RSA No.2498 of 2008(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2498 of 2008(O & M) Date of Decision:04.10.2010 M/s Amber Forgings Corporation .... appellant Versus State of Punjab & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Arun Nehra, Advocate for the appellant Mr.Rajesh Garg, Additional Advocate General, Punjab for respondent No.1-State Mr.H.S.Brar, Advocate for respondent No.2 and 3 **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgement and decrees of the courts below, whereby its suit for mandatory injunction for issuance of a direction to respondents No.2 and 3 to issue allotment order in favour of the appellant in respect of the suit property, was dismissed. Brief facts of the case are that industrial plot No.C-35, Industrial Phase-II, Mohali District Ropar was allotted to Sarvshri Satinder Mohan Singh and Avinash Mahindra vide allotment order dated 27.07.1971. Later on, the ownership was allowed to be changed in the name of five partners i.e. Sh.Avinash Mahindra, Sh.Chaman Lal,Sh.Madan Mohan Mahindra, Sh.Surinder Kumar Goel and Sh.Gian Chand Gupta. Thereafter, other partners withdrew and Madan Mohan Mahindra remained RSA No.2498 of 2008(O & M) 2 the sole proprietor of appellant-firm. The entire price of the plot in question was paid and conveyance deed was executed on 06.12.1985 in favour of the appellant. Since the plaintiff-appellant could not complete the construction on the plot in question within the stipulated period, it resulted in the resumption of the plot. Appellant challenged the resumption order before the authorities. However, the resumption order was maintained and even writ petition filed by the appellant in this Court was also dismissed on 12.05.1993 vide Ex.PW2/2. It is the further case of the appellant that on an application filed by him for re-allotment of the said plot, the Government of Punjab vide its order dated 02.01.1997 conveyed that the Government had decided to re-allot the plot No.C-35, Phase-II, Mohali to the appellant and defendant/respondent No.2 was directed to issue re-allotment letter. In spite of the fact that Government had conveyed its decision to defendant No.2, the re-allotment order was not issued. The plaintiff also relied upon re-allotment of plot to one Mohan Singh in similar circumstances by the State. Hence the present suit for mandatory injunction was filed. Upon notice, defendant No.1 appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the request of plaintiff for re-allotment of plot in question was considered by the Government and the Chief Administrator, PUDA Chandigarh was informed accordingly vide letter dated 02.01.1997. It was further submitted that defendant No.1 was informed by defendant No.3 vide letter dated 10.02.1998 that re-allotment of plot in question cannot be made to the plaintiff. Denying other material averments, dismissal of the suit was prayed for. Defendants No.2 and 3 filed written statement raising various preliminary objections. On merits, it was admitted that the plot of the allottee was resumed for non-construction and all the remedies of the appellant stood exhausted and his writ petition was dismissed. It was RSA No.2498 of 2008(O & M) 3 further stated that defendant No.1 had no authority for re-allotment of the plot in question as the same was property of defendants No.2 and 3 and defendant No.1 had nothing to do with the allotment of the plot in question. It was also stated that plot in question was allotted by PUDA and the same remained the property of PUDA after resumption of the plot. It was categorically submitted that appellant cannot derive benefit from the case of Sh.Mohan Singh as the same was different and the Government cannot allot the plot in question to the plaintiff as it has got no right over the property and order of defendant No.1 dated 02.01.1997 was absolutely illegal. It was further submitted that after resumption, the said plot was in the possession of defendants No.2 and 3. Remaining paras of the plaint were denied and dismissal of the suit was prayed. In the replication, plaintiff reiterated his version and controverted the averments of the written statement. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to issuance of direction to defendants No.2 and 3 to issue allotment order to plaintiff in respect of plot No.C-35, Phase-II, Mohali in accordance with order of Director of Industries, Punjab vide his order dated 02.01.1997?OPP 2. Whether the suit is bad for non-joinder of necessary parties?OPD 3. Whether the plaintiff served a legal and valid notice under Section 80 CPC upon the defendant before filing of the suit?OPD 4. Whether the suit is not maintainable? 5. Whether the suit is hit by principle of res RSA No.2498 of 2008(O & M) 4 judicata?OPD 6. Relief. Both the courts below, after hearing learned counsel for the parties and considering the evidence on record, dismissed the suit holding that defendants No.2 and 3 being an autonomous body and the plot in question being its property, defendant No.1 i.e. State of Punjab had got no authority to re-allot the plot in question and therefore defendant No.1 was not competent to issue memo dated 02.01.1997. While recording the aforesaid finding, courts below also observed that appellant cannot take benefit of re-allotment of plot No.C-77 that being on a different footing. Not satisfied with the aforesaid judgement and decrees of the courts below, appellant has approached this Court submitting that the following substantial questions of law arise in this appeal: 1. Whether instrumentalities of the State of Punjab are well within their rights to cancel the ownership, proprietary and possessory rights in the property especially when property has been purchased after paying entire sale consideration and possession has been taken after obtaining “No Objection Certificate” from the Estate Officer, Urban Estate, Punjab, Chandigarh? 2. Whether the ownership/proprietary and possessory rights can be disturbed by the instrumentalities of the State of Punjab when full proprietary rights vest with the purchaser after execution of the conveyance deed? 3. Right to hold property is constitutional right and is also a human right; can owner be deprived from said constitutional and human right to hold property by the instrumentalities of the State in an arbitrary manner? RSA No.2498 of 2008(O & M) 5 4. Whether owner of the property who has paid full sale price and conveyance deed has been executed in his favour and is in possession of property, can he be deprived from the user of the said property on the ground that Punjab Urban Development Authority is not an organ of State of Punjab? 