Punjab-Haryana High Court
Brahm Dutt Bali Thr His Lr/Son Ved ... vs Haryana Urban Development Authority ... on 28 February, 2018
Author: Amit Rawal
Bench: Amit Rawal
CR No.7662 of 2016 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CR No.7662 of 2016
Date of decision:28.02.2018
Brahm Dutt Bali (since deceased) through LRs ... Petitioner
Vs.
Haryana Development Authority (HUDA) and others... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Mrigank Sharma, Advocate for the petitioner.
Mr. B.R.Mahajan, Senior Advocate with Ms. Vibha Tewari, Advocate for the respondents.
AMIT RAWAL J.
C.M.No.4368-CII of 2018 The application is allowed, subject to all just exceptions. Submissions by way of affidavit of the petitioner alongwith documents Annexures P-15 to P-19, are taken on record.
CR No.7662 of 2016 The petitioner-decree holder has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India challenging the order dated 12.10.20016 rendered by the Civil Judge (Senior Division), Panchkula (Annexure P-1), vide which execution application dated 18.12.2010 (Annexure P-2), which was revived in the year 2015 had been disposed of without satisfaction of the decree.
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CR No.7662 of 2016 {2}
The brief factual matrix of the case leading to filing of the present revision petition is that land of the petitioner was acquired in the year 1984 for development and utilization of the land for commercial and residential area for Urban Estate, Panchkula. However, it was pleaded that at that relevant point of time, the Government had not come out with any policy protecting the interest of the oustees.
In pursuance to the directions given by this Court in CWP No.14708 of 1999 titled as Suman Aneja Vs.State of Haryana, the Govt. of Haryana amended the oustee policy of 1987 specifying therein that where and when the land was acquired prior to 10.09.1987 and the plots are still available, while floating the plots on such land, the oustee shall have a prior right for the allotment of plots.
The petitioner stated to have applied for allotment of a residential plot but when no action was taken, compelled to file a civil suit seeking allotment of the plot. However, the suit was dismissed by the trial Court, vide judgment and decree dated 07.06.2008 rendered in civil suit no. 164 of 2007. Thereafter, the petitioner preferred an appeal bearing No.60 of 2008 before the Lower Appellate Court which was allowed by setting aside the aforementioned judgment and decree, on 14.01.2009 (Annexure P-3), in other words, decreed the suit in the following manner:-
"Accordingly, the defendants are directed to allot 10 marlas residential plot to the appellant plaintiff either in the same sector of Mansa Devi Complex or if the plot in question under the oustee policy could not be offered to the plaintiff in the same sector, then to offer the plaintiff residential plot of 10 2 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {3} marlas in question in the next residential sector in another Urban Estate of HUDA, Panchkula either existing or which would be floated and developed by the HUDA in future. I order accordingly. Decree sheet be drawn accordingly. Appeal file be consigned to the record room. Lower Court record be sent back alongwith the copy of this judgment."
As per the judgment and decree of the Lower Appellate Court, HUDA was directed to allot 10 marlas residential plot to the petitioner- plaintiff either in the same sector or Mansa Devi Complex or if the plot in question under the oustee policy could not be offered to the plaintiff in the same sector then to offer to the plaintiff a residential plot of 10 marlas in question in the next residential sector in another Urban Estate of HUDA, Panchkula existing or which would be floated and develop by HUDA in future.
The aforementioned judgment and decree was assailed by HUDA, vide RSA No.615 of 2010 which was dismissed by this Court, vide order dated 03.07.2012 (Annexure P-4). The review petition was also preferred in the aforementioned appeal but the same was also dismissed. Resultantly, the petitioner is stated to have file an execution application seeking execution of the decree dated 14.01.2009 in the year 2010.
As per the averments in the petition, HUDA appeared and filed an affidavit (Annexure P-5) to the extent that no plots are available in Sector 4 MDC or in Sector 6 MDC. On the basis of the affidavit, the Executing Court dismissed the execution application by holding that plaintiff is entitled to a plot in Sector 27 Pinjore and not in Panchkula.
