Punjab-Haryana High Court
The Ludhiana Partap Employees Coop. ... vs State Of Punjab And Ors on 3 December, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 03.12.2014
CWP No.3245 of 1995 (O&M)
The Ludhiana Partap Employees Cooperative House Building Society Ltd.,
Ludhiana
...Petitioners
Versus
State of Punjab & others
...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. D.V.Sharma, Senior Advocate, with
Ms. Shivani Sharma, Advocate, for the petitioner.
Mr. Manoj Bajaj, Addl. AG, Punjab, for respondent No.1.
Ms. Kavita Arora, Advocate, for respondent Nos.2 & 3.
Mr. Naveen Bawa, Advocate, for respondent No.4.
HEMANT GUPTA, J.
The petitioner has sought a writ of mandamus for directing the respondents to deliver possession of the plots allotted to the petitioner- Society or in the alternative to allot alternative plots to the petitioner- Society for further allotment to its members.
The petitioner is a Society registered under the Punjab Cooperative Societies Act, 1961 incorporated with the object of purchasing or acquiring land for construction of houses etc. for its members. The VIMAL KUMAR 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3245 of 1995 (O&M) 2 petitioner-Society purchased land measuring 13 bighas (13007 sq. yards) comprising in Khasra No.57, Khatoni No.325, Khewat No.234, Village Dugri, Tehsil & District Ludhiana, vide two separate sale deeds. The said land was acquired vide notification dated 13.02.1969 issued under Section 42 of the Punjab Town Improvement Act, 1922.
The Ludhiana Improvement Trust, Ludhiana (for short 'the Trust') also prepared a development scheme known as 'Model Town Extension Part-II Scheme' for the area in which the acquired land of the petitioner was also situated. In the said Scheme, the land, which was sought to be acquired, was reserved for Higher Secondary School. It was on 29.06.1981, vide notification published on 17.07.1981, the land purchased by the petitioner-Society was exempted from acquisition. The relevant extract from the notification reads as under:
"GOVERNMENT OF PUNJAB DEPARTMENT OF LOCAL GOVERNMENT Notification the 29th June, 1981 No.216-DSLG-III-81/7137 - in exercise of powers conferred by sub- section 1 of Section 56 of the Punjab Town Improvement Act and all other powers enabling him in this behalf, the Government of Punjab is pleased to grant exemption to the Pratap Cooperative House Building Society from the Model Town Extension Scheme Part - II of the Improvement Trust, Ludhiana on the following terms & conditions:
(a) that the layout of the proposed cooperative Housing colony will form part of overall layout of the Scheme.
However, while framing the overall layout an effort would be made to cater to the requirements of the Cooperative Society as far as possible;
(b) that development charges will be paid by the society to the Trust on the basis of rates fixed by the Trust and the development of the area exempted will be carried out by VIMAL KUMAR the Improvement Trust.
2014.12.09 13:03I attest to the accuracy and integrity of this document Chandigarh CWP No.3245 of 1995 (O&M) 3
(c) that utilization in the area exempted in favour of the Cooperative Society will be to the same extent as the land utilization in the overall scheme. For instance, the landleft for roads, parks and other common purposes would be to the same extent as left in overall scheme.
Consequently, the area under plots would be about 45 to 55 per cent of the entire area exempted;
(d) that the exemption will be in respect of bonafide Housing Societies and that its individual members will be giving an undertaking that they will not transfer lease or otherwise alternate plot for a period of ten years. Not more than one plot will be given to an individual member."
The legal consequence of the said exemption notification is that the land purchased by the petitioner-Society ceases to be part of the acquisition and also the part of the development scheme for which land was acquired. Instead of utilizing the land in the manner contemplated in the exemption notification, the petitioner-Society sought allotment of plots for its members.
The Trust passed Resolution No.538 dated 11.07.1990 allotting 47 plots of 7050 sq. yards from its land comprising in Khasra No.56 of the same revenue area. Some plots were allotted to other Societies as well. In pursuance of such Resolution, a letter was issued to the petitioner-Society on 29.08.1990. The petitioner-Society invoked the writ jurisdiction of this Court to claim possession of 47 plots allotted to it in terms of the Resolution dated 11.07.1990.
In a short reply filed on behalf of respondent Nos.2 & 3, it was pointed out that Resolution No.538 dated 11.07.1990 allotting 47 plots to the petitioner-Society was annulled by the State Government in exercise of VIMAL KUMAR the powers conferred under Section 72-E of the Punjab Town Improvement 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3245 of 1995 (O&M) 4 Act, 1922 after holding an enquiry through Shri D.P.Reddy, IAS, former Director, Local Government, Punjab on 19.06.2002. It is pointed out that the petitioner has not challenged the order dated 19.06.2002, therefore, the present writ petition is liable to be dismissed. However, subsequently in the year 2014, the petitioner was permitted to challenge the said order in a amended writ petition.
A perusal of the said order shows that the petitioner has deposited exemption fee at the rate of Rs.5/- per sq. yard and 1/4th development charges. It was found that the decision of the Trust to allot plot to the Society other than specific area of the Society exempted by the Trust was motivated with a view to give undue pecuniary benefit to the Society. The Trust was under no obligation whatsoever to allot plots to the Society in lieu of the encroached land of the Society, which stands exempted from acquisition. Once the land of the Society was exempted, the Society continues to be owner of the land and it is for the Society to take action to get the encroachment removed. The Trust has no legal competence to exchange the land of one Society with the land of another Society.
