Punjab-Haryana High Court
Gian Jyoti Educational Society vs Estate Officer, Urban Estate, Punjab ... on 24 October, 1991
Equivalent citations: AIR1992P&H75, (1993)105PLR178, AIR 1992 PUNJAB AND HARYANA 75, 1991 HRR 601, (1992) 1 LANDLR 394, (1992) 1 RRR 297, 1992 PUNJ LJ 53, (1992) 1 RENCR 193
Author: H.S. Bedi
Bench: H.S. Bedi
ORDER
1. The petitioner is an Educational Society registered under the Registration of Societies Act, 1860, and is running a school under the name of Gian Jyoti Public School, Phase II, Sector 54, S.A.S. Nagar, District Ropar, Punjab. As the school did not have any proper building and was being run in rented premises, the petitioner applied to the Housing and Urban Development Department, Punjab, on 6th July, 1979, for the allotment of land in the urban estate S.A.S. Nagar for the construction of a school building. On consideration of the application, respondent No. 1 issued a letter offering allotment of land measuring 5.076 acres in Phase II, Sector 54, S.A.S. Nagar, at the tentative rate of Rs.30/- per square yard making a total of Rs. 7,37,035.20 paise and directed that 25% of the tentative price mentioned above be deposited within 30 days. In compliance with the offer of allotment Annexure P2 dated 24th of April, 1984, referred to above, 25% of the tentative sale price was deposited within the due time. Vide Annexure P4, dated 30th May, 1984, respondent No. 1 allotted the aforementioned land to the petitioner on the terms and conditions incorporated in the said letter, the tentative price being Rs. 30/- per square yard. It appears that on account of operation Blue Star which commenced in the first week of June 1984, the actual and physical possession of the land in question was not delivered to the petitioner but the symbolic possession was delivered to the petitioner vide letter An-nexure P6 dated 13th June, 1984. In pursuance of the allotment made to the petitioner it appears that certain steps were taken by the petitioner to start the construction of the building. However, vide letter dated 14th September, 1984, Annexure P8, handing over of the symbolic possession to the petitioner vide Annexure P6 was cancelled. The petitioner represented against the order Annexure P8 and while the representation was pending, certain instalments with regard to the sale price determined in Annexure P4 were paid and accepted by the respondents. The averments in the writ petition further are that vide letter dated 21st May, 1987, Annexure P15, the tentative sale price fixed under Annexure P4 was redetermined and a fresh allotment at the rate of Rs. 2551 - per square yard (that too being provisional and subject to further enhancement), was fixed and it was further directed that 25% of the total cost which was now determined at Rupees 62,64,799.20 Paise be deposited within 30 days. The petitioner aggrieved by the unilateral enhancement of the price which had been inflated to the extent of 850%, made various representations to the Government which were routed through the Secretary of the Department as also to the Governor of Punjab. Copies of various representations have been appended as annexures with the writ petition. The petitioner also sought personal hearing with the Secretary of the Department and also the Governor of Punjab but this too was not accorded to him and vide Annexure P27, dated 25th January, 1990 and Annexure P32 dated 20th September, 1990, the petitioner was given the choice of accepting the allotment at the rate of Rs. 255/- per square yard. However, it is pertinent to mention here that vide Annexure P29 dated 17th September, 1990, the Estate Officer had already cancelled the allotment presumably on the ground that the remaining amount determined by the department had not been paid by the petitioner. The petitioner has impugned Annexures P8, P15, P21, P27, P29 and P32 appended to the writ petition. The petitioner has challenged the action of the respondents on the ground that under the provisions of the Punjab Urban Estates (Development & Regulation) Act, 1964 (hereinafter called 'the Act') and the Punjab Urban Estates (Sale of Sites) Rules, 1965 (hereinafter called 'the Rules'), the price fixed tentatively under Annexure P4 could be enhanced only in terms of the Rules as an additional price and that there was no provision in the Act or the Rules for the refixation of the tentative price.
2. It has also been urged that under, Section 11A of the Act, the allotment once made could have been cancelled only within one year from the date of allotment and further that there has been discrimination between the petitioner and other schools situated in S.A.S. Nagar with regard to the, price that was to be charged for the allotment of land.
3. The last argument raised is that the action of the respondents in refixing the price without any basis made out in the written statement is arbitrary and liable to be quashed.
