CWP No. 5171 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 5171 of 2009. Date of Decision: 27th April, 2009. Ludhiana Improvement Trust, Ludhiana ....Petitioner through Mr. A.K.Chhopra, Sr. Advocate with Ms. Shilpa Malhotra, Advocate Versus National Consumer Disputes Redressal Commission & Ors. Respondent CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. This order shall dispose of Civil Writ Petition Nos. 5171, 5175, 5176, 5177, 5182 and 5206 of 2009 as common questions of law and facts are involved in these cases. For brevity, the facts are being taken from CWP No. 5171 of 2009. [2]. The petitioner - Ludhiana Improvement Trust seeks quashing of the orders dated 2nd April, 2008 and 23rd February, 2009 [Annexures P-7 and P-14] passed by the National Consumer Disputes Redressal Commission [for short 'the National Commission'] as well as the order dated 23rd May, 2007 [Annexure P- 5] passed by the State Consumer Disputes Redressal Commission, Punjab [for short 'the State Commission'], whereby the Consumer Complaint No. 11 of 2006 filed by respondent No.3 under Section 17 of the Consumer Protection Act, 1986, has been allowed. The CWP No. 5171 of 2009. ::-2-:: petitioner also seeks a declaration that respondent No. 3 is not entitled to allotment of any plot on the basis of acquisition of his land made under the Punjab Town Improvement Act, 1922 [hereinafter referred to as the '1922 Act'] for the Scheme known as “Kartar Singh Sarabha Nagar Development Scheme” [here-in-after referred to as 'the Scheme']. [3]. The above-stated acquisition process commenced in the year 1964 and the award was passed on 26th March, 1966. Amongst others, the land of respondent No. 3 jointly owned by him along with one Bagga Singh comprised in Khasra No.302, measuring 13 kanals 9 marlas situated in village Sunet, Tehsil & District Ludhiana, was also acquired. [4]. Respondent No. 3 moved an application for allotment of a Plot in the category of “Local Displaced Person [LDP] and deposited the requisite amount of Rs.500/- on 21st October, 1987 purportedly towards the Earnest Money. Under the Land Disposal Rules of the Ludhiana Improvement Trust, 1964 [for short 'the 1964 Rules'], a person whose land had been acquired was entitled to allotment of one residential plot as a LDP. Pursuant to his application, an allotment letter dated 28th November, 1987 was issued in favour of respondent No. 3, followed by execution of the Conveyance Deed dated 23rd May, 1988. Respondent No. 3, however, was not delivered possession at the site and in response to representations dated 6th October, 1998 and 13th October, 1998, the petitioner Trust informed him on 14th October, 1999 that the site was in fact reserved for a Primary School, therefore, possession can not be given to him. CWP No. 5171 of 2009. ::-3-:: [5]. Respondent No. 3 approached this Court by way of CWP No. 20105 of 2001, inter-alia, seeking a direction to the petitioner Trust for delivery of possession of the plot, which was decided on 26th November, 2002 with a direction to the Trust to dispose of the petitioner's claim by passing an appropriate order. The petitioner Trust, however, turned down the claim of respondent No. 3 vide order dated 20th December, 2002, inter-alia, on the grounds that [i] after disbursement of the compensation and passing of the award on 26th March, 1966, respondent No. 3 never applied for allotment of a plot as a LDP under the 1964 Rules; [ii] Plot No. 186/2 allotted to the third respondent by the then Chairman was not available in record as the site was meant for a Primary School; [iii] the dispatch number of the allotment letter dated 28th November, 1987 did not exist in the Trust's record nor the original agreement for sale or the sale deed were available in the record; [iv] FIR No. 120 under Sections 420/465/468/120-B IPC read with the provisions of the Corruption Act was registered against the then Chairman and Executive Officer of the Trust and [v] the allotment in the name of respondent No. 3 was fictitious and false. [6]. Respondent No. 3 again approached this Court by way of CWP No. 373 of 2003 challenging the petitioner Trust's order rejecting his claim. The said writ petition was also disposed of vide order dated 11th December, 2003 in terms whereof the State Government agreed to appoint a Committee headed by the Chief Secretary, Punjab to examine the claims of the persons like respondent No. 3 in a time-bound manner. CWP No. 5171 of 2009. ::-4-:: [7]. The Committee so appointed under the orders of this Court also rejected the claim of respondent No. 3 by passing