In its reply, the stand of respondent No.4 is that the said respondent was owner of land comprising in Khasra No 56 Village Dungri and the said land was subject matter of acquisition and the Model Town Development Scheme. The land of the respondent was also exempted from acquisition vide separate notification dated 25.06.1981, therefore, the petitioner cannot claim any plot from the land owned and possessed by the said respondent. It is also averred that the petitioner-Society filed a Civil Suit No.198 of 03.04.1992 against respondent Nos.2 to 4 for mandatory VIMAL KUMAR 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3245 of 1995 (O&M) 5 injunction for allotment of alternative plots in lieu of plots as claimed in the present writ petition. The said suit was dismissed by the Sub Judge Ist Class, Ludhiana on 12.04.1994. The petitioner has not disclosed the fact of filing and decision of the said suit. It is also mentioned that the said respondent No.4 also filed a Civil Suit No.160 dated 14.03.1992 against the petitioner-Society and against the Trust for permanent injunction restraining them from interfering in its possession from the land measuring 11625 sq. yards comprised in Khasra No.56 of which 47 plots are said to be part. The said suit was decreed on 22.11.1994 by the Sub Judge Ist Class, Ludhiana. The said respondent was held to be owner and in possession of the land including 47 plots. Such judgment has attained finality, as no appeal was filed. The petitioner also raised a reference under Sections 55 & 56 of the Punjab Cooperative Societies Act, 1961. Such reference was also dismissed by the Assistant Registrar, Cooperative Societies, Ludhiana. The petitioner also filed a writ petition claiming possession of the plots. The said writ petition was also dismissed. It is also mentioned that the alleged allotment made by the Trust in lieu of land of the petitioner-Society was of non-existing plots and sites, the possession of which was not even with the Trust. It is also mentioned that the petitioner continues to be owner of its land comprised in Khasra No.57. The petitioner-Society has no concern, right or title in the land of the Trust comprised in Khasra No.56. It is also asserted that the physical possession of the land was never taken by the Trust, as only announcement of Award was made by the Land Acquisition Collector when the land of the petitioner-Society was exempted.
VIMAL KUMAR 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3245 of 1995 (O&M) 6
The petitioner-Society has also filed an application so as to produce Annexure P-14, a public notice providing opportunity of hearing to the Societies including the petitioner-Society; Annexure P-15, reply submitted by the petitioner to the show cause notice published in the newspaper and also the communication dated 01.07.2002, whereby the petitioner was informed to direct its members to handover vacant possession of the allotted plots.
We have heard learned counsel for the parties at length and find no merit in the present writ petition. The land of the petitioner-Society was subject matter of acquisition proceedings vide notification dated 13.02.1969 issued under Section 42 of the Punjab Town Improvement Act, 1922. The land was sought to be acquired as part of the Model Town Extension Part-II Scheme. A Higher Secondary School was proposed to be constructed on the land sought to be acquired. But after acquisition, on the representation of the petitioner-Society, the entire land purchased by it was exempted from acquisition on 29.06.1981. The land of the petitioner- Society ceases to be part of the acquisition and the petitioner continues to be owner thereof. That part of the development scheme, where Higher Secondary School was reserved, also came at naught for the reason that the land of the petitioner-Society was no longer a part of the development scheme. Therefore, the petitioner as owner of the land is free to utilize the land in terms of the conditions of the exemption i.e. that the layout of the proposed cooperative housing colony will form part of the overall layout of the scheme and that development charges shall be deposited by the petitioner-Society. The utilization of the area would be to the same extent as the land utilization in the overall scheme. However, instead of using the VIMAL KUMAR 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3245 of 1995 (O&M) 7 land purchased by the petitioner-Society and exempted from acquisition for its purposes, the Society clandestinely moved an application seeking allotment of plots from the other land owned by the Trust comprising in Khasra No.56. The Resolution allotting plots could not have been granted, as the petitioner continues to be owner of the land purchased by it. Once the land purchased by the petitioner was available for its use, the petitioner could not take other land of the Trust. There was no obligation on the part of the Trust to allot its land to the petitioner-Society, as the petitioner continues to be owner of the land purchased by it. Instead of developing the land purchased by it in terms of the exemption granted, the petitioner maneuvered to get land owned by the Trust for its benefit. The Resolution passed on 11.07.1990 has been rightly annulled by the State Government in the year 2002. Such Resolution, though communicated to the petitioner vide registered post, was not challenged for almost 12 years. It is only by virtue of amended writ petition filed on 11.02.2004, the petitioner-Society has sought to impugn the same.
We find that though the decision of the State Government annulling the Resolution is not suffering from any patent illegality, but even the challenge is grossly delayed and suffers from laches.
In view of the above, we find no merit in the present writ petition. The same is dismissed.
(HEMANT GUPTA)
JUDGE
03.12.2014 (HARI PAL VERMA)
Vimal JUDGE
VIMAL KUMAR
2014.12.09 13:03
I attest to the accuracy and
integrity of this document
Chandigarh