CWP No.1703 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1703 of 2005(O&M) Date of decision: 3.6.2011 The Mahajan Co-operative House Building Society Ltd. ......Petitioner(s) Versus The State of Punjab and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Mukul Aggarwal, Advocate for the petitioner(s). Mr. KDS Sidhu, DAG, Punjab. Mr. Jagjit Singh, Advocate for Mr. C.M. Sharma, Advocate for respondent No.2. Rakesh Kumar Garg, J. The petitioner before this Court is a Society which is registered under the Societies Act, 1860. In the present petition, the main grievance of the petitioner-Society is regarding illegally occupying and usurping the land belonging to it by the Ludhiana Improvement Trust, respondent No.2, in the garb of alleged acquisition without paying any compensation and without following the due process of law and also despite of the fact that some part of the land in question was specifically exempted from the award of the said acquisition by the Land Acquisition Collector. As per the averments, the petitioner-Society was formed in the year 1969 and had 83 members. Land measuring 23,480 square yards purchased by the petitioner-Society in 1970 in village Taraf Burrah, Tehsil and District Ludhiana was included in “Model Town Part II Extension CWP No.1703 of 2005(O&M) 2 Scheme” framed by the Improvement Trust, Ludhiana (hereinafter described as the Trust). However, vide resolution No.24 dated 28.11.1972, the lands belonging to the petitioner and 14 other cooperative societies were exempted from acquisition. Later on, the scheme was abandoned by the Trust. In the year 1974, a new scheme was framed which was duly sanctioned by the State Government. The land of the petitioner and other cooperative societies were again included in the newly framed scheme. They approached the government for grant of exemption. Vide resolution dated 31.10.1974, the Trust recommended for grant of exemption to the land of the cooperative societies. These recommendations were partially accepted by the government and order dated 6.7.1976 was issued granting exemption to five cooperative societies. Since the petitioner was not one among them, it filed CWP No.3228 of 1991 and challenged the government's decision on the ground of discrimination. The High Court accepted the contention of the petitioner but declined to nullify the scheme as a whole because of long lapse of time. Instead, it directed the Trust and the State Government to give plots to the eligible members of the society who were desirous of having houses in the area. The Court also observed that if the number of plots available was less than the eligible persons, then the allotment be made by draw of lots. The operative part of the judgment dated 12.4.1991 in CWP No. 3228 of 1981 reads thus: “In view of my above conclusion, the normal consequence should have been the issue of a writ directing the State to grant exemption to the petitioner. However, on account of the long lapse of time, of more than a decade I cannot persuade myself to upset the whole Scheme at this late stage. In my view it would be fair and just if only a direction is issued to the respondents to give plots to the members of the CWP No.1703 of 2005(O&M) 3 petitioner-Society. These would, of course be allotted to only such persons as are desirous of having house in the area and who are otherwise eligible. In case the number of plots available at this stage is less than the number of persons wanting to have plots, the allotment shall be made by the draw of lots. Since the exemption fee paid by the Society as far as back as the year 1973 has remained with the Trust for all these years, the respondents shall charge such price as was charged the others who have been allotted plots in the area covered by the Scheme. The petition is disposed of in the above terms without any order as to costs.” Letters Patent Appeal No.1328 of 1991 filed by the Trust was dismissed by the Division Bench on 28.10.1991. With a view to implement the directions given by the High Court, the Chairman of the Trust wrote letters requiring the Society to furnish the authenticated list of eligible persons along with their affidavits. Thereafter, draw of lots for allotment of available plots was held on 27.2.1992 and 40 members of the petitioner-Society, who were successful in the draw, were allotted plots. Two members of the Society, namely, Shri Sharad Kumar and Shri P.C. Mahajan challenged the draw of lots held on 27.2.1992 by filing CWP No.9725 and 13653 of 1993 which were disposed of by the High Court on 9.5.1994 in view of the statement made by the counsel for the Trust that their cases for allotment of plots by draw of lots will be considered at the next draw. The order dated 9.5.1994 passed in CWP Nos.9725 and 13653 of 1993 reads thus: “Learned counsel