force, there can be no escape but to hold that the eligibility of the LDPs for the purpose of allotment of plots is required to be determined in accordance with the Rules which were in force at the time of finalization of such acquisition. As a necessary corollary thereto, it is held that the petitioner's eligibility for allotment of a plot as LDP has to be determined in accordance with the 1964 Rules and not the 1975 Rules.
[21]. The plea taken by the respondent Trust that the petitioner had applied on 11.8.1981 much after the 1975 Rules came into force and therefore, he can not claim eligibility under the 1964 Rules, has no legal or factual basis. It is not the case of the respondents that they ever invited applications from the LDPs prior to 1981. The petitioner was given no opportunity prior to 1981 to seek allotment as LDP. So far as the application under the 1975 Rules is concerned, a Photostat copy thereof has been perused. The application is in a Prescribed Format, i.e., Form 'A'. Since by that time the 1975 Rules had come into force, there is a mention of these Rules in para no. 3 of the Prescribed Form 'A'. However, merely by applying in that prescribed format can not estop the petitioner as there can be no estoppel against law. If the petitioner is entitled for determination of his eligibility as LDP under the 1964 Rules, submission of application CWP NO. 4242 OF 1985. ::-11-::
in a wrong format, does not take away his said legal vested right. [22]. Learned counsel for the respondent Trust has relied upon a judgment of the Supreme Court in Chairman, Ludhiana Improvement Trust v Kanwaljit Singh & Ors. 2004 LAR, 5 wherein their Lordships have held that exchange of correspondence between the Improvement Trust and the State Government can not be taken as a decision to allot plots. No such plea has been taken by the petitioner in the case in hand. Similarly, reliance placed by learned counsel for the respondent Trust on a recent judgment of the Apex Court in K.D.Sharma v Steel Authority of India Ltd. & Ors. 2008 AIR SCW, 6654, wherein their Lordships have held that no equitable relief is to be granted if a petitioner approaches the Court suppressing the material facts, is also not attracted to the facts and circumstances of the present case. He has also referred to a recent judgment of the Supreme Court in Swaika Properties [P] Ltd. And Anr. V State of Rajasthan & Ors. [2008] 4 SCC, 695 on the question of delay and latches. That was a case where their Lordships have held that no writ petition challenging the acquisition of land after the award had been passed under Section 11 of the Land Acquisition Act, 1894 should be entertained. In the present case, the petitioner has no where challenged the acquisition of his land. Likewise, the principle reiterated by their Lordships in U.P.Jal Nigam & Anr. V Jaswant Singh & Anr. [2006] 11 SCC, 464 that the Court would come to the rescue of a vigilant person only, is not an issue involved in the present case.
[23]. For the reasons afore-stated, the impugned order dated CWP NO. 4242 OF 1985. ::-12-::
27.12.1984 [Annexure P-2] whereby the petitioner's claim for allotment of a residential plot as LDP has been rejected on the solitary ground that he does not fall within the definition of a LDP as defined in Rule 2[a] of the 1975 Rules, can not sustain and is hereby quashed. It is directed that the petitioner's claim for allotment of the residential plot in the category of LDP shall be re-considered by treating him eligible as per the definition of LDP given in Rule 2[b] of the 1964 Rules, however, subject to fulfillment of other eligibility conditions by him. It is further directed that in case no plot is available with the respondent Trust in the Development Scheme in question, the claim of the petitioner shall be considered for allotment of a plot of equivalent size in some other Scheme.
[24]. The question, however, still may arise as to what should be the concessional price on which the plot deserves to be allotted to the petitioner in terms of Rule 5[1] of the 1964 Rules? The Improvement Trust is a public authority and its funds are meant to be utilized for the development activities of the township. The revenue earned by it through profiteering, if any, is also required to be siphoned towards the planned development. The trust, therefore, caters to the public interest. It is true that the respondent Trust has denied the petitioner a plot which ought to have been allotted in the year 1981 at the prevalent rate. However, it is also a fact that the amount which the petitioner was required to deposit towards the sale consideration if the plot would have been allotted to him in the year 1981, remained with him only. In these circumstances, it will be too inequitous and unfair to direct the respondent Trust to allot the plot at CWP NO. 4242 OF 1985. ::-13-::
the concessional rates of the year 1981. In order to minimize the loss which the respondent Trust is likely to suffer, it is directed that if the petitioner is found eligible for allotment of a plot, he/his legal heirs shall be offered the same at the rate at which the respondent Improvement Trust had lastly sold any residential plot in any Development Scheme. The respondent - Trust would reconsider the case of each of the writ petitioner under the 1964 Rules and then determine as to whether or not they are eligible for allotment of plot[s] as LDPs.
[25]. The needful shall be done within a period of four months from the date a certified copy of this order is received.
[26]. Disposed of. No costs. April 27 , 2009. ( SURYA KANT ) dinesh JUDGE