IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.615/2006 Reserved on: 16.11.2007 Decided on.29.11.2007 Jasjit Singh Bedi and another. …Petitioners Versus Union of India & others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioners : Mr. A.K. Chopra, Sr. Advocate with Mr. Ashish Chopra and Ms. Rupa Pathania, Advocates. For the respondents Mr. Sandeep Sharma, Assistant Solicitor General of India. Rajiv Sharma, J. (oral) Since in this petition a reference has been made to the earlier writ petition preferred by the petitioners bearing CWP No. 415 of 1983, therefore, with the consent of the parties, the record of this writ petition was called for from the Registry for effective adjudication of the present petition. FACTUAL MATRIX: One Shri Panna Lal Sood had sold property known as “Villette Estate” bearing survey No. 96 (old grant) situate in Kasauli Cantonment to the petitioners vide sale deed registered with the Sub Registrar, Kasauli on 16.3.1981 for a consideration of Rs. 35,000/-. The property in question was hired to the Military Estate Officer, Ambala. A notice was issued to S/ Shri Somi Mull, Panna Lal Sud, Hanwant Dass Sud, Om Dutt Sud and Kishori Lal Sud on 5th January, 1983 to the following effect: 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes 2 “Whereas the land comprising Survey No.96 (Bungalow known as Villate Estate) Kasauli Cantonment measuring 0.85 acre and bounded as follows:- North by: Upper Mall South by : Inder Villa East by: Dunedin lodge and Inder Villa. West by: Survey No.102 Belongs to the President of India (hereinafter called the Government) and is held on ‘old grant’ terms and contained in Governor General’s order No. 179, dated 12.9.1836 under which Government are entitled to resume the said land. AND WHEREAS the Government have decided to resume the said property under the terms of the aforesaid Governor General order. Now, therefore, in exercise of the power herein before mentioned, the Government hereby informs you that all rights easements and interests you may have in the said land as also in the buildings standing thereon shall cease on the expiry of 30 days of this notice. Take notice further the Government are prepared to pay and so offer you the sum of Rs. 15,680 (Rupees fifteen thousand six hundred eighty only) as the value of the authorized erections standing on the said land. In case the amount of compensation offered is not acceptable to you, you are at liberty if you so desire to remove the structures so as to leave the land in the same condition in which it was before the erections. Cheque No. 926227 dated 5.1.1983 for Rs. 15,680/- is enclosed.” The petitioners’ father wrote a letter to the Military Estate Officer, Ambala on 1st February, 1983 bringing to his notice that the property in question had been purchased by the petitioners. Shri Harjit Singh Bedi being the guardian of the petitioners requested the Military Estate Officer, Ambala to withdraw the notice. He sent a communication to the Under Secretary to Government of India, Ministry of Defence (Defence Land) on 9th February, 1983 referring to the earlier communication dated 1st 3 February, 1983 and in addition thereto, he has made a claim for adequate compensation to be determined by the Arbitrator. He again sent a communication to the Military Estate Officer, Ambala Cantonment, Director General of Military Lands of Cantonment, New Delhi and to the Under Secretary, Ministry of Defence, Government of India, New Delhi on 3rd April, 1983 requesting therein that the property in question be released in favour of the petitioners. FACTS OF CWP NO. 415/1983: The petitioners along with one Sh. Panna Lal approached this Court by way of CWP No. 415/1983. The petitioners had filed the petition through their guardian and father Shri Harjit Singh Bedi. The petitioners had prayed for the following reliefs: a) a writ of certiorari or any other appropriate writ, order or direction quashing the impugned notice annexure P-8 be issued; b) it is further prayed that status quo regarding the physical condition of the property be maintained till the disposal of this writ petition and the property be not demolished meanwhile; c) filing of original/certified copies of annexures P-1 to P-14 may kindly be dispensed with; d) the records of the case may kindly be summoned; e) the costs of the petition be awarded to the petitioners; f) Annexure P-13 and P-15 in so far as they permit the Government to resume the properties be quashed. A Division Bench of this Court passed a detailed order on 8th May, 1985. The Court made the following suggestion/observations: “The Court, therefore, makes the following suggestion to the first and third respondents, which the learned Central Government Standing Counsel will convey to them, for their expeditious consideration: 4 (1) Just and fair compensation should be paid in respect of the super-structure standing on the land which has been resumed; (2) Such compensation should be determined on the basis of the market value as on the date of the resumption and such determination should be made by an independent arbitrator; and (3) Interest at a reasonable rate should be paid from the date of resumption of the land till the date of actual payment of the compensation. The dispute, if any, with regard to the title and entitlement to/apportionment of the compensation will not be considered as constituting a bar to the consideration of the suggestion hereinabove made since the compensation determined by the Arbitrator will be directed to be deposited in the Registry of this Court and its ultimate disbursement will abide by the directions which the Court will issue in accordance with law at the appropriate stage. The deposit of the amount will constitute sufficient discharge of the concerned respondents so far as their liability to pay