IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2954 of 2009 (O&M) Date of decision: 10.7.2013 S.G. Vats -----Appellant(s) Vs. HUDA & anr. -----Respondent(s) CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG 1. Whether reporters of local newspapers may be allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present:- Mr. Dinesh Kumar, Advocate for the appellant. Mr. J.P. Bhatt, Advocate for the respondents. --- RAKESH KUMAR GARG, J. The appellant has produced before this Court a photocopy of receipt dated 9.7.2013, showing deposit of Rs.2,000/- in the High Court Lawyers Welfare Fund. The same is taken on record. The suit of the plaintiff-appellant for declaration with consequential relief of permanent injunction has been dismissed by both the Courts below. The instant appeal has been filed to challenge the aforesaid judgments and decrees. As per the pleaded facts, a residential plot No.358-P measuring approximately 290 square meters was allotted to the Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 2 appellant by the respondent-HUDA in general quota vide memo. No.11076 dated 30.8.2000 at a tentative price of Rs.6,25,449/-. At this stage, it may also be noticed that the appellant had also applied for a residential plot in reserved category i.e. Government Servant Reserved Quota (GSRQ) on 9.3.2000. According to the appellant, he was allotted a plot under this category, however, no allotment letter was issued to him and he received a memo. i.e. Memo. No.5100 dated 11.4.2001 from the respondents, whereby he was conveyed that since he has already been allotted a residential plot bearing No.358-P in Sector 8/9, P-II, Urban Estate, Karnal in General Category, therefore, he is not entitled for allotment of plot in reserved category or GSRQ. By filing the instant suit, the appellant challenged the aforesaid memo. dated 11.4.2001 and prayed for issuance of a decree for declaration that notice No.5100 dated 11.4.2001 is null and void and that the plaintiff is entitled to allotment of plot under GSRQ. He also prayed for recalling of the order of refund issued by the respondents. A further decree for restraining the defendants from allotting the plot, which is to be allotted to the plaintiff, to any other person, was also sought, with a direction to keep the aforesaid plot reserved for him. The suit was contested by the respondents, alleging that as per the terms and conditions of the allotment, a person can retain only one plot in reserved category if he had not been Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 3 allotted any plot under general category. It has been further averred that at the time of consideration of the request of the plaintiff for allotment of plot No.421 in GSRQ quota, another plot i.e. plot No.358-P stood already allotted to him in General Category and therefore, he was found disentitled to retain the plot in reserved category. The Trial Court after considering various instructions of the department which were placed on the record of the case, dismissed the suit of the plaintiff-appellant observing as under:- “11. I have given my thoughtful consideration to the arguments advanced on both sides but I do not find any merit in the arguments advanced on behalf of the plaintiff. Vide condition No.12(i) of Ex.P4 only those applicants are eligible to apply who do not own a residential plot/house in his/her name/spouse’s name or in the name of the dependent member of his/her family in any Urban Estate developed by HUDA in Haryana State. Further, those applicants who have been allotted at any time, anywhere in Haryana a plot of land out of GSRQ or Discretionary Quota, are not eligible to apply. Perhaps the plaintiff misconstrued the words ‘eligibility’ with ‘entitlement’. No doubt, the plaintiff was eligible to apply for a residential plot in reserved category because at the time of application he was not owning any plot from HUDA or allotted any plot as per condition No.12(1) of Ex.P4 but unfortunately when the plaintiff was found Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 4 successful in draw of lots in reserved category he had already been allotted a residential plot vide offer of allotment Ex.P7. The terms and conditions of application Ex.P4 cannot be taken as concluded contract between the plaintiff and the defendants. Even letter Ex.P7 was offer of allotment and it was for the plaintiff to accept or reject the same. I do endorse the view taken by learned counsel for the defendants that as per condition No.25 of offer of allotment Ex.P7, the plaintiff was to furnish an affidavit to the effect that he is having no residential plot in the Urban Estate, Karnal. Similarly, a person is not entitled for allotment of a plot in reserved category if he is having a residential plot from HUDA in any category. Needless to say this condition stands waived off vide letter Ex.P13 but continued to be applicable for reserved quota plots. 12. In the case of Mangal Dass Arora versus The State of Punjab and another (supra) the executive instructions were held invalid since they were issued to alter or varied statutory rules whereas in the present case the executive instructions have not been issued in contravention of any rules/policy of HUDA. Even otherwise, reserved category plots are for those persons having no plot in HUDA, either in general category or reserved category in spite of working in Government departments. It can be called a social welfare scheme for Government servants. A person wants to retain Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 5 more than one plot should not avail benefit of a scheme meant for a particular class of persons. Similarly, in judgment Ex.P13 confirmed by Ex.P15 the second plot was allotted to wife of plaintiff named Umesh Atreja who was not dependent on the plaintiff as she was serving as teacher having independent source of income. 13. For the above mentioned discussion and circumstances, this Court is of the considered opinion that eligibility does not mean entitlement of the plaintiff to claim the plot from reserved category also when admittedly he had been allotted another residential plot in general category. Issue No.1 is decided against the plaintiff and in favour of defendants.” At this stage, it is also useful to peruse the observations of the lower Appellate Court, which read thus:- “12. After hearing learned counsel for the parties, in my view problem arose because the plaintiff filed application for allotment of a plot under general category in the month of January and he was allotted a plot under general category in the month of August 2000 whereas he submitted his application for allotment of a plot under reserved category on 9.3.2000 and he was successful in open draw on 4.12.2000. In my view legally and technically if the plaintiff would have been allotted a plot under reserved category and he would have filed an application for allotment of the plot prior to the allotment of Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 6 a plot under general category there would not have been any problem and plaintiff could have retained plot under reserved category as well as under general category. The condition for allotment of a plot under reserved category is that the allotment can be done only in favour of those Haryana Government servants who have no plot in any Urban Estate of Haryana. In fact, the scheme was floated for allotment of plots by the HUDA in favour of Haryana Government servants to provide help and facility only in favour of those government servants who have no plot in their names or in the names of their family members. If a government servant is already having a plot in his name he certainly cannot take benefit of this scheme and cannot be allotted a plot under reserved category. Keeping in mind all these circumstances, I found no illegality or invalidity in the order dated 11.4.2001 issued by defendant No.2 declining the prayer of the plaintiff regarding allotment of plot No.421 under reserve category. 