Punjab-Haryana High Court
Jalandhar Improvement Trust vs Dr. Gurmit Singh And Ors. on 31 July, 2001
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Dr. Gurmit Singh, In-charge Civil Veterinary Hospital, Jamsher, District Jalandhar got his name registered with the Jalandhar Improvement Trust, Jalandhar-defendant for the allotment of a plot. He deposited Rs. 10000/- as earnest money vide book No. 551, serial No. 21 dated 23.7.79 with the Jalandhar Improvement Trust, Jalandhar-defendant. The Jalandhar Improvement Trust, Jalandhar-defendant allotted him plot measuring 12 marla in the Development Scheme 55 acres on Police Lines Road, known as "Master Tara Singh Nagar Scheme" through its memo No.JIT/10317 dated 26.9.79. He accepted the offer of allotment made to him by the Jalandhar Improvement Trust. Jalandhar-defendant and deposited another sum of Rs. 6600/- through bock No. 572 serial No. 36 dated 8.10,79 towards the price of the plot as per demand made by the Jalandhar Improvement Trust, Jalandhar-defendant. To his surprise, he got letter No. JIT/8384 dated 15.10.80 from the Administrator, The Jalandhar Improvement Trust, Jalandhar-defendant conveying the cancellation of the plot measuring 12 marlas in the development scheme of 5.5. acre known as Master Tara Singh Nagar Scheme in Jalandhar allotted to him earlier vide memo No. JIT/10317 dated 26.7.79 saying that it was a provisional allotment. It was alleged in the plaint that it was incumbent upon the Improvement Trust to have obtained approval to allotment in his favour. He was not given opportunity of being heard and was not apprised of the reason of the cancellation of allotment of plot in his favour. As such their action was illegal, void, wrong, malafide, unwarranted, unconstitutional, without jurisdiction and was not binding upon him and for permanent injunction restraining the State of Punjab and the Jalandhar Improvement Trust, Jalandhar-defendant from re-allotting this 12 marla plot to any other person than him or restraining them from changing or altering the measurements or boundaries of the said plot or erasing the said plot from that scheme and as a consequential relief, he sought mandatory injunction directing them to disclose the number of the plot, boundaries and its situation to the plaintiff and abide by the terms and conditions of the allotment letter. Defendants are estopped from taking up the plea of provisional allotment by their act, conduct and acquiescence. The Jalandhar Improvement Trust, Jalandhar-defendant is deemed to have reserved a plot measuring 12 marlas simultaneously when they allotted it through memo No. JIT/10317 dated 26.9.79.
2. The Jalandhar Improvement Trust, Jalandhar-defendant contested the suit of the plaintiff. It was urged that it was a provisional allotment subject to the approval of the State Govt. This allotment was out of the govt. quota. Plaintiff was made clear that the allotment was subject to the approval of the State Govt. As such, he could not plead ignorance that he was not aware whether his case had ever been sent to the State Govt. for approval. Allotment was cancelled by the Trust in obedience to the orders of the State Govt. dated 26.9.80. Trust asked for the approval of the allotment, but the State Govt. refused to approve the allotment, rather cancelled the allotment. State Govt. was within its right to reject or accept the provisional allotment made by the Trust Question of affording any opportunity to the plaintiff did not arise State Government has control over the working of the Improvement Trusts. Allotment was conditional in nature, hence subject to the approval of the State Govt. As the allotment was out of Govt, quota, the State Govt. exercising the powers vesting in it under the Punjab Town Improvement Act, 1922 rejected the allotment of the plot to him by the Trust. There was no privity of con-tract between the plaintiff and the Trust, that the Trust was bound to allot the plot.
On the pleadings of the parties, the following issues were framed:-
1. Whether the order for cancellation of the plot is illegal and void as alleged in the plaint? OPP
2. Whether the suit is not maintainable in the present form? OPP
3. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD
4. Whether the plaintiff has no locus standi to file the suit? OPD
5. Relief.
3. Vide order dated 16.9.83, Additional Senior Sub Judge, Jalandhar decreed the plaintiffs suit for declaration that order cancelling the plot dated 15.10.80 was illegal and not binding on him and for consequential relief of permanent injunction directing the defendants to abide by the terms and conditions of allotment letter Ex.P2 and restraining them from re-allotting that plot to any other person and for mandatory injunction directing the defendants to disclose the number of the plot and its situation to the plaintiff, in view of his finding that there was no reasonableness or public interest shown to have been injured by the allotment of the plot. It was found that the cancellation of the plot without any reasonable ground, was illegal, unconstitutional and void. It was found that the defendants were estopped by their act and conduct from canceling the plot when the plaintiff had deposited Rs.6,600/- vide receipt Ex.P3 as per terms and agreement Ex. P2 (allotment order).
