CWP No.12225 of 2009 -1- In the High Court of Punjab and Haryana High Court, Chandigarh. Date of decision: 17.8.2010 Simran Bhalla minor through her father Shankar Bhalla ... Petitioner Versus HUDA through its Financial Commissioner and Principal Secretary to Govt. of Haryana and others .. Respondents CORAM:HON’BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Sunil Polist, Advocate, for the petitioner. Ms. Preeti Khanna, Advocate, for the respondents. PERMOD KOHLI, J. (Oral) The petitioner is a minor. This petition has been filed through next friend and natural guardian her father Shankar Bhalla. The father of the petitioner applied for four marlas of plot on 17.1.2000 in HUDA for Sector 19 Part-II, Kaithal, in response to the scheme of the respondents. He deposited initially an amount of Rs.8719/- as earnest money at the time of making the application. In the draw of lots, plot No.,1130-B, Sector 19- Part-II was allotted in favour of the petitioner. The father of the petitioner deposited the balance amount in accordance with the allotment letter. After the allotment, the father of the petitioner vide his application dated 20.05.2005 applied for transfer of the plot in the name of one Mukesh Kumar. It was during the transfer that the fact of petitioner being a minor came to the notice of the HUDA. A notice under Section 17(3) of the HUDA Act was issued on 17.06.2005 for investigation which was followed CWP No.12225 of 2009 -2- by another notice dated 05.08.2005 under Section 17 (4) of the Act for personal hearing. The respondents vide subsequent order, impugned in this petition dated 06.10.2005, resumed the plot. The father of the petitioner filed an appeal against the resumption order before the Administrator, HUDA, which has been dismissed vide order dated 09.06.2006 (Annexure P-2). A revision petition preferred before the Financial Commissioner and Principal Secretary to Govt. of Haryana, Town and Country Planning Department remained undecided. Ultimately, the petitioner filed CWP No.7152 of 2009 before this Court for direction to the Revisional Authority to decide the revision petition. The above said writ petition was disposed of with a direction to the said authority to decide the revision within a period of three months. After the passing of the direction aforesaid by this Court, the revision petition of the petitioner was heard and dismissed on 03.07.2009. The petitioner has challenged the order of resumption as also the orders of Appellate and the Revisional Authorities in the present writ petition. The main contention of the petitioner is that there was no misrepresentation or fraud on the part of the petitioner. Learned counsel for the petitioner has referred to the order passed by the Revisional Authority wherein it is observed that there was no malafide intention on the part of the petitioner. Based upon this observation, it is contended that the petitioner is entitled to allotment of the plot under law. In the reply filed by the respondents, it is specifically stated that under the scheme for allotment, a minor is ineligible. Reliance is placed upon Annexure P-7, the terms and conditions for the allotment of CWP No.12225 of 2009 -3- residential plots as notified by the HUDA. The relevant condition is incorporated under the caption “Important Note” :- (a) For all categories (i) Minors not eligible to apply. Invoking this condition plot allotted to the petitioner has been cancelled. Apart from cancelling the plot allotted to the petitioner, the respondents have also ordered forfeiture of the earnest money deposited by the petitioner on account of his ineligibility with consequential resumption. I have heard the learned counsel for the parties at length. The petitioner has relied upon another order passed by the respondents whereby in similar circumstances a plot allotted to a minor was subsequently regularized. Reference is made to an order dated 21.06.2005 (Annexure P-6). In the aforesaid case, admittedly the plot was allotted in favour of a minor who transferred the plot to some other person who raised construction thereon and the HUDA also approved the transfer. Keeping in view the peculiar facts and circumstances of that case, the Appellate Authority regularized allotment in favour of the minor. On the basis of the aforesaid judgment, it is sought to be contended that the petitioner being similarly situated is entitled to similar treatment. It is not in dispute that the minor is ineligible for allotment of plot. It is also admitted that in similar circumstances another minor was allotted a plot and his vendee allowed to raise construction. However, the petitioner cannot claim parity in law. It is settled proposition of law that Court should not pass an order resulting in perpetuating an illegality. Article 14 of the Constitution of India has only positive concept of discrimination and do not permit parity of illegal action. In the case of M/s CWP No.12225 of 2009 -4- Faridabad Ct. Scan Centre Vs. D.G. Health Services and Ors. 1997 (8) JT SC 171, it has been held as under:- "3. We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be discrimination against others if correct orders are passed against them. In fact, in the case of Union of India (Railway Board) & Ors. Vs. J.V. Subhajah and Ors. (1996 (2) SCC 258), the same learned Judge in his judgment has observed in para 21 that the principle of equality enshrined under Article 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the basis for holding that other employees are discriminated against under Article 14......" In the case of Haryana State Electricity Board and another Vs. Gulshan Lal and others, (2009) 12 Supreme Court Cases, 231, it has been held as follows:- “Although Article 14 of the Constitution of India forbids inequality, but, it is well settled that equality cannot be claimed in illegality; but, as in this case, reliefs granted in the suit as also the writ petitions proceeded wholly on a wrong premise viz. Equivalence in the scale of pay vis- a-vis the persons similarly situated in both the thermal power stations, and, thus the impugned judgment cannot be sustained.” CWP No.12225 of 2009 -5- The petitioner being a minor was completely ineligible for allotment of plot. The respondents were well within their rights to cancel the plot allotted to the petitioner. However, by no stretch of imagination, the respondents could have forfeited the earnest money of the petitioner. At this stage, the learned counsel for the petitioner seeks refund of earnest money illegally forfeited by the respondents. There is substance in the contention raised by learned counsel for the petitioner. Though there is no specific prayer for the refund of the earnest money, however, it is found that the respondents have forfeited the ten per cent amount without any authority of law. Under such circumstances, the respondents are directed to refund the earnest money deposited by the petitioner within a period of two months from the date a certified copy of this order is made available to the competent authority, failing which the petitioner shall be entitled to interest on the said amount at the rate of 10% from the date of deposit till the amount is actually paid. With these observations, the present writ petition is disposed of. 17.08.2010 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES