CWP No. 1599 of 2009 -1- **** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 1599 of 2009 Date of Decision : 17.08.2010 Net Ram & others .......... Petitioners Versus State of Haryana & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Atul Lakhanpal, Sr. Advocate with Mr. R.S. Chahal, Advocate for the petitioners. Mr. Deepak Jindal, DAG, Haryana for respondents No. 1 to 3. Mr. Jagdish Manchanda, Advocate for respondent No.4. ***** VINOD K. SHARMA, J. The petitioners have invoked the extraordinary writ jurisdiction of this Court under Article 226 / 227 of the Constitution of India to challenge the order dated 31.12.2008, passed by the Director, Urban Local Bodies, Haryana, vide which the ex-post-facto approval for sale of plots by the Municipal Committee, Ratia to its employees was ordered to be reviewed. The impugned order, Annexure P-31, reads as under :- “Please refer to this office memo No. CTP-A1/2007/28302 dated 13.7.2007 on the matter cited as subject above. CWP No. 1599 of 2009 -2- **** It is to inform that the Government has reviewed the matter regarding grant of ex- post-facto approval for the sale of plots by Municipal Committee Ratia to its employees. In this connection, I have been directed to inform that the Government has withdrawn the ex-post-facto approval earlier granted in this case and conveyed to your office vide letter referred above. Therefore, approval of building plans and of any other development in this scheme may not be allowed. A lay out plan of the scheme may be got prepared from District Town Planner, Fatehabad indicating the following :- ii) Lay out status at the time of conveying ex-post-facto approval vide memo No. CTP-A1/2007/28302 dated 13.7.2007. iii) Latest status of development at site i.e. building constructed, vacant plots & roads. Senior Town Planner, For Director, Urban Local Bodies, Haryana. Endst. No. 53798-99 Dated 31.12.08.” The brief facts leading to filing of the writ petition are; that the petitioners are the employees and ex-employees of the Municipal Committee, Ratia, District Fatehabad, petitioners were employed as Clerks, Peons, Chowkidars and Octroi Inspectors in the Municipal Committee Ratia, District Fatehabad. The petitioners by claiming the existence policy of the State of Haryana moved an application to the Municipal Committee, Ratia to allot plots, on the basis of 'no profit no loss', with a further CWP No. 1599 of 2009 -3- **** prayer, that the price of the plots be recovered from their salary in instalments. The Municipal Committee, Ratia passed a resolution No. 12 dated 2.2.1990, whereby it unanimously resolved, that the land situated at Lali-Ratia Road, which was not presently in use of the Municipal Committee be allotted to the employees of the Municipal Committee, under the scheme of 'no profit no loss'. In pursuance to the resolution dated 2.2.1990, in the General meeting of the Municipal Committee held on 28.8.1991, the matter regarding allotment of residential plots was forwarded to the Deputy Commissioner, Hisar, showing the list of the employees, to whom the plots were to be allotted. It seems, that after the allotment of the plots the Municipal Committee went in slumber, and failed to either fix the price of the plots or to recover any amount from the allottees. The allottees raised construction on the plots allotted to them. Whereas some of the allottees transferred it further by sale to third parties, who raised construction on the plots. It was on 6.10.2006, that in the meeting of the Municipal Committee, it was resolved to consider the passing of resolution for allotment of land of the Municipal committee, in view of letter No. 2391/2F dated 28.9.2006 of the Deputy Commissioner, Fatehabad. The letter was considered by the Municipal Committee, and a unanimous decision was taken to allot residential plots to the employees of the Municipal Committee out of the land, which was not CWP No. 1599 of 2009 -4- **** being used by the Municipal Committee, and was lying in the form of a pond. It was recorded in the meeting, that the Collector rate of the said land at the time of allotment of land was ` 2,00,000/- (Rupees two lacs only) per acre, but as the Municipal Committee had failed to get approval of allotment from the State Government. It was also recorded, that most of the employees of the Municipal Committee had constructed their pucca houses on the plots allotted to them. It was also resolved, that the Government of Haryana should consider the matter sympathetically and accord approval to sell the plots at the current Collector rates. The rate of plots was fixed at ` 1,000/- (Rupees one thousand only) per sq. yard, which came to approximately ` 48,00,000/- (Rupees forty eight lacs only). The approval was, therefore, granted for regularising the allotment of plots at the current fixed