LPA No. 758 of 2011(O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 758 of 2011(O&M) Date of Decision: August 16, 2011 The Estate Officer, Punjab Urban Planning and Development Authority, Patiala …Appellant Versus Sunil Bhardwaj and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. D.V. Sharma, Sr. Advocate with Mr. Harit Sharma, Advocate for the appellant. Mr. Rahul Dev Singh, Advocate for respondent No. 1. Mr. Suvir Sehgal, Addl. A.G., Punjab for respondent Nos. 2 to 4. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against interlocutory order dated 15.02.2011 rendered by the learned Single Judge holding as under: “The petitioner is admittedly son of a freedom fighter. His father was granted the freedom fighter pension as well as Tamra Patra on recognition of the sacrifice/ service rendered by him for the LPA No. 758 of 2011(O&M) -2- independence of the nation. The plot in question was also allotted to the petitioner as a award of the freedom fighter. Heard. Admit. List for final hearing within one year. Meanwhile, operation of the impugned order dated 30.11.2007, whereby allotment of plot No. 652, Phase-II, Urban Estate, Patiala was cancelled, hereby stayed. Respondents No. 3 and 4 are directed to hand over possession of the said plot to the petitioner forthwith subject to his depositing of the dues as per terms and conditions of allotment. The amount refunded to the petitioner shall be re- deposited by him within one month and possession of the plot shall be handed over only after deposition of the said amount. The petitioner shall also continue to deposit the future instalment, if any.” 2. In order to decide the controversy and with the consent of the counsel for the parties, along with this appeal we have also taken up the writ petition. The writ petition is requisitioned and is being disposed of along with instant appeal. 3. Brief facts of the case, which are necessary for disposal of the appeal as well as writ petition are that the appellant-Punjab LPA No. 758 of 2011(O&M) -3- Urban Planning & Development Authority, Patiala (for brevity 'PUDA'), floated a scheme for allotment of 85 freehold residential plots at Urban Estate, Patiala, Phase-I, II and III. A separate category for 'freedom fighter' was carved out and 2% of the plots were reserved for the category of freedom fighter. In that regard, a brochure (R-4/1) was issued which shows the availability of plots according to the general and reserved category and the same is reproduced hereunder: Category 100 Sq Yds. 125 Sq Yds. 150 Sq Yds. 200 Sq Yds. 250 Sq Yds. 400 Sq. Yds. 500 Sq Yds. General 3 1 1 2 53 3 2 SC/ ST (8%) - - - - 6 - - Freedom Fighter (2%) - - - - 1 - - Handicapped & Blind (3%) - - - - 2 - - a) Serving & Retired Defence Personnel & Paramilitary Forces including war-window (4%) b) 100% disabled soldier of Punjab Domicile (1%) - - - - - - - - 3 1 - - - - Gallanty Award Winners form Defence Services / Paramilitary Forces, who have distinguished themselves by acts of bravery and valour in the defence of our country both in war and peace time and Punjab Police Personnel awarded with President Police Medals for Gallantry and Police Medals of Gallantry. (2%) - - - - 1 - - Legal heirs of Army/ paramilitrary Forces, Punjab Police Personnel killed in action (war or on law & order duty) (2%) - - - - 1 - - LPA No. 758 of 2011(O&M) -4- Category 100 Sq Yds. 125 Sq Yds. 150 Sq Yds. 200 Sq Yds. 250 Sq Yds. 400 Sq. Yds. 500 Sq Yds. Sports person who are the medal winners of Olympic Common Wealth or Asian Games and Mountaineers who scaled Mount Everest and possesses the requisite certificate from the competent authority. (2%). - - - - 1 - - Riot Affected and terrorist affected families (5%) - - - - 4 - - Total 3 1 1 2 73 3 2 4. The petitioner-respondent applied for 250 sq. yards' plot and also deposited ` 88,750/- as earnest money along with the application form (P-3). The petitioner-respondent is not a freedom fighter and in his application, he attached an affidavit dated 15.01.2007 (R-4/2). In para 3 of the affidavit, the following statement has been made: “3. That I am recipient of Tamra Patra & Freedom Fighter reward pension.” 