JUDGMENT
1. Heard above noted learned Counsel representing respective parties.
Back ground-
2. Dr. [ENTITY], as Karta of '[ENTITY] HUF (the petitioner) filed this writ petition on the plea that [ENTITY] (New Okhla Industrial Development Authority) allotted residential plot No. D-20 Sector-51, [ENTITY] (Area 450 Sq.Mts.) in favour of one [ENTITY], who transferred it to the petitioner with the consent of [ENTITY] as per Transfer Memorandum dated 26.7.2002 executed by [ENTITY] (Annexure No. 1 to the writ petition) and [ENTITY] also issued allotment order on 28.12.2004 in favour of the petitioner.
3. Relevant extract of the Transfer Memorandum is quoted below for convenience:
TRANSFER MEMORANDUM Subject:- Transfer permission in respect of Residential plot No. D-20, Sector 51 [ENTITY] Complex:
Plot No. D-20, Sector-51, [ENTITY] allotted to Shri [ENTITY] S/O Lalu R/O village Hoshiarpur P.O. Sarafabad, [ENTITY], henceforth is transferred in favour of of Shri [ENTITY] S/0 Shri [ENTITY] R/o C-11, Rana Pratap Bagh, Delhi-110007 subject to the following terms and conditions:
4. In the event of transfer of allotment being permitted by the Authority, the Transferee shall execute lease deed within 30 days from time & date of issue of checklist.
6. The transferee shall be liable to pay balance instalments of plot premium alongwith interest thereon by the due dates. The interest on the balance plot premium/another dues shall be payable (a) 14% p.a. In case of default, interest shall be levied @ 17% p.a. Compounded half yearly for delayed period.
7. The transferee shall be bound by the terms and conditions of Allotment Letter and Brochure of the said scheme of plot subject to the amendments indicated in the transfer memorandum.
(Underlined by us to lay emphasis)
4. Plot in question (Plot No. D-20) was alloted to [ENTITY] under Residential Plot Scheme -1997 (1)- copy filed as Annexure CA-2 to the counter affidavit (of [ENTITY] sworn by one [ENTITY]). Later it was replaced by Residential Plot Scheme -2004. It is not disputed that in both the schemes, i.e. Scheme of 1997 and 2004, Clause 13 providing for settlement of excess area of a plot almost remained the same.
5. Clause 13 (dealing with settlement of excess area) under [ACT], quoted in para 5 of the writ petition reads:
Area of plot allotted or handed over may vary from the size of the plot advertised in the scheme or applied for. If the area of the plot indicated in the allotment letter issued by the Authority or actually handed over to the allottee is found to be in excess or less than the area applied for, a proportionate change in the amount of premium would be made. No dispute would be allowed to be raised by the allottee on the ground of variation in the size of the plot. He would also have no right to change of plot or refund of earnest money deposited by him, on this account. If the variation between the plot area applied for and the area allotted is more than 20% and the allottee is unwilling to accept the enhanced or reduced area, the registration money/amount deposited by the allottee will be refunded without any interest, if he applies for refund within 30 days from the date of issue of allotment letter/such communication. Premium of excess area will be recoverable in lump-sum within 30 days from the date of intimation alongwith interest @ 15% p.a. Compounded half yearly from the date of allotment. In case of default in payment after the demand has been raised an interest @ 24% compounded every half yearly shall be charged on demanded amount for defaulted period.
6. Clause 13 of Scheme-2004 (quoted in writ para 5) is also reproduced:
Area of plot allotted or handed over may vary from the size of the plot advertised in the scheme or applied to. If the area of the plot indicated in the allotment letter issued by the Authority or actually handed over to the allottee is found less than the area applied for, a proportionate change in the amount of premium would be made. The allotment of excess area on the basis of site plan of the plot, shall be made at the allotted rate upto 20% and after that the allotment will be made at the current rate applicable at that time and premium of excess area will be recovered in lump sum. No interest would be charged for first 30 days from the date of allotment of excess area. In the event of failure to deposit plot premium of excess area, penal interest @ 13% p.a. compounded half yearly for, defaulted period would be charged. No dispute would be allowed to be raised by the allottee on the ground of variation in the size of the plot. The allottee will have no right for change of plot or refund of registration money deposited by him/her, on this account. If the variation between the plot area applied for and the area allotted is more than 20 percent and the allottee is unwilling to accept the enhanced or reduced area, the registration money/amount deposited by the allottee will be refunded without any interest, if he/she applies for refund within 30 days from the date of issue of allotment letter/such communication.)
7. Admittedly, an excess area of 300 Sq. Mts. is found on the spot in the corner plot No. D-20 in original 'Lay-out Plan.' Photostat copy of the original scheme/'Lay-out plan' on the basis of which plots were allotted to the concerned (extracted in para 7 of the writ petition) is Annexure No. 2 to the writ petition. This original lay-out of the scheme had no plot between Plot No. D-20 and Plot No. D-21. According to [ENTITY] excess area (300 Sq. Mts found on the spot in plot No. D-20 over and above its declared area of 450 Sq. Mts. in the scheme) is marked as new and independent plot No. D20A inserted in between original plot No. plot D-20 and D-21. There is no dispute that this has been done after the petitioner had acquired rights from original allottee [ENTITY], and allotment order issued by [ENTITY], which has however, subsequently started alleging that excess area (300 Sq.Mts.) has been given status of independent plot marked- D-20A.
8. [ENTITY], initially informed the petitioner that there is no excess area on spot vide its letters dated 13.8.2004 (Annexure No. 3 to writ petition) and dated 1.4.2005 (Annexure-10 to the writ petition).