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CR No.7662 of 2016 {4}
Mr. Mayank Sharma, learned counsel appearing on behalf of the petitioner submitted that the trial Court, vide order dated 12.10.2016 allowed the objections of HUDA, by giving directions to judgment-debtor to reserve a plot for decree-holder in Sector 27 in Pinjore as and when the said sector is floated as per his entitlement subject to adherence of necessary rules by the decree-holder.
He further submitted that the trial Court failed to appreciate the fact that admittedly the petitioner was entitled to 10 marla plot either in Sector 4 Mansa Devi Complex or the next plot either in Sector 4 MDC for which the land was acquired and in case, no plot of that entitlement was available in the said sector, he shall be allotted in the next residential sector of Urban Estate HUDA, Panchkula. In fact, affidavit filed by HUDA was against the terms and conditions of the policy dated 28.08.1998 modified on 27.03.2000 (Annexure P-15 and Annexure P-16), placed on record alongwith civil miscellaneous application bearing No.4368-CII of 2018, wherein the expression used is "if the plot under the oustees policy cannot be offered to the oustees in the same sector then they should be offered residential/commercial plots in the next residential sector of that Urban Estate. The decree was based upon the aforementioned policy instead of residential sector and the Lower Appellate Court has referred to import of the policy but there is no reference of any other Urban Sector.
He further argued that third direction was only applicable in the eventuality of first two directions, could not be executed which was to allot a plot in future. The trial Court has gravely erred in law as well as facts in treating the affidavit (Annexure P-5) filed by respondent no.3 as a sermon, 4 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {5} for, it could not go beyond the decree which is not permissible in law. The petitioner had been made to run from pillar to post as his land was acquired more than 3 decades back in the year 1984 despite the availability of plots in adjoining sectors, no allotment was made. Owing to impugned order, entitlement of plot kept in lurch for infinite period. This Court, had noticed the arguments of HUDA in the order dated 16.03.2017 and in terms of that order, HUDA, vide letter dated 24.04.2017 (Annexure P-17) communicated the petitioner regarding reservation of the plot.
Mr. B.R.Mahajan, learned Senior Counsel assisted by Ms. Vibha Tiwari, Advocate appearing on behalf of the respondents submitted that with regard to allotment of plot to the oustees, the matter came for consideration before the Latter Patent Bench of this Court in Haryana Urban Development Authority and others Vs. Sandeep Singh and others 2012 (1) LAR 475, wherein, while considering all aspects laid down following conditions:-
"56. Thus, the present appeal as well as the other connected matters are disposed of with the following directions, in addition to the decision on the questions of law discussed above.
(i) That date of notification under Section 4 of the Land Acquisition Act, 1894 is relevant to determine the eligibility of a land-owner for allotment of a residential plot, even if the acquisition is for the purposes of commercial, industrial or institutional;
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(ii) That the entitlement of the size of the plot and the procedure for allotment shall be as on the date of allotment in pursuance of an advertisement issued inviting application from the oustees;
(iii) That the HUDA or such other authority can reserve plots up to 50% of the total plots available for all reserved categories including that of oustees. As to what extent there would be reservation for the oustees, is required to be decided by the State Government and/or by HUDA or any other authority, who is entitled to acquire land;
(iv) That the oustees are entitled to apply for allotment of plot along-with earnest money in pursuance of public advertisement issued may be inviting applications from the general public and the oustees through one advertisement. If an oustee is not successful, he/she can apply again and again till such time, the plots are available for the oustees in the sector for which land was acquired for residential/commercial purposes or in the adjoining sector, if the land acquired was for institutional and industrial purposes etc. The plots to the oustees shall be allotted only by public advertisement and not on the basis of any application submitted by an oustee;
(v) That the price to be charged from an allottee shall be the price mentioned in the public advertisement in pursuance of which, the plot is allotted and not when the sector is floated for 6 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {7} sale for the first time;
(vi) That the State Government or the acquiring authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots ear-marked for reserved categories and after identification of the plots available for the oustees in each sector. Thereafter, the State Government or the acquiring authority shall publish an advertisement inviting applications from such oustees to apply for allotment of plots in accordance with law: and
(vii) If in any sector, more than 50% plots have been allotted by way of reservation including to the oustees, then such allotment shall not be cancelled or reviewed in view of the judgment of this court.
