Himachal Pradesh High Court
Karam Chand Sood (Deceased) Through His ... vs State Of H.P. And Another on 18 September, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 8045 of 2012 .
Date of decision: 18.9.2015 Karam Chand Sood (deceased) through his LRs : Smt. Ram Kumari Sood and others ...Petitioners.
Versus
State of H.P. and another ..Respondents.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting ?1 Yes For the Petitioners : Mr. G.C.Gupta, Senior Advocate, with Ms. Meera Devi, Advocate.
For the Respondents : Mr. Shrawan Dogra, Advocate General, with Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals and Ms. Parul Negi, Dy. Advocate General, for respondent No.1.
Mr. Hamender Chandel, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge ( Oral ) The facts of the case are that the petitioners and late Sh.
Kapil Dev on 18.5.1984 purchased building bearing Khasra No. 12-13 situated at lakkar Bazar, Shimla in an auction conducted in execution of the decree in a Civil Suit No.75/1979 titled Indian Bank vs. Bhagwan Dass and another. After purchase of the building, the petitioners and Kapil Dev are alleged to have purchased the land underneath the building from its owner Sh. Puran Chand and other co-owners vide sale deed dated 14.10.1993 duly registered in the office of the Sub Registrar, Shimla. The petitioners and the successor-in-interest of Kapil Dev 1 Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 15/04/2017 18:58:27 :::HCHP 2submitted the plan for re-building and re-constructing the building on old lines. After claiming full ownership of the land and the building standing .
thereupon, the petitioners have prayed for the grant of following reliefs:
"(a) That a writ of mandamus be issued against the respondent No.1 directing it to change the revenue entries in the name of the petitioner and successor-in-interest of late Shri Kapil Dev in accordance with the Sale Deed Annexure P-2.
(b) That a writ of mandamus be also issued to the respondent No.2 to of process and sanction plan (Annexure P-5) submitted by the petitioner for reconstruction/re-building of Shop No. 12-13, Lakkar rtBazar, Shimla and sanction the same in accordance with law."
2. Respondent No.2-Municipal Corporation in its reply has not disputed the factual position and has only stated that the building plan submitted by the petitioners was considered from time to time and objections/ observations made thereupon were duly conveyed to the petitioners. The map was lastly returned vide letter dated 15.9.2012 whereafter the petitioners have not submitted any fresh drawings.
3. The respondent-State has filed its reply wherein it is stated that the Government of Himachal Pradesh initially in the year 2006-2007 and thereafter w.e.f. 15.09.2012 to 14.3.2013 had introduced "Freehold Scheme" for cases like the petitioners in which such persons were required to pay certain charges in order to get property free hold and obtain ownership rights of the land, but the petitioners had failed to complete the codal formalities as required under the Scheme and thus were not entitled to the benefit of the Scheme.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
::: Downloaded on - 15/04/2017 18:58:27 :::HCHP 34. At the outset, it may be observed that this Court is unable to find any legally justifiable object in introducing the Scheme/Policy of .
Freehold only for a limited period w.e.f. 15th January to 15th February, 2007 i.e. only one month and w.e.f. 15.9.2012 to 14.3.2013 i.e. only six months, which benefit obviously would have only been availed of by a fortunate few. Why the rest of the persons who are similarly situate to of those who have already availed of the benefit of freehold have been denied and can otherwise be denied the said benefit is not forthcoming.
rt What, in fact, is the object sought to be achieved by introducing the Scheme of Freehold for a limited period is also not forthcoming?
5. In this background, the seminal question that falls for consideration is whether the time frame as introduced in the Schemes aforesaid in fact has any nexus with the object sought to be achieved.