9. According to the petitioner he has complied with the terms and conditions of the memorandum of transfer and allotment order by making payment of instalments, as and when due. and that he also deposited a sum of Rs. 80-,000/- for the excess area. lit has come on record that the aforesaid amount of Rs. 80,000/- admittedly has been refunded by the [ENTITY] to the petitioner on the pretext that there has been no excess area in plot No. D-20, Sector 51, [ENTITY]. Excess amount of Rs. 80,571/- was refunded to the petitioner vide refund advice dated 10.9.2002 (Annexure-4 to the writ petition).
10. While the petitioner was pressing for his right to settle excess area of plot No. D-20 with him, he apprehended that this excess area (allegedly marked as plot No. D-20A) may be allotted to any other person before deciding his right and thus [ENTITY] may attempt to frustrate his claim. The petitioner under above circumstances filed original [CASE NUMBER] (Dr. Lalit Vamra v. [ENTITY]) and obtained an interim order of status-quo on 16.5.2005. Relevant extract of interim order passed by Civil Judge (Senior Division) Gautambudh Nagar reads:
bl izdkj izFke n`"V;k ;g izrhr gksrk gS fd iwoZ esa oknh dks Hkw[k.M la[;k 20 vkoafVr dh xbZ rFkk oknh ds Hkw[k.M la[;k 20 ,oa Hkw[k.M ugha dh xbZ gS ftldh iqf"V izfroknh }kjk izsf"kr i= 17 x ls Hkh gksrh gS vkSj rRi'pkr~ izfroknh }kjk mDr vfrfjDr Hkwfe dks vkoaVh ds lkFk lek;ksftr djus dh O;oLFkk u djuk ,oa vfrfjDr Hkwfe dks u;k ua0 20, ds :i esa l`ftr djuk fuf'pr :i ls izfroknh ds U;w vks[kyk b.MLV~zh;y MsoyiesaV vFkkVhZ ;kstu 2004 dks izdkf'kr 'krksZ dh /kkjk 13 esa U;w vks[kyk MsoyiesaV ,fj;k jsxqys'ku 1991 esa of.kZr Iyku dh ifjHkk"kk ,oa Iyku ds la'kks/ku gsrq /kkjk 11 esa of.kZr mi/kkjk&2 ds vuqikyu dh iqf"V ugha djrh gS vkSj uk gh bl lanHkZ esa izfroknh }kjk izLrqr viuh vkifRr esa dksbZ dFku fd;k x;k gS fd Hkw[k.M la0 20, dks l`ftr djus ds iwoZ mlus mDr oS/kkfud izko/kkuksa dk vuqikyu fd;k gks ;k ughaA bu ifjfLFkfr;ksa esa oknh ds bl rdZ dks Hkh cy ik;k tkrk gS fd ,d leku {ks=Qy Hkw[k.M ds e/; ,d leku {ks=Qy ;k NksVs Hkw[k.M esa vkoaVu o otZu djus ls Hkou fuekZ.k mifof/k ds izko/kku ds vuqlkj Hkw[k.M mxz o i`"VlsVcSd dh O;oLFkk vlarqfyr gks tk;sxh vkSj blls oknh ds Hkw[k.M dh lsVcSd cqjh rjg izHkkfor gksxkA - - - - - - - & & & eSa bl fu"d"kZ ij igqWprk gwW fd okn ds fu.kZ; gksus rd mHk;i{k fookfnr lEifRr ij ;FkkfLFkfr cuk;s j[ksaA vr% vkns'k gqvk fd okn ds fuLrkj.k gksus rd mHk;i{k fookfnr lEifRr ij ;FkkfLFkfr cuk;s j[ksaA
11. [ENTITY] filed [CASE NUMBER] against aforesaid interim order in this High Court. Division Bench ([ENTITY] & [ENTITY], JJ.) did not grant interim stay. On 4.7.06. Learned Singe Judge ([ENTITY], J.) passed following interim order:
Heard Sri [ENTITY], Advocate for the appellant and Sri [ENTITY] Advocate for the respondents on the application for interim relief. After hearing the submission and going through the record, parties are directed to maintain the status-quo and the appellant will not alienate, dispose of, or sell the plot in question till the disposal of this appeal. The application for interim injunction is disposed of accordingly.
List this appeal for hearing before the appropriate Division Bench in the Second Week of July, 2006.
Before parties, it may, however, be observed that it is distressing to discover litigation of this nature between a high functionary of Administrative hierarchy and State agency headed by another superior officer of the same cadre. The matter should have been amicably sorted out instead of bringing it to the Court which detracts from a cohesive functioning of the Government al Agency and in the ultimate analysis brings disrepute and avoidable waste of public money.
It may be hoped that the matter will be amicably sorted out.
12. The petitioner also filed [CASE NUMBER] which was disposed of by Hon'ble [ENTITY],J. vide judgment and order dated 30.6.3005, which required representation of the petitioners to be decided after affording opportunity of hearing to them and by passing speaking order. The order reads:
Heard learned Counsel appearing on behalf of the parties.
Admittedly the petitioners have filed representation addressed to the respondent. According to the case set up by the petitioners, they are entitled for the settlement of extra area under the area allotted to them, according to the rules of the respondents authority.
Be that as it may, the respondents are directed to dispose of the petitioners' representation dated 22nd May, 2005, Annexure -7 to the writ petition, by a reasoned order by affording an opportunity of hearing to the petitioner within a period of one month from the date of presentation of a certified copy of this order before the respondents. In this circumstance, this Court has not entered into the merits or otherwise of the case.
With the aforesaid observation, this writ petition is finally disposed of.
13. The representation filed by the petitioner (in view of the Court's order/s) has been rejected by Chief Executive Officer, [ENTITY] vide impugned order dated 21.6.2006, (copy annexed with amendment application-allowed by court on 30.10.2006).
