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2001 DIGILAW 198 (PNJ)

K. L. Sharma v. State of Punjab

2001-02-12

G.S.SINGHVI, NIRMAL SINGH

body2001
JUDGMENT G.S. Singhvi, J. - Whether the petitioner is entitled to allotment of a residential plot measuring 500 sq. yards in Urban Estate, Mohali and if so, at what rate ? This is the main question which arises for determination in this petition filed for issuance of a writ in the nature of mandamus directing respondents No. 2 and 3 to allot a plot to him at the rate of Rs. 58/- per square yard ignoring the increase in the cost of land and changes made in the policy of allotment. He has also prayed for directing the respondents to pay compensation in lieu of delay in the allotment of plot. 2. The facts necessary for deciding the writ petition are that vide application dated 26.4.1971, the petitioner applied for allotment of a 500 sq. yards plot in Urban Estate, Mohali. After about 3 years, the Estate Officer, Urban Estates, Punjab issued Memo No. S-1/M 36/GE/1262 dated 2.2.1974 vide which he asked the petitioner to indicate his choice for consideration of his application for priority allotment of plot in the following categories, i.e., (i) who make lump sum payment of balance price; (ii) who make payment of balance price in two equated annual instalments (including interest payment); (iii) who make payment of balance price in three equated annual instalments (including interest payment); (iv) who make payment of the balance price as per the existing system, i.e., the balance amount payable in six annual equated instalments (including interest payment). The petitioner does not appear to have given option in pursuance of the said memo. After another one year and 6 months, the Estate Officer, Urban Estates, Punjab informed the petitioner vide Memo No. A (B-7363/GE) 35 dated 9.8.1975 that a decision had been taken to charge enhanced earnest money for allotment of plots of different categories. The petitioner responded to that communication by making a representation to the concerned officer to indicate whether or not his seniority would be maintained as per paragraph 2 of the terms and conditions of allotment embodied in the application form. He also insisted on allotment of plot at the old rates. The petitioner responded to that communication by making a representation to the concerned officer to indicate whether or not his seniority would be maintained as per paragraph 2 of the terms and conditions of allotment embodied in the application form. He also insisted on allotment of plot at the old rates. For the next 20 years, nothing happened except exchange of some correspondence between the petitioner and the Estate Officer in which the former reiterated his claim for allotment of plot at the rate prevalent on the date of application and the latter rejected his plea on the ground that the rates have been revised and asked him to give consent to pay the price at the revised rates. 3. On 1.8.1995, a draw was held for allotment of plots by including all the pending applications, but the one submitted by the petitioner was not included in the draw apparently because communications Annexures R.1 and R.2 sent to him seeking his consent for allotment of land at the rate of Rs. 1,200/- per square yard had been received back undelivered. 4. After almost 2-1/4 years of the submission of application by the petitioner, the Chief Administrator of the Punjab Urban Planning and Development Authority (for short, the PUDA) issued public notice Annexure P.13 dated 31.8.1995 inviting applications from the old eligible applicants for allotment of plots at the rate of Rs. 1,400/- per square yard subject to the condition of completion of formalities and deposit of the balance of 10% earnest money on or before 4.10.1995. The petitioner completed the necessary formalities and deposited balance of the 10% earnest money before the appointed date, but he was not allotted plot even at the rate of Rs. 1,400/- per square yard and after about a year and six months, he was informed vide memo Annexure P.17 dated 30.4.1997 that plot can be allotted to him at the rate of Rs. 3,600/- per square yard. The petitioner protested against this hike in the price of land and vide representations Annexures P.18 dated 9.5.1997 and P.19 dated 7.3.1998, he claimed allotment of plot at the rate of Rs. 1,400/- per square yard. He has now sought this Courts intervention for directing respondents No. 2 and 3 to allot him plot at the old rates and pay compensation for the delay caused in the allotment. 5. 1,400/- per square yard. He has now sought this Courts intervention for directing respondents No. 2 and 3 to allot him plot at the old rates and pay compensation for the delay caused in the allotment. 