rate. The State of Haryana on the request of the Municipal Committee, Ratia after due consideration accorded ex-post-facto permission to sell the plots @ ` 1734/- (Rupees one thousand seven hundred and thirty four only) per sq. yard instead of Rs. 1320/- (Rupees one thousand three hundred and twenty only) per sq. yard, as recommended, it was further decided that plot No. 35, measuring 1146 Sq. yards be sold by open auction in the presence of the Deputy Commissioner, Fatehabad. The matter did not end here. After the rate for transfer of CWP No. 1599 of 2009 -5- **** plots was fixed, on the request of the allottees, the Municipal Committee resolved, to recover the amount in ten equal half yearly instalments, without interest. The resolution passed by the Municipal Committee, in charging the amount in ten equal half yearly instalments without interest, was also approved by the State Government. The Municipal Committee again did not act, as per decision, and took no steps to recover the amount from the allottees. The impugned order was passed, reviewing the decision earlier taken by the State Government. The petitioners challenged the impugned order. On notice, the writ petition is contested by the State of Haryana, by raising preliminary objection, that a joint writ on behalf of the petitioners was not maintainable. The objection was also raised, that the Deputy Commissioner, Fatehabad was not competent to grant approval in the year 2007, as the instructions of the Government were not kept in view, as there was no policy of the Government to allot municipal land to the Municipal Committee employees. The plea was also taken, that development charges and other fees were not deposited with the Municipal committee before raising construction. On merits, the stand taken was, that the Government was competent to allot the Municipal land and not the Deputy Commissioner or the Municipal Committee. It was, however, admitted CWP No. 1599 of 2009 -6- **** in the written statement, that ex-post-facto approval was granted to the petitioners for allotment of plots @ ` 1734/- (Rupees one thousand seven hundred and thirty four only) per sq. yard, in view of the fact, that the petitioners / transferees had already constructed houses on the plots. Separate written statement has been filed by respondent No.4, Municipal Committee, Ratia, District Fatehabad, wherein stand taken is, that the approval granted was rightly withdrawn by way of impugned order. Stand was also taken, that there was no policy of the Government to allot plots to the employees of the Municipal Committee, therefore, sanction was rightly withdrawn. The plea was also raised, that the petitioners had not deposited any money, except token money, till date. The preliminary objection was taken, that the petitioners had constructed their houses, without making any payment to the Municipal Committee. The stand of the Municipal Committee was also, that the petitioners were liable to pay development charges and fee for passing of the site plan etc. On merits, the pleas taken by the State Government were reiterated. When the matter came up for hearing before this Court on 22.7.2009, the following order was passed by this Court :- “Written statement on behalf of respondent Nos. 1 and 2 has been filed in Court today. The same is taken on record. CWP No. 1599 of 2009 -7- **** Before the matter is considered on the basis of pleadings of the parties it is deemed appropriate that the extent of construction raised by the petitioners be ascertained. I direct the respondents to constitute a team of officers; one to be nominated by the Deputy Commissioner, Fatehabad not below the rank of Tehsildar, one to be nominated by the Director, Urban Local Bodies, Haryana, not below the rank of Deputy Director and Sub Divisional Magistrate, Ratia. The said team will visit the plots allotted to the employees and will submit a report in the following manner. 1. How many plots are lying vacant, with the size and names of the allottees. 2. The construction raised by the allottees and the extent of construction. They will take photographs of all the plots particularly, those where construction has been raised and submit a report within one month. Till further orders, no construction shall be raised by any of the petitioners. In the meantime, Municipal Committee will also not accept any further amount from any of t he allottees. A copy of the order be given dasti to learned counsel for the parties under the signatures of Court Secretary. List on 24.9.2009.” In pursuance to the order passed by this Court, a Committee was constituted, which submitted its report, to the effect, CWP No. 1599 of 2009 -8- **** that 34 plots were allotted to the employees of the Municipal Committee, Ratia, on deposit of security of Rs. 1,000/- (Rupees one thousand only) from each