14. The reliefs claimed by petitioner in this writ petition (amended) are:
(a) Issue a writ, order or direction in the nature of certiorari summoning the record of the case and quashing order dated 23.08.2005 passed by respondent No. -2 (Annexure No. 7 to the writ petition)
(b) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 2 to allot excess land in plot No. D-20 Sector No. 51 (So called plot No. D-20A) measuring 300 Sq. meters in terms of condition 13 of the conditions of allotment relating to allotment of excess land and the precedents as such as plot S1 1/N32 [ENTITY], in accordance with law to the petitioner.
(c) Issue a writ, order or direction in the nature of mandamus restraining the respondent No. 2 from settling excess land in plot No. D-20 Sector No. 51 (So called plot No. D-20A) measuring 300 Sq. meters in favour of any outsider except the petitioner.
(d) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 2 not to create/amend existing plan and carve out plot No. D 20A between plot No. D20 and plot No. D-21,Sector 5, [ENTITY].
(e) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(f) To award the cost of the petition to the petitioner.
(g) Issue a writ, order or direction quashing order dated 21.6.2006 passed by respondent.
PLEADINGS OF THE PETITIONER:
15. Relevant pleadings in support of the case of the petitioner are contained in para 7, 10, 14, 19, 21, 22, 25, 26, 27, 28 & 31 of the writ petition, which are quoted below:
7. That on spot the area of Plot in question, being corner-plot was more than initially mentioned area, i.e. 450 sq. metre. There existed no plot in between plot No. D-20 and D21 of the Sector 51 in the original Map published by respondent No. 2. Plot No. D-21 was allotted in favour of Shri [ENTITY]. It is pertinent to mention that in the Sale deed dated 16.10.2001 executed by the respondent No. 2, in favour of Sri [ENTITY], boundaries of deponent/petitioner plot (D-20) is mentioned on the east and no plot is indicated in between D20 of D21. The boundaries of the plot No. D 21, as given in the lease/sale deed duly executed by [ENTITY] on 16.10.2001 in favour of Shri [ENTITY] are given below for ready reference.
Bound in the North by 12 meter wide road.
Bound in the South by D-56/51 Bound in the East by D 20/51 Bound in the West by D 22/51 These tally entirely with the published map of the scheme, a copy of which is being annexed with this writ petition as Annexure No. 2 and relevant portion is being reproduced below for ready reference.
10. That the petitioner had deposited Rs. 80,000/- towards allotment of above mentioned excess area, with the respondent No. 2, over and above the amount due from him for the D20 sector 51 (450 or so sq. meter) plot. The same 80,000/- Rs. were however returned to the petitioner without indicating any reason for non allotment of the excess land. A copy of the refund advise dated 10.9.2002 of the respondent No. 2 is being filed herewith as Annexure No. 4 to this writ petition.
14. That no objections were called prior to creation of so called plot No. D-20A which is mandatory requirement under the provisions of [SECTION] of [ACT]. The relevant regulation is being reproduced below for ready reference-
11. Amendment of the plan- (1) The Authority may make such amendments in the plan which do not effect important alteration in the character of the plan and which do not relate to the extent of land use or standards of population density.
(2) Before making any amendment in the plan under Sub-section (1) the Authority shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any affected person with regard to the proposed amendment before such date as may be specified in the notice and shall consider all objections that may be received.
(3) Every amendment made under this Regulation shall be published in any of the manner specified in [SECTION] and the amendment shall come into operation either on the date of the first publication or on such other date as the Authority may fix.
(4) The authority shall not make during the specified period in which the plan is to remain effective, such amendment(s) in the plan which affects important alteration in the character of the plan and which relates to the extent of the land used or standards of population density.
19. That no action was taken by the respondent No. 2 on petitioner's above representation. This was inspite of existence of precedents (of allotting plot size having additional excess area more than 20 percent of originally indicated area, such as plot No. N 11 sector 32 [ENTITY] having area of 550 sq. meter which is more than 120 percent of originally indicated area of 450 sq.meter);
that [ENTITY] (respondent No. 2) was not put to any financial loss (since the petitioner was ready to pay the due amounts immediately and rather what ever amount [ENTITY] would have got from any body, to whom they intend to allot the so called new plot.) and that [ENTITY] (respondent No. 2) had to settle the excess land with somebody or other and that the petitioner had accrued certain rights in light of terms and conditions of allotment and as an old existing allottee of corner plot having excess vacant area in his plot.
21. That the petitioner submitted the copy of this Hon'ble Court's order with representation on 10.7.2005, quoting the above mentioned precedent (Plot No. N 32 Section 11 at [ENTITY]) and other facts to the respondent No. 2. In gross-violation of the above directions of the Hon'ble Court the respondent No. 2 on 23.8.2005 has rejected the representation, by a bald, unreasoned order, without providing opportunity of hearing to petitioner (as was directed by the Hon'ble High Court order) and much after expiry of the stipulated period of one month as was given by the Hon'ble Court in its order dated 30.6.2005.
22. That the representation had mentioned about, the violation of regulation No. 11 (regarding amendment of the existing map) of [ACT], and violation of the condition No. 13 (regarding area of the plot on the site and its settlement and valuation etc.) of terms and conditions of the allotment of the respondent No. 2, the precedents like plot N 32 sector 11 having 550 sq meter area. Nothing amongst these has been considered by respondent No. 2 while deciding the representation.
25. That the regulation No. 11 (regarding amendment of the existing map) of [ACT] is complete in itself and has to be construed strictly. The reasons (tgkW rd Hkw[k.M la0 21, ds ltZu ds fy, vkifRr;kW izkIr djus dk iz'u gS blds fy, vkifRr;kW vkeaf=r djus dk dksbZ izkfo/kku ugha gSA vkifRr;kW izkIr djus dk izkfo/kku ml fLFkfr esa gksrk gS tc Hkwfe mi;ksx essa ;k lsDVj ds Iyku esa dksbZ cM+k cnyko gksrk gSA) being given now, in the rejection letter is improper. The wordings of this regulation does not call for separate treatment while dealing with large or small change in the map. Rather as per wordings of this regulation, it is meant only for minor changes only. Even other wise also small or large is a comparative term. The regulations have to be strictly followed in terms of its context and can not be permitted to be interpreted to suit the respondent reasoning. This assertion gets supported by ruling of [PRECEDENT] . [ENTITY] appears to be giving any explanation which suits it at that particular time in that particular context.
