Punjab-Haryana High Court
Chandigarh Police Cooperative Housing ... vs Chandigarh Administration on 27 September, 2000
Equivalent citations: AIR2001P&H230, AIR 2001 PUNJAB AND HARYANA 230, (2001) 1 RECCIVR 222, 2001 HRR 3 77, (2001) 2 PUN LR 35
Author: K.S. Garewal
Bench: K.S. Garewal
JUDGMENT Jawahar Lal Gupta, J.
1. Chandigarh Police Cooperative Housing Society is the petitioner. It prays that the order dated November 29,1996, passed by the Estate Officer, Chandigarh, be quashed. By this order, the Chandigarh Administration has rejected the claim of the petitioner for the allotment of land for construction of houses/flats. It has alsoadvised it to "apply for refund of money" deposited by it in the year 1990. It further prays that a writ of mandamus be issued, directing the respondents to hand over the possession of the land. A few facts, as relevant for the decision of this case, may be briefly noticed.
2. In the year 1979, the Chandigarh Administration floated a scheme called the "Chandigarh Allotment of Land to the Cooperative Housing Building Society Scheme, 1979." The petitioner-Society submitted an application for the allotment of land measuring 5 Acres. Vide letter dated Deccmber 23, 1988, a copy of which is at Annexnre PI, the Finance Secretary informed the Estate Officer that it lias "now been decided to allot land measuring 5 seres in Sector 39-B to the above society for construction of flats for 200 members of the Society at the rate of 175/- per sq. yard on lease hold basis for 99 years, subject to....." Thereafter, on January 6, 1989 the Chief Architect and Secretary. Department of Architecture, informed the Superintending Engineer, Constmction Circle No. II, of the decision regarding the allotment of land to the petitioner-Society. A copy of this letter is on record as Annexure P2. On August 10, 1989 the Chandigarh Administration addressed a communication to the President of the petitioner-Society. By this letter the decision to "transfer on lease hold basis an area measuring 5 acres approximately in Sector 39-B, Chandigarh, for construction of flats for 200 members of the Society at the rate of Rs. 175/- per sq. yard..." was communicated. A copy of this letter is at Annexure P3 with the writ petition. On December 12, 1989 the petitioner as asked "to make payment of Rs. 4,23, 554/-representing 10% of the premium of the site." It was further stated that "the tentative price of the land is Rs. 42,35,535/- as already intimated vide letter dated 10.8.1989." This letter is on record as Annexure P4.
3. On receipt of the above communications, the petitioner forwarded a draft for an amount of Rs. 9,25,000/- to the Estate Officer, vide letter a copy of which is on record as Annexure P5. This amount was admittedly received by the respondents on April 4, 1990. The petitioner alleges that after making the deposit, it sent various communications to the respondents, requesting for the possession of the land. Copies of two such representations dated July 12,1990 and December 12,1991 have been placed on record as An-nexures P6 and P7. On January 23, 1992, the Administration informed the petitioner regarding payment and submission of certificates etc. A copy of this letter is at Annexure P8. On August 22, 1995 the Finance Secretary sent a communication, a copy of which is at Annexure P10, to the Estate Officer. He pointed out that the matter regarding the allotment of land had been referred to the Legal Remembrancer. Vide his communication dated July 28, 1995, the Legal Remembrancer had advised that the 1979 Scheme "has been repealed. However, the allotments already made under this scheme were to continue to be governed by the scheme of 1979. Since in the instant case no allotment was made under the Scheme of 1979, now allotment, if decided to be made, is to Oe done under the new Scheme of 1991." In view of this advice, the Estate Officer was asked to send a proposal for taking further action. The reply was sent by the Estate Officer vide his letter datedNovember 30, 1995. A copy of this letter is at Anhexure P11. In this communication it was, inter alia, observed ihat "in the instant case the allotment letter could not be issued due to the formalities, i.e., filing up of application forms/affidavits by the individual membets of the Society as well as for want of non-emcumbrance certificate/area list from the Engineering Department of Chandigarh." After noticing the relevant facts, he recommended that "the allotment in the instant case may please be made under the Chandigarh Allotment of Sites to Co-operative Housing Societies Scheme, 1979". However, quite contrary to the expectations, the Administration sent a letter dated November 29, 1996 to the President of the petitioner-Society, in which ii was observed as under :-
"Reference your letter No. OS/HBS/CHG dated 18.5.1994. on the subject cited.
