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2014 DIGILAW 1200 (PNJ)

Avtar Singh v. State of Punjab

2014-08-20

HEMANT GUPTA, KULDIP SINGH

body2014
Hemant Gupta, J. 1. The petitioners, fourteen in number, have invoked the writ jurisdiction of this Court for directing the respondents to execute the sale deed in favour of the petitioners of the plot allotted to them and also for quashing of the decision of the State Government dated 2.5.1995 (Annexure R-2/1) and the order dated 22.11.1995 (Annexure R-2/2), whereby the Improvement Trust demanded enhanced price from the petitioners. 2. The Improvement Trust (for short 'the Trust'), Amritsar framed development scheme under the provisions of Punjab Town Improvement Act, 1922 (for short 'the Act'), known as Ajnala Road Expansion Scheme. The claim of the petitioners is that their land was acquired for the purpose of said scheme. It was notified in the official Gazette on 21.4.1972 under Section 36 of the Act. The State Government sanctioned the scheme and a notification under Section 42 of the Act was published on 19.2.1973. The Land Acquisition Collector gave his award on 4.5.1974. The possession was taken by the Trust in the year 1980. 3. Some of the land owners whose land was acquired including the present petitioners invoked the writ jurisdiction of this Court claiming allotment of plots as the local displaced persons under Amritsar, Improvement Trust Land Disposal Rules, 1951. Learned Single Bench of this Court allowed the said writ petition i.e. CWP No. 1426 of 1985 on 8.5.1991, directing the Trust to consider the applications of the petitioners for allotment of the land if they are found entitled. It was also held that the amendment brought about in September 1974 would not apply to the land owners whose land was acquired prior to publication of the notification under Section 36 of the Act. The Trust did not dispute the said order but some of the land owners filed Letters Patent Appeal before this Court. The said LPA No. 751 of 1992 and other connected appeals were allowed on 8.5.2006, whereby the direction of the learned Single Judge that only the land owners who were recorded as the owners on the date of publication of the notification under Section 36 of the Act are entitled to consideration of allotment of plot was set aside. The Division Bench held that the transferees before taking over the possession would also be a local displaced person for considering the entitlement of the petitioners. The Division Bench held that the transferees before taking over the possession would also be a local displaced person for considering the entitlement of the petitioners. In terms of the directions of this Court, the letter of allotments were issued on 27.2.1992 to the Petitioners. Some of the letters of allotment are attached as Annexure P-2 to P-5 allotting plots @Rs. 135 per square yard. 4. In reply, the stand of the respondents is that the show cause notices have been issued to the petitioners for cancellation of the allotment. Such show cause notices have been attached with the written statement. Primarily, the allotments are said to be liable to be cancelled on one of the three grounds, firstly, on the ground that some of the petitioners are co-sharers and therefore, not entitled to individual plot. Secondly, that the part possession has been taken, therefore, the petitioners are not entitled to allotment of the plots and thirdly, that one of the allottee is not said to be the owner of the land which was subject matter of acquisition. 5. Learned counsel for respondents, however, could not point out that any order of cancellation of the plots has been passed after the show cause notices were purportedly issued. However, learned counsel for respondents points out that the Deputy Commissioner has revised the market value of the land to Rs. 325 per square yards of Block B and Rs. 600 per square yards of Block A since the year 1992 as per the order of the Collector dated 22.11.1995. It is thus contended that the allotment if any could be made only @Rs. 325 per square yard. It is the said decision, which is subject matter of challenge at the instance of the petitioners herein. 6. We have heard learned counsel for the parties and find that the action of the respondents in not handing over the possession of the plots allotted to the petitioners is not unjustified. Admittedly, no order of cancellation of allotment has been passed after the issuance of the show cause notices. Mere issuance of the show cause notices cannot be treated as the order of cancellation of allotment. Once, the petitioners have been found eligible in terms of the directions of this Court, the same could not be cancelled for the reason that the petitioners are the co-owners or are that part possession was delivered. Mere issuance of the show cause notices cannot be treated as the order of cancellation of allotment. Once, the petitioners have been found eligible in terms of the directions of this Court, the same could not be cancelled for the reason that the petitioners are the co-owners or are that part possession was delivered. In respect of rights of a co-sharers to an individual plot, the matter has been examined by Full Bench of this Court in Jarnail Singh and others vs. State of Punjab and others, CWP No. 2575 of 2009 decided on 1.10.2010. It has been held that the policy of State of Punjab in respect of one plot to be allotted to all the co-sharers is unjustified. Each co-sharer is entitled to a plot keeping in view his share in the land. It was observed as under:- We find that the restrictions of allotment of one plot to a joint khata holder is unreasonable and arbitrary as each of the land owner is entitled to rehabilitation in his individual right. The rights of co-owners have been delineated in the judgment of this Court in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, : AIR 1961 Punjab 528 and reiterated by a Five Judges Bench judgment in Ram Chander vs. Bhim Singh and others, : 2008(3) RCR (Civil) 685. A co-owner is owner of land as much as his other co-owners are. Mere fact that two or more persons have not sought partition of their holding and/or are enjoying the joint possession, does not affect the title of each of the co-owners. The co-owners are deprived of their title and possession by way of acquisition of land. Therefore, there is no reasonable explanation as to why a co-owner has been made ineligible, except to the extent that number of co-owners would be so large, which will make the process of acquisition itself futile. Thus, we are of the opinion that the Clause restricting the allotment of one plot to all co-owners is irrational, arbitrary and with no reasonable nexus with the objective to be achieved and thus, not sustainable. Therefore, we hold that Clause 6(V) of the Policy dated 16.9.1994 restricting allotment of one plot to all the co-sharers, is illegal and void. 7. Therefore, the reason to cancel the plots given in the show cause notice that the petitioners are co-sharers is not sustainable. Therefore, we hold that Clause 6(V) of the Policy dated 16.9.1994 restricting allotment of one plot to all the co-sharers, is illegal and void. 7. Therefore, the reason to cancel the plots given in the show cause notice that the petitioners are co-sharers is not sustainable. Thus, the petitioners are entitled to the plots keeping in view the holding of each of the land owners. Similarly, the findings that the part possession has been taken again cannot be said to be justified for the reason that even if the part possession is taken, the land owners is still a local displaced persons and would be entitled to allotment of plot of size to the extent of land of which the possession was taken by respondents. Therefore, the reasoning given by respondents in the show cause notices is not justified. 8. The price fixed by the Deputy Commissioner as per the collector rate cannot be made applicable to the petitioners as the plot already stands allotted to the petitioners. 9. In view thereof, we dispose of the present petition with the direction to the respondents to take a final decision on the show cause notices in the light of the observations made above within a period of two months. If any of the petitioners is not found to be the owner of the plot; or a plot of a size in excess of the entitlement has been allotted, the respondents shall be at liberty to take appropriate remedy in accordance with law. In all other situations, the Respondents shall hand over the possession of the plots allotted at the rates mentioned in the letter of allotment. 10. Disposed of with the said directions.