26. That the rejection order confirms that no objections so ever were invited before creation of the new plot D20A tgkW rd Hkw[k.M la0 21, ds ltZu ds fy, vkifRr;kW izkIr djus dk iz'u gS blds fy, vkifRr;kW vkeaf=r djus dk dksbZ izkfo/kku ugha gSA In fact the regulation No. 11 quoted above is reflection of principle of natural justice. Even otherwise also law today is clear that any action of any authority having civil consequence or affecting rights of others, should observe principles of natural justice. It is evident from the rejection order that the petitioner was not heard though size of his plot was being affected and his boundaries were being changed by creation of the so called new plot D 20A. The entire exercise was in gross violation of principles of natural justice. On this count alone the carvation of the so called plot is unsustainable.
27. That since carvation of new plot is without following the laid procedure as given in regulation No. 11 quoted above, is void abinitio ( [PRECEDENT]). [SECTION] (regarding amendment of the existing map) of [ACT] has not been followed and as such amendment of map and carvation of new plot is void abinitio. The earlier two letters - 10.6.2004 and 13.8.2004 speak of no excess land where as the stance was changed in letter 1.4.2005 where in it was info/vied indirectly that the excess land is inform of a new plot which can not be given. The carvation of new plot has been done only in 2004.
28. That no authority including [ENTITY] can be permitted to keep on changing stance. They have changed the stance in 13.8.2004 and 1.4.2005 letters. Similarly in 2001 while registering D21 sector 51 in favour of Shri [ENTITY], at office of registrar Ghaziabad/[ENTITY], the boundary of D21 on East side was plot No. D20 Registration means that [ENTITY] respondent No. 2 had admitted a particular fact publicly. They can not be permitted to change that public declaration now in 2005 by saying that D21 was bound on East side by D20A and that earlier public declaration and the sale deed was a clerical mistake.
31. That by not settling the excess area of plot No. D-20 with the petitioner, the respondent No. 2 have not only failed to perform the duty vested with them but has also discriminated petitioner with similarly situated persons besides flouting the orders of this Hon'ble Court. In past the respondent No. 2 has settled excess area with erstwhile allottees having plots adjacent to the excess area. For example in plot No. Sector 11/N-32 respondent No. 2 have settled excess land available on site. After settlement this plot is of 550 sq. meters which shows that the excess area settled by the respondent No. 2, was more than 20% of original plot size of 450 sq. meters.
(underlined to lay emphasis)
16. Petitioner has categorically claimed that lay out plan has not been changed/altered as per the prescribed procedure after inviting objections etc. In support of it, it is contended (vide para 25 of the writ petition) that [ENTITY] has not followed [ACT] prescribing procedure to change Lay-out Plan (quoted in para 14 of the writ petition). The petitioner pleads that the case of [ENTITY] to carve out independent plot, namely, plot No. D-20A (out of excess area of original plot No. D-20, (belonging to the petitioner) is against [ACT]. No objections were invited before inserting said new Plot No. D-20A in Lay out Plan. Such change is without legal authority and it has no legal sanction. According to the petitioner, pretext of carving out plot D-20A is to frustrate the claim of the petitioner in an arbitrary manner, apart from the fact that such act is discriminatory, as compared to other similar cases (details of which have been given in the writ petition/rejoinder affidavit). The petitioner pointed out at in the cases of others also excess area could be carved out as new plot but the [ENTITY] did not do so and settled the said excess area with the original allottees. The petitioner claims to get excess area of plot No. D-20 allotted/settled with him under the existing policy of [ENTITY].
PLEADINGS OF [ENTITY]:
17. The aforesaid paras of the writ petition have been replied vide para 11, 13, 16, 18, 20, 22, 23, 24 of the counter affidavit (sworn by [ENTITY], Law Officer) filed on behalf of [ENTITY], which read:
11. That the contents of paragraphs 7 and 8 of the Writ Petition are denied and in reply it is submitted that if is incorrect to say that there exists no plot between Plot No. D-20 and D-21. The size of the plot of the petitioner would remain the same which was allotted to the original allottee i.e. [ENTITY] i.e. 450 Sq. Metrs. Sri [ENTITY] did not raise any objection regarding the size of his plot and sold the same in favour of the Petitioner in the year 2002. After about 7 years of allotment the Petitioner is raising demand for allotting him excess area. It is clarified over here that there is no excess area in the plot of the petitioner,. The plot No. D-20-A is an independent plot measuring 300 Sq. Meters. Allotting of excess area of the adjoining land is made only in case where the size of available plot is such that no independent plot can be carved out of the same. The petitioner is claiming a totally independent plot by filing Suit as well as the present Writ Petition which is not permissible in law.
13. That contents of paragraph 10 of the Writ Petition are matter of record. However, it will not be out of place to mention here that the petitioner had deposited the amount of his own without there being any request from the side of the answering respondent.
16. That the contents of paragraphs 14, 15 and 16 of the writ petition as stated are not correct and in reply it is submitted that the regulation quoted by the petitioner in the paragraph under reply do not apply to the case of the petitioner. Plot No. D-20-A is an independent plot which has to be allotted after proper advertisement and after inviting tenders.
18. That the contents of paragraph 18 and 19 of the writ petition are denied. The petitioner has no right to get the plot in question under any scheme or regulation of the answering respondent.
20. That the contents of paragraphs 21 and 22 of the Writ Petition are matter of record. However, in reply it is submitted that the order has been passed after considering representation filed by the petitioner.
