Punjab-Haryana High Court
Natha Singh vs Gmada And Others on 26 November, 2012
Author: Surya Kant
Bench: Surya Kant
CWP No. 9462 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
1. CWP No. 9462 of 2012
Natha Singh
..... Petitioner
Versus
GMADA and others
..... Respondents
2. CWP No. 21409 of 2012
Greater Mohali Area Development Authority
..... Petitioner
Versus
Natha Singh and others
..... Respondents
Date of decision: 26.11.2012
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR.JUSTICE R.P. NAGRATH
PRESENT: Mr. Manvinder S. Dalal, Advocate,
for the petitioner in (CWP No. 9462 of 2012) and
for respondent No. 1 in (CWP No. 21409 of 2012).
Ms. Munisha Gandhi, Addl. AG, Punjab.
Mr. Sanjeev Sharma, Senior Advocate with
Mr. Shekhar Verma, Advocate,
for respondents No. 1 and 3 in (CWP No. 9462 of 2012) and
for the petitioner in (CWP No. 21409 of 2012).
SURYA KANT, J. (ORAL)
This order shall dispose of writ petitions bearing Nos. 9462 CWP No. 9462 of 2012 -2- and 21409 of 2012 as both have arisen out of the order dated 26.5.2011 passed by Additional Secretary to Government of Punjab, Department of Housing and Urban Development, Chandigarh, in exercise of his power as a Revisional Authority under the Punjab Regional and Town Planning and Development Act, 1995. While the petitioner in CWP No. 9462 of 2012, seeks a mandamus for enforcement of the revisional order, CWP No. 21409 of 2012 has been preferred by Greater Mohali Area Development Authority (GMADA), challenging that order.
2. To appreciate the controversy, a brief reference to the facts is being taken from CWP No. 9462 of 2012. Babu Lal S/o Late Ladhu Ram, applied in response to a 'residential scheme' advertised and opened w.e.f. 27.11.2000, for allotment of a residential plot measuring 125 sq. yards in Sector 76-80, SAS Nagar Mohali. Babu Lal, was successful in draw of lots in one of the reserved categories and was issued Letter Of Intent (LOI) dated 22.3.2001 (Annexure P-1). Babu Lal sold the afore- stated Letter of Intent to one Pawan Sood, who applied for transfer of L.O.I. in his favour along with 'transfer and processing fee'. Application of Pawan Sood was accepted by the Competent Authority and on 1.1.2002, Letter of Intent (LOI) was issued in his favour. No objection was raised against the eligibility of original allottee (Babu Lal) or of Pawan Sood nor any deficiency in their application forms/transfer applications were pointed out.
3. The second allottee-cum-Letter of Intent holder-Pawan Sood, then entered into an 'agreement to sell' with the petitioner (Natha Singh) on 15.6.2004 and on receipt of sale consideration, the petitioner and CWP No. 9462 of 2012 -3- Pawan Sood both moved a joint application for transfer of Letter Of Intent (LOI) in favour of the petitioner. The Estate Officer, GMADA while scrutinizing the said application found that the original allottee (Babu Lal) had not submitted the certificate of his being resident of Punjab, hence the very issuance of Letter of Intent in his favour was illegal and consequently on 5.10.2007, cancelled the Letter of Intent of the original allottee. The petitioner (Natha Singh) being the only and real aggrieved person preferred an appeal against cancellation of LOI and the matter was remanded by the Appellate Authority to the Estate Officer, GMADA, to decide it afresh on merits by passing a speaking order. The Estate Officer, however, reiterated his cancellation order. The petitioner's appeal was also turned down on 18.2.2010. The petitioner, thereafter, filed a revision petition under Section 45(8) of the Punjab Regional and Town Planning and Development Act, 1995, before the State Government.
4. The Additional Secretary to the Government of Punjab, Department of Housing and Urban Development, Chandigarh, in exercise of his powers as Revisional Authority, has accepted petitioner's (Natha Singh) revision petition vide order dated 26.5.2011 (Annexure P-6) essentially on the ground that he is a bona fide purchaser and cannot be penalized for the negligence committed by officials of GMADA, who failed to obtain a copy of the Certificate of Resident of Punjab from the original allottee, namely, Babu Lal. A direction has been issued to the Estate Officer, to transfer the Letter of Intent in the name of Natha Singh- petitioner and "to initiate disciplinary action against the guilty officials CWP No. 9462 of 2012 -4- who are responsible for this lapse".