5. In the draw of plots, he succeeded in getting a plot of 250 sq. yards. On 10.07.2007, he was informed that after scrutiny of application forms, certain shortcomings have been noticed, which are required to be removed by him so that the allotment letter could be issued. The petitioner-respondent was also asked to produce the documents in support of the claim that he belonged to freedom fighter category as also the proof of being resident of Punjab. In that regard, he produced an attested copy of the certificate issued by office of Deputy Commissioner, Patiala, which showed that his father LPA No. 758 of 2011(O&M) -5- Sh. Shambu Nath was a freedom fighter. On 28.08.2007, the writ petitioner-respondent was given an opportunity of personal hearing through letter dated 14.08.2007 by the Estate Officer but he could not produce any original document in support of his claim that he was a freedom fighter. He was again given chance of personal hearing vide letter dated 05.11.2007. He appeared on 20.11.2007 and divulge that his parents were no more. He also admitted that neither he himself is freedom fighter nor he is getting pension of his father, who was a freedom fighter. He also produced a copy of Tamra Patra given to his father. The Estate Officer, accordingly, rejected the eligibility of the writ petitioner-respondent by concluding as under: “.........Finance & Accounts Committee as per item No. 20.06 of its 20th meeting held on 22.02.99, had determined the criteria for reservation in the allotment of plots/ houses by PUDA for freedom fighters quota. The criteria so determined is as under: (i) The applicant should be recipient of freedom fighter reward pension or recipient of Tamra Patra. (ii) He should belong to Punjab. (iii) He or his family members should not have been allotted any house or plot earlier by the Department of Urban Estates, Punjab Housing Development Board, PUDA or any Improvement Trust. 3. The above decision of the Finance & Accounts LPA No. 758 of 2011(O&M) -6- Committee is in accordance with the policy of Government of Punjab and PUDA. At page No. 4, para No. 2 of the brochure issued by PUDA for allotment of these plots by draw, the following provision has also been incorporated:- 2(iii) Freedom Fighter: Should be recipient of freedom fighter reward pension or Tamra Patra issued by Punjab Govt. / Govt. of India. A valid certificate issued by the Deputy Commissioner of the District is required. As the applicant as per the above mentioned policy of PUDA and the provision as incorporated in the brochure, has failed to produce the certificate issued by Deputy Commissioner regarding the receipt of freedom fighter's pension of his father, Sh. Shambu Nath Bhardwaj, who was a freedom fighter, it is clear that he is not receiving his father's fighter pension. The applicant does not fulfill the conditions of freedom fighter category as given in the brochure. So, the allocation of plot No. 652, Phase-2, Urban Estate, Patiala, in the name of Sh. Sunil Bhardwaj S/o Sh. Shambu Nath Bhardwaj R/o House No. 2202 , Jourian Bhattian, Patiala, is hereby cancelled and permission is hereby given to refund him a sum of Rs. 88,750/- to him which was deposited by him as earnest money for the allotment of plot, along with his application form.” LPA No. 758 of 2011(O&M) -7- 6. An appeal against the aforesaid order was also dismissed on 13.02.2008 (P-6). According to the appellate order that as per the policy of PUDA, a freedom fighter was himself eligible or a person receiving pension of the freedom fighter was made eligible for allotment of a plot. The case of the writ petitioner-respondent was not covered either by the expression 'freedom fighter' or by the alternative expression that he was getting pension of freedom fighter. It was admitted by the writ petitioner-respondent that till the time his mother was alive, she was getting freedom fighter pension of his late father but after the death of his mother, he could not be given the freedom fighter pension because he was already above 18 years of age. The aforesaid conclusion has been reached by Additional Chief Administrator, PUDA by observing as under: “Because as per policy of PUDA, the benefit of allotment of plot under the reservation of freedom fighters can be availed of by that applicant only who is either himself a freedom fighter or is getting a pension of freedom fighter and he must be having Tamra Patra issued by the Govt. of Punjab/ Govt. of India. As the applicant is neither himself a freedom fighter, nor is getting pension of freedom fighter and also does not have the requisite Tamra Patra because of which he is not entitled to avail the benefit under the freedom fighters' quota. Thus, I by exercising the powers given under Section 45(5) LPA No. 758 of 2011(O&M) -8- of the Punjab Regional & Town Planning Act, 1995, reject the Appeal of the appellant. The order of Estate Officer dated 30.11.2007 regarding cancellation of allocation of plot shall remain in force.” 