22. That the contents of paragraphs 24, 25, 26 and 27 of the writ petition relate to the order passed by the answering respondent. There is no illegality in the same and warranting interference from this Hon'ble Court.
23. That the contents of paragraph 28 of the writ petition are denied and in reply it is submitted that there has been no change in the stand of the answering respondent. There exist no excess area. There is a plot of 300 Sq. Meters which is independent in nature and can only be allotted to a person after inviting application for the same.
24. That the contents of paragraphs 29, 30, 31, 32 & 33 of the writ petition are denied and in reply it is submitted that petitioner has failed to show any illegality in the order dated 23.8.2005 passed by the answering respondents. The petitioner has further failed to show his right to claim in the plot in question.
REJOPINDER OF THE PETITIONER:
18. Para 11 of the counter affidavit has been controverted vide para 8 of the rejoinder affidavit, which reads:
8. That the contents of paragraph 11 of the counter affidavit are wrong and denied and in reply to the same, contents of paragraphs 7 & 8 of the writ petition are reiterated. It is reiterated here that area of plot No. D 20 of sector 51 allotted to original allottee [ENTITY], being a corner plot was more than initially mentioned area (450 Sq. meters) in the allotment letter. The same was transferred to petitioner in the year 2002. Till then alleged plot No. D20A was not in existence in the map of respondent and hence there was no occasion for raising any objection. In sale deed executed on 16.10.2001 by respondents relating to plot No. D-21 in favour of Sri [ENTITY], the plot No. D-20A is not indicated in boundaries of D21. Rather it (D21) is shown as bounded on eastern Side by plot No. D20. The copy of sale deed in favour of Shri [ENTITY] dated 16.10.2001 is annexed as Annexure-1 to fortify above submissions. The respondents have denied these assertions of the petitioner made in the writ, in their counter & have tried to mislead the court.
The subsequent alleged creation of plot No. D-20A by respondent is from excess land in the petitioner's allotted plot No. D-20 and the same was done after petitioner approached the respondents for settlement of excess land in plot No. D-20, as per the terms & conditions of transfer, in his favour. The carvation of alleged new plot D-20 A has been made sometimes in the year 2005 against the provisions of [SECTION] of [ACT] and condition 13 of( regarding area of the plot on the site and its settlement and valuation etc.) of terms and conditions of the allotment of the respondent No. 2. It is wrong to say that the excess land is of adjoining plot or of totally independent plot(D 20A).
Preliminary Objection
19. On behalf of respondent/[ENTITY] Sh. [ENTITY], appearing with Shri [ENTITY] Advocate, raised preliminary objection over maintainability of Writ Petition. Firstly, on the ground of the petitioner's filing of original [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] before the civil court, Ghaziabad which was pending when this writ petition was filed. It will be recalled that the petitioner, with an understanding that writ petition shall be heard on merit withdrew the said suit. The writ petition was adjourned with an understanding that the writ petition shall be heard after the said suit is withdrawn (See orders dated 4.12.2006, 13.12.2006 & 9.2.2007 on the order sheet). The petitioner filed Affidavit to show that the Suit has been withdrawn ( with liberty to file a fresh suit in case so warranted and legally advised).
20. This objection, when no suit is pending on date, is misconceived. It is to be noted that the petitioner has withdrawn the suit at the instance of [ENTITY]-with an understanding that the writ petition shall be heard on merits. [ENTITY] cannot approbate & reprobate, particularly when petitioner has, by withdrawing the suit, changed his position to his prejudice.
21. This petition is pending since 2005. Parties have appeared with their counsel in this case on several dates. The Court also heard it earlier on merit but adjourned it on the request of the parties in the interest of justice. The parties have exchanged their pleadings by filing counter and rejoinder affidavits including amendment application. The issues in the Writ Petition can be decided as per undisputed facts and on the basis of interpretation of relevant clauses in the policy/scheme. It can be effectively done by this Court and it can give finality to the issue instead of asking Court/authority below it to do the same and save parties from long drawn litigation.
22. This Court in the connected FAFO required matter to be settled and petitioner filed representation which has been decided by means of impugned order dated 21.6.2006. In this view of the matter also it will be expedient that Writ Petition be heard on merit by this High Court.
23. It is also well settled that availability of Alternative Remedy is not an absolute bar. It is well accepted rule that in case a writ petition has been pending for long time and parties have been waiting for hearing/decision after they have exchanged their pleadings, spent time, money and energy and the case can be decided on undisputed facts, this Court should not throw Writ-petition on the ground of alternative remedy.
24. In the case of [PRECEDENT] this Court held:
it would normally be not appropriate to dismiss the writ petition at the time of hearing when affidavits have been exchanged between the parties and the matter is being listed for hearing on the ground of alternative remedy.
Apart from this; if in a writ petition, on the exchange of affidavits, the petition can be decided on appreciation of legal proposition or only by adverting to the law, as may be applicable, in such a case and that too on the given facts which are no more in dispute, the High Court would not be justified in dismissing the writ petition on the ground of alternative remedy at the time of hearing of the writ petition.
25. In that view of the matter, we are of the opinion that it shall not be proper at this stage to throw this writ petition on the ground of civil suit being filed - alternative remedy.
26. Another preliminary objection regarding maintainability of Writ Petition is that the petitioner has statutory alternative remedy to challenge impugned order dated 21.6.2006 (rejecting his representation) under [SECTION], '[ACT] read with [SECTION] of [ACT]. [SECTION] of the [ACT] reads:
41(3): The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the (Authority or the Chairman) for the purpose of satisfying itself as to the legality or propriety of any order or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:
Provided the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.