4. A reply has been filed in response to the writ petition and the primary stand taken is that as letter of allotment Annexure P4 stipulated that the rate of Rs. 30/ - per square yard was only provisional, it was open to the Government to increase the rate of allotment of the land in question. It has been stated that as the school was being run on commercial lines, commercial rates were required to be charged from the petitioner. The averments in the written statement indicate that the respondents were of the opinion that they could unilaterally increase the price of the land without following any norms and procedures merely on the ground that the price determined under the letter of allotment Annexure P4 was only tentative or provisional.
5. I have heard the learned Counsel for the parties at length and I am of the view that the petition must succeed.
6. Sub-sections (2) and (3) of Section 3 of the Act provide that the State Government may transfer any land or building belonging to it by various methods including allotment on such terms and conditions as it may, subject to any rules made under the Act, thinks fit to impose and further that the consideration money shall be recovered from the transferees in such manner and in such instalments as may be prescribed. The word 'prescribed' has been defined in Section 2(h) as meaning to be prescribed by the rules made under the Act. The rule-making power has been conferred on the State Government by Section 23 of the Act and clauses (a) and (b) of sub-section (2) of the Section 23 provides that the State Government is competent to make rules to determine the terms and conditions on which any land or building may be transferred by the Government and the manner in which the consideration money for any transfer may be paid. Rule 2(e) of the Rules gives the definition of tentative price whereas Rule 2(aa) defines the additional price. The aforesaid rules are reproduced below as their interpretation is seriously involved in the case:
"2(aa): 'additional price' means such sum of money as may be determined by the State Government, in respect of the sale of a site by allotment, having regard to the amount of compensation by which the compensation awarded by the Collector for the land acquired by the State Government of which the site sold forms a part, is enhanced by the Court on a reference made under Section 18 of the Land Acquisition Act, 1894, and the amount of cost incurred by the State Government in respect of such reference."
"2(e): 'tentative price' means such sum of money as may be determined by the State Government from time to time, in respect of the sale of a site by allotment, having regard, among other matters, to the amount of compensation awarded by the Collector under Land Acquisition Act, 1894, for the land acquired by the State Government of which the site sold forms a part."
7. The argument of Mr. M. L. Sareen, learned Counsel for the petitioner is that the land allotted to the petitioner had been acquired under the Land Acquisition Act in the year 1974 and the tentative price had been fixed by the Government and specifically so mentioned in clause 2(i) of Annexure P4 and it was to be presumed that the said price had been fixed in terms of the rule. Continuing his argument, Mr. Sareen has, once again relying on clause 2(ii) of the letter Annexure P4, urged that after the fixation of the tentative price the increase in the price could only be made in terms of the definition of additional price referred to above, that is, only in a situation where the compensation awarded by the Collector with respect to the land was enhanced by the Court under a reference under Section 18 of the Land Acquisition Act, 1894 or in appeal before the Court. He has urged that it is the admitted case of the parties that there has been no increase in enhancement of the compensation which had become payable to the landowners on account of some award or judgment in appeal with respect to the land in question. He has also referred to clause 4 of letter of allotment, Annexure P4, which specifically lays down as under:
"The allottee shall be liable to pay to Government in addition to the above tentative price of the site, the additional price, if any, determined in respect of the site within 30 days of the date of demand."
He has also referred to Rule 5-A of the Rules in furtherance of his argument that the allottee was required to pay in addition to the tentative price only the additional price and on the payment of 25% of the final price, the possession of the land in question was required to be delivered to the allottee.
8. I have considered the argument of Mr. Sareen and find that the interpretation sought to be put by him on the Act and the Rules is correct. Admittedly, vide Annexure P4, the tentative price of the site in question was fixed and it was further stipulated therein that the allottee would be liable to pay only the additional price in addition to the tentative price which had already been determined. As already mentioned above the tentative price has been defined under Rule 2(e) and sale price to be fixed on the basis of the tentative price has been explained in Rule 4 of the Rules as under:
"In the case of sale of a site by allotment, the sale price shall be,--
(a) where such site forms part of the land acquired by the State Government under the Land Acquisition Act, 1894, and -
(i) no reference under Section 18 thereof is made against the award of the Collector or such a reference having been made has failed, the tentative price;
(ii) on a reference made under Section 18 thereof the compensation awarded by the Collector is enhanced by the Court, the aggregate of the tentative price and the additional price."