4. Not satisfied with this judgment and decree dated 16.9.83 of Additional Sr. Judge, Jalandhar, the Trust went in appeal which Was dismissed by Additional Distt. Judge, Jalandhar vide order dated 4.3.1985. Still not satisfied, the Trust has come up in further appeal to this Court.
5. I have heard the learned counsel for the parties and have gone through the record.
6. Plot measuring 12 marla was allotted to Dr. Gurmit Singh-plaintiff from Govt. quota in this scheme pursuant to his application dated. Letter of allotment Ex.P2 shows that the allotment was made to him subject to the approval of the state Govt. in addition to the terms and conditions as laid down in the utilization of land and allotment of plots by the Improvement Tjust Land Disposal Rules as amended from time to time. Allotment was cancelled by the Administrator. Jalandhar Improvement Trust, Jalandhar in view of the State Govt. having turned down the recommendation of the Ex-Chairman of the Trust for the allotment of plot to him out of Govt. quota. It was provisional allotment which was cancelled. It was submitted by the learned counsel for the appel-lant(Trust) that this allotment was made by the Trust in violation of the utilization of land and allotment of plots by Improvement Trust Rules, 1975. Rule 7(i)(b) of 1975 Rules lays down as follows:-
"Such tenements and plot shall be allotted by the Trust at reserved price with the approval of the Government."
7. It was submitted that it was a provisional allotment to the plaintiff which could come into play only after approval had been granted by the State Govt. to this allotment. It was held in Nathulal v. Phoolchand, AIR 1970 SC 546 that "where by a statute, property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain the sanction of the authority concerned". In Jalandhar Improvement Trust v. Sampuran Singh etc.etc. (1999-2) 122 PLR 295 (S.C.), the Hon'ble Supreme Court held that if allotment was made wrongly in favour of persons, the same may become liable for cancellation if permissible but will not create an enforceable right on the respondent to claim similar wrongful allotments in their favour. There is no estoppel against law. Principle of promissory/equitable estoppel cannot be invoked to protect such illegal allotments. Allotment in favour of the plaintiff being provisional could well be cancelled by the State Govt. and the State Government could refuse approval to this allotment which in its opinion was illegal."
8. In this case, we have to see whether the action of the State Government in refusing to accord approval 10 the allotment of plot to the respondent was within the ambit of its authority. Action of the State Govl. falls within the ambit of Section 72 of the Act.
9. Section 72-E of the Punjab Town Improvement Act, 1922 lays down that:-
72-E. Power of State Government and its officers over trusts - (1) The State Government and Deputy Commissioners acting under the orders of the State Government, shall be bound to require that the proceedings of trusts shall be in conformity with law and with the rules in force under any enactment for the time being applicable to Punjab generally or the areas over which the trusts have authority.
(2) The State Government may exercise all powers necessary for the performance of this duty and may among other things, by ordering writing, annul or modify any proceedings which it may consider not to be in conformity with law or with such rules as aforesaid, or for the reasons, which would in its opinion justify an order by the Deputy Commissioner under Section 72-B. (3) The Deputy Commissioner may, within his jurisdiction for the same purpose, exercise such powers as may be conferred upon him by rules made in this behalf by the State Government.
10. In this case, the recommendation of allotment of plot of the plaintiff by the Trust was turned down by the government. It may be mentioned here that this allotment by the Trust was in violation of the said rules. If allotment was in violation of any provision of the Act or the rules framed thereunder, allotment has to fall on the ground. It was held in Anil Sabharwal v. State of Haryana and Ors., (1997-3) 116 P.L.R. 7 (F.B.) that property acquired for public purpose cannot be misused for the benefit of few individuals in the garb of allotment under discretionary quota. There can be no unbridled and unguided discretion to allot plot to any individual according to the whim and fancy of the authority in whom this discretion vests. Discretion of statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevantly. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter the statutory body may have acted in good faith: nevertheless the decision will be set aside.
11. In S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427, it was observed as follows:-
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the anti-thesis of a decision taken in accordance with the rule of law. Discretion means sound discretion guided by law. It must not be arbitrary, vague and fanciful. Where discretion is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice."
12. In Shrilekha Vdyarthi v. State of U.P., AIR 1991 SC 537, the Hon'ble Supreme Court observed as follows:-
"...We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness, in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters but that does not justify when the modern trend is also to examine the unreasonableness or a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals."