27. A perusal of the aforesaid provision shows that it is not substantive provision of appeal. It is the discretion of the State Government to satisfy itself as to the legality or propriety of an order. Moreover, such objection ought to have been taken when-'objection on the ground of pendency of civil suit was raised earlier and case was adjourned (at the instance of [ENTITY]) to enable the petitioner to withdraw suit and press his writ petition on merit. In the facts of the instant case, no good purpose shall be served by driving the parties to go the State Government- and contest the case de-novo. Here, parties have appeared and exchanged their pleadings and the case can be heard & decided finally.
28. Sri [ENTITY], learned Advocate General referred to the case of [PRECEDENT]. wherein three exceptions to the General Rule that 'Writ' is not to be entertained if alternative remedy exists, have been laid down, i.e. violation of 'fundamental rights' vires of the Act being challenged or principles of natural justice being violated. We have carefully gone through this ruling. It was a case in which High Court had dismissed the writ on the ground of alternative remedy, though the case was covered within the exceptions laid down by Hon'ble Apex Court and so it was held that when the case is covered in any of the three exceptions referred to above, the writ petition cannot be dismissed on the ground of alternative remedy, but it has no where been laid down in this ruling that in all other cases the writ petition is to be dismissed on the ground of alternative remedy. The Court has to exercise judicial discretion in other cases not covered by the aforesaid three exceptions and the above ruling does not render any help to the contention of the respondent that the writ should be dismissed on the ground of availability of alternative remedy.
29. The learned Advocate General also referred to another decision in the case of [PRECEDENT]. . We have carefully gone through this ruling also. In this case four writ petitions were filed Under [SECTION] of the [ACT] before Hon'ble Supreme Court challenging allotment of plots by Meerut Development Authority and it was held that since no question of violation of any fundamental right was involved, it was not permissible to invoke [SECTION] of the [ACT]. This ruling has also got no application to the facts of the present case, because in the present case no writ has been filed Under [SECTION] of the [ACT] before the Apex Court, but it has been filed Under [SECTION] of the [ACT] before this Court for enforcement of legal right of property and so it is maintainable.
30. On behalf of [ENTITY] the learned Advocate General further argued that the petitioner cannot maintain Writ Petition as it is not to enforce statutory contract. The argument has no substance and deserves to be rejected, because admittedly the impugned order has been passed by the authority exercising statutory quasi judicial powers deciding rights of the parties. The aggrieved party has the right to challenge the same by filing writ petition under [SECTION] of the [ACT]. Moreover, Hon'ble Supreme Court in case of [PRECEDENT] approved the principles of legitimate expectation, and the allottee has vested right of seeking allotment of excess area under condition No. 13 of the 1997 & 2004 Schemes.
31. The fact that the petitioner had deposited Rs. 80000/- promptly in 2002 for settlement and allotment of 'excess area' in his Plot No. D-20- particularly in view of past precedents of allotment of excess areas (ranging between 100 to 235 meters). [ENTITY] could not deny 'legitimate expectation' and privilege of the petitioner under its policy. Moreover, carvation of a new plot D-20A ( out of excess area of Plot No. D-20 ) is unsustainable being in violation of Clause 11(2), [ACT]. Further, it is significant to note that [ENTITY] initially came out with the case that there is no excess area, and later came with the pretext of an independent plot No. D-20A. This shows that [ENTITY] is attempting to frustrate claim of the petitioner on one pretext or the other.
32. Further, on behalf of [ENTITY] it is argued that this Court should not hear this matter as this plot is subject matter of the scheme in respect of which Supreme Court has taken cognizance in [CASE NUMBER]( arising from judgement and order dated 4.10.2005 passed in [CASE NUMBER] ([PRECEDENT].) and another Division Bench judgment in the case of [PRECEDENT] reported in 2005 (4) AWC 3806. The said writ petitions are pending in High Court. The Division Bench passed interim orders directing CBI to hold inquiry with regard to manipulation in draw of lots ( para 25 of the reported judgment ). The Supreme Court in the above mentioned SLP passed following interim order, which reads:
In the meantime, there shall be stay of the operation of the order of the High Court directing CBI inquiry as well as fresh draw of lots.
33. [ENTITY] concedes that plot No. D-20 ( Excess Area ) was not put to allotment and therefore, above writ petition & S.L.P. have no concern with the excess area (called new Plot D-20A).The argument of [ENTITY] is against record and absolutely conceived.
34. Thus, there is no force in the preliminary objections raised by [ENTITY].
OTHER ARGUMENTS:
35. The petitioner contended that original sanctioned 'lay out plan ' indicated that plot No. D-20 and D-21 had common boundary. Boundaries of plot No. D-21 described in the deed executed by [ENTITY] in favour of [ENTITY], showed that in its East lay plot No. D-20. The petitioner categorically pleaded and argued that the procedure prescribed under [ACT] was never followed to amend or change the sanctioned lay out plan, and that no objections were, invited from the concerned though required under said [ACT] (Para 14 of the writ petition). These pleadings have not been controverted by [ENTITY].
36. The [ENTITY] admits that procedure prescribed for the change in the lay out plan was not followed, as according to it, inserting new plot in the lay out plan was not a major change.
37. According to the petitioner, excess area of Plot No. D-20 found on the site can be located only after identifying 450 Sq. Mts. of Plot No. D-20 measuring from Eastern boundary of plot No. D-21. According to the petitioner, by no stretch of imagination excess area could be identified between plot No. D-21 and plot No. D-20. The excess area, in the instant case, actually lies on East of Plot No. D-20 ( 450 Sq. Mts.),i.e. between plot No. D-20 ( 450 Sq.Mts.) and the Road on East of it. [ENTITY] by their alleged attempt to identify excess area of 300 Sq. Mts.( as Plot No. D-20A ) between plot No. D- 20 and D-21 has shifted the site of plot No. D-20 apart from disturbing the boundaries of plot No. D-21- without following prescribed procedure under [ACT]. In view of the stand taken by [ENTITY] that it had carved out new independent plot of excess area, as contended by [ENTITY] vide its letters dated 13.5.2004 and 1.4.2005 (Annexures 3 and 5 of the writ petition) its earlier order to the effect that there has been no excess area, stands belied. The petitioner submitted that [ENTITY] has acted in breach of its own terms and conditions of allotment/memorandum of transfer, which provide that conditions prescribed in Brochure of the Scheme shall be applicable to transferree.
