Punjab-Haryana High Court
Balbir Singh Nain And Others vs The State Of Haryana And Others on 19 September, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.4188 of 1992 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
Civil Writ Petition No. 4188 of 1992 (O&M)
Date of Decision: September 19, 2013
Balbir Singh Nain and others ..... Petitioners
Versus
The State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Dr. Surya Parkash, Advocate,
for the petitioners.
Mr. Anjum Ahmed, Additional Advocate General, Haryana,
for respondent No.1
Mr. Siddharth Batra, Advocate,
for respondent No.2.
MAHAVIR S. CHAUHAN, J.
The petitioners seek issuance of a mandate to the respondents to allot to each of them a six-marla residential plot, in Urban Estate, Jind, out of discretionary quota, on the ground that vide memoranda dated 18.5.1987 (Annexures P-1 to P-4), it was conveyed to them that Government of Haryana had decided to allot to each of them a six-marla residential plot in Urban Estate, Jind, on the condition that they would file, within fifteen days positively, an affidavit to the effect that they did not have any other plot/house in the Urban Estate, Jind, in their own name or in the name of their spouses or any of the family members dependent upon them and that they had not been Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -2- allotted at any time a plot or land in any Urban Estate, out of Haryana Government's discretionary quota in their or their spouses' name or in the name of any of their family members. The petitioners claim to have submitted the requisite affidavits on different dates, i.e., 19.06.1987 and 25.05.1987 in the office of Chief Administrator, Haryana Urban Development Authority, Manimajra, U.T. Chandigarh. However, vide memoranda dated 29.6.1987 and 08.09.1987 (Annexures R-I and R-II, respectively), the Estate Offices of HUDA, Gurgaon, Panchkula, Hisar, Rohtak, Faridabad and Karnal were informed by the Chief Administrator that the Government of Haryana had ordered that all the allotments of discretionary quota plots of various categories made during the period from 01.06.1986 to 20.06.1987 be cancelled forthwith.
Some of the allottees approached this Court as well as the Hon'ble Supreme Court of India and ultimately the orders cancelling the offer were revoked and the plots were ordered to be reverted to the allottees vide letter dated 31.10.1989. The petitioners, therefore, pray that since they had complied with the terms and conditions as mentioned in the memoranda, Annexure P-1 to P-4, the respondents be directed to allot to each of them a six-marla residential plot in Urban Estate, Jind.
A counter on behalf of the respondents has been filed wherein it is stated that vide memoranda dated 18.5.1987, Annexures P-1 to P-4, it was only intimated to the petitioners that the Government had decided to allot to each of them a six-marla plot in Urban Estate, Jind, subject to the condition that they were to furnish their respective affidavits, containing information as referred to Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -3- above, within 15 days positively of the issuance of the offer letter and the petitioners submitted the requisite affidavits within the stipulated period. It is also pleaded that the memoranda, Annexures P-1 to P-4, are neither the allotment letters nor could these be interpreted as such. These were just letters intimating an offer but were not concluded contracts. As such, the respondents were not in any way obliged to allot the plots to the petitioners.
We have heard learned counsel for the parties and have also perused the record.
Learned counsel for the petitioners has argued that the respondents are obliged to allot to the petitioners six-marla plots in view of memorandum dated 31.10.1989, by treating the memoranda dated 18.05.1987 (Annexures P-1 to P-4) as letters of allotment in terms of order dated 26.11.1991 passed by this Court in CWP No. 12849 of 1990, 'Jitender Nath Joshi and another versus Haryana Urban Development Authority'.
On behalf of the respondents it is, however, argued that the petitioners are not entitled to any allotment on the basis of memoranda dated 18.05.1987, Annexures P-1 to P-4, in so far as these memoranda did not constitute concluded contracts and were only in the nature of intimation regarding decision of the Government of Haryana to allot the petitioners residential plots of a particular size out of discretionary quota and before a concluded contracts could come into existence the Government had reversed/rescinded its decision.
Nothing more has been urged.
Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -4- Powers of the Government to allot plots under discretionary quota came up for consideration before Full Bench of this Court in case Anil Sabharwal vs. State of Haryana and others, 1997 HRR 165, wherein it was observed as under :-
"39. After having given our most anxious thought to the Judgment of the Division Bench in S.R. Dass's case, we agree with it that the Government has the power to give directions to the HUDA for carrying out the provisions of the Act. We also agree with it that the Government can make reservation of plots while making development of the urban estate but we are unable to subscribe to the view of the Division Bench that the powers vesting in the Government under Section 15 read with Section 30 of the Act are unlimited. In our opinion, the Division Bench has erred in recording that conclusion. Apparently it did not give due regard to the opening words of Section 15 (1) and the last part of Section 30 (1) of the Act. A perusal of these provisions makes it clear that the Government can give directions to the HUDA only for the efficient administration of the Act and the Government's powers to give directions to the HUDA are not unfettered. We cannot accept the proposition that the Government can give directions inconsistent with the provisions of the Act. Rather, such directions must not only be consistent with the provisions of the Act but the same must conform to the constitutional limitations. We, therefore, disapprove the view taken by the Division Bench that the powers vested in the State Government under the Act are unlimited.
40. We also do not find any force in the submission of the learned counsel for the respondents No.2, 3 and 4 that under Section 15 (1) or Section 30 (1) of the Act, the Chief Minister is vested with an absolute discretion to allot a particular percentage of plots Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -5- according to his choice. The policy of reserving the plots in favour of a class or a group of persons may in a given case be justified with preference to the purposes of the Act. Allotment of plot to one individual under the directions of the Government may also be justified in a given case but the plea that absolute discretion can vest in one individual is wholly in-compatible with the scheme of the Act and the Constitution. Likewise, the argument that the discretion conferred upon the Chief Minister is immune from the judicial review has to be negatived because it is an antithesis to the principle of "rule of law" which forms the core of the Indian Constitution. This argument is also unacceptable because in our country the representatives of the people act as trustees of faith reposed in them by the public at the time of elections."
Ultimately, while discouraging allotments under the discretionary quota at random to the public at large at the whim or caprice of the State, the Full Bench formulated following guidelines :-
"76. On the basis of the above discussion, we hold :-
1) That the provisions of Section 15 and Section 30 of the Act do not confer unbridled and unguided powers upon the Chief Minister to allot residential plots according to his discretion and the same cannot be used for sustaining the conferment of such powers upon the Chief Minister;
2. That the criteria devised by the Chief Minister vide note dated 21.11.1990 for allotment of plots i.e. "distinguished and needy people" is vague and arbitrary and is, therefore, violative of Article 14 of the Constitution;
3. That the allotment of residential plots made under the discretionary quota of the Chief Minister on or after 31.10.1989 are declared illegal and are quashed. This shall be subject to the following :-
Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -6-
(i) The allotment made under the discretionary quota shall remain unaffected in cases of those allottees and their bona fide purchasers who have already raised construction of the houses and buildings as per the plans sanctioned by the HUDA before the date of the publication of the notice of this petition i.e. 6.6.1996. However, the HUDA shall issue general instructions restraining the alienation of the constructed houses/buildings to third parties by such allottees/ transferees for a period of next five years.
(ii) The persons to whom plots measuring 2 to 6 Marlas have been allotted shall be allowed to retain the plots only if their family does not own a house in the State of Haryana/ Chandigarh. The condition against alienation to the third party shall also apply in their cases.
(iii) The cases of the allottees who were/ are members of the armed forces/ para military forces who have made sacrifice for the cause of nation or who have distinguished themselves during the course of service as well as themselves of the police forces who fought against terrorism in the State of Punjab and Jammu and Kashmir and elsewhere in the country and the civilians who have been affected by the terrorists' activities in the States of Punjab and Jammu and Kashmir and elsewhere in the country shall be reviewed by a committee.
(iv) The persons falling in the category of defence personnel/ police officers/ officials as well as the civilians whose cases are to be reviewed by the Committee to be constituted by the Government shall be allowed to retain only one plot per family on the recommendation of the Committee. However, they shall not be entitled to alienate the plots to third parties for five years.Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -7-
(v) Within one month from today the Government of Haryana should appoint a Committee headed by a retired Judge of the High Court preferably from the State other than the State of Punjab, Haryana and Delhi to examine the cases of allotment made to the members of the armed forces/para/military forces who made sacrifice for the cause of the nation or who have rendered distinguished service. The cases of the police officers/ officials who have fought against terrorism and the civilians who have suffered due to terrorism shall also be examined by that Committee. The Government and the HUDA shall regularise those allotments for which recommendations are made by the Committee.
