IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.119 of 2008 Date of Decision: 30.01.2009 Smt.Janki Devi Mariya Appellant Versus State of Haryana and others Respondents CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.Ashok Gupta, Advocate for the appellant Mr.Rameshwar Malik, Addl. A.G. Haryana for respondent No.1 Mr.V.K.Vashishta, Advocate for respondents No.2 and 3 … Jasbir Singh, J. C.M. No.991 of 2008 Application allowed, written statement and document annexed with it is taken on record. L.P.A. No.119 of 2008 Appellant, by filing this Letters Patent Appeal, has laid challenge to the judgment passed by the learned Single Judge on 18.2.2008. Vide the judgment, referred to above, prayer of the appellant (petitioner), to quash order dated 1.2.1988, returning earnest money, deposited by her, for allotment of a plot in Transport Nagar, Panipat, was rejected. Letters Patent Appeal No.119 of 2008 Record reveals that in response to an advertisement/ notice dated 31.3.1987, the Haryana Urban Development Authority (in short HUDA), invited applications for allotment of plots, earmarked for construction of booking agencies in Transport Nagar, Panipat. The appellant was one of the applicants. It is her case that she submitted an application along with a demand draft of Rs.10,800/- (towards 10% price of the plot) on 13.4.1987 against a receipt. Plot was not allotted to her. To her surprise, she received a letter dated 1.2.1988 from HUDA asking her to accept Rs.10,800/-, deposited by her, towards refund of earnest money. No reason was assigned in the above said letter to reject her application. At that stage, appellant came to this Court by filing Civil Writ Petition No.7095 of 1988, which was dismissed vide the order impugned in this appeal. Counsel for the appellant has vehemently contended that once, in the advertisement/ notice dated 31.3.1987, it was mentioned that the allotment of plots shall be made on ‘first come first served basis’, the authority was not justified to change the criteria and reject application of the appellant. He further argued that the learned Single Judge has erred in holding that allotment of plots in question, on the basis of above said Policy would not have been justified. It was submitted that on deposit of earnest money, process of sale was complete and authorities were duty bound to allot her a plot. He prayed that judgment, under challenge, be set aside and writ petition filed by the appellant be allowed, granting relief to her as prayed in the writ petition. Prayer made has vehemently been opposed by counsel for the respondents. He brought it to our notice that the Policy to allot plots on ‘first come first served basis’, was modified in view of a writ petition filed by the existing transporters of Panipat City. He further argued that under 2 Letters Patent Appeal No.119 of 2008 order passed by the learned Single Judge (impugned order), the appellant had taken a chance by appearing before the competent authority for consideration of her application of allotment of a plot, which was dismissed vide order dated 18.3.2008 (R-2/1) annexed with Civil Misc. application No.991 of 2008 filed in this appeal. He prayed that appeal, having no substance, be dismissed. Facts are not in dispute in this case. Learned Single Judge has noticed that applications were invited to allot plots for construction of booking agencies, on ‘first come first served basis’, the above said action was challenged by the existing transporters of Panipat city by filing Civil Writ Petition No.2147 of 1987. This Court, vide interim order dated 15.5.1987, stayed allotment of the plots on the basis of above said Policy. Subsequent thereto, above said writ petition was withdrawn when an assurance was given by HUDA to the Court that plots shall be allotted to the existing transporters of Panipat on the basis of a transparent Policy. The reason to refund earnest money, to the appellant, in the written statement filed by HUDA, it was stated as under:- “The reason for the refund of the earnest money is that some of the members of the Goods Transport Association has filed civil writ petition No.2147 of 1987 in the Hon’ble High Court for the states of Punjab and Haryana and the allotment of the plots on the basis of first come first served was stayed on 15.5.1987. This writ petition was withdrawn by the petitioners on the assurances given to them that the allotment of plots in Transport nagar, Panipat will be done only to the existing Transporters of Panipat.” 