for the Improvement Trust states that the case of the petitioner for allotment of the plot by the draw of lots will be considered when the next draw takes place. Counsel for the Society states that the list of its remaining members will be supplied to the Improvement Trust within one month. CWP No.1703 of 2005(O&M) 4 In view of this statement of the counsel for the Improvement Trust and the Society, the petitioner has accepted the mechanism for consideration for allotment of plot. Writ petition is disposed off. Sd/- M.S. Liberhan, Judge May 9, 1994. Sd/- S.K. Jain, Judge.” However, the same Division Bench on the same date passed the following order in CWP No.13652 of 1993: “Heard. No ground to interfere. Dismissed.” Thereafter, the President of the Society forwarded a list of its remaining members to the Chairman of the Trust along with its letter dated 22.6.1994. Fresh draw of lots was held on 15.7.1995 and 43 members of the Society were declared eligible for allotment of plots. To this effect, communication dated 21.7.1995 was sent by the Chairman of the Trust to the President of the petitioner-Society. In compliance of the conditions incorporated in that letter, the petitioner deposited the required amount with the Trust. However, as the Trust did not give possession of the plots to the 43 members of the Society, the petitioner served legal notices upon the Trust and the government requiring them to hand over possession of the plots to the members of the Society but failed to get any response. Ultimately, it instituted C.W.P.No.15693 of 1996 for issuance of a mandamus directing the respondents to hand over the possession of 43 plots to its members. In response to the notice of motion issued by the Court on 14.10.1996, the respondent-Trust filed written statement dated 8.4.1997 and prayed for dismissal of the writ petition as infructuous on the ground that the resolution passed by it for allotment of plots to 43 members of the CWP No.1703 of 2005(O&M) 5 petitioner-Society has been annulled by the State Government vide order dated 27.2.1997 on the basis of enquiry report submitted by the Director, Local Government, Punjab. This order was challenged by the petitioner in C.W.P.No.8536 of 1997 primarily on the ground of violation of the rule of audi alteram partem. Other points raised in this petition were similar to those contained in C.W.P.No.15693 of 1996. The aforesaid two writ petitions were disposed of by a Division Bench of this Court by common judgment dated 2.9.1998 which reads as under: “For the reasons mentioned above, the writ petitions are allowed. The order dated 27.2.1997 passed by the Principal Secretary to Govt. Punjab, Department of Local Government, is quashed with liberty to the government to pass fresh order after hearing the petitioner and/or its representatives, the beneficiaries and the Trust. In order to facilitate early decision of the dispute, we direct that: (1) The petitioner shall appear before the Principal Secretary to Govt. Punjab, Department of Local Government on 7.10.1998. (2) Within 7 days thereafter the learned Secretary should disclose the reasons on which he proposes to cancel/annul the resolution/order passed by the Trust to allot plots to the members of the petitioner. (3) In the meanwhile, the concerned authority shall get a notice published in the newspaper 'Punjab Kesari', which according to the learned counsel for the parties has got sufficient circulation in the District Ludhiana. (4) Any person who wishes to make representation against the proposal for cancellation of the resolution of the Trust may file his representation/ objection within 10 days of the publication of the notice. In any case, such objection shall be filed on or before 14.10.1998. (5) Within 3 months calculated from 14.10.1998, the CWP No.1703 of 2005(O&M) 6 learned Secretary shall hear the parties and pass a fresh order on the issue of cancellation of the resolution of the Trust by passing a reasoned order. (6) In case the revised decision is against the annulment of the resolution of the Trust, then the allotment made in favour of the members of the petitioner shall stand revived subject to the fulfilment of other conditions enumerated in the Town Improvement Act, 1922 and the Rules framed thereunder. (7) It is also made clear that if there is any other litigation between the Trust, the Society and its members inter-se or otherwise then the same shall not be adversely affected by this order. The Bench Secretary should make available attested copies of the judgment to the learned counsel for the parties.” It is also relevant to mention at this stage that in CWP No.15693 of 1996, a specific averment to the following effect was made by the petitioners which reads thus: “That the petitioner-Society's land measuring 23,480 square