the compensation is concerned. The claim, if any, based on Clause (2) (A) (iv) of the memorandum dated November 15, 1977 (Annexure P-15) will be pursued before the competent authority. An appropriate application in that regard will be made to the first respondent within a period of 15 days from today. The application will be dealt with and decided in accordance with law within a period of three months from the date of the receipt of such application. If an affirmative decision, that is, a favourable decision, is taken thereon, the person (s) in whose favour the allotment is to be made will be left to be decided by the Court herein along with the question concerning the entitlement to/apportionment of the compensation. The petitioners are agreeable to abide by this suggestion. The concurrence of the petitioners has been conveyed on their behalf by their learned counsel Mr. K.D. Sood. It is clarified that in both the aforementioned proceedings, the third petitioner or his duly authorized 5 constituted attorney will be the person who will represent the true owners. Such representation will be without prejudice to the rights and contentions, if any, of the parties. Adjourned to June 25, 1985.” The writ petition bearing CWP No. 415 of 1983 was disposed of by a Division Bench of this Court on July 24, 1985. The judgment reads thus: “In view of the directions of the date in Civil Misc. Petition No. 1740 of 1985 as well as in light of the directions issued in the interim order dated May 8, 1985, the writ petition does not survive and it stands disposed of accordingly with liberty reserved to the parties or any of them to move the Court again by way of a Civil Misc. Petition with regard to the following two matters:- (1) The determination of the question as to the title and entitlement to/apportionment of the compensation; and (2) The determination of the claim to the benefit of the allotment, if any, made under Clause (2) (A) (iv) of the memorandum dated November 15, 1977.” In consonance with the judgment dated 24th July, 1985, the petitioners moved an application bearing No. 3650/1986. The application was disposed of by a Division Bench of this Court on 5th May, 1987. The operative portion of the order reads thus: “In light of the material facts which have been brought on the record of CWP No. 415 of 1983 as well as on the record of the present proceeding and in view of the undisputed position emerging therefrom to the effect that the applicants No.1 and 2 herein (Jasjit Singh Bedi and Sarvjit Singh Bedi minors) had purchased the property in question from Panna Lal after the partition took place as aforesaid, the said two minor applicants are held entitled to the compensation amount deposited in the Registry. The Registry is directed to pay the said sum to the guardian of the minors (Harjit Singh Bedi) upon his being identified by Mr. K.D. Sood. The payment made accordingly will constitute full and sufficient discharge of the respondents- 6 authorities so far as their liability to pay compensation for the building is concerned. The guardian will deposit the amount paid to him in two separate fixed deposits in equal sums with a nationalized Bank for a period conterminous with the attainment of majority by each of them and will utilize the interest income for their maintenance and education. The fixed deposits will be placed subject to the condition that they will not be encahsed before the due date of maturity and no loan will be raised against the same save and except with the prior permission of this Court. Such an endorsement will be got made on the face of the Fixed Deposit Receipts on the strength of this order. The guardian will file a compliance report within a period of fifteen days from the date of the payment of the deposited amount to him and he will also produce before the Registrar of this Court the Fixed Deposit Receipts for verification. The application stands disposed of in light of the foregoing directions and observations.” A reference has been made to the above noted facts extracted from CWP No.415 of 1983 to see the true import of the orders passed by a Division Bench in that writ petition. The petitioners made an application on 4th April, 1988 claiming the grant of alternative site as per the Extant Government Policy. In the application dated 4th April, 1988, the instances of the similarly situated persons, who had been granted the alternative sites, were also mentioned. The relevant portion of the order passed by this Court in CWP No. 415/83 was cited in the application. The Defence Estate Officer, Ambala Circle sent a communication to the Director (DE), Ministry of Defence, Western Command on 17th December, 1999. He had formulated the following points for the consideration: (a) The resumption notice was served to Sh. Panna Lal Sud etc. who were recorded HOR in the GLR maintained by this Office at the time of resumption. 7 (b) Sh. Jasjit Singh Bedi and Sarvjit Singh Bedi purchased the property in question from Sh. Panna Lal Sud through registered Sale Deed dt. 16.3.81. (c) Since, the resumption notice was served in 1983 the Hon’ble High Court observed that the property has fallen in the share of Sh. Panna Lal Sud in light of the partition having taken place in the year 1982. Thus, the compensation on account of resumption was to be paid to the Bedi’s, who had purchased the property before its resumption from Shri Panna Lal Sud. (d) In the same order of May 5th of 83 the Hon’ble High Court has also observed that the applicant had dropped the issue of allotment of alternative site with the condition that they will pursue this aspect with the Competent Authority. (e) As a sequel to this undertaking the Bedi’s have made a request with the Deptt. for allotment of the alternative site.” It appears that despite the case being referred by the Defence