Punjab-Haryana High Court
Ashok Kumar vs Commissioner & Secretary To Government ... on 21 November, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.7195 of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.7195 of 2001
Decided on: November 21, 2013
Ashok Kumar .....Petitioner
Versus
Commissioner & Secretary to Government of Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. C.B.Goel, Advocate,
for the petitioner.
Mr. Anjum Ahmad, Additional Advocate General, Haryana,
for respondent Nos.1 and 2.
None for respondent No.3.
Mr. Sudhir Mittal, Advocate,
for respondent Nos.4 and 5.
1. Whether Reporters of local papers may be allowed to see the judgment?
Yes/No
2. To be referred to the Reporter or not? Yes/No
3. Whether the judgment should be reported in the Digest? Yes/No
MAHAVIR S. CHAUHAN, J.
Municipal Committee, Charkhi Dadri (here-in-after referred to as 'the Committee') drew up a scheme (known as 'Scheme No. 03') under Section 203 of the Haryana Municipal Act, 1973 (here-in-after referred to as 'the Act') for setting up modern market near old Bus Stand, Charkhi Dadri. While carving out various plots, a piece of land measuring 63 feet x 31 feet was left for public Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -2- utility services. In this piece of land there was an old well which was being used by the public for throwing garbage. The land, otherwise, could accommodate construction of an additional Shop-cum-Flat even after leaving sufficient space for public utility services. On 28.10.1996 a note (Annexure R- 4/1) was put up before the Committee to the following effect:
"Near old bus stand, a scheme has been framed by the Municipal Committee in which space for one shop-cum-flat No. 15-B is lying unoccupied. This space is not being used for any purpose. This is near the edge of pond and therein a dry well is also situated. Foul smell is emitted therefrom because the residents of the adjoining places dump their refuse (kurha) in it and there is a danger of encroachment also. Since the shop-cum-flat is adjacent to the pond, lot of bad smell spreads there. Sanction has been received from the Government also for selling of this plot. Hence, it would be proper to sell this plot by open auction which will add to the income of the Municipal Committee also. Hence, proper orders may be passed for auctioning the plot on a particular date and time. Report is submitted for proper orders."
In the scheme originally drawn, though plot No. 15-B did not figure but, in view of the report dated 28.10.1996, it was included in the scheme and was put to auction which was scheduled to be held on 04.11.1996. In the auction so held on 04.11.1996, as many as twenty five persons participated (after deposit of Rs. 5000/- by each of them as security). Sita Devi, respondent No.4, gave the highest bid (at Rs. 47, 550/-). Her bid was accepted by the Committee, a sale certificate was issued in her favour and possession of Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -3- the plot No. 15-B was delivered to her on 11.11.1996.
Ashok Kumar, the petitioner herein, made a complaint dated nil (Annexure P4), against sale of the plot in dispute to respondent No.4 by alleging connivance of respondents with respondent No.4, to the Deputy Commissioner, Bhiwani (respondent No.2), who, vide order dated 07.04.1999 (Annexure P6), purportedly passed under Section 246 of the Haryana Municipal Act (for short as 'the Act'), cancelled the auction held on 04.11.1996 and ordered that auction be held again.