The Finance Secretary, Chandigarh, vide his office memo. No. 2023-UTFI(3)- 95/10369 dated 20.8.1996 has intimated the decision as per para 13 of the Scheme called the "Chandigarh Allotment of Sites to Co-op. Housing Societies Scheme, 1979. as in force has been repealed. It has been further observed that since no allotment was made to your society, now it cannot be made under the old repealed scheme of 1979. You are accordingly advised to apply for refund of money deposited by your society amounting to Rs. 9,25,000/- against tentative. 10% amount of the land which was proposed to be allotted and submit advance receipt duly signed by the Authority immediately (specimen of advance receipt is enclosed herewith)."
A copy of this letter is at Annexure P12 with the writ petition. The petitioner represented. A copy of one of such representation dated December 16, 1996 is at Annexure P13. It got no response. Thus, it approached this Court through the present writ pefition.
4. Notice of motion was issued. A written statement has been filed on behalf of the respondents to Mr. S.K. Sharma, Assistant Estate Officer. It has been inter alia, averred that "the land was proposed to be allotted to the petitioner-Society" under the 1979 Scheme. The decision conveyed to respondent No. 3 vide fetter, a copy of which is at Annexure P1, is not a letter of allotment. It is further stated that respondent No. 3 vide office letter dated 10.8.1989 intimated the decision of Chandigarh Administration to the petitioner-Society and demanded Rs. 4,23,554/- as 10% amount of the tentative price total Rs. 42,35,535/- of land proposed to be allotted to the pefitioner-Society. The petitioner-Society has deposited Rs. 9,25,000/-, which is more than 10% (i.e. 23%) on 4.4.1990. Thereafter, respon-dent No.3 wrote letter dated 12,1990 i.e. Anncxure R-1/3 requesting the petitioner- Society to furnish a copy of registration certificate along with copy of constitution and with the request to submit applications along with affidavits of 200 members of their society....'' The petitioner-Society sought certain clarifications. The required information was given vide letter dated December 3, 1990. When the petitioner-Society did not "supply the requisite documents/information, reminders dated 16.1.1991 and 26.2.1991 were issued..." On March 25, 1991 the petitioner submitted "copies of Registration Certificate along with copy of amendment of bye-laws, copy of Constitution and bye-laws of the sociely and affidavits of 200 members duly attested....." It also requested respondent No. 3 "to supply specimen of applications forms....." The information was given vide office letter dateti .inly 29, 1991. Thereafter, respondent No. 3 did not get any reply. A reminder dated April 30, 1992 was issued. Then inslead of sending 200 application forms, the petitioner sent 195 applications. It was found that 63 application forms were defective. Vide letter dated June 28, 1993 the petitioner was informed and it was asked to remove the defects. A reminder was issued on August 25. 1993. A representative of the petitioner had collected 63 forms for rectifying the irregularities. These were returned after doing the needful along with the remaining five applications on September 19. 1994. Before the petitioner could complete all the for-malities, 1991 Scheme was notified. The matter regarding allotment was entrusted to the Chandigarh Housing Board. Because of the negligence of the petitioner "towards the completion of paper formalities and for failing in removing of deficiencies the delay occurred and in the meantime the old Scheme..... was repealed and a new Scheme.... was formulated vide notification issued by the Chandigarh Administration dated 28.5.1991......" In accordance with clause I3of the aforesaid scheme, petitioner-Society is not eligible for allotment. Thus, in a nutshell, is the whole case of the respondents.
5. Learned Counsel for the panics have been heard.
The two questions that arises for consideration are :
(i) Was the land allotted to the petitioner ?
(ii) Is the petitioner not eligible for allotment by virtue of clause 13, as referred to in the written statement filed by the respondents ?
Regarding (i)
6. Mr. Satya Pal Jain, learned Counsel for the petitioner, contends that the Administration had communicated the allotment of land by various letters, copies of which have been placed on record as Annexures P1 to P5. The claim of the respondents that the allotment had not been made, is, consequently, untenable. On the other hand, Mr. H.S. Dhindsa, learned Counsel for the respondents, has submitted that a format letter of allotment had not been issued to the petitioner. He, however, concedes that there is no prescribed pro-forma in which the letter of allotment has to be issued.