7. Even a revision petition filed against the aforesaid view failed as is evident from order dated 12.05.2009 passed by the Joint Secretary, Government of Punjab. When the writ petition came up for motion hearing, the learned Single Judge admitted the same on 15.02.2010 and the interlocutory order is already set out in the preceding para of this judgment. 8. In the written statement filed by the respondents, the principal stand taken by the appellant is that the writ petitioner- respondent has misrepresented the facts, inasmuch as he proclaimed to be a freedom fighter and recipient of Tamra Patra. On the basis of misrepresentation of facts and filing of false affidavit dated 15.01.2007 (R-4/2), he was considered eligible. Consequently, his name figured in the list of successful candidate for allotment of plot measuring 250 sq. yards. The criteria of eligibility was finalized by the Finance and Accounts Committee, PUDA in its 20th meeting held on 22.02.1999. The criteria so determined by the Committee was as under: (i) The applicant should be recipient of Freedom Fighter pension or recipient of Tamra Patra. LPA No. 758 of 2011(O&M) -9- (ii) He should belong to Punjab. (iii) He or his family members should not have been allotted any house or plot earlier by the Department or Urban Estate, Punjab Housing Development Board, PUDA or any Improvement Trust. And it also refers to provisions in the brochure for allotment of plots through draw for freedom fighters as per which:- “2(iii) Freedom Fighter:- Should be recipient of freedom reward pension or Tamra Patra issued by Punjab Govt. / Govt. of India. A valid certificate issued by the Deputy Commissioner of the District is required.” 9. The writ petitioner-respondent was fully aware of the criteria which stipulated that an applicant for allotment of plot under the freedom fighter category should be recipient of Tamra Patra or recipient of freedom fighter reward. However, a false affidavit was sworn on 15.01.2007 by the writ petitioner-respondent , which was duly attested by the Notary Public. In para 3 of the affidavit, it was mentioned by the writ petitioner-respondent that he was recipient of Tamra Patra or freedom fighter reward pension (R-4/2). It was only on the scrutiny of the application that it could be discovered the writ petitioner-respondent born on 14.12.1965 and could not have secured Tamra Patra and freedom fighter reward pension because LPA No. 758 of 2011(O&M) -10- Tamra Patra used to be awarded to freedom fighters only which would obviously mean those who had taken part in the freedom struggle of the Country. Even the identification of the writ petitioner-respondent in the affidavit was made by himself. 10. We have heard learned counsel for the parties and have perused the paper books with their able assistance. The facts in this case do not leave any doubt that PUDA invited applications for allotment of 85 freehold residential plots at Urban Estate, Patiala, Phase-I, II and III. According to the brochure placed on record (R4/1), 2% reservation was given in favour of freedom fighter category and not to son/ daughter of freedom fighter. Only one plot measuring 250 sq. yards came to be reserved for freedom fighter under Clause 2 with sub heading 'Reservation', the following stipulation has been made regarding freedom fighter: “2. Reservation: The eligibility criteria for the reserved categories will be as under in addition to (a, b, c) above:- i) SC/ST- A valid certificate issued by the competent authority as prescribed by the Govt. of Punjab. ii) Physically handicapped/ blind- Should be 40% or above disabled or 100% blind to be certified by concerned authority. (Civil Surgeon) of the District: iii) Freedom Fighter- Should be recipient of LPA No. 758 of 2011(O&M) -11- Freedom Fighter reward pension or Tamra Patra issued by Punjab Govt. / Govt. of India a valid certificate issued by the Deputy/ Commissioner of the District is required.” 