Estate Officer, Ambala Circle vide communication dated 17th December, 1999, no decision either way was taken by the competent authority, which led to filing of the present petition. It was specifically averred in the petition that respondent No.2 had also sent reminders to the other respondents on 16th May, 2005 as well as on 27th May, 2005. Mr. A.K. Chopra, Sr. Advocate had strenuously argued that as per the orders passed by this Court, more particularly, order dated 8th May, 1985 and 5th May, 1987 read in conjunction with the policy framed by the Union of India dated 15th November, 1997, his clients were entitled to the grant of alternative site after the resumption of their property i.e. “Villette Estate” in the year 1983. He had also contended that the respondents cannot deny the grant of alternative site by treating Sh. Panna Lal Sud as owner after the property in dispute has been purchased by the petitioner in the year 1981. He has also submitted that the action of the respondents 8 of not considering the case of the petitioners is unreasonable and arbitrary. Mr. Sandeep Sharma, Assistant Solicitor General of India had argued that the petitioners are not entitled to the grant of alternative site as per the Extant Government Policy and had reiterated the stand taken in the reply to the effect that Shri Panna Lal Sud owner had number of properties within the Kasauli Cantonment area. I have heard the learned counsel for the parties and perused the record. What can be culled out from the pleadings of the parties in CWP No. 415/83 and CWP No. 615/2006 is that the petitioners have purchased the property called “Villette Estate” by way of registered sale deed dated 6th March, 1981. As far as the claim of the petitioners for the grant of alternative site was concerned, the following order was passed by a Division Bench of this Court on 8th May, 1985: “The claim, if any, based on Clause (2) (A) (iv) of the memorandum dated November 15, 1977 (Annexure P-15) will be pursued before the competent authority. An appropriate application in that regard will be made to the first respondent within a period of 15 days from today. The application will be dealt with and decided in accordance with law within a period of three months from the date of the receipt of such application. If an affirmative decision, that is, a favourable decision, is taken thereon, the person (s) in whose favour the allotment is to be made will be left to be decided by the Court herein along with the question concerning the entitlement to/apportionment of the compensation.” The writ petition bearing No. 415/1983 was disposed of by a Division of this Court on 24th July, 1985. This Court had reserved the liberty to the parties to approach the Court byway of Civil Misc. Petition with regard to two matters i.e. (i) the determination of the question as to 9 the title and entitlement to/apportionment of the compensation; and (ii) the determination of the claim to the benefit of the allotment, if any, made under Clause (2) (A) (iv) of the memorandum dated November 15, 1977 and an application bearing No. 3650/1986 was preferred by the petitioners in CWP No. 415 of 1983. A Division Bench on the basis of the facts, which were brought on record of CWP No. 415/1983 as well as on the basis of the pleadings of the CMP No. 3650/86 came to a definite conclusion that Jasjit Singh Bedi and Sarvjit Singh Bedi had purchased the property in question from Sh. Panna Lal Sud after the partition took place and were entitled to the compensation deposited in the Registry. The findings recorded by a Division Bench to the effect that the petitioners in fact had purchased the land on the basis of the sale deed dated 16.3.1981 was not assailed by the respondents and the same had attained the finality. The Court has now to consider whether the petitioners were entitled to alternative site as per the policy dated 15th November, 1977, more particularly, clause (2) (A) (iv). It will be congenial to reproduce clause (2) (A) (iv) of the memorandum dated 15th November, 1977 for effective adjudication of the present petition: “Whether the resumptes owners do not possess any other residential plot/house in the Cantonment or the adjoining town or city or notified area; they may be provided, on free hold basis, alternative developed sites not exceeding 500 sq. yards in each cases on payment of 50% of the market value. This would be subject to the condition that in cases of allotment in urban agglomerations coming within the purview of Urban Land (Ceiling & Regulation) Act, 1976, the resumptes should be eligible to hold 500 sq. yds. of vacant land. For this purpose in each cantonment a suitable compact area on the periphery area will be earmarked if no such site is available in the civil area itself.” 10 The petitioners were minors at the time of adjudication of CWP No. 415 of 1983. Their father wrote a letter to Military Estate Officer, Ambala Circle for compensation/alternative site. The petitioners’ father was informed vide communication dated 4th August, 1986 that since Sh. Panna Lal Sood, Om Dutt Sud and Kishori Lal Sud possessed other residential property in Military Cantonment, they were not entitled for alternative site. The petitioners’ father immediately after the receipt of letter dated 4th August, 1986 informed the Military Estate Officer on 8th August, 1986 that the property had been purchased by his sons in the year 1981 and after the resumption of the property in the year 1983, the new owners Sh. Jasjit Singh Bedi and Sarvjit Singh Bedi did not own any property in Kasauli and were entitled to an alternative site. It appears that no decision has been taken by the competent authority on the letter dated 4th August, 1986. Thereafter the petitioners’ father made an application to the Secretary, Ministry of Defence, Government