RSA No. 3601 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 03.5,2010. Haryana Urban Development Authority and another ---Appellants vs. Randhir Singh son of Sardara Ram,R/o Rishi Nagar. Kaithal -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Ashwani Talwar,Advocate,for the appellants Mr.Rakesh Nagpal,Advocate,for the respondent Rakesh Kumar Jain, J, Defendants are in second appeal against judgment and decree of both the Courts below, whereby suit of the plaintiff for mandatory injunction has been decreed. Plaintiff's pleaded case is that he was owner in possession of 33 marlas representing 33/524, share out of land masuring 26 kanal 4 marlas comprised in Khewat No.851 min, khatoni No.1096, rect No. 104, killa No.15, 16 and 25, Rect.No.117, killa No5/1, as per mutation No. 5180 and jamabandi for the year 1995-96, situated within the revenue estate of Patti Kaisth Seth, Kaithal,Tehsil and District Kaithal, which was acquired in the year 1992 for development of Sectors 19 and 20, by Haryana Urban Development Authority (for short, HUDA). The plaintiff in furtherance of a RSA No. 3601 of 2008 2 policy dated 18.3.1992, circulated vide memo No. 2-92/2082, applied for a free hold developed residential plot on the ground of being an oustee. Since the plaintiff was owner to the extent of 33 marlas of land, he was entitled to a free hold developed plot of 250 square yard, but despite having applied in the year 1994 and in the year 2000, defendants failed to take any action and finally refused to release free hold residential plot to the plaintiff, which led to the filing of the suit. In the written statement, it was claimed by the defendants that the plaintiff had never deposited 10% earnest money alongwith application which was mandatory as per Brochure issued by HUDA. The policy dated 18.3.992 was prevalent in the year 1993 vide Memo No.A-11P-93/7996- 8013 dated 12.3.1993 and the benefit under oustees policy was restricted to one plot according to the size of holding irrespective of number of co- sharers. Plaintiff filed replication and on the pleadings of the parties, following issues were framed by the trial Court on 24.5.2006:- 1. Whether the plaintiff was absolute owner in possession of property detailed and described in para no.1 of the plaint?OPP 2. Whether the plaintiff is entitled for allotment of plot as per policy dated 18.3.1992?OPP 3. Whether the plaintiff is entitled for mandatory injunction sought in the present suit?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the plaintiff has no locus standi for filing the present suit?OPD RSA No. 3601 of 2008 3 6. Whether the plaintiff has no cause of action for filing the present suit?OPD 7. Whether this Court has got no jurisdiction to try and entertain the present suit ?OPD 8. Whether the suit is time barred ?OPD 9. Relief: Plaintiff and defendants led both oral as well as documentary evieence Learned trial Court discussed issue Nos. 1 to 3 together and found on the report of Patwari Exs.P-1,P-2 and P-5 that the total holdings of the plaintiff measuring 33 marlas was acquired which has been proved by Ajay Pal Patwari while appearing as PW-2. It was found that the plaintiff has fulfilled the conditions of Clause (ii) (b) of the policy Ex.P-1 dated 18.3.1992. It was further found that as per Clause vii of the policy dated 18.3.1992 (Ex.P10), the applications are invited by the Estate Officer, HUDA from the oustees before the Sector is allotted. Therefore, there was no requirement of deposit of 10% earnest money along with the application. Finally, it was found that as per Clause iii of the policy Ex.P-10 dated 18.3.1992, total area of the plaintiff was acquired in the year 1992 for which last date to file application was 1.1.1992. Thus, the case of the plaintiff was covered by the policy dated 18.3.1992 (Ex.P-10) and not subsequent policy dated 12.3.1993 vide which policy dated 18.3.1992 has been partially modified. As per policy dated 18.3.1992 Ex.P-10, every co- sharer was entitled to a separate plot and the plaintiff being a co-sharer had claimed separate plot in lieu of his acquired land. Thus, the learned trial Court decreed the suit of the plaintiff and directed the defendants to allot a RSA No. 3601 of 2008 4 free hold developed plot measuring 250 square yard in his name in Sector 19 or 20 in pursuance of policy dated 18.3.1992 (Ex.P-10) @ Rs.825/- per square yard. Defendants filed the first appeal under Section 96 of Code of Civil Procedure, 1908 (for short, 'CPC') which was dismissd as infructuous on the ground that after passing of judgment and decree by the trial Court, the HUDA had allotted a plot to the plaintiff. Following