Order dated 07.04.1999 on being challenged before respondent No.1 by respondent No.4 under Section 253 of the Act, was set aside and the matter was remitted to respondent No.2 by respondent No.1 vide order dated 11.10.1999 (Annexure P7), with the following observations:
"I have studied the case file and have considered the arguments advanced by the learned counsel for both the parties. The petitioner has produced documentary evidence to show that proclamation was done in municipal area of Charkhi Dadri regarding auction of this plot on 4.11.1996 (P-2); that 25 persons participated in the auction on 4.11.1996 and deposited Rs. 5000/- each as security (Annexure P3); that Sita Devi offered the highest bid of Rs. 47,550/- on the same day, i.e. 4.11.1996 and the receipt issued by Municipal Committee, Charkhi Dadri is at Annexure P-1. The Municipal Committee, Charkhi Dadri issued a certificate to the effect that plot No. 15-B, size 63'x 16.6' had been sold to Sita Devi and that approval of the State Government had been obtained vide letter dated 20.4.1981. It has also been certified that this amount had Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -4- been deposited in the municipal fund. This certificate is at Annexure P-5. Vide Annexure P-6, the President, Municipal Committee, Charkhi Dadri has stated that the possession of the said plot was delivered to the petitioner on 11.11.1996. However, the Deputy Commissioner vide his order dated 30.4.1999, i.e. almost after a lapse of more than two years and a half, cancelled the auction vide his order dated 30.4.1999, on the grounds that there is no plot No. 15-B in the map of the scheme; that there is no approval of the State Government; and that there were illegalities in the auction proceedings. Before passing this order, the Deputy Commissioner, as is evident from the order itself, did not give any opportunity to the petitioner of being heard. A reference has been made in the order to an inquiry into a complaint, but even in the inquiry the petitioner has not been associated. This order, therefore, is not sustainable. It is a settled law according to the principle of natural justice that the person likely to be adversely affected must be heard before passing an order. In this case the petitioner has participated in the properly proclaimed auction proceedings; she deposited the highest bid amount; got the sale certificate from the Municipal Committee and she was even delivered the possession of the said plot. It was imperative for the Deputy Commissioner to hear the petitioner before passing any order. Therefore, the impugned order of the Deputy Commissioner is set aside. However, the matter is remanded to the Deputy Commissioner who should first give proper hearing to the petitioner as well as Municipal Committee before taking any action in this respect. Certificate issued by the municipality (Annexure P5) shows that approval of the Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -5- State Government was obtained vide letter dated 20.04.1981. The Deputy Commissioner should check up whether that sanction pertains to plot No. 15-B also. If there is no sanction in relation to plot No. 15-B, he should propose action to be taken against the E.O./Secretary/President of the Municipal Committee for auctioning the said plot without sanction of State Government. In that event, he should also examine whether plot No. 15-B can be carved out in the plan without causing any detrimental effect to the plan/services to be provided and environmental aspects and make a reference to the Government in this respect accordingly. If it is not found feasible to carve out another plot No. 15-B, the amount received by the municipality is to be refunded to the petitioner alongwith interest. As stated earlier, the Deputy Commissioner will decide the matter after hearing the petitioner as well as Municipal Committee, Charkhi Dadri.
Announced."
The perusal of record reveals that in response to a query, "whether carving out of plot No. 15-B, will have some adverse effect on the scheme or not?" put-forth by the Deputy Commissioner, Bhiwani (respondent No.2), vide memorandum dated 22.12.1999 (Annexure R-4/2), District Town Planner, Bhiwani, vide memorandum dated 16.02.2000 (Annexure R-4/3) replied by saying, "a strip of 14'-6" width is still left after carving out the proposed plot No. 15-B adjacent to plot No. 15. This strip is sufficient for providing public utility services. Hence, no adverse effect would be caused on the scheme by carving out this plot." However, Deputy Commissioner, Bhiwani (respondent No.2), vide memorandum dated 01.06.2000 (Annexure P8), inter alia, ordered Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -6- refund of the amount of Rs. 47,550/-, together with simple interest @12% per annum, to the petitioner.