yards had been acquired as far as back in the year 1972 for which award had been announced on July 27, 1976 under the Land Acquisition Act, 1894. According to the Trust the area of the land was only 20,146 square yards. Compensation was offered to the petitioner-Society only for an area measuring 13937 square yards and no compensation was offered or given for the remaining 6209 square yards even out of 20146 square yards, although the land measuring 6209 square yards also after development was sold away in the form of plots by the Trust. The petitioner-Society had been clamouring for allotment of plots for use and construction of residential houses by its members right since the year 1973 when it had deposited a sum of Rs.17,500/- with the Trust by way of exemption fee which is still lying deposited with it for the last about 23 years. The cost of CWP No.1703 of 2005(O&M) 7 construction during all these years has gone up manifolds which has further added to the miseries and plight of the members of the petitioner-Society who could not build their houses for want of plots. This is how the petitioner-Society and its members have been denied the basic necessity of having and their fundamental right to a shelter guaranteed by Article 21 of the Constitution of India. Despite the aforesaid averment, the petitioner-Society never prayed for payment of compensation for the remaining land as alleged nor sought any other relief for possession/release of said land in their favour. On the other hand, some residents of Bhai Randhir Singh Nagar, Ludhiana challenged the legality of the notification issued by the State Government under which 43 plots were carved out for allotment to the petitioner-Society by way of CWP No.11325 of 1995. This writ petition was dismissed vide order dated 11.3.2011 which reads thus: “None appears for the petitioner on call. Writ Petition is dismissed for non-prosecution. Interim order passed earlier is vacated. Sd/-(Ranjan Gogoi) Chief Justice sd/-(Augustine George Masih) March 11, 2011 Judge Thereafter, vide order dated 13.1.1999, the State Government again cancelled the allotment of draw of lots of most of the remaining 43 plots in favour of the petitioner-Society. The said order was challenged by the petitioner-Society by way of CWP No.485 of 2000 and the same was dismissed by this Court vide its order dated 17.1.2000 holding that only the plots available in the scheme area were to be allotted and if the number of plots available were less, then the allotment of plots would be by draw of lots. The operative part of the judgment reads thus:- CWP No.1703 of 2005(O&M) 8 “We have given serious thought to the submissions of the learned counsel. Ordinarily, we may have nullified the impugned order on the ground that it is not a speaking order but after having perused the entire record of this case and of Civil Writ Petition No.15693 of 1996, which we had sent for, we are satisfied that the absence of reasons in the impugned order does not have the effect of vitiating the same. A careful analysis of the order dated April 12, 1991 unmistakably shows that the learned Single Judge had not given a direction for allotment of plots to all the members. Instead, he had made it clear that if the number of plots available is less than the number of persons awaiting to have plots, the allotment shall be made by draw of lots. This necessarily meant that plots available in the Scheme area were to be allotted to the eligible members by draw of lots. This precisely what the authorities of the Trust had done. However, in one of the two writ petitions filed by unsuccessful members of the petitioner-Society, counsel, representing the Trust had, without being authorized in this behalf, made a misleading statement before the Court that the case of writ petitioner-Sharad Kumar will be considered when the next draw is held giving an impression that further allotments were in contemplation. Thereafter, office bearers of the petitioner seems to have manipulated the passing of resolution dated 30.5.1995 by the Trust for allotment of plots to 43 members of the petitioner-Society. In this respect, it is significant to mention that the total area of the society acquired for the Scheme was 20,146 sq. yards and the area of 40 plots allotted prior to the filing of Civil Writ Petition No.9725 of 13653 of 1993 was 8370 sq.yards. The area of the 43 plots sought to be allotted vide resolution dated 30.5.1995 was 9650 sq. yards. This means, that over 18,000 sq. yards land was sought to be allotted to the members of the society in lieu of acquired land. In other words, nearly 90% of the total CWP No.1703 of 2005(O&M) 9 acquired land was sought to be allotted to the members of the petitioner-Society. If the State Government had exempted the petitioner's land, as was done in