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2003 DIGILAW 558 (PNJ)

Kamalawati Swarnkar v. State Of Haryana

2003-04-22

HEMANT GUPTA, S.S.NIJJAR

body2003
Judgment S.S.Nijjar, J. 1. We have heard the learned counsel for the petitioner at length and perused the record of the case. 2. On 05.11.2001, Haryana Urban Development Authority (For short "HUDA"), invited application for allotment of freehold residential plots in Sector 43, Gurgaon, under various categories. The advertisement (Annexure P-1) stipulates that booking for general and other categories, opens on 09:11.200,1 and closes on 10.12.2001. For Defence Personnel, Ex-servicemen, Para-military Forces and NRIs, the last date was 10.01.2002. The petitioner applied for allotment of a plot in Sector 43 in the General Category on 07.12.2001. He also deposited earnest money at the rate of 10% of the total tentative costs of Rs. 1,53,926/-, by way of a demand draft on 09.12.2001, On the same day, i.e. 09.12.2001, by advertisement Annexure P-4, HUDA extended the date for making the applications upto 10.01.2002. Thereafter, it was further extended to 31.01.2002. 3. Learned counsel for the petitioner has submitted that by extending the time limit, the respondents have acted arbitrarily and have reduced the chances of the petitioner for being allotted a plot. The number of candidates on the original date would be much less than the candidates that would be available on the extended date. According to the learned counsel, the action of the respondents is violative of Article 14 of the Constitu tion of India. In support of the aforesaid submission, learned counsel has relied on a Single Bench judgment of this Court in the case of Royal Bank Employees Corp. Group Homing Society, Panchkula v. State of Haryana through Secretary and Anr., (1992- 1)101 P.L.R. 223. 4. We have anxiously considered the submission made by the learned counsel, but find the same to be wholly devoid of any merit. Mere extension in the date for making the applications, would not infringe any legal right of the petitioner. At best, the petitioner has a right to be considered alongwith other eligible candidates and that right of the petitioner was not taken away. Merely because the chances of allotment of a plot had been reduced, would not give rise to infringement of any legal right of the petitioner. The judgment relied upon by the learned counsel, in our view, is per incuriam. A Full Bench decision of this Court in the case of Surjit Singh and Ors. Merely because the chances of allotment of a plot had been reduced, would not give rise to infringement of any legal right of the petitioner. The judgment relied upon by the learned counsel, in our view, is per incuriam. A Full Bench decision of this Court in the case of Surjit Singh and Ors. v. State of Punjab, (1979)81 P.L.R. 413, which had a direct bearing on the decision was not brought to the notice of the: learned Single Judge in Royal Bank Employees Corporation case (supra). In the case before the learned Single Judge the Haryana Urban Development Authority (HUDA) had issued an advertisement inviting applications from the cooperative societies for allotment of plots. The last date for inviting applications, according to the advertisement, was 31.10,1990. The HUDA, thereafter, issued another advertisement on 16.12.1990 extending the last date for receipt of applications upto 15.02.1991. This made a number of other societies also eligible for applying in response to the. original advertisement, the closing date whereof had already expired on 31.10.1990. It was also stated that the date was extended for the benefit of all other societies who could not apply earlier. Thereafter, on the basis of the aforesaid pleadings Agnihotri, J. has observed as follows:- "4. After hearing the learned counsel for the parties and having gone through the record, I find merit in this petition as no cogent reason for extending the last date has been disclosed either in the written statement or at the time of arguments. By extending this date, the rights of the Societies which have already applied in response to the advertisement and their chances of having allotment made in their favour have been jeopardised which is neither fair nor just. 5. Consequently, I allow these petitions and direct the respondents to go ahead with the allotment in favour of the eligible Societies only, application on whose behalf had been received by the respondent-Haryana Urban Development Authority by 31.10.1990, the last date for the receipt of applications. Resultantly, the applications received after the closing date i.e. 31.10.1990, shall not be considered in the present "Group Housing Scheme, 1990". There shall be no order as to costs". 5. In our view, the aforesaid observations of the learned Single Judge are contrary to the law laid down by the Full Bench in Surjit Singhs case (supra). Resultantly, the applications received after the closing date i.e. 31.10.1990, shall not be considered in the present "Group Housing Scheme, 1990". There shall be no order as to costs". 5. In our view, the aforesaid observations of the learned Single Judge are contrary to the law laid down by the Full Bench in Surjit Singhs case (supra). In that case, the Punjab Government notified a scheme framed under the Punjab Urban Estate (Development and Regulation) Act, 1964 (hereinafter referred to as "the Act") and the Punjab Urban Estate (Sale of Sites) Rules, 1965 (hereinafter referred to as the Rules), for setting up Urban Estates at various places in Punjab, including Mohali near Chandigarh. The scheme was widely advertised and the petitioners applied for the allotment of a plot within the time specified i.e. August 31, 1969. They had applied for the allotment of plots measuring seven and half marlas to one kanal in the Urban Estate, Mohali. They had enclosed with their respective applications demand draft covering 10 per cent of the sale price according to Rule 5 of the Rules. After submissions of the applications, the petitioners waited for allotment of the plots, but did not hear any thing from the Government. Thereafter, the petitioners learnt