5. Respondents No. 2 and 3 have controverted the petitioners claim for allotment of plot at the old rates. They have averred that vide letter No. 9950 dated 13.9.1993 (Annexure R.2/1), he was given an option for allotment of plot at the revised rate of Rs. 1,200/- per square yard but the same was received back undelivered with the remarks of the postal authorities "left without address - return to sender". According to them, another chance was given to the old applications in May, 1994 for allotment of plots in Sectors 67, 68 and 69 at the rate of Rs. 1,200/- per square yard and letter No. 4370 dated 23.5.1994 was sent to the petitioner at his given address, but the same was also received back undelivered and, therefore, his application was not considered in the draw held on 1.8.1995. They have also averred that plots were not allotted to any one after issuance of public notice Annexure P.13 except to those who had agreed to pay the revised price at the rate of Rs. 3,600/- per square yard determined by the Finance and Accounts Committee in its meeting held on 30.7.1997. 6. In the replication filed by him, the petitioner has controverted the assertion made in the written statement about the offer made by respondents No. 2 and 3 vide letters Annexures R.2/1 and R.2/2 dated 13.9.1993 and 23.5.1994 by stating that his address was "653/5, Gurdev Nagar, Civil Lines, Ludhiana" and not "653/51, Gurdev Nagar, Ludhiana" at which the concerned authority had sent the two communications. 7. During the pendency of the writ petition, the Court gave direction to the Chief Administrator, PUDA to file his own affidavit to clarify whether any person who had deposited 10% of the price in pursuance of the policy Annexure P.13 was allotted plot in Urban Estates, Mohali at the rate of Rs. 1,400/- per square yard. In compliance of the Courts order, Shri K.B.S. Sidhu, Chief Administrator, PUDA filed detailed affidavit date 5.2.2001 in which he has not only given the background in which the Financial and Accounts Committee of PUDA decided to fix the rate of the land at Rs. 1,400/- per square yard. In compliance of the Courts order, Shri K.B.S. Sidhu, Chief Administrator, PUDA filed detailed affidavit date 5.2.2001 in which he has not only given the background in which the Financial and Accounts Committee of PUDA decided to fix the rate of the land at Rs. 3,600/- per square yard, but has also stated that after August, 1995, no person has been allotted plot at the rate of Rs. 1,400/- per square yard. 8. From the pleadings of the parties, the following three issues arise for consideration by the Court : (1) Whether the petitioner is entitled to allotment of plot at the rate prevailing on the date of application i.e. Rs. 58/- per square yard ? (2) Whether the decision taken by the Finance and Accounts Committee of PUDA to fix the price of the plot at the rate of Rs. 3,600/- per square yard is legally correct and justified ? and (3) Whether the petitioner is entitled to allotment of plot at the rate of Rs. 1,200/- per square yard as had been done in the case of other similarly situated applicants ? 9. As regards the first issue, we do not consider it necessary to make an elaborate elucidation of the petitioners plea because he did not press his prayer for directing the respondents to allot plot at the rate of Rs. 58/- per square yard. Moreover, it is a well settled proposition of law that mere submission of application does not create a right in favour of the applicant to be allotted plot and, therefore, even if the petitioner had insisted on adjudication of his claim for allotment of plot at the rate prevalent on the date of application, we would have rejected the same. 10. In Surjit Singh v. State of Punjab, 1979 PLR 413 : 1978 PLJ 425 a Full Bench of this Court considered the nature of the right, if any, acquired by submission of an application for allotment of land and held as under : "By filing an application in accordance with law, the applicant only gets a right of consideration of his application, but he does not have a vested right for allotment of plot." 11. In Kabul Singh and others v. Punjab Urban Planning and Development Authority, 1997(1) PLR 713 a Division Bench considered the prayer made by the petitioners for issuance of a mandamus to be allotted HIG single storey dwelling units on the ground that the Punjab Housing Development Board had while inviting applications made promise for allotment of the flats. After noticing the relevant statutory provisions, the Court held as under :- "In our considered opinion, the announcement contained in Annexure P.4 cannot be equated with a