of India as well as to the Military Estate Officer, Ambala Circle i.e. respondents No.1 and 2 on 4th April, 1988. In the application preferred by the petitioner’s father, the factum of the orders passed by this Court in CWP No. 415 was brought to their notice. The petitioners had prayed for the grant of alternative site in favour of the petitioners as per the Extant Government Policy i.e. Annexure P-1 dated 15.11.1977. It appears that thereafter the matter remained under consideration of the authorities by way of correspondences entered into between them and ultimately the Defence Estate Officer, Ambala Circle vide letter dated 17th December, 1999 forwarded the case to the Director (DE), Ministry of Defence, Western Command i.e. respondent No.3 for taking a decision. No decision has been conveyed to the petitioners pursuant to letter dated 17th December, 1999 till date. 11 The petitioners have purchased the property on 16.3.1981. This property was resumed by the Union of India vide notice dated 5th January, 1983. The petitioners were held entitled to compensation as per order of this Court dated 5th May, 1987 after treating them bonafide purchaser of the property. Since the petitioners had been treated as bonafide purchasers of the property, their case was required to be considered as per Annexure P-1. The petitioners’ father had informed the authorities on 8th August, 1986 that the petitioners did not own any property in Kasauli Cantonment area. The respondents instead of taking a conscious decision on the basis of the orders passed by this Court in CWP No. 415/83, more particularly, orders dated 8.5.1985 read in conjunction with order dated 5th May, 1987 took a strange stand in their communications addressed to the petitioners and their father. The gist of the objections raised by the respondents was that Sh. Panna Lal Sood and his brothers were owners of the property in Cantonment Area, Kasauli. This plea was not available to the respondents after the property in question has been purchased by the petitioners on 16th March, 1981 which fact was also recognized by this Court as is evident from order dated 5th May, 1987. The petitioners had been granted compensation after taking over the property vide notice dated 5th January, 1983. The compensation has been paid to the petitioners after treating them as owners of the property. The findings recorded by a Division Bench of this Court in its order dated 5th May, 1987 were not assailed by the respondents and they had attained finality with regard to recognizing the petitioners as true owners of the property on the basis of which the petitioners were granted compensation. The stand taken by the respondents in their reply that the decision has already been taken on 4th August, 1986 is contrary to law and the facts of the case. The rights of the 12 petitioners were to be determined without referring to the case of Panna Lal Sud and his other brothers. On the basis of memorandum dated 15.11.1977, the case of the petitioners has been forwarded by the Military Estate Officer to respondent No.3 on 27.12.1999. The points formulated by him for consideration of respondent No.3 had already been reproduced in para supra. No decision has been taken by respondent No.3 on the basis of communication dated 17th December, 1999 though a period of eight years has elapsed. Once a land policy has been framed on 15.11.1997, the same is required to be scrupulously followed. The clauses of the policy have to be applied in their letter and spirit. The wholesome principle for framing the policy for providing the alternative site is to rehabilitate the owners whose properties have been taken over by the Union of India. This principle has not been taken into consideration by the respondents while declining the prayer of the petitioners for alternative site, more particularly, when it has been brought to the notice of the authorities that the petitioners did not own any property within the cantonment area of Kasauli. The decision of the respondents is contrary to their own policy. This Court is of the firm view that the petitioners have not been treated in a just and fair manner and the respondents have taken arbitrary decision while declining the request of the petitioners for providing alternative site. The plea raised by the respondents in their reply that the prior permission of the Government of India, Ministry of Defence was required for the sale/purchase is untenable in view of the earlier orders passed by this Court on 8th May, 1985 in conjunction with order dated 5th May, 1987. This plea was never raised before a Division Bench of this Court in CWP No. 415/83 and the respondents are precluded from taking this plea in the present petition. The petitioners have been held to be the owners of the 13 property on the basis of sale deed dated 16.3.1981 and payment of compensation to them. The respondents themselves have treated the petitioners as owners and consequently compensation was also released in their favour. The petitioners’ father in his representation dated 4th April, 1988 has also given instances of four properties whereby the Union of India had regularized the sales made without the prior sanction of the competent authority. The respondents have not denied this averment in their reply though specifically raised in letter dated 4th April, 1988. The sale made in favour of the petitioners stood regularized after the payment of compensation in their favour by the respondents. The Hon’ble Supreme Court in Commissioner of Police versus Gordhandas, AIR 1952 SC 16 has laid down that public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing. Their Lordships have held as under: “Turning now to the language used we are clear that by no stretch of imagination can this be construed to be an order which in effect says- “I,