It would be clear from a reading of Rules 4 and 5A that the respondents were entitled to charge at the most the tentative plus additional price, mathematically calculated in terms of Rule 2(aa) and 2(ee), and there was no legal basis for making the quantum jump from Rs. 30 to Rs. 255/- per square yard.
9. Mr. Sareen has also placed reliance on Delhi Development Authority v. Lala Amar Nath Educational and Human Society, AIR 1991 Delhi 96, wherein a somewhat similar matter came up for consideration and it was held that an increase, such as the one which has been made in the present case, could not be legally justified.
10. The argument of the respondents that the petitioners were bound to pay the increased demand in view of the specific provisions of Annexure P4, is of no avail as Annexure P4 itself refers to the tentative price which could be increased only if an additional price was determined in accordance with the rules. The action of the respondents, therefore, in increasing the rate of allotment is contrary to the provisions of the Act and the Rules and also arbitrary as it is not based on any criteria which could have been disclosed to this Court. The assertion of the respondents that they were entitled to charge commercial rates from the petitioner as their school was being run on commercial line is also untenable. The State which has been enjoined by Article 41 of the Constitution to make provision for providing educational facilities for the citizens of this country so as to improve their quality of life (Article 39) has not been able to do so, leading to the mushrooming of private schools. These schools are fulfilling an important social need and if some profits accrue, they cannot be dubbed as commercial ventures justifying an astronomical and illogical increase in the price of the land allotted. As a matter of fact the Government had itself taken a decision vide Annexure P33 to give land at concessional rates to educational institutions and this letter was actually implemented vide Annexures P.34 and P.35. The volte face, now in the case of the petitioner is totally unjustified.
11. Mr. Sareen has also urged that in view of the provisions of Section 11-A of the Act, the allotment made to the petitioner-Society could have been cancelled only within one year of the allotment. Relevant portion of Section 11-A is reproduced below:
"11-A(1) Power to cancel sale, lease or other transfer.-- If it appears to the State Government that any sale, lease or other transfer of any site in an urban estate has been made in contravention of this Act or any rules made thereunder or is fraudulent or is otherwise inexpedient, it may, notwithstanding anything contained in any contract or any other law for the time being in force, by an order in writing stating reasons therefor, cancel such sale, lease or other transfer.
x x x x (4) No order under sub-section (1) shall be made in respect of any sale, lease or other transfer made -
x x x
(b) after the commencement of the Punjab Urban Estates (Development and Regulation) Amendment Act, 1981, after the expiry of a period of one year from the date of such sale, or other transfer."
In answer to this assertion made in sub-para (ii) of para 29 of the writ petition, the respondents have taken the stand that the petitioner was bound to make the payment of the revised price of Rs. 255/- per square yard and there has been no reply to the question posed by the petitioner. A reading of clause (b) of sub-section (4) of Section 11 -A of the Act, quoted above, clearly shows that the allotment made in favour of the petitioner could have been cancelled only within one year of the date of allotment. As Annexure P4, the letter of allotment is dated 30th May, 1984, the order of cancellation of the allotment, Annexure P29, being dated 17th September, 1990, could not have been issued.
12. Mr. Sareen has also urged with reference to paras 26 and 28 of the writ petition and the reply of the respondents that some discrimination has been made with regard to other educational institutions based in Mohan who have been favoured by having been allotted land on a much lower price. He has drawn my attention to Annexures P33 to P35 to which reference has been made earlier. These annexures clerly show that their has been hostile and unjustifiable discrimination in the case of the petitioner by denying it the facility of getting and at concessional rates, although this benefit has been granted to a member of institution in S. A. Nagar itself.
13. Mr. Sidhu has placed reliance on (1979) ILR 1 Punj & Har 178 : (AIR 1980 Punj & Har 65) (FB) and (1990) 98 Punj LR 6 (FB) in order to contend that the price tentatively fixed could have been increased. The aforesaid judgments, in my view, are wholly inapplicable to the facts of the case as the price in the present case had to be fixed in terms of the Rules.
14. In view of what has been stated above, the present writ petition is allowed. Annexures P8, P15, P21, P27, P29 and P32 are quashed and the allotment vide Annexure P4 is restored to the petitioner at the rate of Rs. 30/ - per square yard which had been fixed in the aforesaid annexure. The possession of the plot in question will be handed over to the petitioner-society within one month from the date a copy of this judgment is served on the respondents. Costs of petition are determined at Rs. 1000/-.
15. Petition allowed.