promise made by the competent authority under the statute. The power of the Board to dispose of the land, building or other property vested in it could be exercised by it consistent with the doctrine of equality embodied in the Constitution. It is one of the settled principle of law that a public authority discharging public duty must act in public interest and its action should not be arbitrary or unfair. The wider meaning given to the concept of equality required that every state action must be reasonable and must not be arbitrary or opposed to public interest. Therefore, it was not open to the Board to make any promise to the petitioners and other unsuccessful applicants for allotment of house in disregard to the provisions of the statute and the doctrine of equality." 12. In CWP No. 8905 of 1997, The Express Co-operative Group Housing Society Ltd. and others v. State of Haryana, the plea of the petitioners that by submitting applications in pursuance of the advertisement issued by the HUDA, they had acquired a right to be allotted plots and the HUDA cannot change the policy was negatived in the following words : "However, we are unable to agree with them that mere submission of application by the petitioners has created a right in their favour to be allotted plots of land. The advertisement issued by the Authority can, at the best, be termed as an invitation to the prospective buyers to apply for consideration for allotment of land. The very fact that the advertisement did not contain any restriction on the number of applications which could be made by the Co-operative Group Housing Societies is a clear proof of the intention of the Authority that the prospective applicants will be considered by it for the purpose of allotment of land earmarked for group housing purposes. The very fact that the advertisement did not contain any restriction on the number of applications which could be made by the Co-operative Group Housing Societies is a clear proof of the intention of the Authority that the prospective applicants will be considered by it for the purpose of allotment of land earmarked for group housing purposes. Such advertisement cannot be construed as a promise held out by the Authority to allot land to the applicants and once the Government has, in exercise of its powers under the Act, revised the existing policy and decided to allot land at the revised rates under the new scheme, the inchoate right of consideration which came to vest in the petitioners on the basis of the applications submitted by them, stood extinguished. The petitioners cannot enforce their so-called expectation nor can they seek a mandamus against the authority on the basis of the doctrine of promissory estoppel." 13. In view of the above, we are unable to entertain the petitioners prayer for directing respondents No. 2 and 3 to allot residential plot to him at the rate of Rs. 58 per square yard. 14. On the second issue, the petitioners argument is that non-inclusion of his application in the draw held on 1.8.1995 for allotment of plots at the rate of Rs. 1,200/- per square yard should be declared discriminatory and violative of his fundamental right to equality because there was no justification not to consider his claim for allotment at par with other similarly situated persons. He referred to the communication Annexures P.10 dated 25.1.1983, Annexure R.2/1 dated 13.9.1993 and Annexure R.2/2 dated 23.5.1994 to show that his address, i.e., "Richa 653/5 Gurdev Nagar, Civil Lines, Ludhiana" was known to the authorities of respondent No. 2 and yet they had sent letters Annexures R.2/1 and R/2 at a wrong address, i.e., "Richa 653/51, Gurdev Nagar, Civil Lines, Ludhiana" and by taking advantage of non- delivery of those communications, his application was not included in the exercise undertaken for allotment of plots on 1.8.1995. 15. Dr. Balram K. Gupta fairly conceded that letters Annexures R.2/1 and R.2/2 had been sent to the petitioner at an incorrect address but submitted that non-delivery of those letters should not be made a ground for issuance of a direction for allotment of plot at the rate of Rs. 15. Dr. Balram K. Gupta fairly conceded that letters Annexures R.2/1 and R.2/2 had been sent to the petitioner at an incorrect address but submitted that non-delivery of those letters should not be made a ground for issuance of a direction for allotment of plot at the rate of Rs. 1,200/- per square yard because he is guilty of laches. Dr Gupta further submitted that even if the Court holds that the petitioner is entitled to allotment of plot at the rate of Rs. 1,200/- per square yard, he should be directed to pay interest on the total price because during the long interRegulation m of more than 5 years, prices of the land have substantially increased. 