Punjab-Haryana High Court
Ude Ram vs State Of Haryana And Others on 9 November, 1993
Equivalent citations: AIR1994P&H175, (1994)108PLR186, AIR 1994 PUNJAB AND HARYANA 175, 1994 (1) REVLR 130, 1994 (3) RRR 472, (1994) 3 PUN LR 186, (1994) 1 CURLJ(CCR) 142, (1995) 1 CIVILCOURTC 74, (1994) 3 CURCC 225, (1996) 3 LANDLR 336
ORDER
1. This petition represents the fourth round of litigation. The entire dispute relates to the 20 square yards of land. The petitioner's effort before the State Govt. to secure the ownership of the land and to save the construction raised thereon having been rejected vide order dated December 30, 1991, a copy of which has been produced as Annexure P8, he has approached this Court through the present writ petition. A few facts may be noticed.
2. On January 18, 1989, the Muncipal Committee, Charkhi Dadri (hereinafter to be referred to as the Committee) passed resolution No. 127 for selling the land behind Anaj Mandi and Kath Mandi @ Rs. 150/- per square yard. The Chief Executive Officer was, however, required to see as to how much land was to be sold "so that there be no obstruction for transport...". Even before this resolution could be approved by the Deputy Commissioner, the petitioner deposited Rs. 4200/-with the Committee on February 6, 1989. However, it is the admitted position that the money was accepted by the Committee subject to the approval of the Haryana Govt. Before any approval could be obtained, the petitioner submitted a building plan on February 22, 1989. Curiously, it was sanctioned on the same day. On March 16, 1989, the petitioner started the construction. Vice letter of the even date the Committee directed-the petitioner to stop the construction "as per the orders of the Deputy Commissioner, Bhiwani....."On April 8, 1989, it revoked the sanction of the plan. On April 11, 1989, the petitioner instituted a suit for permanent injunction restraining the Committee from interfering with the possession of the land and construction thereon. Simultaneously, he submitted an application for the grant of a temporary injunction. The learned trial court granted injunction. The learned trial court granted temporary injunction to the petitioner which was confirmed on June 15, 1989. The Committee filed an appeal against the order of temporary injunction passed by the learned Subordinate Judge. On January 6, 1990, the Addl. District Judge accepted the appeal. A civil revision petition filed by the petitioner was dismissed by this Court on January 11, 1990. On March 19, 1990, the special Leave Petition No. 1694 of 1990, was dismissed as withdrawn as the learned counsel for the petitioner stated that "his appeal before the Govt. is pending." On Sept. 15, 1989, the Deputy Commissioner, Bhiwani informed the Chief Executive Officer of the Committee that resolution dated January 18, 1989, is cancelled. In this letter, it was also observed that vide letters dated May 15, 1989, and August 23, 1989, the Committee was advised to cancel "the land sold" vide resolution dated January 18, 1989. The Committee was asked to explain its position in this behalf. A copy of this letter is at Annexure 3.
3. On January 8, 1990, the Committee issued a notice under Section 235 of the Haryana Municipal Act, 1973, calling upon the petitioner to demolish the unauthorised construction. A copy of this notice is at Annexure P4. Aggrieved by this order, the petitioner filed an appeal revision before the Financial Commissioner Local Bodies, Haryana, on January 17, 1990. An application for interim stay was also filed. A copy of this petition is at Annexure P5, while that of the application for stay is at annexure P6 with the writ petition. Vide order dated January 19, 1990, (Annexure 7), the Financial Commissioner stayed the demolition of the construction. On July 25, 1991, the interim stay was vacated. The petitioner then filed C.W.P. No. 12039 of 1991 challenging the order by which the stay had been vacated. Vide order dated Augusts 1991, the appellate authority was directed to decide the matter expeditiously within 3 months and the writ petition was allowed. On Sept. 30, 1991, the revision petition filed by the petitioner the Financial Commissioner was dismissed. The petitioner then filed a Civil Writ Petition No. 15527 of 1991 challenging the order as being cryptic. Vide order dated December 2, 1991, the writ petition was allowed and the authority was directed to dispose of the matter by passing a speaking order. On December 30, 1991, the Commissioner and Secretary to Govt. Haryana, Local Govt. Department exercising the powers of the State Govt, under Section 253 of the Haryana Muncipal Act, 1973, dismissed the petition. A copy of this order has been produced as Annexure P8. Hence, this petition.