5. While the petitioner (Natha Singh), seeks implementation of the above-stated revisional order, GMADA has impugned the same primarily on the ground that the Letter of Intent does not amount to 'allotment' of plot and it was merely an offer subject to the conditions to be satisfied by the allottee and since those conditions were never complied with by the original allottee (Babu Lal) the offer never materialized into a concluded contract which could be enforced by Babu Lal or his successors in interest.
6. When the writ petition challenging the revisional order came up for hearing on October 30, 2012, we directed the Chief Administrator, GMADA, to place on record an affidavit giving status of the disciplinary proceedings initiated vide charge-sheet (Annexure P-8) as well as the effective steps taken pursuant thereto. Affidavit filed in Court today reveals that the charge-sheet was sent to Chief Administrator, Punjab Urban Development Authority, for taking action against the then Superintendent and Senior Assistant, who are now holding senior promotional posts in PUDA. The disciplinary proceedings, however, were dropped with a 'warning' to both the officials.
7. The facts of the case would speak for themselves. The authorities without verifying the correct facts and/or insisting upon the original allottee to produce the requisite documents establishing his eligibility, firstly issued the Letter of Intent and then accepted his request for transfer of LOI in favour of Pawan Sood. If there was some inadvertent negligence at the initial stage, we fail to understand as to why CWP No. 9462 of 2012 -5- such an infirmity or deficiency was not detected at the time when Pawan Sood, applied for transfer of Letter of Intent and the authorities issued the revised Letter of Intent in his favour.
8. It is not in dispute that subject to the eligibility conditions and payment of 5% transfer fee and/or other requisite charges, Letter of Intent is a transferrable instrument.
9. It was not a case where the Letter of Intent exchanged hands within days or months. The Letter of Intent was transferred in favour of Pawan Sood on 1.1.2002 and he sold to the petitioner after 3½ years on 15.6.2004. No action to cancel the allotment was ever taken by the authorities during this period. It was only when the petitioner applied for further transfer of Letter of Intent in his favour along with the requisite transfer fee that the alleged infirmity was detected in the year 2007.
10. The authorities may be true in contending that Babu Lal failed to establish his 'eligibility' for allotment for want of domicile certificate as a resident of Punjab but it was imperative upon them firstly not to entertain an application in the reserved category unless the requisite certificates/documents were appended with, and in any case 'Letter of Intent' in favour of a successful applicant ought not to have been issued before scrutiny of documents appended with the application. Had there been some pre-cautionary measures taken on time, a situation like the present could be averted.
11. In this undisputed factual scenario, we are of the considered view that so long as Pawan Sood possessed a valid Letter of Intent, the petitioner's initiative in entering into an agreement to sell with him; CWP No. 9462 of 2012 -6- payment of sale consideration and then seeking transfer of Letter of Intent in his favour along with consent given by Pawan Sood, would clothe him with the protective umbrella of a 'bona fide purchaser'. No factual or legal error in this regard can be said to have been committed by the Revisional Authority. That being so, the direction issued by the Revisional Authority that the Letter of Intent be transferred in favour of the petitioner deserves to be upheld.
12. We order accordingly.
13. The Estate Officer, GMADA, is directed to do the needful within a period of one month from the date of receipt of certified copy of this order, subject to the deposit of statutory charges/fee etc. if any.
14. The second direction issued by the Revisional Authority to take action against the guilty officials has become infructuous in view of the fact that even before the said direction, the matter was closed by Chief Administrator, PUDA on 4.7.2008, by issuing warning to the officials responsible for this mess.
15. We, therefore, while dismissing writ petition bearing No. 21409 of 2012, preferred by Greater Mohali Area Development Authority (GMADA), direct that suitable measures be taken to ensure that no Letter of Intent shall hitherto be issued in favour of an allottee unless the eligibility certificates are produced and scrutinized. We direct so for the reason that when the Letter of Intent is a transferrable document then there is every likelihood that a bona fide purchaser is duped to pay hefty consideration and then to face undue harassment as has happened in the instant case.
CWP No. 9462 of 2012 -7-
16. Since there are more than one statutory authorities in the State of Punjab who have been assigned development and allotment works, we direct the Principal Secretary to Government of Punjab, Department of Housing and Urban Development, to issue necessary instructions in this regard.
17. Both the writ petitioners are accordingly disposed of in terms of the above directions.
( SURYA KANT )
JUDGE
November 26, 2012 ( R.P. NAGRATH )
rishu JUDGE