Aggrieved by and feeling dissatisfied with the order dated 01.06.2000 (Annexure P8), the petitioner again invoked the provisions of Section 253 of the Act, whereupon respondent No.1 passed order dated 01.03.2001 (Annexure P9) to the following effect:
"I have considered the written arguments submitted by the ld. counsel for the petitioner before me on 27.02.2001 and gone through the whole record of the case put up before me by the office. A perusal of the record would reveal that the petitioner has submitted sufficient documentary evidence in support of auction of the plot on 4.11.96 (P-2) and deposit of Rs. 5000/- as security (P-3) as the petitioner was the highest bidder of Rs. 47,550/- in the auction, receipt thereof is attached (P-1). Municipal Committee, Charkhi Dadri issued a certificate to the effect that the said plot was sold to the petitioner with the approval of the Govt. issued vide letter dated 20.4.1981. It has also been certified by the Municipal Committee that the amount has been deposited in the municipal fund (P-5). The possession of the said plot was also delivered to the petitioner on 11.11.1996. But the Deputy Commissioner, after lapse of two and a half years, cancelled the auction vide order dated 30.04.99 on the grounds that there is no plot No. 15-B in the map of the scheme, that there is no approval of the State Government, and there were illegalities in the auction proceedings. Before passing this order, the Deputy Commissioner, as is evident from the order itself, did not give any opportunity to the petitioner of being heard, a reference has been made in Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -7- the order to an inquiry into a complaint, but even in the inquiry the petitioner has not been associated. This order, therefore, is not sustainable. In the case the petitioner has participated in the properly proclaimed auction proceedings, she deposited the highest bid amount, got the sale certificate from the Municipal Committee and she was even delivered the possession of the said plot.
Therefore, in view of the powers inserted to me under Section 203-A, I regularize the auction since more than four years elapsed after the auction in favour of the petitioner.
Accordingly, the appeal is accepted and impugned order of the Deputy Commissioner is set aside."
To seek quashing of order dated 01.03.2001 (Annexure P9), petitioner has brought this civil writ petition, under Articles 226 and 227 of the Constitution of India, by alleging that in the scheme plot No. 15 was a corner plot which was purchased by one Madan Lal son of Gaja Nand; open space adjacent to that plot was meant for public utility services; and there was no plot No. 15-B in that scheme but 4th respondent's husband Ganga Ram, who was working as a clerk in Municipal Committee, Charkhi Dadri, manipulated the records of the municipal committee to show that an auction was conducted on 04.11.1996 and plot No. 15-B was shown to have been sold to respondent No.
4. Respondents No. 1 & 2 have joined each other to file a joint written statement to say that initially plot No. 15-B was not there in the scheme but it was carved out from the land left for public utility services and was sold to respondent No. 4 in open auction and order dated 01.03.2001 (Annexure P9) Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -8- did not infringe any legal right of the petitioner.
Respondent No.3, Municipal Committee, Charkhi Dadri, in its written response has justified sale of plot No. 15-B in favour of respondent No. 4 and has come out with a plea that its action of auctioning the aforesaid plot having been carried into execution by accepting the sale price of the plot and by issuing a sale certificate, the Deputy Commissioner was not empowered to undo it, under Section 246 of the Act, as he can only prohibit the doing of any act which is about to be done or is being done and, as such, the cancellation of auction proceedings by the Deputy Commissioner was in clear transgression of powers conferred upon him by Section 246 of the Act.
Respondents No. 4 and 5, in their joint response, which has remained uncontroverted, have averred that the petitioner has no concern, whatsoever, with the firm M/s Suraj Bhan Shyam Sunder, Anaj Mandi, Charkhi Dadri, an immediate neighbour of aforesaid Madan Lal; he, in fact, resides at village Kalyana which is six/seven kilometers away from Charkhi Dadri; he did not even participate in the auction; and had made the complaint, Annexure P4, and is fighting this proxy litigation at the behest of his real uncle Madan Lal, purchaser of plot No. 15 that adjoins the plot in dispute (Plot No. 15-B) because above-said Madan Lal could not file the instant civil writ petition as he had filed Civil Suit No. 401 of 1997 challenging the sale of the plot, in dispute, in favour of respondent No. 4 and had lost his application for grant of ad- interim relief upto this Court. These respondents have also questioned the locus standi of the petitioner to maintain this writ petition. Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -9-
We have heard learned counsel for the parties and have also examined the record of the case.