57. The letters patent appeal and the writ petitions as in Annexure 'A' are disposed of accordingly."
The aforementioned matter was reconsidered by Hon'ble Full Bench of this Court and vide decision dated 22.11.2017, question No.12 raised with regard to allotment of plot to an oustee either in same sector or in the next adjoining sector by the Full Bench, was answered in the following manner:-
"Re:Question No.12 Is an oustee who cannot be allotted a plot in the same sector entitled to the allotment of a plot in the next/adjoining sector? What is the concept of next 7 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {8} residential sector vis-a-vis an adjoining sector?
82. The learned Advocate General fairly and rightly agreed that the words "next residential sector" in the policy dated 28.08.1998 read with the policy dated 08.12.2003 is not limited only to the sectors that abut the sector from which the oustee's land has been acquired and that if in the adjoining sector the plots are not available for any reason, the oustee would be entitled to a plot in the nearest sector where a plot under the oustee quota is available. A view to the contrary would be irrational and would not only not sub serve the purpose of an oustee quota but would militate against it. There is no reason why a plot in any alternate sector must be not allotted to the oustees. There would be no rational basis for such a view or provision. The plaint language of the policy dated 28.08.1998 does not indicate such a limitation either. It uses the words "next residential sector" and not the words "the adjoining sector alone".
83. The learned Advocate General had ofcourse contended that the oustee would be entitled to the allotment of a plot in the next residential sector only if the sector in which the oustee's land was acquired is used for the four purposes mentioned in the policy dated 28.08.1998 namely recreational sector, institutional zone, group housing societies and industrial purposes. We have already dealt with the submissions and rejected it while dealing with question 8 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {9} No.11."
The Government is contemplating to complete the process within a period of six months and the applications submitted by the oustees shall be considered by HUDA when the advertisement is floated for allotment of plots strictly as per the policy which was subject matter of consideration before the Full Bench of this Court and the question answered thereupon and depositing of 10% of earnest money shall be taken into consideration and the applicant is required to give particulars of previous application alongwith receipt of deposit of 10% of earnest money. He referred to decision dated 21.02.2018 rendered in CR No.270 of 2018 titled as Administrator, HUDA Gurugram and another Vs. Ram Singh, whereby in identical situation, the trial Court while entertaining the execution application of an allottee, has ordered for attachment of salary of officers of HUDA.
I have heard the learned counsel for the parties and appraised the paper book. It would be apt to reproduce the order dated 16.03.2017 which reads as under:-
"Learned counsel for the petitioner contends that the petitioner is entitled for 10 marlas plot in Sector 4, Mansa Devi Complex but in absence thereof, the plot can also be allotted to him in next sectors. He further contends that as per advertisement issued by HUDA in daily newspaper 'The Tribune', ten plots of ten marlas in Sector 6, Mansa Devi Complex are available for auction.
Learned counsel for the respondents submits that in view of
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A perusal of advertisement dated 12.1.2017 clearly shows that ten marlas plots are available in Sector 6 Mansa Devi Complex.
One plot of ten marlas as advertised in daily newspaper 'The Tribune' on 12.1.2017 be kept reserved for the petitioner during pendency of the revision petition.
To come up on 18.5.2017."
In terms of aforementioned order, HUDA vide order dated 24.04.2017 communicated the petitioner regarding reservation of the plot. The contents of letter, ibid read thus:-
"From Estate Officer, HUDA, Panchkula.
To Sh. Ved Parkash Bali LR/son of Braham Dutt Bali, R/o House No.507, Sector 9, Panchkula. Haryana.
Memo No.EO(P)/2017/1528 dated 24.4.2017 Subject: CR No.7662 of 2016 titled as Braham Dutt Bali (now deceased) Vs. HUDA and others.
Prefer to the subject cited above.
