Civil Writ Petition No.20135 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.20135 of 2009 DATE OF DECISION: JUNE 2 , 2011 Dropati Devi .....Petitioner VERSUS Haryana Urban Development Authority & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Puneet Bali, Advocate, for the petitioner. Mr. Munish Bansal, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner being widow of one Banke Lal, has approached this Court seeking writ of mandamus/prohibition directing the respondents not to cancel the allotment of booth No.88 (earlier No.6), Sector 9, Faridabad. This booth was on lease with the late husband of the petitioner and the HUDA and the petitioner now prays for permitting her to purchase the same in terms of the policy formulated by the respondents in the year 1988. Copy of the policy is annexed with the petition as Annexure P-4. Civil Writ Petition No.20135 of 2009 -2- The late husband of the petitioner was allotted this booth on lease on a monthly rent of `720/- on 24.10.1985. Lease deed was executed and was for a period of 2 years from 24.10.1985 to 23.10.1987. The late husband of the petitioner opened a Gas Distributorship of Bharat Petroleum Corporation, after due approval. Respondent-HUDA has framed a policy dated 30.5.1988 for allotment of these build up shops/booths in Urban Estates developed by HUDA to the lessees at a reserved price. As per the policy, such offer could be made after a period of 5 years from the date of original lease. The lessees were given an option either to purchase the shop/booth or to vacate the premises. If such lessee decided to purchase the booth, the same was to be offered to him at a reserved price fixed after the first auction. Though the initial lease was for a period of two years, but the husband of the petitioner continued to occupy the booth even after expiry of the said period. The respondent-HUDA, however, stopped accepting rent from the husband of the petitioner. Not only that, Estate Officer, HUDA Faridabad, passed an order cancelling the allotment of the booth to the husband of the petitioner. After cancellation, a notice under Section 18 (1) of the Haryana Development Authority Act, 1977 (hereinafter referred to as 'the Act') was issued on 12.6.1996. The late husband of the petitioner was asked to show cause as to why he be not evicted from the premises, once the allotment had been cancelled. The late husband of the petitioner submitted a detailed reply on 10.7.1996 praying that either rent of the premises be accepted or a booth be allotted to him by accepting the market price. Civil Writ Petition No.20135 of 2009 -3- Thereafer, the respondent/HUDA issued a notice under Section 18(2) of the Act for eviction. The husband of the petitioner was afforded opportunity of personal hearing. He, however, brought his earlier reply to the notice of the respondents. When he did not get any satisfactory response, he filed civil suit before the Court of Civil Judge, Senior Division, Faridabad, challenging the notices, which were issued to him. The suit was contested by HUDA, but the same was dismissed on 20.3.2003. The husband of the petitioner preferred an appeal against the same. During the pendency of the appeal, respondent No.1 wrote a letter to respondent No.2 to look into and examine the issue and thereafter, sent a proposal for allotment of the said booth as per the request made by the late husband of the petitioner. Before any decision could be taken, the appeal filed by the husband of the petitioner was dismissed on 2.5.2005. The late husband of the petitioner preferred Regular Second Appeal, which was dismissed on 12.5.2005. He then filed a complaint before the District Consumer Disputes Redressal Forum (for short 'the Forum'). The said complaint was allowed and directions were issued to the respondents to allot Booth No.88, Sector 9, Faridabad, to the late husband of the petitioner. The respondents then issued an allotment letter on 21.5.2008. Simultaneously, the respondents also preferred an appeal before the State Consumer Redressal Commission (for short 'the Commission') on 28.10.2009. The State Commission was pleased to set aside the order passed by the District Forum. In the meantime, this Court also allowed certain writ petitions through a common order, whereby the Civil Writ Petition No.20135 of 2009 -4- claim of similarly situated persons was allowed and they were held eligible to purchase the booths at the reserved price in terms of the policy published in the year 1988. The petitioner has, accordingly, filed the present petition with the prayer for permission to purchase the booth in terms of policy. The respondents have filed reply in response to the notice. Prayer is made to dismiss the writ petition on the ground that this booth was given to the husband of the petitioner on lease for two years. This lease deed was cancelled in the year 1996. The show cause notice was issued to the late husband of the petitioner, but it could not be effected due to the pendency of the Court case. It is stated that the husband of the petitioner had deposited rent upto 24.11.1989 and thereafter, had filed a petition before the Rent Controller, Faridabad, for depositing the rent, but the same was dismissed. Aggrieved against the same, husband of the petitioner filed an appeal, which was also dismissed and then the Regular Second Appeal, which was again dismissed. Reference is then made to the complaint filed by the husband of the petitioner before the District Forum. The District Forum had allowed the complaint. It was challenged by the respondents before the State Commission, which had set aside the said order. It is, accordingly, pleaded that the present writ petition now filed by the petitioner is hit by delay and laches. It is also stated that the husband of the petitioner has already exhausted his remedy by way of civil suit, therefore, this writ petition is not maintainable. As per the respondents, the petitioner, thus, cannot be heard for the relief claimed in the present writ petition. Civil Writ Petition No.20135 of 2009 -5- When the case come up for hearing before this Court, it was noticed that the policy has itself been formulated by the HUDA. A perusal of the policy will clearly show that the decision had been taken by the respondent-HUDA to sell such booths/shops run by individuals