13. In LIC of India and Anr. v. Consumer Education & Research Center and Ors., JT 1995(4) SC 366, the Hon'ble Supreme Court negatived the claim of immunity of the State action from judicial review in the context of Articles 14 and 21 of the Constitution and observed that :-
"...Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public element becomes open to challenge. It is shown that the exercise of the power is arbitrary, unjust and unfair it should be no answer for the State, its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the filed of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by traditional or irrelevant considerations..."
14. It was submitted that in this case Article 14 of the Constitution of India was violated in as much as no criteria was laid down for the allotment of plots by the Trust. It was submitted that no guidelines were framed by the Trust governing the allotment of discretionary quota if some guidelines had been drawn up. Others who fulfill those guidelines could also apply for the allotment of the plot and compete with others. Plaintiff did not bring on record the application made by him pursuant to which plot measuring 12 marla was allotted to him so that it could be seen how he was distinguishing himself from others while asking for the allotment of plot. It was public property which the Trust was required w deal with in a just, equitable and impartial manner. It could be allotted to the one who fulfilled some criteria governing such allotments. No such criteria was brought on record by the plaintiff so that court could see for itself whether he was fulfilling that criteria or not. The holder of a public office is stated to have misused his position when in pursuit of private satisfaction as distinguished from public interest he has done something which ought not have been done. The important elementary qualifications demanded of the holder of a public office is honesty and incorruptibility. He should not only possess these qualifications but also appear to possess these qualifications. He has to deal with the people's property in a fair and just manner and should not distribute the benefits and largesses to his own people. He holds a trust on behalf of the people. It was submitted that in this case, the Trust did not frame any policy for the allotment of plots in the exercise of discretion.
15. It was submitted by the learned counsel for the appellant that no opportunity of hearing was required to be given to the respondent before refusing to accord approval to the allotment of plot to the respondent by the Trust. In support of this submission, he drew my attention to 1983 PLJ 381. It was held that it was not incumbent upon the Director. Local Govt. Punjab to issue notice and afford an opportunity of hearing to the petitioner before annulling the resolution of the Improvement Trust under which allotment has been made in his favour. It was held in Common Cause a registered Society v. Union of India, JT 1996(8) SC 613 that no public servant can arrogate to himself the power to act in a manner which is arbitrary. In pith the argument of the learned counsel for the appellant-Trust was that the Trust had allotted plot to the respondent-arbitrary. Before allotting the plot it had not framed any guidelines. It had not sought applications from others similarly situated. More so, it was a provisional allotment which could fructify only if it had been approved by the State Govt. State Govt. had refused to approve it in view of the powers vesting in it under Section 72 of the Punjab Town Improvement Trust Act, 1922 and also that this allotment was in violation of the utilization of land and allotment of plots by Improvement Trust Rules 1975.
16. Learned counsel for the respondent, on the other hand, submitted that State Govt. has no reason for refusing to accord approval to the allotment of the plot made by the Trust in favour of the plaintiff. It was submitted that exercise of the power by the State Govt. was in the nature of "Farmanshahi" which used to be issued by the sovereign ruler/autocrats. He drew my attention to Balbir Kaur v. State of Punjab and Anr., 1983 PLJ 414 where the allotments made by the Amritsar Improvement Trust. Amritsar were restored by this Court in CWP No. 611 of 1982 decided on 24.5.83 which had been cancelled by the State Govt. through a blanket order. Impugned order passed by the State Govt. runs as under:-
"All recommendations made by former Chairman of Improvement Trusts in allotment of plots To various person out of govt. quota have been considered and rejected by the govt. This will be applicable to all categories of plots of all Improvement Trusts which are yet to be allotted out of govt. quota. It was in pursuance of this order that the Improvement Trust. Amritsar issued individual letters to the petitioners conveying the. cancellation of allotments in their favour."
17. It was laid down in Balbir Kaur v. State of Punjab etc. (supra) that allotment to be effective must have approval of the State Govt.
18. In the case in hand. State Govt. was justified in refusing to accord approval to the allotment of plot to the respondent as allotment was arbitrary.
19. It was submitted that the State Govt. has not accorded approval to the allotment of plot to the respondent while it accorded approval to the allotment of plot to Sh. J.B. Goel and others mentioned in Ex. P-10. It would bear repetition that if Sh. J.B. Goel etc. were made wrong allotments of plots. Similar wrong allotment of plot cannot be made in favour of the respondent. Discrimination cannot be removed by committing any illegality.
20. For the reasons given above, this appeal is allowed. Judgment/decree passed by Additional Distt. Judge, Jalandhar affirming that of Addl. Sr. Judge, Jalandhar are set aside. In consequence, the suit of respondent-plaintiff is dismissed. No order as to costs.