the cases of five Cooperative Societies, the plotted area which could be allotted to its members would have been around 50% to 55% of the total land and the remaining land had to be left for development purpose like road, sewerage and common facilities. Therefore, the resolution passed by the Trust for allotment of additional land measuring 9650 sq. yards to the members of the petitioner-Society was a farce and the Principal Secretary to the Government has rightly annulled the resolution passed by it. As a logical corollary to this conclusion, we hold that the orders dated 27.2.1997 and 13.1.1999 do not suffer from any jurisdictional infirmity or any other error of law warranting interference of this Court. At the hearing we repeatedly asked Shri Sharma to explain as to how as against the total acquired land measuring 20146 sq. yards, the Trust could allot 18020 sq. yards of land to the members of the petitioner. To this, learned counsel could not give any satisfactory reply but simply reiterated his argument that the impugned order should be quashed because it is devoid of reasons.” SLP No.19437 of 2000 challenging the aforesaid judgment was also dismissed by the Hon'ble Supreme Court. Review petition No.131 of 2000 filed by the petitioner-Society in the Hon'ble Supreme Court was also dismissed vide order dated 8.2.2001. Now at this stage, when the petitioner-Society exhausted all its remedies for allotment of plots to its remaining members as narrated above, and in spite of the fact that throughout the litigation, acquisition of the land of the petitioner-Society and passing of the award dated 27.7.1976 was to its knowledge as demonstrated above in the earlier litigation and CWP No.1703 of 2005(O&M) 10 that this fact was specifically averred and no relief was claimed yet the instant writ petition has been filed raising grievance that an area measuring 20146 sq.yards of the petitioner-Society was acquired whereas compensation was paid by the respondent-Trust only for an area measuring approximately 13937 sq.yards and no compensation was paid for remaining land measuring 6209 sq.yards comprised in Khasra Nos.406, 408, 409, 410, 412, 419, 423, 424, 425 village Burara, Tehsil and District Ludhiana and neither the land regarding which no award was passed, was not handed over to the Trust. It is the further case of the petitioner that despite many requests and representations for restoration of the possession of the land in question, when no relief was granted to it, a legal notice was served upon the respondents, an application was also filed before the Punjab State Human Rights Commission and the Human Rights Commission passed the following order on 12.8.2003: “Resultantly, directions are issued to the Secretary, Local Bodies, Punjab, Chandigarh Administratory, Ludhiana Improvement Trust, Ludhiana, Deputy Collector, Land Acquisition Collector, Ludhiana. They shall look into the grievances of the complainant and dispose of the complaint at their own level, under intimation of the Commission. A copy of this order along with copies of the complaint be sent to the Secretary, Local bodies, Punjab, Chandigarh, Administrator, Ludhiana Improvement Trust, Ludhiana, Deputy Collector, Land Acquisition Collector, Ludhiana, for information and necessary action. A copy of this order be also sent to the complainant, for information. The complaint stands disposed of as such, in limine. Sd/- August 12, 2003 (Justice R.L. Anand) Member.” CWP No.1703 of 2005(O&M) 11 Since no action was taken by the respondents to redress the grievance of the petitioner, the instant writ petition was filed seeking setting aside of award Annexure P-10 and further directing the respondents to hand over possession of unacquired land comprised in Khasra Nos.406, 408, 409, 410, 412, 419, 423, 424, 425, 430, 643, 644, 658, village Burara, Tehsil and District Ludhiana. Upon notice, the respondents have contested the writ petition. The following orders passed by this Court from time to file read thus: October 18, 2007 “CM is allowed and the affidavit of Narinder Kumar, Assistant Trust Engineer, Improvement Trust, Ludhiana, is taken on record. Adjourned to 15.11.2007. 15.11.2007 From CM No.17503 of 2007, it is not clear as to which portions of different khasra numbers have been acquired or possessed. To make the position clear, learned counsel for the Improvement Trust prays for and is granted two weeks’ time to file status report and to inform the Administrator, Ludhiana Improvement Trust, to remain present on the next date of hearing to assist the Court. Adjourned to 3.12.2007. A copy of this order be given dasti to learned counsel for the Improvement Trust under the signatures of the Court Secretary. 