(vi) If the Committee/HUDA finds that any of the allottees has submitted false information to the HUDA , then allotment in favour of such person shall necessarily be cancelled and the Government shall take appropriate action for prosecution of such applicants.
(5) The Government of Haryana may frame policy for allotment of plots to specified class of persons and notify such policy.
Allotment under such policy should be made by inviting applications through public notice from all those who belong to a particular class.
(6) The Government/the HUDA shall immediately cause publication of the notice in the two newspapers having wide circulation in the States of Punjab and Haryana and two newspapers having circulation in the entire country indicating therein that due to quashing of the allotment made under the discretionary quota the allottees have become entitled to the refund of money deposited by them. The amount shall be refunded to the allottee within two months of the making of application by Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -8- such person. If the HUDA fails to return the amount within two months of the making of the application then it shall pay interest at the rate of 15% per annum.
(7) The cases of those covered by the exception clauses mentioned above shall be referred to the Committee along with the entire record and the final decision be taken on the recommendation of the Committee.
(8) The plots which shall become available due to the quashing of the allotments made by the HUDA shall be disposed of by it as per the existing policy.
(9) The Government shall ensure full compliance of these directions by its own officers and the officials of the HUDA." Thereafter, some of the allottees, who were allotted plots prior to 1996, again went to the Supreme Court and the Supreme Court in case Harsh Dhingra vs. State of Haryana and others (2001) 9 SCC 550 issued the following guidelines :-
"8. These appeals, therefore, stand allowed to the extent indicated above and declaring that the judgment of the HighCourt in Anil Sabharwal v. State of Haryana (1997) 2 Punj LR 7 shall be effective from 23.4.1996. In the event in any of the cases any allotment has been cancelled, the same shall be brought in conformity with the order made by us whether those allottees are parties in these proceedings or not. The declaration made by us will have a general application. It is also made clear that allotment orders made prior to 23.4.1996 can be cancelled if they are not made in conformity with the decision in S.R. Dass v. State of Haryana 1988 PLJ 123 : (1988) 1 Punj LR 430 after following due procedure."
The crux of the aforesaid judgments is that the allotment orders Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -9- made prior to 23.4.1996 could be cancelled only if these are not made in conformity with the decision in case S.R. Dass vs. State of Haryana and others (supra). The Division Bench of this Court in S.R. Dass's case (supra) had made the following observations:-
"75. However, the cases falling in categories (a) and (d) have to be dealt with differently. The cases of the allottees who fall in category (a) require to be decided taking into consideration the following principles :-
(i) If the allottee himself or his spouse or any of the dependent children has any house or plot either at Delhi, Chandigarh or in any 'A' Class Municipal town in the States of Punjab and Haryana or in Urban Estates established by HUDA, or under the Punjab Urban Estates (Development and Regulation) Act, 1964, or in the scheme area under the Punjab Town Improvement Act, 1922 ; or in any other colony established by a Coloniser in the Punjab and Haryana and approved/regularised by the State Government concerned, he shall not be allowed to retain the plot ;
(ii) In case an allottee got allotted in his favour more than one plot either in his own name, or in the name of his spouse, or dependent children, the allottee shall not be allowed to retain all the plots. He can be allowed to retain only one plot. Provided in both the above said cases if all the plots have been constructed the allotment of the plots in view of the principle of Promissory Estoppel should not be cancelled. But if one plot has been constructed and the others have not been constructed, the allotment of the remaining un-constructed plots can be cancelled.
Provided further that in a case covered by (ii) above, if a plot has been sold by an allottee, allotment of the remaining un- constructed plots can be cancelled."
Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -10- A similar controversy came up for consideration of this Court in Civil Writ Petition No. 18682 of 1991, "Ram Kumar Aggarwal versus State of Haryana and others" decided on 01.06.2011 and a learned Single Judge of this Court found that the petitioner therein could not establish that he did file an affidavit in terms of memorandum dated 18.05.1987 and accordingly dismissed the writ petition saying "The charity, which once Government wanted to extend to the petitioner, has been withheld then the petitioner cannot compel the respondents to extend that charity". Letters Patent Appeal No. 2044 of 2011, brought against the order of the learned Single Judge, came to be dismissed vide judgment dated 09.11.2011 in the following terms:
"3. Having heard the learned counsel and perusing the paper book with his able assistance we are of the view that the State largess cannot be distributed by pick and choose method. For allotment of plot carved out of the government land, it was imperative for the respondent to follow the principles of equality as enshrined in Article 14 of the Constitution. On our repeated queries, Mr. Gurpreet Singh, learned counsel for the appellant petitioner has not been able to state that any advertisement was issued inviting applications. If the transparency in the procedure for allotment of plots has not been maintained then there is no possibility for issuing any direction for allotment of plot to the appellant- petitioner. The principle of equality enshrined in Article 14 would be shattered if any one is permitted to take away the benefit of the State largess in a clandestine manner. There is no merit in the appeal and the same does not warrant admission. Accordingly we uphold the view taken by the learned Single Judge. The appeal stands dismissed".Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -11-
Having gone through the cited judgments, we may now examine the controversy involved in the instant writ petition.
In this case only an intimation was given by the HUDA to the petitioners about the decision of the Government taken with regard to the allotment of plots out of discretionary quota. There was not even a proposal or an offer of allotment. In fact, the offer was to follow after the requisite affidavit(s) had been submitted by each of the petitioners within fifteen days from the date of issue of memoranda dated 18.05.1987 (Annexures P-1 to P-4), to the effect that they did not posses any other plot/house in Urban Estate, Jind, in their own name or in the name of their spouses or any of the family members dependent upon them and that they were never allotted a plot or land in any Urban Estate out of Haryana Government's discretionary quota in their or their spouses' name or in the name of any of their family members. The petitioners though claim to have submitted the requisite affidavits on different dates, i.e., 15.06.1987 and 25.05.1987 in the office of Chief Administrator, Haryana Urban Development Authority, Manimajra, U.T. Chandigarh, but no letter of allotment was ever issued in their favour. Petitioners also did not even deposit any money. Thus, no concluded contract came into being. The proposals for allotment of plots out of discretionary quota, however, were ultimately withdrawn without issuing any allotment letter and it appears that no step was taken towards the fulfilment of the said proposals.
It may be added here that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the State and there is a Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -12- failure on the part of the State to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and authorities exercising public functions, within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. In the instant case it has not been shown by petitioners that there is any statute or rule having the force of law which casts a duty on the respondents which they failed to perform. All that is sought to be enforced is a hope flowing from an intimation which never ripened into a contract and, as already indicated, was also not binding and enforceable.
Nothing to the contrary has been shown.
As regards the judgment in the case of Jitender Nath Joshi and another versus Haryana Urban Development Authority (supra) relied upon by the learned counsel for the petitioner, suffice it to say that it is of no assistance to the case of the petitioner firstly because it does not lay down a binding precedent in so far as it has been passed without noticing the ratio of the judgment in the case of S.R. Dass versus State of Haryana and Ors. (supra) whereby only those allotments were saved where the allottees had started construction after getting the plans sanctioned before the order of cancellation was passed and even the Hon'ble Supreme Court of India in the case of Harsh Dhingra versus State of Haryana and others, (2001) 9 Supreme Court Cases 550 has held that, "allotments orders made prior to 23.04.1996 can be cancelled Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4188 of 1992 (O&M) -13- if they are not made in conformity with the decision in S.R. Dass v. State of Haryana after following due procedure", and secondly because in a later decision in Letters Patent Appeal No. 2044 of 2011, Ram Kumar Aggarwal versus State of Haryana and others decided on 09.11.2011(supra) a Division Bench of this Court has rejected prayer for such an allotment saying, "If the transparency in the procedure for allotment of plots has not been maintained then there is no possibility for issuing any direction for allotment of plot to the appellant- petitioner. The principle of equality enshrined in Article 14 would be shattered if anyone is permitted to take away the benefit of the State largesse in a clandestine manner." and nothing to the contrary has been shown during the course of hearing.
In the consequence, the writ petition fails and is dismissed, however, leaving the parties to bear their own costs.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
19.09.2013
adhikari
Virender Singh Adhikari
2013.10.09 11:04
I attest to the accuracy and
integrity of this document
High Court Chandigarh