that arbitrary allotments had been made by drawing lots in favour of certain favourities of the respondents in contravention of the provisions of the scheme, the Act and the Rules. The principle of "first come first serve" had been completely ignored. It was also the case of the petitioners therein that the respondents instead of making allotments to the petitioners in accordance with the terms and conditions of the schemes earlier published, have been arbitrarily making fresh schemes with regard to the allotment of plots in Mohali and under the new scheme, the petitioners have now received a memorandum from the Estate Officer, Urban Estates, Punjab, Chandigarh, calling upon them to remit the balance of the price of the land fixed at Rs. 58/- per square yard. The petitioners, therefore, challenged the scheme made by the respondents demanding an inflated rate of Rs. 58/- per square yard from the petitioners and also for drawing lots and allotting plots to the persons, who had submitted applications after the date on which the applications were filed by the petitioners, 6. 58/- per square yard. The petitioners, therefore, challenged the scheme made by the respondents demanding an inflated rate of Rs. 58/- per square yard from the petitioners and also for drawing lots and allotting plots to the persons, who had submitted applications after the date on which the applications were filed by the petitioners, 6. The respondents justified their action and stated that offers were invited for the sale, by allotment of 636 plots in Mohali Urban Estate alongwith plots in the various other Urban Estates in the state; that the tentative price fixed in the advertisement related only to the 636 plots offered for sale by allotment that the principle of "first come first serve" could not be adhered to as the number of applications received was more than the number of available plots; that in this situation, the method of drawing lots was adopted by the allotment committee in order to do justice to all the applicants and to avoid any misgiving in the public or chance of favouritism to anyone. It was also stated that the petitioners had accepted in their applications itself that in case they remain unsuccessful for allotment of plot in the first phase, their earnest money may be retained by placing the applicants names on the waiting list for allotment in the next phase. Had the petitioners been successful to get the plots in the first phase, they would have paid the price given in the advertisement. Since they were being allotted the plots in the second phase, they had to pay the current rate to be fixed by the government. The argument of the learned counsel for the petitioners that the allotment should have been made on the principle of "first come first serve" was rejected with the observations that in the scheme or the Rules, it is no where stated that the allotment had to be made on the basis of "first come first serve". It was also observed that the allotment by way of draw of lots was justified in the circumstances of that case. Filing of the applications with the deposit of the 10 per cent price of the plot as earnest money, could not give any right to an applicant to claim allotment of the plot on the basis of principle of "first come first serve". Filing of the applications with the deposit of the 10 per cent price of the plot as earnest money, could not give any right to an applicant to claim allotment of the plot on the basis of principle of "first come first serve". It was also sought to be argued on the basis of Sub-rule (3) of Rule 5, that once 10% of the price of the plot had been paid, it was incumbent on the respondents to allot a plot to the applicant. Rule 5 (3) provides:- "When 10 per cent of the amount has been tendered, the State Government or such authority as it may appoint in this behalf, may allot a site of the size applied for. Intimation of such allotment shall be given to the applicant(s) by registered post giving the number, dimensions, area and sale price of the site allotted". 7. This argument was also rejected by observing that Sub-rule referred to above, only provided that when 10 per cent price had been tendered, the State Government or such authority as it may appoint in this behalf, may allot a site of the size applied for. The language of the Rule does not suggest that the principle of "first come first serve" has to be adopted, nor does it exclude the adoption of the method of drawing lots, as had been done in that case. The Full Bench made the following observations, which are relevant for the just decision of the present case:- "By filing an application in accordance with law, the applicant only gets a right of consideration of his application, but he does not get a vested right for allotment of the plot. The conditions laid down in the first scheme or the provisions of Rule 5(3) do not give any right to the applicants to claim allotment of plots as a matter of right. There is nothing in the scheme or the Act or the Rules, which requires the adoption of the principle of "first come first serve" at the time of allotment, or debars the Government from adopting the method of drawing lots. The petitioners have not been able to lay foundation for establishing their fight which could legally be enforced and the petitioners have completely failed to make out a case for the exercise of our extraordinary jurisdiction under Article 226 of Constitution of India". 8. The petitioners have not been able to lay foundation for establishing their fight which could legally be enforced and the petitioners have completely failed to make out a case for the exercise of our extraordinary jurisdiction under Article 226 of Constitution of India". 8. We are of the considered opinion that the observations made by the learned Single Judge quoted earlier, are contrary to the law laid down by the Full Bench. The judgment having been rendered per incuriam, in our opinion, does not lay down correct law. 9. We are of the considered opinion that no legal right of the petitioner has been in fringed. Consequently, the present petition is dismissed but with no order as to costs.