IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 18682 of 1991 Date of decision: June 01, 2011 Ram Kumar Aggarwal .. Petitioner Vs. State of Haryana and others .. Respondents Civil Writ Petition No. 18683 of 1991 Mamu Ram Gupta .. Petitioner Vs. State of Haryana and others .. Respondents. Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. J.P. Sharma, Advocate for the petitioner in CWP No. 18682 of 1991. Mr. V.B. Aggarwal, Advocate for the petitioner in CWP No. 18683 of 1991. Mr. Ajay Gupta, Addl. A.G. Haryana. Mr. S.K. Vij, Advocate for HUDA. A.N. Jindal, J This order of mine shall dispose of two connected writ petition Nos. 18682 and 18683 of 1991, having arisen out of the same judgment. However, for convenience, the facts necessary for disposal of the petitions are taken up from CWP No. 18682 of 1991. The petitioner has sought direction to be issued to the respondents to allot a plot bearing No. 1065, Sector 17 at Jagadhri from discretionary quota, on the ground that vide letter No.15905 dated 18.5.1987, the Government of Haryana decided to allot a ten marla plot in Sector 17 at Jagadhri on the condition that he was to file an affidavit that he had no other plot or house in the urban estate at Jagadhri in his name or in the name of his spouse or any other family member dependent upon him and he has not been allotted, at any time, a plot or land in Urban Estate out of Haryana Government discretionary quota in his name or in the name of his spouse. The affidavit was to be filed within 15 days positively. Thereafter, Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -2- the petitioner submitted the affidavit in the office of Chief Administrator, Haryana on 27.5.1987. However, the Government of Haryana changed its policy and cancelled the discretionary quota as well as allotment of plot already made or the offers pending to be made out of the discretionary quota vide letter dated 23.6.1987, 29.6.1987 and 8.9.1987 (Annexures P3, P4 and P5 respectively). It has been further averred that some of the allottees went to the High Court as well as to the Supreme Court and ultimately the cancellation orders were revoked and the plots were ordered to be reverted vide letter dated 31.10.1989 (Annexure P6). It is, thus, prayed that since the petitioner had complied with the terms and conditions as mentioned in the letter Annexure P1, therefore, the respondents be directed to allot a ten marlas plot in Sector 17, Jagadhari, to the petitioner. Reply to the writ petition was filed wherein it was averred that the petitioner was informed about the decision of the Government to allot him a 14 marlas plot in Sector 17, Jagadhari vide letter dated 18.5.1987 subject to the condition that he was to furnish an affidavit, as referred to above, within 15 days of the issuance of the offer letter positively. The petitioner never submitted any such required affidavit. No such affidavit has been placed on record. It was further averred that the letter anneuxre P1 is neither the allotment letter nor it could be interpreted as such. It was just an offer but not a concluded contract. As such, the respondents were not in any way obliged to allot him the plot. It was also submitted that after the cancellation order having been revoked only those cases for allotment were to be considered who were earlier given the letter of offer of allotment and had deposited 25% earnest money and the same was returned to the allottees. The further consideration was in those cases in which offer of allotment was given but the cancellation order was issued before expiry of the stipulated period of 30 days within which the allottees could make the deposit of 25% of the earnest money. Since the petitioner was never issued a letter of offer, therefore, his case is also covered by the decision taken in annexure P7. Arguments heard. Record perused. The powers of the Government to allot the plots out of the discretionary quota came up for disposal before the Full Bench of this Court Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -3- in case Anil Sabharwal vs. State of Haryana and others, 1997 HRR 165 wherein their Lordships observed as under :- “39. After having given our most anxious thought to the judgment of the Division Bench in S.R. Dass's case, we agree with it that the Government has the power to give directions to the HUDA for carrying out the provisions of the Act. We also agree with it that the Government can make reservation of plots while making development of the urban estate but we are unable to subscribe to the view of the Division Bench that the powers vesting in the Government under Section 15 read with Section 30 of the Act are unlimited. In our opinion, the Division Bench has erred in recording that conclusion. Apparently it did not give due regard to the opening words of Section 15 (1) and the last part of Section 30 (1) of the Act. A perusal of these provisions makes it clear that the Government can give directions to the HUDA only for the efficient administration of the Act and the Government's powers to give directions to the HUDA are not unfettered. We cannot accept the proposition that the Government can give directions inconsistent with the provisions of the Act. Rather, such directions must not only be consistent with the provisions of the Act but the same must conform to the constitutional limitations. We, therefore, disapprove the view taken by the Division Bench that the powers vested in the State Government under the Act are unlimited. 