Learned counsel representing the petitioner argues that in the plan, Annexure P1, plot No. 15-B is conspicuously missing; it has been carved out and sold to respondent No.4 without sanction/approval of the State Government and that too to the great detriment of the public in so far as by carving out of this plot, public utility services have been badly affected; the documents, showing auction of the plot in dispute, have been manipulated by respondent No.5, who is husband of respondent 4 and is working as a clerk in the Municipal Committee, Charkhi Dadri; and respondent No. 1 has passed order dated 01.03.2001, Annexure P9, only to help the 4th respondent.
Per Contra, learned counsel for the respondents have argued that the petitioner is neither a resident of Charkhi Dadri nor does he have any interest in the plot in question; the petitioner, in fact, is fighting this proxy litigation at the instance of his real uncle Madan Lal, who owns plot No. 15 and intended to encroach upon the land which was left for public utility services and adjoins plot of said Madan Lal and out of which the plot in question has been carved out. According to the learned counsel, the plot in dispute has been carved out and sold in open auction to the 4th respondent with the approval of the Government and the aforesaid Madan Lal has lost legal battle upto District Court level and Regular Second Appeal No. 2364 of 2005 brought by him is also likely to be dismissed in view of the evidence available on record of that case.
Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -10-
Nothing more has been urged on either side.
Admittedly, petitioner did not participate in the auction held on 04.11.1996 whereby the plot, in question, has been sold to respondent No. 4 in view of the highest bid given by her. He does not own any plot or shop adjoining, or in the vicinity of the plot in dispute. He though has given his address as "Ashok Kumar son of Sh. Manohar Lal c/o Suraj Bhan Shyam Sunder, Anaj Mandi, Charkhi Dadri, District Bhiwani" but has chosen not to deny an assertion made by respondents No. 4 & 5 in paragraph (2) of the Preliminary Objections pleaded by them in their written statement that neither the petitioner nor his father Manohar Lal has any interest in the firm Suraj Bhan Shyam Sunder, Anaj Mandi, Charkhi Dadri and the petitioner, who is resident of village Kalyana, which is situated 06-07 kilometers away from Charkhi Dadri, does not have his residence or business in Charkhi Dadri. Needless to say, failure of the petitioner to deny this very material averment in the written statement amounts to its admission by him and fortifies respondents' plea that he has no locus standi to maintain a challenge to the sale of the plot in question in favour of respondent No.4 and, in fact, he has been fighting a proxy litigation on the behest of his real uncle, Madan Lal, who has a plot adjacent to the plot in dispute, which, in all probabilities, would have been used by him but for its sale to respondent No. 4.
In fact afore-stated Madan Lal filed Civil Suit No. 401 of 06.10.1997, 'Madan Lal versus Municipal Committee, Charkhi Dadri and others' challenging allotment of plot No. 15-B in favour of respondent No.4 on Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -11- the basis of open auction held on 04.11.1996 and to let him (plaintiff-Madan Lal) and others to use that plot as public utility service, i.e. for pavement. His afore-said civil suit, however, was dismissed by Civil Judge (Junior Division), Charkhi Dadri, vide judgment and decree dated 04.09.2001 and Civil Appeal No. 102 of 2001 brought by said Madan Lal to challenge the judgment and decree dated 04.09.2001 was also dismissed by Additional District Judge, Bhiwani vide judgment and decree dated 19.03.2005 and Regular Second Appeal No. 2364 of 2005 arising out of Civil Suit No. 401 of 1997 has been dismissed by this Court vide separate detailed judgment of the day. As the afore-said Madan Lal could not maintain the civil suit and the instant civil writ petition simultaneously the petitioner has been set up by him to run the instant proceedings parallel to the proceedings in the civil suit. This position has remained uncontroverted in so far as the petitioner has chosen not to deny a very specific averment made by respondents No. 4 & 5 in their joint written response that the petitioner, who is nephew of afore-said Madan Lal made complaint, Annexure P4, at the instance of his aforesaid uncle and the instant petition has also been got filed by afore-said Madan Lal as he himself could not file it in view of the civil suit filed by him for challenging sale of the plot in dispute to respondent No. 4 in open auction held on 04.11.1996. The situation leaves nothing to doubt that the petitioner is fighting someone else's cause and, therefore, lacks locus standi in the matter.