13. During the course of arguments, learned counsel for the appellant also argued that mere executive instructions cannot override the statutory rules. In support of his this contention, learned counsel for the plaintiff placed his reliance upon case laws 1997-1 PLR 43 P&H Mangal Dass Arora vs. The State of Punjab and another and 1990-1 PLR 97 Jagdev Krishna Nanda and others vs. The State of Haryana and another. In case law referred Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 7 above Mangal Dass Arora v. The State of Punjab and another it was held that statutory rules cannot alter or varied by mere executive instructions. Similar was the view of the Hon’ble Punjab and Haryana High Court in case law referred above Jagdev Krishna Nanda and others vs. The State of Haryana and another. Cited case laws above are of not much help to the plaintiff in this case. As per facts of case law referred above executive instructions were issued to alter or vary statutory rules whereas in the present case executive instructions have not been issued in contravention of any rules/policy of Haryana Urban Development Authority. Moreover, reserved category plots are only for those persons having no plot in any Urban Estate in Haryana either in general category or under reserved category. A person already having plot in his name cannot be allowed to avail benefit of a scheme meant for a particular class of persons. 14. Issue No.1 was decided by the learned trial court against the plaintiff. As per discussion above in detail, I found no illegality or invalidity in the findings of the learned trial court on issue No.1. Accordingly, findings of the learned trial court on issue No.1 stands affirmed holding that plaintiff is not entitled for allotment of plot No.421 under reserve category.” Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 8 In the Grounds of Appeal, the appellant has claimed that following substantial questions of law arise for consideration of this Court:- “I. Whether the Courts below have erred in law in mis-interpreting and wrongly construing the instructions Ex.D3? II. Whether the plaintiff can be held to be disentitled for allotment of a plot under reserved category merely on the allotment of a plot under the general category particularly in view of the instructions Ex.D3 which provide that one may have more than one plot under the general category but not more than one under the reserved category?” Learned counsel for the appellant has vehemently argued that the Courts below have failed to appreciate the fact that the plaintiff did not have any plot in the reserved category and thus, being successful in the draw of lots, the plaintiff is entitled to allotment of a plot under the reserved category and mere success of the plaintiff in draw of lots under general category constitutes no bar for such allotment. According to learned counsel, the interpretation of various instructions by the respondents is erroneous and in fact a person may have any number of plots in the General Category but cannot have more than one plot in reserved category, therefore, appellant cannot be Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 9 denied the plot in reserved category of GSRQ Quota simply because he is already having a plot in General Category. As per the policy dated 6.5.1997 of the Government of Haryana, following is the condition to be eligible for allotment of plot under GSRQ quota:- “Only those applicants are eligible to apply who do not own a residential plot/house in his/her name/spouse’s name or in the name of the dependent member of his/her family in any Urban Estate developed by Haryana Urban Estate Department or HUDA in Haryana State. They should also not be the member of any Group Housing Society/Welfare Housing Organization to who land has been allotted in any Urban Estate of HUDA. Further, those applicants who have been allotted at any time, anywhere in Haryana a plot of land out of G.S.R.Q. or Discretionary Quota, are not eligible to apply.” The instructions dated 27.3.2000 relied upon by the appellant read thus:- “The policy for disposal of residential plots to the general category on circulated vide particulars referred to above lays down that a person should not have more than one plot in any Urban Estate in the name of his/her dependent family member. Accordingly, the applicant is required to submit an affidavit to this effect at the time of allotment. The Authority has reviewed the matter in the 77th meeting held on 24/2/2000 vide agenda item No.A-77(13). It Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 10 has been decided that in future floatation this condition be removed for general applicants. However, this condition applicable to all reserved category including EWS plots shall remain in force as such. A copy of the agenda and an extract of the decision of the Authority are sent herewith for reference and record.” It could not be disputed before this Court that as per condition No.12(i) of Ex.P4, under the reserved category of GSRQ Quota, only those applicants were entitled to allotment who did not own a residential plot/house in his/her name/spouse’s name or in the name of the dependent member of his/her family in any Urban Estate developed by HUDA in Haryana and further those applicants who have been allotted, at any time, anywhere in Haryana, a plot of land, were not entitled to allotment out of GSRQ or discretionary quota. The instructions dated 27.3.2000 are in continuation of earlier conditions and do not supersede them in any manner. These instructions clearly state that conditions have been relaxed only for General Category and condition of Reserved Category remains the same. In view of the aforesaid instructions, issuance and validity of which is not in dispute, this Court finds no merit in the arguments raised before this Court. Thus, no substantial question of law, as raised in the grounds of appeal, arises at all. Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2954 of 2009 11 Dismissed. July 10, 2013 [RAKESH KUMAR GARG] ak JUDGE Kumar Ashwani 2013.07.20 13:24 I attest to the accuracy and integrity of this document High Court Chandigarh