5. Whether statute has to be interpreted having regard to the constitutional provisions as also of human right, can give different treatment and apply different principles or different canons to the different persons similarly situated? 6. Whether interpretation of the statute leans in favour of the person who is to be deprived from his property? 7. Whether the organs of State of Punjab can defy the orders passed by the State of Punjab especially when they are creation of State of Punjab and being managed and looked after by the State of Punjab? In support of his case, learned counsel for the appellant has vehemently argued that the Courts below have not appreciated the fact that it was the duty of respondents No.2 and 3 to ensure due compliance of orders passed by respondent No.1,i.e. State of Punjab. Moreover, the plot in question was allotted by the Industries Department to the Government of Punjab. Full payment of the plot in question was made to the Government of Punjab. The conveyance deed was also executed in favour of the appellant and the State of Punjab has complete control over the PUDA and therefore respondents No.2 and 3 could not have refused the implementation of the order dated 02.01.1997. The PUDA is not an independent authority but an organ of the State of Punjab and had in fact no locus standi to defy the orders passed by the Government of Punjab. RSA No.2498 of 2008(O & M) 6 Not only this, learned counsel for the appellant also relied upon Section 40 of The Punjab Regional and Town Planning and Development Act, 1995 (hereinafter referred to “PUDA” Act) to contend that the authorities were legally bound to carry out the directions as may be issued to it from time to time by the State Government. Learned counsel for the appellant has further argued that action of the respondent was liable to be set aside, being arbitrary as in similar circumstances, plot No.C-77, Focal Point, Phase-VI, SAS Nagar, Mohali was resumed and the said order remained in force for about 14-15 years and on the request of the allottee, the Government reconsidered the matter and revoked its order of cancellation and re-allotted the site to the allottee. However, the same relief has been denied to the appellant and therefore the action of the respondents, being arbitrary was liable to be quashed. Counsel for the appellant further argued that courts below have non-suited the appellant on the ground of res judicata that on earlier occasions resumption order was assailed by the appellant and his writ petition in this regard, was dismissed. However, according to the learned counsel for the appellant, the said orders of resumption does not come in his way as appellant was seeking relief of mandatory injunction directing the respondents to re-allot the plot in question on the basis of an order dated 02.01.1997 and therefore the impugned judgement and decrees were liable to be set aside. However, learned counsel appearing on behalf of the respondents have supported the impugned judgement and decrees. It has been argued on behalf of respondents No.2 and 3 that on coming into force of PUDA Act, 1995, the property in question belongs to respondents No.2 and 3 which is an autonomous body and therefore respondent-State had no authority to give direction to the respondents to re-allot the plot in question to the appellant. Since the resumption order against the appellant RSA No.2498 of 2008(O & M) 7 had become final, no relief can be granted to the appellant as claimed and the suit was rightly dismissed. Counsel for respondent No.1 also argued that it is wrong to say that the respondent-State had given directions to respondents No.2 and 3 to re-allot the plot in question but in fact as pleaded by the State, the request of the plaintiff-appellant was considered and sent to the PUDA by the State to consider the same. I have heard learned counsel for the parties and perused the impugned judgement and decrees of the courts below. The facts of the case are not in dispute. Admittedly, the plot in question which was mutated in favour of appellant vide conveyance deed dated 06.12.1985 was fully paid up and was resumed for non- construction at site and the said resumption order became final between the parties as writ petition filed by the appellant, in this regard was dismissed on 12.05.1993. Not only this, it also stands established on record that originally the plot in question was allotted to the appellant by the Department of Urban Development and Housing, State of Punjab, on the recommendations of the Department of Industries and on resumption the same reverted back to the Department of Urban Estates i.e. Department of Punjab Urban Development and Housing. It is an admitted fact that coming into force the PUDA Act, 1995, the plot in question became the property of the PUDA which is an autonomous body and, thus, the State of Punjab had no authority to allot the same. With the enforcement of the PUDA Act, all the assets and liabilities stood transferred to the PUDA. It may also be noticed, at this stage that Section 40 of the aforesaid Act is of no help to the appellant as under this Section the authorities are bound to carry out only such directions of the State which are meant for efficient administration of justice. It may also be noticed that case of plot No.C-77 was altogether different on facts. In any case, equality before law cannot be RSA No.2498 of 2008(O & M) 8 claimed for a wrong act. It is settled law that even if some other similarly situated persons have been granted some benefit , inadvertently/wrongly such order does not confer any legal right on the appellant to get the same relief. Equality is a trite, which cannot be claimed in illegality. Even the argument raised by learned counsel for the appellant is accepted that the order dated 12.05.1993 passed in writ petition does not operate as res judicata and the suit is maintainable. It is sufficient to notice, even then the appellant has no case on merits, as discussed above. In view of the aforesaid findings, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 04.10.2010 neenu