Be that as it may, in the note dated 28.10.1996, Annexure R-4/1, it is specifically mentioned that the space, out of which plot No. 15-B has been Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -12- carved out, was being used as an unauthorized dumping ground, had become a health hazard and ran the risk of being encroached upon and the Government had proposed its sale by open auction. This proposal was accepted by the Municipal Committee; the plot, in question, was carved out; it was put to auction wherein as many as twenty five persons participated; it was sold to respondent No.4, who happened to be the highest bidder; and its possession was delivered to the said purchaser after the bid money was deposited by her and was accepted by the Municipal Committee. It has also come in the written statement of respondents No. 4 & 5 that after remand of the matter to the Deputy Commissioner, he, vide his communication dated 22.12.1999, Annexure R-4/2, asked the District Town Planner, Bhiwani "whether carving out of plot No. 15-B will have some adverse effect on the scheme or not" and the latter, vide memorandum dated 16.02.2000, responded saying, "a strip of 14'-6" width is still left after carving out the proposed plot No. 15-B adjacent to plot No. 15. This strip is sufficient for providing public utility services. Hence, no adverse affect would be caused on the scheme by carving out this plot." Notably, these assertions made by respondents No. 4 & 5 in their written statement have not been denied by the petitioner as no rejoinder to the written statement has been filed and, that being so, the petitioner is deemed to have accepted these assertions as correct.
Under Section 246 of the Act, the Deputy Commissioner can, by an order in writing, suspend the execution of the resolution or order of the Committee, or prohibit the doing of any act which is about to be done or is Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -13- being done in pursuance of or under the cover of the Act, or in pursuance of any sanction or permission granted by the Committee in the exercise of its powers under the Act, if, in his opinion, the resolution, order or act is in excess of the powers conferred by law or contrary to the interests of the public or likely to cause waste or damage of municipal funds or property, or the execution of the resolution or order, or the doing of the act, is likely to lead to a breach of the peace, or to encourage lawlessness, or it causes injury or annoyance to the public or to any class or body of persons. However, in the case in hand not only any of the circumstances referred to in Section 246 of the Act is not shown to exist which could warrant interference of the Deputy Commissioner, but also the execution of the resolution/order dated 04.11.1996 was complete after deposit of the bid money by respondent No. 4 and delivery of possession of the plot to her and, as such, the Deputy Commissioner could not step in to undo what had already been done and that too after the expiry of two and a half years of the passing of resolution/order dated 04.11.1996 of the Committee.
Even otherwise, the first respondent, in exercise of the powers of the State Government under Section 203A of the Act, has regularized sale of the plot in dispute, vide order dated 03.01.2001 (Annexure P9) and the petitioner has elected not to attribute any motives or mala fides to the said respondent.
Above all, finding of the civil court in Civil Suit No. 401 of 1997, based on appreciation of evidence to the effect that the plot, in question, was Virender Singh Adhikari 2014.01.17 08:52 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.7195 of 2001 -14- carved out after due approval/sanction of the State Government and has been validly sold to the 4th respondent in view of the highest bid given by her in the open auction, has been affirmed in appeal and Regular Second Appeal No. 2364 of 2005 and, as such, those findings cannot be reopened in the instant proceedings.
Result:
As a fall out of what has been said and discussed here-in-before, the writ petition fails and is dismissed with costs amounting to Rs. 10,000/- to be paid so.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
21.11.2013
adhikari
Virender Singh Adhikari
2014.01.17 08:52
I attest to the accuracy and
integrity of this document
High Court Chandigarh