40. We also do not find any force in the submission of the learned counsel for the respondents NO.2, 3 and 4 that under Section 15 (1) or Section 30 (1) of the Act, the Chief Minister is vested with an absolute discretion to allot a particular percentage of plots according to his choice. The policy of reserving the plots in favour of a class or a group of persons may in a given case be justified with preference to the purposes of the Act. Allotment of plot to one individual under the Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -4- directions of the Government may also be justified in a given case but the plea that absolute discretion can vest in one individual is wholly in-compatible with the scheme of the Act and the Constitution. Likewise, the argument that the discretion conferred upon the Chief Minister is immune from the judicial review has to be negatived because it is an anti thesis to the principle of “rule of law” which forms the core of the Indian Constitution. This argument is also unacceptable because in our country the representatives of the people act as trustees of faith reposed in them by the public at the time of elections.” Ultimately, while discouraging the discretionary quota at random to the public at large at the whim or caprice of the State issued some guidelines in para No.76 of the judgment which are reproduced as under :- “76. On the basis of the above discussion, we hold :- (1) That the provisions of Section 15 and Section 30 of the Act do not confer unbridled and unguided powers upon the Chief Minister to allot residential plots according to his discretion and the same cannot be used for sustaining the conferment of such powers upon the Chief Minister ; 2. That the criteria devised by the Chief Minister vide note dated 21.11.1990 for allotment of plots i.e. “distinguished and needy people” is vague and arbitrary and is, therefore, violative of Article 14 of the Constitution; 3. That the allotment of residential plots made under the discretionary quota of the Chief Minister on or after 31.10.1989 are declared illegal and are quashed. This shall be subject to the following :- (i) The allotment made under the discretionary quota Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -5- shall remain unaffected in cases of those allottees and their bona fide purchasers who have already raised construction of the houses and buildings as per the plans sanctioned by the HUDA before the date of the publication of the notice of this petition i.e. 6.6.1996. However, the HUDA shall issue general instructions restraining the alienation of the constructed houses/buildings to third parties by such allottees/ transferees for a period of next five years. (ii) The persons to whom plots measuring 2 to 6 Marlas have been allotted shall be allowed to retain the plots only if their family does not own a house in the State of Haryana/ Chandigarh. The condition against alienation to the third party shall also apply in their cases. (iii) The cases of the allottees who were/ are members of the armed forces/ para military forces who have made sacrifice for the cause of nation or who have distinguished themselves during the course of service as well as themselves of the police forces who fought against terrorism in the State of Punjab and Jammu and Kashmir and elsewhere in the country and the civilians who have been affected by the terrorists' activities in the States of Punjab and Jammu and Kashmir and elsewhere in the country shall be reviewed by a committee. (iv) The persons falling in the category of defence personnel/ police offiers/ officials as well as the civilians whose cases are to be reviewed by the Committee to be constituted by the Government shall be allowed to retain only one plot per family on the recommendation of the Committee. However, they shall not be entitled to alienate the Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -6- plots to third parties for five years. (v) Within one month from today the Government of Haryana should appoint a Committee headed by a retired Judge of the High Court preferably from the State other than the State of Punjab, Haryana and Delhi to examine the cases of allotment made to the members of the armed forces/ para/military forces who made sacrifice for the cause of the nation or who have rendered distinguished service. The cases of the police officers/ officials who have fought against terrorism and the civilians who have suffered due to terrorism shall also be examined by that Committee. The Government and the HUDA shall regularise those allotments for which recommendations are made by the Committee. (vi) If the Committee/HUDA finds that any of the allottees has submitted false information to the HUDA , then allotment in favour of such person shall necessarily be cancelled and the Government shall take appropriate action for prosecution of such applicants. (5) The Government of Haryana may frame policy for allotment of plots to specified class of persons and notify such policy. Allotment under such policy should be made by inviting applications through public notice from all those who belong to a particular class. (6) The Government/the HUDA shall immediately cause publication of the notice in the two newspapers having wide circulation in the States of Punjab and Haryana and two newspapers having circulation in the entire country indicating therein that due to quashing of the allotment made under the discretionary quota the allottees have become entitled to the refund of money Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -7- deposited