as a one time policy measure. The idea was that these booths were run by the individuals and some commercial organizations, which had proved to be very effective in creating nucleus growth in these sectors. It was noticed that it had been difficult for HUDA to evict the private individuals after the expiry of the lease period. In some of the old sectors, the booths/shops were later allotted to these lessees at reserved price and accordingly, this policy was formulated. So far as the case of private individual was concerned, it was decided that in token of appreciation of the lessees of shop/booths in various sectors of HUDA, the lessees were to be given an option either to purchase the shops/ booths or to vacate the premises. This offer was to be made to those who had completed a period of 5 years from the date of original lease. If the lessee chose to purchase the booth, the same was to be offered at the reserved price fixed after the first auction. This condition was to be withdrawn thereafter and would not be available. The rent was to be charged at commercial rates. It is this policy, which is now being pressed by the petitioner to seek allotment of this booth in his name. The added reason is the decision taken by this Court in Civil Writ Petition No.14209 of 2000 (Krishan Kumar Kathuria versus HUDA & others), decided on 27.8.2009, where similar claim of some of the private Civil Writ Petition No.20135 of 2009 -6- lessees has been allowed. Though in this case, issue was slightly different and it mainly related to price at which the booths were allotted to the said lessees, but ultimately, directions were issued allowing the writ petition to make an allotment at the reserved price as per the policy, which is pressed into service by the petitioner. Having regard to the contents of the policy, the counsel for the HUDA was asked to have instructions, if the petitioner was ever given any option to purchase this shop/booth. The counsel, on receipt of proper instructions, has submitted before this Court that no option was ever given to the petitioner. The part of the policy as has been referred to above makes a clear provision that the respondents were required to give an option to the lessees either to purchase the booth or to vacate the premises. Be that as it may, the petitioner did make an application in the year 1997. No doubt by then lease has already been cancelled, but the petitioner has continued to be in possession of the booth till date. Once the respondent-HUDA had not given any option to the petitioner, it strictly cannot say that the policy, which was formulated, was made available to the petitioner as in the case of other similarly situated persons. The matter may still have been viewed somewhat differently, if certain rights have not accrued in favour of the petitioner. It is to be noted that the petitioner had approached the District Forum and the complaint filed by the petitioner was allowed. As a result, directions were issued and the respondent-HUDA had allotted and sold the booth to the petitioner. It is only, subsequently, the HUDA succeeded in getting this order, set Civil Writ Petition No.20135 of 2009 -7- aside by filing appeal before the State Commission that the allotment by sale was cancelled. HUDA seems seem to have changed the track and is now pressing hard to deny claim of the petitioner. It is noticed that the State Commission has set aside the order passed by the District Forum in view of the civil suit that the petitioner had filed. The observation made by the State Commission on the basis of the order passed by this Court may not strictly be relevant if seen in the context of the policy, which primarily was taken into consideration while pressing for claim for purchasing this booth. In this context, the counsel for the petitioner would be justified in making reference to the recommendation that was made on 17.2.2005 (Annexure P-15) by the Administrator HUDA to the Chief Administrator HUDA. In this communication, the Administrator after making mention to the facts of the case has stated that reserved price of booth had been calculated by the Estate Officer on the basis of auction and had, accordingly, forwarded the case with the request that the necessary decision for allotment of the booth to the applicant may kindly be taken at the Head Quarter level. During the course of hearing, the counsel has also placed before me an order passed by the State Commission, whereby the HUDA itself had placed an order passed by this Court in the writ petition before the State Commission so as to comply with the direction and the policy that was formulated. The appeal filed by HUDA had, accordingly, been disposed of in view of the order passed by this Court in Krishan Kumar Kathuria's case (supra). It is, thus, seen that there is no reason or a cause for the respondents to give different treatment to the petitioner. Merely Civil Writ Petition No.20135 of 2009 -8- because the husband of the petitioner at one stage had challenged the lease deed may not be enough to nullify the right of the petitioner to press her claim for purchasing this booth, which was initially given to her husband on lease. The submission made by the counsel for the HUDA that the petitioner had earlier pressed for lease being illegal and arbitrary in my view would not make much difference once the lease has been held to be valid. The petitioner had merely invoked and exercised her right available to her under law while challenging the lease deed. In my view, the orders if any, would not stand in the way of the petitioner to seek her right under the policy formulated by the HUDA. Once the HUDA has formulated a policy and has allowed the benefit thereof to large number of persons similarly situated, there would be no justification not to allow this benefit of said policy to the petitioner for the reasons that are pressed before me. The claim made by the petitioner is, thus, meritorious. The writ petition deserves to be allowed. It is directed that the respondent-HUDA may give effect to the order of allotment (Annexure P-20) dated 21.5.2008. The petitioner would abide by the terms of the allotment. The respondents would be at liberty to charge interest on the amount due. The writ petition is, accordingly, allowed. June 02, 2011 (RANJIT SINGH) monika JUDGE