16. We have given serious thought to the respective submissions. In our opinion, non-consideration of the petitioners application for allotment of plot in the draw held on 1.8.1995 must be held as vitiated by arbitrariness and violation of his fundamental right to equality. Once a policy decision had been taken by the concerned authorities to consider the pending applications for allotment of plots at the rate of Rs. 1,200/- per square yard by draw of lots, it was their duty to have ensured that opportunity of exercising option is given to all the eligible applicants and only such of the applicants could be excluded from the draw who did not exercise option despite due notice. Thus, the exclusion of the petitioners application from the draw held on 1.8.1995 can be upheld only if it is proved that despite having received intimation about the proposed allotment of plots at the rate of Rs. 1,200/- per square yard, he did not give consent for allotment. Respondents No. 2 and 3 have produced Annexures R.2/1 and R.2/2 in an attempt to show that opportunity was given to the petitioner to exercise option for allotment of plot at the rate of Rs. 1,200/- per square yard, but after carefully perusing the same, we are convinced the he had not been given due notice for exercise of option. This is clearly proved from the fact that the two communications sent to him were returned back undelivered because the address written on them was incorrect. 1,200/- per square yard, but after carefully perusing the same, we are convinced the he had not been given due notice for exercise of option. This is clearly proved from the fact that the two communications sent to him were returned back undelivered because the address written on them was incorrect. Therefore, there is no escape from the conclusion that the concerned authorities had discriminated him in the matter of allotment of plot in August, 1995 and in this manner, his right to equality before law guaranteed under Article 14 had been infringed. 17. The objection of delay raised by Dr. Gupta cannot be entertained in the face of the fact that the petitioner had waited for allotment of plot for a period of more than 24 years and when his turn came, the concerned authorities acted with gross negligence and carelessness resulting in denial of consideration of his application. 18. We also do not find any merit in the submission of Dr. Gupta that even if the petitioner is held entitled to be considered for allotment of plot at the rate of Rs. 1,200/- per square yard, he should be directed to pay interest on the total cost of the land seems attractive but lacks merit and deserves to be rejected because while making this submission, the learned Counsel has altogether over looked the fact that the rate at which the petitioner had applied for allotment of plot was only Rs. 58/- per square yard and if allotment had been made to him within a reasonable time from the date of application, i.e., 26.4.1971, he would not have been required to pay additional price of Rs. 1,142/- per square yard and spend substantially higher amount of construction as compared to what he would have spent in 1970s and 80s. Therefore, we do not find any valid ground to allow respondent No. 2 to charge interest on the total cost of the plot to be allotted to the petitioner. 19. In view of the above conclusions, we do not consider it necessary to delve upon the issue as to whether the decision of the Finance and Accounts Committee of the PUDA to fix the revised price of the plot at the rate of Rs. 3,600/- per square yard is arbitrary and unjustified. 20. 19. In view of the above conclusions, we do not consider it necessary to delve upon the issue as to whether the decision of the Finance and Accounts Committee of the PUDA to fix the revised price of the plot at the rate of Rs. 3,600/- per square yard is arbitrary and unjustified. 20. As regard the issue of compensation, we have refrained from recording any finding because the petitioner did not make any submission in that regard. 21. For the reasons mentioned above, the writ petition is allowed. Non- consideration of the petitioners application for allotment of plot at the rate of Rs. 1,200/- per square yard at par with other similar situated applicants is declared discriminatory and violative of his fundamental right to equality. Respondents No. 2 and 3 are directed to allot a plot measuring 500 square yards to him at the rate of Rs. 1,200/- per square yard. This shall be done by the concerned competent authority within 2 months from the date of presentation of a copy of this order. Petition allowed.