3.12.2007 In furtherance to order dated 15.11.2007, Mr.Mahinder Pal, PCS, Administrator, Ludhiana Improvement Trust, is present. He seeks further time to file a status report after complying with order dated CWP No.1703 of 2005(O&M) 12 15.11.2007. Let the needful now be done within one week and status report be filed on or before 11.12.2007. In case of any difficulty, the Administrator shall be at liberty to file an appropriate application, supported by an affidavit that the land is identifiable, then the prayer for further time would be considered. Adjourned to 13.12.2007. ` 13.12.2007 In the status report filed by Mr. Mohinder Pal, PCS, Administrator, Ludhiana Improvement Trust, towards compliance of the order dated 3.12.2007, it is averred as: “It is not possible to identify the land owned by the petitioner society.” He has also submitted a report like that after visiting the spot on 6.12.2007. Learned counsel for the Trust, on being asked to explain the averment, submitted that the Administrator did not come to him for giving instructions and drafting of the affidavit. He has rather sent his signed affidavit. We are surprised that the Administrator has expressed his helplessness in complying with the direction of this Court without explaining his handicaps in obeying it. Under the circumstances, we direct the Deputy Commissioner, Ludhiana, and Administrator, Improvement Trust Ludhiana, to come present in the Court on 18.12.2007 with entire records. It is, however, made clear that the Deputy Commissioner is required for assistance to the Court. A copy of this order be given to the learned Advocate General, Punjab, and to the learned counsel for the Improvement Trust today itself, for compliance under the signatures of Court Secretary. December 18, 2007 Pursuant to our earlier order dated 13.12.2007, CWP No.1703 of 2005(O&M) 13 Shri Sumer Singh Gunjan, Deputy Commissioner, Ludhiana and Mr. Mohinder Pal, Administrator, Improvement Trust, Ludhiana, are present in the Court. We are not satisfied with the affidavit filed by Shri Mohinder Pal nor with the explanation given today in the Court. However, the Deputy Commissioner, Ludhiana, assures this Court that he would do the needful in term of our directions in the earlier order, within two days. List the matter on 21.12.2007. Both the Officers to come present also on the next date of hearing. December 21, 2007 Shri Sumer Singh Gurjan, Deputy Commissioner, Ludhiana, prays for and is granted further four weeks’ time to comply with the order of this Court, dated 18.12.2007.However, looking to the efforts made by the Deputy Commissioner, we appreciate his honest attempt to solve the problem of demarcation, which the Administrator, Ludhiana Improvement Trust, has utterly failed to achieve. Adjourned to 29.1.2008. Finally the writ petition was admitted vide order dated 29.1.2008. During the course of hearing, learned counsel for the petitioner at the out set, by referring to the various orders passed by this Court from time to time has submitted that there was no dispute that a portion of the land of the petitioners was not acquired and according to them, same was under illegal possession of the respondents (whereas in the affidavit filed on behalf of the respondents, it was specifically submitted that they are not in possession of any land of the petitioner-Society) and in view of this, according to the learned counsel for the petitioners, the dispute was CWP No.1703 of 2005(O&M) 14 regarding the demarcation of the suit property only. However, after hearing learned counsel for the petitioner, we are of the view that real dispute in the instant case is not as projected before this Court and in fact an effort has been made before this Court by concealing the material facts and also by mis-statement of facts to side- track the real issue. It is not in dispute that from the very beginning the petitioner-Society was in the knowledge of the acquisition of land vide notification dated 26.7.1974 for a scheme known as “Model Town Extension Part-II”. The petitioner-Society was also in the knowledge of the factum of passing of the award dated 27.7.1976. It is the petitioner’s own case in the earlier litigation that whole of their land was included in the aforesaid acquisition and they were entitled to 83 plots against their land. At no stage they had claimed any relief of non-payment of compensation for land measuring 6209 sq.yards as claimed in the instant writ petition. Neither they claimed possession of any such land in the earlier litigation. It was only when the petitioner-Society lost all its remedies for allotment of remaining plots, the present writ petition has been filed. In earlier litigation also, it is the stand of the petitioners that their whole land was included in the acquisition whereas now in the instant writ petition, no explanation is forthcoming on behalf of the petitioner-Society