4. A written statement has been filed on behalf of respondents Nos. 2 to 4 in which the various averments made by the petitioner have been controverted. The petitioner has filed a replication reiterating the facts.
5. I have heard Mr. S.P. Gupta, learned counsel for the petitioner. Mr. I.S. Balhara has argued the case on behalf of respondents Nos. 2 to 4.
6. Mr. S.P. Gupta has contended that in view of the provisions of Section 53A of the Transfer of Property Act, the petitioner having deposited the amount of Rs.4200/-had become the owner of the property. He further contended that the respondents were debarred from refusing to sell the property to the petitioner by the principle of promissory estoppel. He also contended that the plan submitted by the petitioner having been approved on February 22, 1989, and the construction having been raised in accordance with that plan, the respondents were not at all entitled to demolish it. On the other hand, Mr. Balhara, learned counsel appearing for the repsondents, has submitted that the petitioner was restrained from starting the construction on March 16, 1989, and that the sanction for the plan had been actually revoked on April 8, 1989. Thereafter, the petitioner had no right to raise the construction. He further submitted that in fact the petitioner was not the owner of the land in dispute. The Deputy Commissioner had rescinded the resolution of the Committee and no transfer of land had actually taken place. Learned counsel also contended that the order of the Govt. was absolutely legal and valid and the disputed facts raised by the petitioner could not be agitated in a writ petition especially when the suit filed by the petitioner was writhdrawn by him, without any permission to file another suit.
7. Before adverting to the respective contentions raised by the learned counsel for the parties, it will be appropriate to notice the findings recorded by the Commissioner and Secretary to the Govt. while passing the impugned order. These findings in the words of the authority are:--
(1) The petitioner himself violated the stay granted by the lower Court by continuing the construction of the shop under the cover of the stay order.
(2) The petitioner has repeatedly been hiding inconvenient facts and has approached the Courts as also the Govt. with unclean hands.
(3) The resolution of the Committee in question was suspnded by the Deputy Commissioner under Section 246 of the Municipal Act against which, appeal representation, if any, lies before the Divisional Commissioner and not the State Govt. As for the demolition notice, appeal against the same under S. 240 lie to the Deputy Commissioner and not to the State Govt.
(4) The Additional District Judge in his orders dated 6-1-1990 has already come to the conclusion that the petitioner started the construction without land being properly transferred to him and completed the same under the cover of the stay order issued by Sub Judge 1st Class. The appeal filed by the petitioner against the above orders of the Additional. District Judge was dismissed by the High Court. The basic facts relating to the whole matter agitated in the present petition are the same as they were before the Additional District Judge and the High Court and there was no justification for the petitioner to have raised the matter before the State Govt.
(5) Otherwise also the powers conferred on the State Govt. under Section 253 of the Act are not appellate or revisionary in the normal sense but are only powers of general supervision over the officers of the State Government so as to ensure that the purpose of the Act is not subverted. In view of the clear order passed by the above Courts in this matter, I do not consider it a fit case for interference at the Govt. level."
Learned counsel for the petitioner has not been able to show that these findings are against law or suffer from any error. Normally, a writ of certiorary is issued to correct an error apparent on record. None has been pointed out. Apparently, none exists consequently, no case for the issue of a writ of certiorari is made out. The contentions raised by the learned counsel for the petitioner may be briefly noticed. First of all, it has been contended that the petitioner having deposited an amount of Rs. 4200/- with the Committee in part performance of the contract and being already in possession, the Committee is debarred from denying the petitioner's ownership of the property.
8. Section 53A of the Transfer of Property Act primarily imports the equitable doctrine of part performance propounded by the courts in England. However, there is an essential difference between the 'English doctrine' and the provisions of Section 53A.
While in England the contract to which the doctrine of part performance applies may be oral, Section 53A expressly requires that the contract must be in "writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty". It does not recognise an oral contract. It has to be in writing. It has to be signed by the person contracting the transfer of immovable property. These are the conditions precedent for involving the principal of part performance. In the present case, there is nothing on record to indicate that the Committee had ever executed a written contract for the transfer of the land in dispute. In fact, even a contention based on Section 53A of the Transfer of Property Act does not appear to have been rasied in the petition. In spite of being asked learned counsel for the petitioner could not refer to any document on the record to show that the Committee had executed a contract in writing for the transfer of immovable property. In this situation, the contention rasied by the learned cousnel cannot be accepted.
