CWP No.13587 of 2007.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.13587 of 2007 (O&M) Date of Decision: 19.04.2011 **** GMADA . . . . Petitioner VS. State of Punjab & Anr. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Sanjeev Sharma, Senior Advocate with Mr. Vikram Sharda, Advocate for the petitioner Ms. Monica Chhibber Sharma, DAG Punjab Mr. Arun Jain, Senior Advocate with Mr. Jaivir Chandail, Advocate for respondent No.2 **** SURYA KANT J. (ORAL) (1). The Greater Mohali Area Development Authority (GMADA) seeks quashing of the order dated 23.02.2005 (Annexure P7) passed by the Minister-in-Charge, Department of Housing and Urban Development, Government of Punjab in purported exercise of his powers under Section 45(8) of the Punjab Regional and Town Planning and Development Act, 1995 (in short, ‘the Act’). CWP No.13587 of 2007.doc - 2 – (2). In order to appreciate the issues involved, suffice it to mention that in the year 2001 applications were invited for allotment of school sites in SAS Nagar Mohali and respondent No.2-Trust being successful in the draw of lots, a Letter of Intent (LOI) dated 18.12.2001 (Annexure P2) was issued in its favour for allotment of 1.79 acres of land in Sector 69, SAS Nagar Mohali @ Rs.1955 per sq.yard. The Trust was informed that the tentative price of the site was Rs.1,69,37,338/- and it was required to deposit a sum of Rs.24,95,600/- i.e. 15% of the tentative price within 90 days of the issuance of LOI, the cut-off date being 17.03.2002. Respondent No.2-Trust did not deposit 15% of the tentative price by the cut-off date and vide its letter dated 15.04.2002 sought extension in time. Thereafter, the Trust sent another letter dated 30.07.2002 offering a sum of Rs.3 lacs only with a promise to deposit the balance amount by 31.08.2002. (3). Since the Trust failed to deposit the requisite amount within the extended period also, a show cause notice dated 26.12.2002 (Annexure P3) was issued and after hearing its representative, the time period was further extended upto 06.01.2003. The Trust, however, could not deposit the full amount even by the extended date CWP No.13587 of 2007.doc - 3 – and a “last opportunity” was statedly given to it to deposit the balance amount of Rs.9,32,078/- vide letter dated 30.05.2003. Respondent No.2-Trust did not deposit the requisite amount, it rather asserted that the Authority could not have charged ‘commercial’ rates for the non-commercial school site allotted to it. The LOI was still not cancelled and further extension in time to deposit the amount was granted vide letter dated 11.11.2003. (4). Since the Trust failed to deposit the due amount even during the further extended period, the Chief Administrator, PUDA vide order dated 01.03.2004/07.04.2004 (Annexure P5) cancelled its allotment and refunded a sum of Rs.20 lacs to it. Respondent No.2-Trust represented against the cancellation of LOI but its representation was rejected vide order dated 31.08.2004 (Annexure P6) and the cheque appended thereto was also returned. Respondent No.2-Trust preferred a revision petition before the Secretary to Government of Punjab, Department of Housing and Urban Development, who in turn, recused himself from deciding the same as he had dealt with the case earlier in his capacity as Chief Administrator, PUDA and put up the said revision CWP No.13587 of 2007.doc - 4 – petition before the Minister-in-Charge for an appropriate decision. (5). It was in purported exercise of his revisional jurisdiction that the Minister-in-Charge passed the impugned order dated 23.02.2005 (Annexure P7) partly accepting the revision petition of respondent No.2-Trust and holding as follows:- “I fully agree with the conclusion arrived at by the former Chief Administrator in his above note and feel that the issue of Letter of Intent is purely an administrative methodology and is purely an internal arrangement. Such an action does not have any statutory sanction. Any action taken by the Chief Administrator in his administrative capacity can very well be rectified. Keeping in view the above facts, I partly accept the Revision Petition filed by Ch. Ram Singh Sahoke Memorial Welfare Trust, Chandigarh and order restoration of the allotment of 1.79 acre site in Sector 69, SAS Nagar Mohali for setting up Middle School by the Trust. However, the Trust will have to pay all commercial rates. Further the allotment of site should be effective from the date, it is issued for the time being, the terms and conditions of the allotment will remain the same on which similar sites have been CWP No.13587 of 2007.doc - 5 – allotted to schools in the same initial offer. The Trust be thus given moratorium period of two years or so (as is being done in similar cases) from the date of issue of the fresh letter of allotment. (Emphasis applied) (6). The Minister-in-Charge also directed the Chief Administrator to consider the case of the Trust for allowing non-commercial rates on the basis of the precedents given by it and after giving an opportunity of hearing to the Trust. (7). The aggrieved GMADA has approached this Court, inter alia, contending that the Minister-in-Charge ought not have restored the allotment of the site in favour of respondent No.2 who failed to deposit the requisite amount despite having been granted repeated opportunities. The directions contained in para 7 of the impugned order for considering the claim of the Trust for allotment of the site on non-commercial rates on the pattern of other societies, is also assailed. It is suggested that no right ever accrued in favour of respondent-Trust as only a Letter of Intent was issued and no allotment in the nature of a binding contract was ever made. CWP No.13587 of 2007.doc - 6 – (8). Respondent No.2-Trust has filed its reply/affidavit taking a preliminary objection against maintainability of this writ petition at the behest of a Government agency against an order passed by the Minister-in- Charge-cum-its own ex officio Chairman. It is pointed out that 15% of the allotment price was indeed deposited by the Trust during the extended period as per the details given in the written statement and that the writ petition has been filed as a counter-blast to frustrate the order dated November 22, 2006 passed by this Court in the Trust’s writ petition bearing CWP No.18287 of 2006 for implementation of the revisional order dated 23.02.2005. (9). I have heard learned counsel for the parties at some length and perused the record. (10). In response to a query as to how many time the