It is intimated that as per your representation
10 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {11} dated 20.03.2017 and in compliance of the order dated 16.03.2017 passed in the above said case by the Hon'ble High Court. The plot no.212, Sector 6 MDC, Panchkula measuring 10 marla advertised for oustees against the advertisement dated 12.01.2017 and 13.01.2017 has been kept reserved.
This is for your information and necessary action.
Estate Officer, HUDA, Panchkula.
Endst. No.1528 A copy of the above is forwarded to the following for information and necessary action:-
1. The Chief Administrator, HUDA (Legal Cell), Panchkula.
2. The Administrator, HUDA, Panchkula.
3. Ms. Vibha Tewari, Advocate r/o House No.2207, Sector 44-C,Chandigarh.
Sd/-
Estate Officer, HUDA, Panchkula."
The policy of 1998 provides the allotment in the following manner:-
"From The Chief Administrator, Haryana Urban Development Authority, Panchkula.
To
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1. All the Administrator(s).
Haryana Urban Development Authority.
2. All the Estate Officer(s)/Asstt. Estate Officer(s) Haryana Urban Development Authority.
Memo No.A-11P-98/24402-22 Dated 28.8.98 Subject: Allotment of plots to the oustees in the various Urban Estates set up by HUDA-amended thereof.
This is in continuation of memo No.A-2-92/2078 dated 18.3.92 and No.A-11P-93/7996-8013 dated 12.03.93. The present policy on the subject, inforce envisages that the allotment of residential/commercial plots under oustee policy shall be restricted to the allotments within the sector for which the land has been acquired. This stipulation of the policy have been creating a practical problem at the implementation stage. Sometimes, the acquired land belonging to the landowners/oustees, is developed by HUDA for the purposes other than for residential/commercial like recreational sector, institutional zones, group housing societies and industrial purposes etc. Then the land owners/oustees of the particular sector are totally out of the purview of the policy and the land owners are not entitled for allotment of residential plots in lieu of their acquired land.
After careful consideration, the Authority in its 74th meeting held on 20.8.98, vide agenda item no.A-74(7) in 12 of 14 ::: Downloaded on - 18-03-2018 00:03:36 ::: CR No.7662 of 2016 {13} partial modification of the policy on the subject inforce have decided that if plot under the oustees policy cannot be offered to the oustees in the same sector then they should be offered residential/commercial plots in the next residential sector of that Urban Estate, which may be floated and developed by HUDA. This amendment/provisions will be made applicable prospectively. All other terms and conditions shall however remain the same.
These instructions may be brought to the notice of all the concerned."
On cumulative reading of the policy and operative part of the decree extracted above, decree was in tandem with the policy invoked whereby the oustee was required to allot a plot qua his eligibility in the same sector or in the next residential sector but HUDA, in my view, has incorrectly interpreted the decree which clearly envisaged that if the plot in question could not be offered to plaintiff in the same sector and offer be made to the next residential sector of the same very size but there is no word or expression used in the policy with regard to another Urban Estate of HUDA, Panchkula.
Mr. Sharma, Advocate during the course of hearing submitted that there are plots available in Sectors 4 and 6 under the oustee policy but Mr. Mahajan, learned Senior counsel refuted that not only the case of applicant has to be taken into consideration independently but with regard to all the applicants as it would tantamount to discrimination, much less violation of directions of the Full Bench of this Court.
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The case of the petitioner shall be considered for allotment of 10 marlas of plot strictly as per the policy and decree aforementioned but not at the whims and fencies of the HUDA. In my view, the trial Court has committed illegality and perversity in not reading the policy in correct perspective while accepting the objections of HUDA.
Keeping in view the aforementioned observations, I am of the view that interim order whereby the plots had been reserved is ordered to be maintained till HUDA undertakes the exercise within a period of 6 months as directed by this Court in order dated 21.02.2018 rendered in CR No.270 of 2018 titled as Administrator, HUDA Gurugram and another Vs. Ram Singh.
Resultantly, the order impugned is hereby set aside and revision petition is disposed of in terms of order dated 21.02.2018 rendered in CR No.270 of 2018 titled as Administrator, HUDA Gurugram and another Vs. Ram Singh.
(AMIT RAWAL)
JUDGE
February 28, 2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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