9. Mr. Gupta, however, contends that in the written statement filed on behalf of the respondents, it has been averred that "the argument to sell the land in dispute to the petitioner was made and the amount of Rs. 4200/- was deposited by the petitioner, but it was specifically mentioned that the Chabutra Land measuring 28 Sq yards @ Rs. 150/- per sq. yard is subject to the approval of the Haryana Govt.." Mr. Balhara on the other hand pointed out that there was not even a written agreement and that the averment had been made only on the basis of the resolution passed by the Committee on January 18, 1989. Learned counsel for the petitioner was specifically asked to produce the written agreement, if any. He could not. In fact, there is not even an averment in the petition that there was a written contract duly signed by any one on behalf of the Committee, In this situation, Mr. Balhara appears to be right in his explanation that the averment has been loosely made inview of the resolution of the Committee. This resolution of the Committee has been admittedly res-
cinded by the Deputy Commissioner vide order dated Sept. 15, 1989. In this situation, the provisions of Section 53A cannot be invoked by the petitioner.
10. It was then contended that the action of the respondents is barred by the principle of promissory estoppel. Mr. Gupta submitted that on the basis of the representation of the Committee, the petitioner had deposited the amount of Rs. 4200/- and raised the construction on the land in dispute. That having Happened, the Committee cannot be allowed to resile and cancel the transfer of the land.
11. 'Promissory estoppel' is a principle of equity. If a party acts on a prormise and alters its position, the promisor cannot be allowed to resile from the promise. It can be involved to avoid injustice. What is the position in the present case?
12. When the petitioner deposited the amount Rs. 4200/- it was speificaily mentioned on the receipt that it was subject to the approval of the Govt. No promise or representation was mde to him that the land would be transferred in his favour. Still, the petitioner submitted the building planch on February 22, 1989, which was surprisingly sanctioned on the same day. He then started construction on March 16, 1989. On the same day vide letter dated March 16, 1989, copy of which has been produced as Annexure R-4/1, the petitioner was restrained from raising the construction. Soon thereafter, on April 8, 1989, even the sanction of the plan was revoked. Thereafter, the petitioner filed the civil suit and obtianed an order of temporary injunction. As has been found by the authorities the construction was raised by the petitioner when the interim stay was in operation. In the entire sequence, there is no evidence of any promise or representation by the Committee on the basis of which the petitioner may have altered his position. Consequently, the contention raised by the learned counsel has no merit. In this connection it may be observed that before the doctrine of promissory estoppel can be clamped on an authority or a public body, it must be clearly shown that there was an unambiguous promise. It should not be a matter for inference. The alleged representation must be clear an categorical. A mere hope or possibility is not enough. In the present case, there was no such promise. There was not even a reasonable basis for a hope. The petitioner could not have even entertained an expectation. In fact, when he deposited the money, the acceptance was subject to the approval of the Govt. When he started construction, he was sought to be stopped. The entice sequence of events militates agaisnt the making of a promise. In such a situation, there is no equity in favour of the petitioner which may entitle him to invoke the principle of promissory estoppel.
13. Equally lacking in merit is the third contention that construction having been raised, its demolition cannot be ordcrd. The construction was raised by the petitioner in dcfinance of the orders of the Committee. As observed by the Commissioner it was raised under the garb of the interim stay orders. The order having been vacated, the construction has to be demolished. Loss, if any, is of the petitioner's own making. He has to thank himself. None eelse is to be blamed.
14. Even otherwise, there is no equity in favour of the petitioner. The effort is to grab and so as to extend the already existing premises. Even according to the site plan produced by the petitioner his building abuts on the main road on three sides. The construction, if allowed to stay, is bound to cause obstruction of view to the traffic entering the main road. It is in an area close to the bus stop. It is likely to be a traffic hazard. It is against public interest. It is a case where the Committee was justified in refusing to sell the land to the petitioner. It had good reasons for doing so. In fact it has been pointed out that even persons occupying the adjoining buildings have been allowed to extend their respective premises. In such a situation, no case for interference by invoking the extraordinary jurisdiction of this Court has been made out.
15. The writ petition is wholly lacking in merit. It is accordingly dismissed. However keeping in view the fact that the petitioner will have to demolish the construction already raised by him, I am passing no orders as to costs.
16. Petition dismissd.