a self- speaking order dated 20th November, 2004. Still aggrieved, respondent No. 3 again approached this Court by way of CWP No. 17179 of 2004 which was, however, withdrawn on 1st May, 2006 with liberty “to seek other such remedies which are available in accordance with law, including filing of a civil suit”. [8]. Respondent No. 3 thereafter filed Consumer Complaint No. 11 dated 6th June, 2006 under Section 17 of the 1986 Act which was allowed by the State Commission vide its order dated 23rd May, 2007 [Annexure P-5]. [9]. The petitioner Trust's First Appeal No. 500 of 2007 has also been dismissed by the National Commission vide its impugned order dated 2nd April, 2008 [Annexure P-7] primarily on the basis of the statement made by the petitioner's counsel to the effect that after confirmation of the previous order of the State and National Commissions by the Hon'ble Supreme Court in Shakuntla Devi's case, he had nothing further to say in the matter. [10]. The petitioner Trust thereafter approached this Court by way of CWP No. 466 of 2009, questioning the authority of the counsel in making a concession before the National Commission as according to the petitioner-Trust, the facts in Shakuntla Devi's case were altogether distinguishable from the facts and circumstances of the present case. The writ petition was dismissed as withdrawn on the statement made by the learned counsel of the petitioner Trust with liberty to approach the National Commission for re-call/ CWP No. 5171 of 2009. ::-5-:: modification of its order dated 2nd April, 2008. [11]. The petitioner Trust thereafter filed a Review Petition before the National Commission which has also been dismissed vide the impugned order dated 23rd February, 2009 after observing that not only the Review Application was clearly time barred, there is no error apparent on the face of record warranting review of the previous order. [12]. The petitioner Trust now seeks quashing of the orders passed by the State Commission as well as the National Commission. [13]. At this stage, a brief reference to the facts of Shakuntla Devi's case may also be made. The land of one Ram Sarup husband of Shakuntla Devi measuring 2329 square yards was acquired on 8th June, 1973 for Model Extension-II Scheme. Under the 1964 Rules, Ram Sarup being LDP was entitled to allotment of a plot and it was so stipulated in the aforementioned Scheme also. Ram Sarup or his legal heirs did not apply for allotment of the plot as LDP within the specified period. It was on 2nd August, 1990 that an application was made to the Chairman of the petitioner-Trust who entertained the same and permitted the legal heirs of Ram Sarup to deposit Rs.500/- as earnest money “for allotment of a plot as LDP in Model Town Extension-II, subject to availability”. No plot, however, was allotted on the ground that the application was not made within the specified time and the 1964 Rules had already been repealed by the 1983 Rules under which the complainant was not eligible for allotment of the plot. Aggrieved, Shakuntla Devi filed a complaint CWP No. 5171 of 2009. ::-6-:: before the District Consumer Disputes Redressal Forum which was dismissed on 14th November, 2002. She preferred Appeal No. 1672 of 2002 which was allowed by the State Commission vide order dated 6.4.2005 after observing as follows:- “The star argument of the learned counsel for the complainant – appellant is that the State Government itself had issued circular on 3.8.1983 the issuance of which was necessitated as the point had arisen as to whether the Chairman of a Trust had the power to extend the period of filing application, in other words could be accept a belated application?. The circular read as under:- “In the absence of any legal impediment, it appears that it is inherent power of the Chairman to generally extend the date of inviting local displaced persons to apply for the allotment of plot. Such general extension is more an exercise of executive power”. A similar circular was issued on 31.3.2000 with which we are not concerned as in the present case the application was made in the year 1990. The reading of the circular [supra] leaves no manner of doubt that the Chairman of the Trust had the power to extend the period of making an application for allotment of a plot as a displaced person. In fact, a similar point regarding the entertainment of belated application arose before the Punjab & Haryana High Court in Surjit Kaur and others vs State of Punjab in CWP No. 6801 of 2000. the aforesaid circular was relied upon by the petitioners in that case to contend that belated