by them. The amount shall be refunded to the allottee within two months of the making of application by such person. If the HUDA fails to return the amount within two months of the making of the application then it shall pay interest at the rate of 15% per annum. (7) The cases of those covered by the exception clauses mentioned above shall be referred to the Committee along with the entire record and the final decision be taken on the recommendation of the Committee. (8) The plots which shall become available due to the quashing of the allotments made by the HUDA shall be disposed of by it as per the existing policy. (9) The Government shall ensure full compliance of these directions by its own officers and the officials of the HUDA.” Thereafter some of the allottees who were allotted plots prior to 1996 again went to the Supreme Court where the Supreme Court in case Harsh Dhingra vs. State of Haryana and others (2001) 9 SCC 550 issued the following guidelines :- “8. These appeals, therefore, stand allowed to the extent indicated above and declaring that the judgment of the High Court in Anil Sabharwal v. State of Haryana (1997) 2 Punj LR 7 shall be effective from 23.4.1996. In the event in any of the cases any allotment has been cancelled, the same shall be brought in conformity with the order made by us whether those allottees are parties in these proceedings or not. The declaration made by us will have a general application. It is also made clear that allotment orders made prior to 23.4.1996 can be cancelled if they are not made in conformity with the decision in S.R. Dass v. State of Haryana 1988 PLJ 123 : (1988) 1 Punj LR 430 after following due procedure.” Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -8- The crux of the aforesaid judgment is that the allotment orders made prior to 23.4.1996 could be cancelled only if these are not made in conformity with the decision in case S.R. Dass vs. State of Haryana and others (1988) 1 Punj LR 430. The Division Bench of this Court in S.R. Dass's case (supra) made the following observations :- “75. However, the cases falling in categories (a) and (d) have to be dealt with differently. The cases of the allottees who fall in category (a) require to be decided taking into consideration the following principles :- (i) If the allottee himself or his spouse or any of the dependent children has any house or plot either at Delhi, Chandigarh or in any 'A' Class Municipal town in the States of Punjab and Haryana or in Urban Estates established by HUDA, or under the Punjab Urban Estates (Development and Regulation) Act, 1964, or in the scheme area under the Punjab Town Improvement Act, 1922 ; or in any other colony established by a Coloniser in the Punjab and Haryana and approved/ regularised by the State Government concerned, he shall not be allowed to retain the plot ; (ii) In case an allottee got allotted in his favour more than one plot either in his own name, or in the name of his spouse, or dependent children, the allottee shall not be allowed to retain all the plots. He can be allowed to retain only one plot. Provided in both the above said cases if all the plots have been constructed the allotment of the plots in view of the principle of Promissory Estoppel should not be cancelled. But if one plot has been constructed and the others have not been constructed, the allotment of the remaining un-constructed plots can be cancelled. Provided further that in a case covered by (ii) above, if a plot has been sold by an allottee, allotment of the remaining un-constructed plots can be cancelled.” Civil Writ Petition No. 18682 of 1991 & Civil Writ Petition No. 18683 of 1991 -9- Now, after examining the aforesaid judgments, I set to decide the question of controversy which has arisen in the case. In this case mere proposal was given by the HUDA for allotment of the plots. The proposal never become final. The proposal was ultimately withdrawn without issuing any allotment letter and it appears that no step was taken towards the fulfillment of the said proposal. No money as asked to be deposited by the allottees. Though the petitioner has submitted that he had furnished the affidavit as required by the respondents, but to the contrary, the respondents have submitted that no such affidavit was filed. A photo copy of the affidavit has been produced which no where indicates if it was actually submitted before the HUDA. No receipt regarding submission of the same before HUDA has been produced. No record of HUDA has been summoned in order to show if the same was given in the receipt branch. The alleged affidavit is also not in conformity with the judgment delivered in S.R. Dass”s case (supra). As such, in the absence of any such evidence that the affidavit as required in the proposal has been submitted. Thus, it would be difficult to say that such affidavit was actually furnished by the petitioner. There is no evidence on the record if the respondents have ever sit over the affidavit to decide for the allotment, as such, the petitioner cannot be said to have been allotted the said plot. It appears that the State has not taken any steps to issue such allotment letter so as to force the State to complete its obligation. The charity which once Government wanted to extend to the petitioner, has been withheld then the petitioner cannot compel the respondents to extend that charity. In the result, no grounds for issuing such direction as sought for by the petitioner are made out. Dismissed. June 01, 2011 (A.N. Jindal) deepak Judge