3 Letters Patent Appeal No.119 of 2008 No replication was filed to controvert the above said averment made by HUDA in its written statement. In view of above, we feel that the HUDA was justified in rejecting application of the appellant and to allot the plots to the existing transporters. By making reference to the provision of Section 15 of the Haryana Urban Development Authority Act, 1977 (in short the Act), the learned Single Judge has observed that allotment of plots on ‘first come first served basis’, does not qualify the litmus test of non-discriminatory mandate contained in Article 14 of the Constitution of India. We see no reason to differ with the above finding recorded by the learned Single Judge. Not only this, sub-section 5 of Section 15 of the Act, clearly indicates that land, building or both, shall continue to belong to the HUDA, until the entire consideration money together with interest and other amount, if any, due to the authority on account of the sale of such land or building or both, is paid. In the present case, the appellant had deposited only 10% of the amount due towards price. On change of Policy, it was also refunded to her. Nothing has been brought on record to show that the provisions of Act and the Rules framed there under, provide that allotment of a plot, on the basis of ‘first come first served basis’ can be made. In such like situation a Full Bench of this Court in Surjit Singh and others v. State of Punjab and others, AIR 1980 P&H 65, has held that mere deposit of earnest money would not entitle a person concerned to claim any right for allotment of a plot. That person may acquire only a right for consideration of application. The learned Single Judge, after rejecting prayer of the appellant for allotment of a plot, has rightly directed the authority concerned to re-consider the matter and take a conscious decision for allotment of plots, in dispute, in a transparent, non-discriminatory and fair manner, to the 4 Letters Patent Appeal No.119 of 2008 eligible persons. It was further directed that application of the appellant be considered and if she is eligible, her case be considered for allotment. It is not disputed before us that the appellant took a chance. In response to a notice issued by the Chief Administrator, HUDA, she, through her attorney, put in appearance before above said officer. Her application was considered and she being a retired government employee (a nurse), was not considered fit for allotment of a plot. In order dated 18.3.2008 (R2/1), it was stated that in view of proceedings before this Court in CWP No.2147 of 1987, Policy to allot plots on ‘first come first served basis’, was modified and it was decided to allot plots, in Transport Nagar Panipat, to the existing transporters. For that, survey list was prepared and to the eligible applicants, 277 plots were allotted. Said allotment was approved by HUDA in its 75th meeting held on 10.3.1989. It was specifically mentioned that plots were allotted only to those applicants (transporters), who were having their booking offices in Panipat and the booking agencies were in existence since June 1986. An applicant was eligible to get only one plot. It was further decided that one agency (plot) will be allotted to an applicant owning three trucks. We feel that Policy adopted was perfectly justified and transparent. Appellant submitted her case before the competent authority and by taking note of the conditions for eligibility, her application was rejected. However, it was left open to the appellant to participate in auction to purchase plot(s) which were still lying vacant. We feel that once in pursuance to the impugned judgment passed by the learned Single Judge, appellant had taken a chance by appearing before the competent authority for consideration of her application for allotment of a plot, no interference at her instance, can be made in this Letters Patent Appeal. 5 Letters Patent Appeal No.119 of 2008 It is an admitted fact that Cheque delivered to the appellant vide order dated 1.2.1988 by HUDA, was never encashed by her. Money remained with HUDA throughout. By taking note of the above said fact, the competent authority, vide order dated 18.3.2008 (R2/1), has ordered that fresh Cheque be issued to the appellant and she was held entitled to get interest @ 9% per annum from the date of deposit till the date when earlier cheque was issued in her favour by HUDA. We feel that in equity, appellant is entitled to get interest till such time money is returned to her. In view of facts mentioned above, we do not see any reason to interfere in the judgment passed by the learned Single Judge dated 18.2.2008. However, to settle equities between the parties, we order that the amount lying deposited with HUDA, shall be returned to the appellant along with interest @ 9% per annum (simple) till issuance of fresh cheque in her favour. With above mentioned observations, Letters Patent Appeal stands disposed of. (JASBIR SINGH) JUDGE 30.01.2009 (T.S.THAKUR) gk CHIEF JUSTICE 6