applications could be entertained by the Chairman of the Trust and allotment could be made. The Trust in that case had resisted the case on the same grounds as is being resisted before us, i.e., that the petitioners in those cases had not applied in response to the notice issued in accordance with Ludhiana CWP No. 5171 of 2009. ::-7-:: Improvement Trust Land Disposal Rules, 1964. The writ petition was allowed. The following is the operative portion of that judgment:- Again the matter came up before the same Division Bench of the Punjab & Haryana High Court in Civil Writ Petition No. 17248 of 1999 titled as 'Gurdev Kaur and others vs State of Punjab'. The Division Bench again held vide its order dated 25.4.2001 that the case was fully covered by Surjit Kaur's case decided earlier. The Division Bench observed as under during the course of judgment:- “In our opinion, the case of the petitioners is squarely covered by the order passed in Surjit Kaur's case [supra] and, therefore, there is no valid ground to deny relief to them, more so because respondent No. 2 entertained the claim of Shri Banarsi Dass, who had deposited earnest money after later Shri Joginder Singh, and allotted plot to him as LDP”. [14]. The Commission further held as follows:- “On both counts, we find that the claim of the complainant was wrongly negatived by the Trust. We may deal with another point raised by the learned counsel for the appellant. He submitted that similarly situated applicants who had also moved application somewhere in the year 1990 and extension had been granted by the Chairman those applicants have been allotted the plots and displaced persons. Reference was made to Ex.C-4, C-5 and C-6. The District Forum negatived this submission of the complainant on the ground that if allotment had been made wrongly to the applicants mentioned in Ex.C-4,C-5 and C-6, these precedents could not be made applicable to the complainant . In other words, there is no negative equality. The District Forum was of the view that Trust CWP No. 5171 of 2009. ::-8-:: can not be directed to commit another wrong. We are of the view that the District Forum was not correct in observing that the applicants mentioned in Ex.C-4 to C-6 were in any way wrongly allotted the plots. The power of extension lay with the Chairman. The Rules applicable to such applicants were 1964 Rules as has been observed above. Even in the written statement filed by the Trust before District Forum, it had been stated that applicants in Ex.C4 to C6 had been correctly allotted the plots. That being so, we do not find any justification with the Trust in not allotting a plot which the complainant was entitled under 1964 Scheme. [15]. The petitioner Trust challenged the aforesaid order before the National Commission in RP No. 1818 of 2005 but the same was dismissed on 19.10.2005. The petitioner Trust thereafter preferred SLP [Civil] No. 6020 of 2006 which also met with the same fate and was dismissed by the Hon'ble Supreme Court vide the following order dated 6.2.2008 [Annexure P-10]:- “We are not inclined to interfere with the impugned judgment and order dated 19.10.2005 passed by the National Consumer Disputes Redressal Commission. The Special Leave Petition is accordingly dismissed. However, keeping in view the facts and circumstances of the case, we keep the question of law open regarding limitation of filing of a plaint within the meaning of Section 24-A of the Consumer Protection Act, 1986 to be decided in an appropriate case”. [16]. Adverting to the case in hand, there is no denial to the fact that the only ground for rejection of the claim of respondent No. 3 is that he had not applied/deposited the earnest money within the stipulated period laid down under the 1964 Rules, rather had CWP No. 5171 of 2009. ::-9-:: deposited the same in the year 1987 allegedly in connivance with the then Chairman of the Trust. [17]. The State Commission negated the said plea after holding that:- “The only point now to be determined is whether there is any deficiency on the part of the respondents when they refused to allot a plot to the complainant. If an order is passed against the rules and regulations framed by the authorities or similar decision taken by the authorities in similar circumstances are ignored while passing an impugned order or the decision of a High Court or of fora under the C.P.Act or for that matter any direction by a civil court is ignored we are of the view that there will be deficiency in service on the part of the authorities. In the present case, while passing the impugned order not only