38. Further it has come on record and not controverted by [ENTITY] that excess area ( 226.81 Sq.Mts.) of plot of [ENTITY] and excess area (-130.5 Sq. Mets.) of the plot of [ENTITY] had been settled with them and not treated as independent plot. Learned Counsel for [ENTITY] concedes that such excess area could be carved out as independent plots' but no good reason is disclosed as to why [ENTITY] did not adopt consistent practice and treated ' excess area' differently in the present case. There is no explanation as to why [ENTITY] did not treat 'excess areas' in those cases as 'independent plots' and settled the excess area in favour of the allottees.
39. The [ENTITY], a statutory authority, has to treat all its allottees similarly and equally. It has to be fair and equal in its treatment. The precedents disclosed are well founded and similar treatment should have been given to the petitioner.
40. The Supreme Court in the case of [PRECEDENT] , held:
24. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice That authority must genuinely address itself to the matter before it It must act in good faith, must have regard to all relevant considerations, must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously
41. In the case of [PRECEDENT] the Court held:
It is clear from the above observations of this Court that once the Stale or an instrumentality of the State is a party to the contract, it has an obligation in law to act fairly justly and reasonably which is the requirement of [SECTION] of the [ACT]. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contraventality of the above said requirement of [SECTION], then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent
42. Law is well settled that natural justice has to be respected in administrative' decisions also. Clause 11(2) of [ACT] subserve the said object. This Regulation does not refer to 'Major change' as such. [ENTITY] has failed to plead/argue that change in question (carving out of a plot and inserting it in between two regular plots is not covered under Clause 11 of [ACT].
43. Any change affecting the allottee (the petitioner ), whether such change is 'minor' or 'major', if covered under [ACT] could be done, only after following the procedure prescribed by Clause 11 of [ACT]. In fact [ACT] deal with 'minor' changes in the layout maps and does not permit large scale changes. [SECTION] says "amendments in the plan which do not effect important alteration in the character of the plan and which do not relate to the extent of land use or standards of population density. " The regulation has to be strictly followed in terms of its context and cannot be permitted to be interpreted to suit [ENTITY]. Hon'ble Supreme Court in ruling of [PRECEDENT] has held so.
44. A Division bench of this Court in case of [PRECEDENT], authority, held
4. Further more the [ACT] has not conferred any right for review of any sanction to layout or building plan granted by the development authority. Once a layout or building plan has been sanctioned, it is not open to the respondents to cancel or revoke the said sanction unless it is demonstrated that the same was secured by playing fraud or misrepresentation. If there are such allegations, even then the said sanction cannot be revoked without giving opportunity to the person in whose favour particular sanction has been accorded by the development authority. It is settled law that where exercise of powers results in civil consequences to the citizen unless the statute specifically rules out the application, principle of natural justice would be applicable. Principles of natural justice, therefore, would require an opportunity against the proposed action.
45. This High Court in case of [PRECEDENT] has further reiterated the principle.
The only procedural, mandatory statutory requirement to be fulfilled by the State Government before amending the master plan is that it shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendment before such date as may be specified in the notice, and shall consider such objections
(Underlined to lay emphasis)
46. Insertion of new plot violates first and second condition of Clause 11 (underlined by us).
47. The Apex Court in the case of [PRECEDENT]. observed:
It appears to us that rule of reason and rule against arbitrariness and discrimination, rule of fair play and natural; justice are part of the rule of law applicable in situation or action by the State instrumentally in dealing with citizens in a situation like the present one. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination in the type of the transactions and nature of the dealings as in the present case.
48. [ENTITY] has acted in violation of [SECTION] of [ACT] in denying to settle excess area (300 Sq. Mts.) with Plot No. D-20 of the petitioner.
49. We shall now proceed to examine the merits of the reasons recorded by [ENTITY] in its order dated 21.6.2006 while rejecting representation of the petitioner (Annexure -1 to the affidavit filed in support of the Amendment Application in the writ petition).
50. The first ground is that the petitioner has acquired plot No. D-20 (450 Sq.Mts.) by purchasing in open market with full knowledge of size and location of the plot from erst while -original allottee [ENTITY]; and hence, the petitioner could not claim excess area' on spot (300 Sq. Mts.) of plot No. D-20 Reasoning is misplaced.
51. The petitioner stepped into the shoes of original allottee, namely, [ENTITY], who admittedly had right privilege to get excess area settled with him. There is no pleading or material to show or prove that [ENTITY] had lost this right to have 'excess area' settled with him when he transferred plot No. D-20 to the petitioner. Rights and privileges of [ENTITY] under relevant Scheme, 1997, continued till he transferred Plot No. D-20 to the petitioner in 2002. [ENTITY] also does not plead that this 'right' of Excess Area of [ENTITY] was excluded under 'Transfer Memo' or 'allotment' in favour of the petitioner. There is no basis to restrict or confine the rights of the petitioner in plot No. D-20 purchased from [ENTITY] to 450 Sq. Mts. only and to ignore his claim for the excess area (300 Sq.Mts.). Excess area is to be dealt with and settled with allottee as per policy. This conclusion is supported by Clause 7 of Transfer Memo of the [ENTITY] in favour of the petitioner.