11. In the written statement filed by PUDA, it has been highlighted that only those applicants would be considered under the category of freedom fighter, who are recipient of freedom Fighter reward pension or Tamra Patra issued by the Government of Punjab / Government of India. A policy decision in that regard was taken by the Finance and Accounts Committee, PUDA on 22.02.2009. The writ petitioner-respondent being fully aware of this fact had applied for allotment. In order to cover up his deficiency and to make himself eligible, he filed a false affidavit claiming to be the freedom fighter and recipient of Tamra Patra. In para 3 of the affidavit dated 15.01.2007 (R-4/2), he made a false statement to his knowledge that he was recipient of Tamra Patra and freedom fighter reward pension. The language used in the affidavit clearly suggests that it was the language lifted from the brochure and was used to satisfy the aforesaid conditions. The PUDA and its officer realized that the date of birth of the writ petitioner was 14.12.1965 and by no stretch of imagination he could be recipient of Tamra Patra and freedom fighter reward pension. A show cause notice was issued to him and repeated opportunities were given. The Estate Officer did not find any documentary evidence showing that the writ petitioner- respondent was recipient of freedom fighter reward pension or LPA No. 758 of 2011(O&M) -12- recipient of Tamra Patra. The allotment of the plot made in his favour was cancelled on 30.11.2007 and the order has been upheld in appeal, which was preferred under Section 45 of the Punjab Regional Town Planning & Development Act, 1995. Even the revision petition filed by the writ petitioner-respondent has been rejected by the Government of India vide order dated 12.05.2009 (P- 7). It is in the aforesaid facts and circumstances of the case that the writ petition was admitted by the learned Single Judge and interim directions were passed. According to interim directions, the plot in question was allotted to the writ petitioner as a reward of the freedom fighter and he was required to be given possession of the plot. The course adopted by the learned Single Judge for passing interim directions was not available because there are serious doubts about the eligibility of the writ petitioner-respondent to claim a plot under the freedom fighter category. There is no document on record to show that he is either recipient of Tamra Patra or recipient of freedom fighter reward pension. In any case, it is impossible qualification for the writ petitioner-respondent to acquire as he is born on 12.01.1965. We failed to understand that how the plot could be regarded to have been allotted as a reward of the freedom fighter. Moreover, the writ petitioner-respondent has dis-entitled himself to the hearing of the writ petition on merit because before the authorities he filed a false affidavit dated 15.01.2007 (R-4/2). In the aforesaid affidavit, he has claimed that he is recipient of Tamra Patra and freedom fighter reward pension, which is a fact false to his LPA No. 758 of 2011(O&M) -13- knowledge. The language has been borrowed from the brochure to satisfy requirement of eligibility. It is well settled that a person who makes misstatement of facts in order to gain equitable relief loses the right of hearing before the Court of equity like the Writ Court. A Full Bench of this Court rendered in the case of Chiranji Lal and others v. Financial Commissioner, Haryana 1978 PLR 582 has clearly laid down that no person should be heard on the merit of a petition if he has misrepresented the facts to his knowledge. The writ petitioner-respondent has misrepresented the facts not only before the authorities but also before this Court. Therefore we find that writ petition is devoid of merit and the interim directions admitting the writ petition and asking PUDA to deliver the possession are wholly unwarranted . 11. For the reasons aforementioned, the appeal succeeds. The order dated 15.2.2011 passed by the learned Single Judge is set aside and the writ petition is dismissed. On account of misconduct of the writ petitioner-respondent, the PUDA shall be entitled to costs of ` 10,000/-. The costs shall be deposited is deposited within one month from today. Failing which, the case to be listed again. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE August 16, 2011 Atul