7. The sequence of events, as noticed above, shows that the first communication on record is the letter dated December 23,1988. It has been observed in this letter that the Administration has decided to "allot land measuring 5 Acres in Sector 39-B to the above Society...." This was followed by a letter dated January 6, 1989. 'The above decision was reiterated. On August 10, 1989 the petitioner was specifically informed of the decision "to transfer on lease hold basis an area measuring 5 Acre approximately in Sector 39-B, Chandigarh, for construction of flats for 200 members of the Society at the rate of Rs. 175/- per sq. yard....." The price cf the land was stated to be Rs. 42,35,535/-. The petitioner was called upon to de-posit 10 per cent of the amount. On December 12, 1989 the petitioner was against asked to make the deposit of Rs. 4,23,554/-. Admittedly, in pursuance to these communications the petitioner had actually made a deposit of Rs. 9,25,000/-. This amount was received by the respondents on April 4, 1990.
8. It is the admitted position that there is no prescribed proforma for the allotment of land. The Administration had communicated its decision in writing. It had categorically informed the petitioner of its decision to allot 5 Aces of land. It had fixed the price at Rs. 42,35,535/-. It had also given the petitioner an option to pay the total amount "within 30 days from the date of issue of allotment fetter....." in which case no interest was to be charged. In view of these communications, we entertain no doubt that the land measuring 5 Acres in Sector 39-B, Chandigarh, had been allotted to the petitioner.
9. It deserves mention that on the basis of the demand made by the respondents, the petitioner had actually made a deposit of Rs. 9,25,000/-. After the receipt of this money, the Administration on its own showing did not write back to say that no allotment haying been made, the money had been wrongly deposited. Nor did it write to suggest that the petitioner's application for allotment had been rejected. At best the Administration had written certain letters by which the petitioner was asked to remove certain defects in. some of the applications. It was also called upon to furnish the application forms of five applicants. Nothing more. It was not the case of the Administration at any stage that the petitioner's request for allotment had not been accepted.
10. Still further, a perusal of the letter dated November 30, 1995 gives a clue to the real reasons for the impugned action. The Engineering Department had not been able to give the "non-encumbrance certificate/area list,...." Thus, allthe excuses. The petitioner was not to blame. It cannot be made to suffer.
11. It is true that certain defects in the application forms etc. had been pointed out. However, these were merely of a clerical nature. Ail the defects were removed. In any case, a defect in a few applications could not have defected the rights of all others, who had paid and were waiting.
12. Taking the totality of circumstances into consideration, we find that the Administration had decided to allot 5 acres of land to the petitioner. This decision had been duly communicated. Even the price had been conveyed. The petitioner had been asked to deposit. The petitioner had actually deposited more than the amount which had been demanded. This amount has remained with the respondents till after the filing of this petition. !t is said to have been sent to the petitioner through a cheque with the letter dated March 22,2000. The petitioner claims to have sent it back to the Administration vide letter dated March 24, 2000. Mr. U.S. Dhindsa, learned Counsel for the respondents, does not dispute this position. I! is, thus, clear that the Administration retained the money for a period of almost 10 years.
13. In view of the above, we answer the first question in favour of the petilioner and against the respondents. We hold that the land measuring 5 Acres had been allotted to the petitioner in Sector 39, Chandigarh.
Regarding (ii) :
14. Mr. Dhindsa contends that the petitioner had submitted an application for allotment of land under the 1979 Scheme. Tn May 1991, the 1979 Scheme had been scrapped and the new Scheme of 1991 had been promulgated. By virtue of clause 13 of the 1991 Scheme the petitioner is not eligibie for allotment of land.
Is it so ?
It would be useful to notice the provisions of Clause 13. It reads as under :-
13. Repeal and Savings :
"The Chandigarh Allotment oF Sites to Cooperative Housing Societies Scheme 1979 as in force is hereby repealed. However, the allotments already made under this Scheme shall continue to be governed by the said Scheme."
A perusal of the above provision shows that Ihe 1979 Scheme had been repealed. However, the allotments already made were to continue to be governed by the Old Scheme. The provision lays down no condition of eligibility. It imposes no disqualification. There is nothing in the provision which may bar the petitioner from claiming the allotment, which had already been made. It is not understood as to how the respondent claim that the petitioner is not eligible. Learned Counsel has pointed out nothing. Inevitably, the second question is also answered against the respondenfs and in favour of the petitioner.
15. Another fact which deserves mention is that the petitioner had made the deposit in 1990. The respondents had kept the money for almost lOyears. During this period, the petitioner had a reasonable expectation of getting a roof over the heads of its members. They did not apply for land or house anywhere else. Itshall be too harsh to shatter their hopes and to deny them the land which the respondents had decided to give them in the year 1989.
16. No other point has been raised.
In view of the above, we allow the writ petition and quash the communication dated November 29, 1996. The respondents are directed to give possession to the petitioner of the land allotted to it. No costs.
17. Petition allowed.