52. The authority deciding representation has proceeded on the sole basis that there exists a New Plot No. D-20A and that there is no excess area on the spot. We may refer to interim order dated 19.5.2005 passed by the civil court (quoted above ) which shows that the civil court, though prima facie but after hearing the parties, observed that scheme-plan was not changed as per prescribed procedure under law. The defence of [ENTITY] that there is an independent plot No. D-20A (and that no excess area exists) has no valid sanction. It is clear that [ENTITY] has ear-marked 'excess area in question as plot No. D-20A (which is not in the approved lay out plan) to frustrate the claim of the petitioner.
53. The impugned order noted that the petitioner did not possess a vested and indefeasible rights of allotment of excess area in question. Such an observation is without logic or reason and hence not sustainable in law. Above stand of [ENTITY] is against Clause 7 of the Transfer Memorandum quoted above. Both in the 1997 and the 2004, Regulation, Condition No. 13 conferring privilege of getting 'excess area' settled with the original allottee remains same. None prescribed time limit. As such, in this case the petitioner by paying instalment expressed his willingness to take 'excess area promptly. If petitioner had declined, [ENTITY] would have been free to proceed as per Clause 13 of Scheme, 2004 (and not to carve out a New Plot).Lease deed is yet to be executed.
54. In para 7 of the impugned order it is observed that:
In the instant case no excess area is available. What is available is independent plot which was carved out much after allotment of plot no D20 Sector 51 to [ENTITY]
55. It is not the case of [ENTITY] that plot No. D-20A was carved out before [ENTITY] transferred plot No. D-20 to the petitioner. It is not the case that [ENTITY] was not eligible to get "excess area" settled with him at the time of settling/transferring plot No. D-20 to the petitioner. It is not the case that 'Excess area' policy was abandoned at any relevant point of time. It is not the case that Layout Plan has been changed after following Clause 11 of [ACT]. Therefore, claim of the petitioner for the excess area could not be ignored or frustrated in the manner as has been done in the present case, i.e. identifying excess area as new plot No. D-20A. The reasoning in the impugned order - 'that it is not a case of excess area but of allotment of another independent plot', is nothing but a self fabricated excuse/ground by [ENTITY] without sanction of lawful authority or relevant regulations.
56. The other argument of 'public interest' and 'transparency' also do not appeal to reason or logic which require 'fair' and equal treatment. In fact [ENTITY], by treating the petitioner differently has acted against 'transparency'/Public Interest.'. By treating the petitioner differently, in the instant case, it has jeopardised credibility of [ENTITY] in the eyes of public. The public interest and transparency require that authority should stick to its policy, act fairly and impartially.
57. In para 7 of the impugned order (relating to change in the lay out plan of residential scheme ) it is to be noted that [ENTITY] has pleaded that procedure prescribed under [ACT] was not followed since insertion of Plot No. D-20A was not a major change in the plan. Such plea is not supported by any statutory/Administrative order/Notification, placed on record, as to show what is a 'Major Change'. Secondly, what is 'major change ' cannot be the unilateral decision - when rights of others are involved as in the case of present nature.
58. We are of the opinion that carving out new plot (of excess area) and inserting it between Plot No. D-20 and D-21 fall within the concept of a 'major change. It relates to the look, ambience, 'riparian' rights of AIR and LIGHT, standard of population and density under [SECTION] of the [ACT]. Authority has right to carve out plots and offer them for allotment but not at its whim or against [ACT]. To effect changes behind the back of the concerned to their prejudice cannot be approved as it has no sanction in law. No authority is competent to effect change in a sanctioned/lay out plan (of residential colony ) without following procedure prescribed under relevant Regulations particularly when it prejudices title and rights of the people because people purchase plots believing that colony shall be developed as per sanctioned Scheme advertised/published and notified.
59. After plots are allotted, no change could be incorporated in Lay-out Plan without following the procedure prescribed under Regulations 1991 which include inviting objections also.
60. The petitioner claims right under Policy of [ENTITY] and its published Scheme. It is not a 'charity'. It is the discretion of the petitioner to claim 'Excess Area' or to surrender it. No other person has justification to advise one way or the other- by alleged allocation of 'excess area' as independent plot No. D-20A.
Conclusion:
61. The impugned order dated 23.7.2005(Annexure-7 to the writ petition) and order dated 21.6.2006 (annexed with Amendment Application ) suffer from manifest error apparent on the face of record and cannot be sustained. Relief (a) in the writ petition deserves to be granted. Similarly earlier orders dated 13.8.2004 (Annexure -3 to the writ petition) and 1.4.2005 (Annexure-5 to the writ petition ) are also vitiated and are unsustainable.
ORDER
62. The writ petition is allowed and accordingly, writ of certiorari is issued and after calling record of the case and by moulding the reliefs, the order dated 13.8.2004 (writ Annexure- 3), order dated 1.4.2005 (writ Annexure-5), order dated 23.8.2005 (writ Annexure-7 ) and order dated 21-6-2006 passed by Chief Executive Officer, [ENTITY] (Annexed with the Amendment Application ) are hereby set aside, and it is hereby declared that the petitioner is entitled to get excess area of 300 sq. meters in Plot No. 20, Sector 51. [ENTITY] allotted in his favour.
63. A writ of mandamus is also consequently issued directing [ENTITY] to allot/settle the aforesaid excess area in question, (denoted by it as Plot No. 20A,) with the petitioner on his fulfilling/discharging requisite obligations in this respect. [ENTITY] shall within four weeks of receipt of certified copy of this judgement and order inform the petitioner requisite formalities to be observed/discharged and amount to be deposited by the petitioner to facilitate execution of 'deed/s' for settling excess area in question of Plot No. D-20, Sector 51, [ENTITY] held by the petitioner; and pass order/s, execute deeds/document in favour of the petitioner within four weeks of deposit of requisite amount in respect of that 'excess area and perform other obligations, if any.
64. The writ petition stands allowed subject to above observations.
65. No order as to costs as the petitioner does not press for the same.