6. There is a long line of decisions of the Hon'ble Supreme Court that have explained the meaning of equality guaranteed by Article 14 of the Constitution and laid down tests for determining the constitutional validity of a classification in a given case. These pronouncements have by now authoritatively settled that Article 14 prohibits class legislation and not reasonable classification. It is more than settled that a classification passes the test of Article 14 only if:
(i) there is an intelligible differentia between those grouped together and others who are kept out of the group; and
(ii) there exists a nexus between the differentia and the object sought to be achieved by such policy.
At the same time, it must be remembered that the classification must not be arbitrary but must be rational, that is to say, it must not only be based ::: Downloaded on - 15/04/2017 18:58:27 :::HCHP 4 on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, and those .
qualities or characteristics must have a reasonable relation to the object sought to be achieved. The differentia which is the basis of classification and the object of the Scheme are distinct things and what is necessary is that there must be a nexus between them.
of
7. Article 14 of the Constitution of India states that "The State shall not deny to any person equality before the law or the equal rt protection of the laws within the territory of India". Article 14 forbids class-
legislation but it does not forbid reasonable classification. The classification however must not be "arbitrary, artificial or evasive" but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the policy.
Article 14 applies where equals are treated differently without any reasonable basis. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.
8. Adverting to the facts, it would be noticed that the policy of Freehold introduced earlier did provide for certain procedural formalities, including payment of certain amount, which amount essentially may not have been readily available with those interested in availing the benefit of the Scheme. That apart, there could be a number of factors and varied ::: Downloaded on - 15/04/2017 18:58:27 :::HCHP 5 reasons which may have prevented similarly situated persons from availing of the benefit of the Scheme because of the limited duration of .
the same.
9. This Court is unable to comprehend any plausible reason as to how the interest of the respondent-State would in any manner be affected by re-introducing a 'Freehold Scheme' that too without containing of any stipulation of a time frame. Admittedly, the introduction of the previous Scheme has not in any manner adversely affected the interest of rt the State. Therefore, in such circumstances, the restriction of the time frame of the duration in the earlier Schemes was definitely unreasonable as it had no reasonable nexus whatsoever with the object sought to be achieved.
10. Further, this Court is unable to assimilate as to what is the special advantage, right, privilege or anything of the like for the State to keep the properties under its name without making them freehold as has been done previously in the years 2007 and 2012, respectively. Even the respondents have not been able to satisfy me in this regard.
11. Now, therefore, what emerges is that an arbitrary, artificial or evasive classification has been made between the freehold owners of the property who got this benefit only because of the limited duration of the aforesaid Schemes and those occupants who are continuously in possession of the land belonging to the Government like the freehold owners from 1907 onwards. But then there is practically no difference between either of the classes because the freehold holders prior to their depositing the requisite amount in the Government treasury and after completion of certain other formalities, were actually in the same position ::: Downloaded on - 15/04/2017 18:58:27 :::HCHP 6 as that of the petitioners and other similarly situated persons. The action of the State Government in granting benefit of freehold scheme only to .
few persons on account of the short duration of such schemes, is, therefore, discriminatory and cannot be countenanced.
12. Taking into consideration the entire conspectus of the case, this Court is of the considered opinion that the ends of justice would be of subserved in case the respondents are directed to consider the feasibility of re-introducing a Scheme on similar lines as the Schemes that were rt introduced earlier in the years 2007 and 2012-2013, that too, without fixing any unreasonable duration of its operation as had been done in the earlier Schemes within a period of three months from today and consider the case of the petitioners in accordance with the said Scheme. Ordered accordingly. If for any reason the Scheme is not re-introduced within the aforesaid time frame, then in that event to consider the case of the petitioners in accordance with the Scheme of 2012.
13. Insofar as the building plan of the petitioners are concerned, the same shall be considered by the respondents strictly in accordance with Act, Rules and building bye-laws governing the same and decision thereupon shall be taken and communicated to the petitioners within a period of four months.
The petition is disposed of in the aforesaid terms, so also the pending application(s), if any.
September 18, 2015 ( Tarlok Singh Chauhan ),
(GR) Judge
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