observations have been made by the first Appellate Court which need to be noticed:- “It has been brought to the notice of the Court that after passing of impugned judgment and decree, the Haryana Urban Development Authority has already allotted the plot to the respondent Randhir Singh and in such an eventuality, the appeal is having no merit because the impugned judgment and decree already stands complied with. Repeated adjournments have been sought by the learned counsel for the appellants to place on record the allotment letter issued in favour of Randhir Singh (respondent) and despite directions, the Estate Officer has not shown the curtsey to appear in person before the Court and this Court is of the opinion that the appeal has become infructuous since the plot has already been allotted to the respondent”. Still aggrieved, the appeal has been filed which was initially barred by limitation in filing and refiling, which of course stand condoned. During the course of hearing, following order was passed on 25.2.2010:- “Learned counsel for the appellant has submitted that out of 64 co- sharers, only respondent-Randhir Singh son of Sardara Ram is found to be eligible. Therefore, an allotment letter vide memo No. 2585 dated 12.5.2008 has been RSA No. 3601 of 2008 5 issued by which residential plot in Section 20, Urban Estate, Kaithal was allotted to him. Learned counsel for the respondent has submitted that as per policy, he is entitled to a plot of 10 Marla but the allotment letter has been issued in his name of One Kanal plot along with 64 co-sharers. He has submitted that he is ready to take plot of 10 marlas instead of one kanal but in his name exclusively and is ready to pay the prevalent value i.e. Rs.3907/- per sq. meters. Learned counsel for the appellant prays for time to seek instructions about the availability of 10 marla plot and about the offer of price made by the respondent. On his request, adjourned to 29.3.2010”. Learned counsel for the appellant has informed the Court that no plot of 10 marlas is available in Sector 20 in Kaithal. In this regard, learned counsel for the respondent submitted that he may be allotted plot in the adjoining sector where they are available. At this, learned counsel for the appellant has argued on merit to contend that the application filed by the respondent/plaintiff was not in accordance with law as an amount of 10% was not deposited alongwith the application. As against this, learned counsel for the respondent has informed the Court that this matter has already been discussed by the trial Court in detail and it was held that 10% is not required to be deposited because the applications are invited from the applicants/oustees before the plots were offered for sale in general. It is further submitted that once the appellants have allotted the plot, it does not lie in their mouth to raise objection in second appeal. He he has relied upon a decision of this Court passed in R.S.A. No. 83of 2005 titled as Estate Officer, HUDA & RSA No. 3601 of 2008 6 Ors. Vs. Kavinder Parkash decided on 17.1.2005 which has further been upheld by the Supreme Court in S.L.P.No. 7273 of 2005 titled as Estate Officer, HUDA & Ors. Vs. Kavinder Parkash which was dismissed on 21.4.2005. It is submitted that there is no substantial question of law involved in this appeal specially when the plot has already been allotted to the plaintiff/respondent in terms of police dated 18.3.192 (Ex.P-10). I have heard learned counsel for the parties and have perused the record with their assistance and am of the considered opinion that there is no merit in the appeal filed by the appellants as they have already complied with the mandatory injunction issued by the trial Court instead of allotting a plot to the respondent in terms of policy dated 18.3.1992 (Ex.P- 10) and the plaintiff had already offered to make payment of the plot in question at the prevalent rate of Rs. 3907/- per square yard instead of Rs.825/- per square yard as held by the trial Court. Thus, in view of my above discussion, I do not find any merit in the present appeal. The decree of the trial Court is modified to the extent that the appellants shall allot a fully developed residential plot of 10 marlas in the name of the plaintiff/respondent exclusively on the prevalent market rate of Rs 3907/- per square meter within a period of two months from the date of recept of a certified copy of this order either in Sector 19 or 20 from where his land is acquired or if the plot of the said measurement is not availale, then in the adjoining sector where it is available. There shall, however, no order as to costs. April ,2010 (Rakesh Kumar Jain) RR Judge