Punjab-Haryana High Court
Raj Rani Gandhi vs Chd.Admn on 4 November, 2014
Author: Jaishree Thakur
Bench: Hemant Gupta, Jaishree Thakur
CWP-14568-1999
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CWP No.14568-1999
Date of decision: 04.11.2014
Raj Rani Gandhi .........Petitioner
v.
ChandigarhAdministration and others
.....Respondents
CORAM : Hon'ble Mr. Justice Hemant Gupta .
Hon'ble Ms. Justice Jaishree Thakur.
Present : Mr. H.C.Arora, Advocate for the petitioner.
Mr. A.P.Setia, Advocate for respondents no.1 and 2.
Mr. Sukhdev Singh Kanwal, Advocate for respondent no.3.
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Jaishree Thakur, J.
The challenge in the present writ petition is to the orders dated 30.01.1995, 19.05.1998 and 24.04.1999, whereby the decision to allot the industrial shed in Industrial Area, Phase I, Chandigarh has been cancelled and also for a writ of mandamus directing the respondents to allot an industrial shed.
The petitioner Smt. Raj Rani Gandhi widow of Late Sh.D.R.Gandhi preferred the present writ petition seeking allotment of a plot on the ground that her husband Late Sh. D.R.Gandhi was a freedom fighter and a holder of MAMTA 2014.12.04 10:34 I attest to the accuracy and integrity of this document 1 CWP-14568-1999 Tamra Patra, which had been granted to him in recognition of his services during the freedom struggle.
The Chandigarh Administration issued an advertisement for allotment of an industrial shed size 15 marlas. Late Sh. D.R. Gandhi applied for allotment of the shed. The application was duly scrutinized and the petitioner fulfilled all eligibility conditions. He was called for an interview on 17.05.1988. However, the said shed was allotted to another person. Thereafter, Late Sh. D.R.Gandhi approached the Chandigarh Administration for allotment of shed being a freedom fighter and after considering his case, the Administrator decided to allot one industrial shed to the petitioner. Though, a decision had been conveyed to allot the industrial shed, yet no shed was earmarked. The Chandigarh Industrial and Tourism Development Corporation, Ltd. wrote a letter dated 05.01.1990 asking the husband of the petitioner to submit a detailed project report. In response to the said letter the project report was submitted. While the matter was being pursued by the husband of the petitioner for allotment of industrial shed, Sh.D.R.Gandhi expired on 26.02.1990. Thereafter, the petitioner took up the matter with the Administration for giving the possession of the industrial shed which had been allotted to her late husband. A number of reminders were addressed but to no avail. Thereafter, the petitioner received a letter dated 11.10.1991 sent by the respondents informing the petitioner that the case for allotment of industrial shed had been reconsidered and it had been decided to allot the petitioner two industrial sheds measuring 513 sq. feet per shed. On 31.10.1991, the petitioner received another letter from the respondent indicating a decision to allot a suitable plot measuring 250 Sq. yards and the MAMTA 2014.12.04 10:34 I attest to the accuracy and integrity of this document 2 CWP-14568-1999 petitioner was asked to give her consent. Petitioner gave her consent to the said offer. As no allotment letter was issued nor was possession offered to the petitioner, the petitioner kept on approaching the authorities. Instead of allotting a plot and handing over possession, the petitioner was served with a letter dated 30.01.1995 by which it was intimated that under new policy and guidelines, there is no provision was discretionary allotment and that possession could not be handed over. The Home Secretary vide letter dated 19.05.1998 (Annexure P37) looked into the representation submitted by the petitioner and did not exceed to the request for allotment of plot under the discretionary allotments. Similarly another representation moved by the petitioner dated 05.12.1998 was rejected. Aggrieved by the rejection of the request for allotment of an industrial plot under a discretionary quota, the present writ petition has been filed.
The respondents herein have filed a reply taking the stand that the allotment of any site in Chandigarh is governed either by the Chandigarh Sales and Sites of Building Rules, 1960 (hereinafter called '1960 Rules') or the Chandigarh Sales and Sites of Building Rules, 1973 Rules. In these rules, there is no provision for allotment of site under the discretionary quote to anyone. Moreover, there was no allotment of industrial shed in so far as no letter of allotment had been issued in favour of the petitioner or her late husband Sh. D. R. Gandhi. It has been further submitted that the decision taken by the Administrator on 09.08.1989 was only a proposal and as such could not said to be an allotment creating vested right in favour of the petitioner.
MAMTA 2014.12.04 10:34 I attest to the accuracy and integrity of this document 3 CWP-14568-1999 We have gone through the record of the case. The petitioner is seeking allotment of an industrial plot on the basis of a letter dated on 09.08.1989. A perusal of the said letter shows that there was a decision to allot a suitable industrial shed to Sh.D.R.Gandhi as a token of appreciation of his services rendered by him to the nation as a freedom fighter. Though, there might have been voluminous communications between respondents and the petitioner regarding allotment of plot, but one cannot loose sight of the fact that there is no letter of allotment of the industrial plot issued nor was possession of any such plot handed over at any point in time. It was only a proposal and such proposal would not create an indefeasible or a vested right with the petitioner. Still further, there is no provision in any of the rules which allows for discretionary allotment or for preferential allotment to freedom fighter.
In Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh reported in (2011) 5 SCC 29, the question whether the State and/or its agency/instrumentality can transfer the public property or interest in public property in favour of a private person by negotiations or in a like manner has been considered and answered in the negative holding :
" What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory and non-arbitrary method irrespective of the MAMTA 2014.12.04 10:34 I attest to the accuracy and integrity of this document 4 CWP-14568-1999 class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permitlicense, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution."
A similar view has been taken by the Supreme Court in Saroj Screens Pvt.Ltd.Vs.Ghanshyam and Ors. Reported as (2012) 11 SCC 434.
As has been held by the Hon'ble Supreme Court, there has to be transparency in the allotment of plots and any allotment made by not inviting applications or through public notice is unsustainable. Similarly, in the present case, we find that there is no public notice issued nor any policy MAMTA 2014.12.04 10:34 I attest to the accuracy and integrity of this document 5 CWP-14568-1999 decision or provision by which an industrial plot can be allotted to a freedom fighter on submitting an application alone.
In view of the above, the present writ petition being devoid of merit and is dismissed.
(Hemant Gupta) (Jaishree Thakur)
Judge Judge
04.11.2014
mamta.
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