revisional jurisdiction under Section 45(8) of the Act has been exercised by the Minister-in-Charge, it has been stated on oath by the Additional Chief Administrator, GMADA that no revision petition during the last five years has ever been decided by the Minister-in-Charge. It is the Secretary of the Department who has always exercised the revisional jurisdiction. CWP No.13587 of 2007.doc - 7 – (11). The fact situation of the case in hand was, however, altogether different as the Minister-in-Charge had to exercise the revisional jurisdiction for the reason that the then Secretary of the Department recused himself from the case leaving no choice for the Minister-in- Charge but to invoke the ‘doctrine of necessity’ and decide the revision petition himself. No other inference except the bona fide discharge of his official responsibility can, thus, be drawn against the ld. Minister-in-Charge. (12). Adverting to the merits of the impugned order dated 23.02.2005, I find that after a detailed factual narration, the Revisional Authority has categorically held in para 4 of its order that respondent No.2-Trust “has violated the terms and conditions of the Letter of Intent issued to them. The payment was delayed inordinately and the documents asked by the Scrutiny Committee were not supplied, which resulted in the cancellation of the site.” Thereafter, in para 5, an office note dated 19.05.2004 of the then Chief Administrator, PUDA has been reproduced in para 5 of the order and while agreeing with the contents of the said note only that the revision petition has been (partly) allowed. CWP No.13587 of 2007.doc - 8 – (13). With a view to appreciate the decision-making process, it would be profitable to reproduce the office note dated 19.05.2004 of the Chief Administrator, PUDA in extenso and the same reads as follows:- “The allotment of land is dealt with under Section 43 of the Act. The power to allot the land vests with the Finance and Accounts Committee. Once the allotment comes then the other formalities, which are to be followed i.e. making allotment etc. is done by the Chief Administrator in exercise of this powers under Section 22 of the Act. The Act or Rules do not deal with any concept of Letter of Intent. The Act only deals with allotment letter or allotment and does not deal with Letter of Intent. The issuance of Letter of Intent is purely an administrative methodology, which has been evolved within the organization to ensure that before the allotment is made the organization gets money well in time whatever is due. Issuance of Letter of Intent is an internal arrangement and has also been evolved to check the financial soundless or willingness of the person to take the land before actual allotment is made. Hence, issuance of Letter of Intent is purely an administrative matter and is a functional procedure evolved within the organization by the CWP No.13587 of 2007.doc - 9 – respective Chief Administrators and does not have any statutory sanction. Hence any action taken by the Chief Administrator in the administrative capacity, he can rectify the same also. Further attention is drawn under Section 21 of the General Clauses Act, 1897 which says that where by any Act or Regulations, a power to issue order, rules, is conferred then that power includes a power exerciseable in the like manner and subject to like sanction and conditions to add, to amend, vary or rescind any order rules….. so issued.” (14). The above reproduced office-note tends to suggest that the issuance of Letter of Intent (LOI) is purely an administrative exercise evolved by the Chief Administrator at his own level even when no such ‘Mode of Transfer’ of Authority’s land finds mention in Section 43 of the Act and as such the mistake, if any, committed while issuing the Letter of Intent (LOI) is always curable by the Chief Administrator for which he does not need to possess any express power of ‘Review’ under the Act. (15). It may be true that an error of fact apparent on record of an administrative decision can be rectified by the authority who committed such mistake/error without CWP No.13587 of 2007.doc - 10 – looking for its power of “review” under some Statute. However, such an administrative exercise must be preceded by the definite identity of a mistake or error sought to be rectified by the administrative authority. For example, a subsequent re-thinking different from the earlier conscious decision, a fresh policy decision, perceptional change etc. may not necessarily constitute that ‘mistake’ or ‘error’ to justify the administrative reversal of previous decision. (16). No inference of a ‘mistake’ or ‘error’ in the terms and conditions contained in the Letter of Intent (LOI) could be presumed in the instant case unless it was so detected by the authority itself or its superior(s). It simply suggests a mutual contradiction between the conclusion drawn in para 4 vis-à-vis the directions contained in the later paragraph of the revisional order exclusively founded upon the office note of the Chief Administrator. As to whether or not a factual error was committed while stipulating the terms and conditions in the Letter of Intent issued to respondent No.2-Trust, is a pure question of fact and ought to have been dealt with by the Revisional Authority. (17). However, it may not be expedient or desirable for this Court to express any opinion on these issues for the CWP No.13587 of 2007.doc - 11 – reason that much water has flown after passing of the impugned order as the Secretary of the Department of Housing and Urban Development has changed and as per the consistent past practice or it may be in terms of the authorization under the Rules of Business also, that the revision petition in the case in hand can also be decided by the new incumbent in that office. The writ petition is accordingly allowed to the extent that the impugned order dated 23.02.2005 (Annexure P7) is set aside and the case is remitted to the Secretary, Department of Housing and Urban Development, Government of Punjab to decide the revision petition afresh and uninfluenced by the office-note dated 19.05.2004 of the Chief Administrator, PUDA or the earlier order(s) passed by the Minister-in-Charge. The Revisional Authority shall decide the revision petition in accordance with law and after hearing both the parties, as early as possible and preferably within a period of four months from the date of receipt of a certified copy of this order. (18). Ordered accordingly. Dasti. 19.04.2011 vishal shonkar (S u r y a K a n t) Judge