two judgments of the Division Bench of the Punjab and Haryana High Court in similar circumstances in Surjit Kaur and others v State of Punjab and another, CWP No. 6801 of 2000 decided on 2.11.2000] and another judgment in Gurdev Kaur and others vs State of Punjab and another [CWP No. 17248 of 1999 decided on 24.4.2001] have been totally ignored arbitrarily. Even similar orders passed by the Department in similar circumstances, which have been noticed in the earlier part of the judgment have also been totally ignored by the Department. Consequently, we hold that there was deficiency in service on the part of the respondents. The case of the complainant was fully covered by two judgments of the Punjab and Haryana High Court referred to above as also the judgment of this Commission in Appeal No. 1672 of 2002 titled “Shakuntla Devi & Ors. Vs Ludhiana Improvement Trust'' decided on 6.4.2005. The judgment of this CWP No. 5171 of 2009. ::-10-:: Commission has been upheld by the National Commission”. [18]. As noticed earlier, by the time the petitioner's appeal in the present case came up for hearing before the National Commission, the petitioner's SLP in Shakuntla Devi's case had already been dismissed on 6.2.2008. The counsel for the petitioner, having regard to the fact that the orders in Shakuntla Devi's case had attained finality, made a statement before the Commission that nothing more could be added by him. The appeals were accordingly dismissed by the National Commission. [19]. This time, however, the petitioner trust has chosen to invoke the writ jurisdiction of this Court instead of filing SLP as was the procedure followed by it in Shakuntla Devi's case. [20]. When these matters came up for preliminary hearing on 01.04.2009, the maintainability of the writ petitions was, prima facie, doubted for the reason that in Shakuntla Devi's case, the Trust had filed SLP before the Hon'ble Supreme Court but after dismissal thereof, it has approached this Court on the pretext that the facts of the case in hand are altogether different from those in Shakuntla Devi's case. [21]. It, however, appears beyond the pale of any doubt that in the light of the decisions by the Apex Court, like in L.Chandra Kumar v Union of India & Ors., 1997[3] SCC, 261 and State of Karnataka vs Vishwabarathi House Building Coop. Society & Ors., 2003[2] SCC, 412, the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor CWP No. 5171 of 2009. ::-11-:: could be taken away. The orders passed by the National Commission under the 1986 Act, save as appealable before the Supreme Court under Section 36 of the Act, therefore, are amenable to the writ jurisdiction of this Court. [22]. Learned counsel for the petitioner has been heard on merits at some length and the orders perused. It is argued that the State Commission has mechanically applied its earlier order in Shakuntla Devi's case though the facts of the present case are entirely different. He urged that in Shakuntla Devi's case, there was no allegation of committing fraud against the Chairman/Executive Officer of the Trust nor of their connivance with the complainant. Learned counsel argued that in Shakuntla Devi's case, the name of the complainant was duly included in the list of eligible persons by the petitioner Trust itself. [23]. I, however, do not find any merit in the above noticed contention. In Shakuntla Devi's case as well as in the present case, the Trust had refused to entertain the application of the LDP primarily on the ground that no application was made nor earnest money of Rs.500/- was deposited within the period stipulated under the 1964 Rules. While in Shakuntla Devi's case, the land was acquired in the year 1973 and an application along with Rs.500/- was moved by the LDP in the year 1990, the land in the present case, was acquired in the year 1966, whereas an application along with Rs.500/- was moved by the respondent – LDP in the year 1987. Assuming that respondent No. 3 can take no advantage of the allotment letter or the conveyance deed fictitiously executed in his CWP No. 5171 of 2009. ::-12-:: favour by the Trust allegedly in connivance with the then Chairman or the Executive Officer of the Trust, the fact remains that he had applied for allotment as LDP in the year 1987. [24]. The moot point to be determined would, therefore, be as to whether or not the said time-barred application could be entertained? In Shakuntla Devi's case also, the Trust had refused to entertain the LDP's application being time barred only. In both sets of cases, the State Commission has relied upon a circular dated 3.8.1983 issued by the State Government recognizing the inherent powers of the Chairman of the Trust to extend the date of inviting applications from the LDPs. The said circular was in vogue in the year 1987 when respondent No. 3 applied as well as in the year 1990 also when the claimants in Shakuntla Devi's case had applied. The plea that the 1964 Rules were no longer in vogue or stood repealed by the 1983 Rules was pressed into aid in Shakuntla Devi's case also but was turned down by the State Commission after following two Division Bench judgments of this Court in [i] Surjit Kaur and others v State of Punjab, CWP No. 6801 of 2000 decided on 2nd November, 2000and [ii] Gurdev Kaur and Ors. V State of Punjab, CWP No. 17248 of 1999 decided on 25th April, 2001. [25]. In Gurdev Kaur's case, speaking for the Bench, G.S.Singhvi, J. [as His Lordship then was] held as follows:- “We have given serious thought to the respective arguments/submissions. A perusal of the order passed in Surjit Kaur's case [supra] show that the application submitted by Gurnam Singh, whose land measuring 1330 square yards formed part of the acquisition made by the CWP No. 5171 of 2009. ::-13-:: State Government for 400 Acres development Scheme, was entertained by respondent No. 2 much after the expiry of the time stipulated in the public notice issued by respondent No. 2 and vide memo dated 2.5.1995, the State Government cleared his case for allotment of plot as LDP. Notwithstanding this, he was not allotted plot. After his death, the petitioners sought intervention of this Court for directing respondent NO. 2 to allot plot to them in their capacity as legal heirs of the deceased LDP. At the hearing of that petition, counsel for respondent NO. 2 made a statement that in view of the memos dated 3.8.1983 and 31.3.2000, the case of the petitioners will have to be considered for allotment of plot. After taking notice of his statement, the court disposed of the writ petition with the following directions:- “In view of the statement made by the learned counsel for respondent No. 2, we dispose of the writ petition with a direction that within four months of the submission of certified copy of this order, the competent authority of the Trust shall pass order for allotment of a suitable residential plot to the petitioners in the Scheme Area and if the plot is not available in the Scheme Area, then they shall be allotted a residential plot in another scheme, which may have been framed by respondent No. 2. We also expect that the concerned authority will take similar decision in other pending cases so that unnecessary litigation is obviated”. In our opinion, the case of petitioners is squarely covered by the order passed in Surjit Kaur's case [supra] and, therefore, there is no valid ground to deny relief to them, more so because respondent No. 2 entertained the claim of Shri Banarsi Dass, who had deposited earnest money after late Shri Joginder Singh and allotted plot to him as LDP”.[Emphasis applied]. CWP No. 5171 of 2009. ::-14-:: [26]. As far as the allegations of alleged fraud or connivance of respondent No. 3 with the then Chairman or the Executive Officer of the Trust are concerned, suffice it to say that this Court is not inclined to grant any relief to respondent NO. 3 on the strength of the alleged allotment letter or the conveyance deed. The admitted facts are that respondent No. 3's land was acquired by the Trust for development of the said Scheme and he did apply for allotment of a plot as LDP, though belatedly in 1987. The question as to whether or not that belated application could be entertained, is no longer res-integra. Two Division Benches of this Court in Gurdev Kaur and Surjit Kaur's cases [supra] have upheld the belated claims after noticing the pick and choose policy adopted by the petitioner Trust. In the present case, besides the Division Bench judgments of this Court, the State Commission has also relied upon its own order in Shakuntla Devi's case [supra] and rightly so to hold that as per the State Government's own circular dated 3.8.1983, the Chairman of the Trust was competent to extend the date of inviting applications from the LDPs. The State Commission's order in Shakuntla Devi's case [supra], having been upheld by the Hon'ble Supreme Court, there appears to be no tangible or justifiable reason to take a different view or hold otherwise. [27]. For the reasons afore-stated, I do not find any merit in these writ petitions which are accordingly dismissed in limine, however, without any orders as to costs. April 27, 2009. ( SURYA KANT ) dinesh JUDGE