member. The rate of plot was assessed at 'no profit no loss' basis, as per the prevalent Collector rates at that time. As per the report of the Committee, nine plots bearing No. 2, 3, 12, 13, 14, 21, 23, 25 & 26 were lying vacant, whereas plots No. 1, 4, 5, 7 & 8 have been sold by the original allottees, and these plots were being used for commercial purposes at present. Plots No. 9, 10, 11, 15 to 20, 22, 24 and 27 to 34 were being used for residential purposes. Details of the constructions raised was also disclosed in the report. Mr. Atul Lakhanpal, learned senior counsel appearing on behalf of the petitioners challenged the impugned order, primarily on the plea, that the impugned order can not be sustained as there was no jurisdiction to review the ex-post-facto sanction granted earlier. This plea of the learned counsel for the petitioners can not be accepted, an ex-post-facto sanction was granted by an administrative decision, and not as a quasi judicial decision, nor the order was passed in exercise of statutory powers vested. The administrative order could always be reviewed, if found to be wrong. The second contention of the learned senior counsel for the petitioners deserves to be accepted i.e. that the impugned order was affecting civil rights of the petitioners, therefore, the order passed earlier in favour of the petitioners could not be cancelled or CWP No. 1599 of 2009 -9- **** reviewed without following the principles of natural justice, and without letting the petitioners to put forth their view. It is well settled law, that order which affects the civil rights of a person, can not be passed without following the principles of natural justice i.e. without giving the opportunity of hearing to person concerned so as to enable him to defend himself against the proposed action. It is also the contention of the learned senior counsel for the petitioners, that the impugned order has been passed without application of mind, inasmuch as the earlier order granting ex-post- facto approval for sale, was passed after due deliberation and application of mind, which would be clear from the fact, that on the basis of the report submitted by the Deputy Commissioner, the decision was taken to grant the approval for allotment, subject to their paying the present market value of the plots.That it was not only, that the sanction was granted, but subsequent request made by the Municipal Committee for recovering the amount in ten equal half yearly instalments was also approved by the State Government. The impugned order of review was totally arbitrary, violative of Article 14 of the Constitution of India. This contention also deserves to be accepted. Once the decision has been taken after due deliberation, it could not be cancelled without assigning good and sufficient reasons. The reason, that the Deputy Commissioner or that there was no policy of allotment, is not such a fact, which was not within the knowledge of CWP No. 1599 of 2009 -10- **** the respondents, when the ex-post-facto approval for allotment of the plots was granted. The impugned order is thus outcome of non- application of mind, thus, perverse and violative of Article 14 of the Constitution of India. Mr. Deepak Jindal, DAG, Haryana appearing on behalf of the State justified the impugned order, on the ground, that the initial allotment in favour of the petitioners was itself illegal, which could not be rectified by ex-post-facto approval. This contention of the learned DAG, Haryana deserves to be rejected straightway, as it is open to the Municipal Committee to transfer the land, with approval of the State Government. The effect of the ex-post-facto approval, was that the acts done by the Municipal Committee, which were earlier not legal were given the colour of legality. The respondents are further estopped from raising this plea, as on account of allotment and their subsequent acts, the petitioners changed their position, to their detriment, by investing money for constructions. It is now not open to the respondents to review the approval granted. By way of additional affidavit of the Deputy Director, it was also pleaded, that an FIR No. 36/2006 stood registered against the President, Municipal Committee, Ratia, Secretaries of the Municipal Committee, Ratia and others delinquent employees. This fact has no relevance to the dispute, as it is open to proceed against a person guilty of criminal offence, if was made out. The proceedings CWP No. 1599 of 2009 -11- **** in criminal Court are independent of civil Court. The acceptance of writ, therefore, can have no effect on the criminal case pending. The contention of Mr. Jagdish Manchanda, learned counsel appearing on behalf of respondent No.4, that the impugned order deserved to be upheld as the petitioners failed to pay price of the plots, and also failed to pay the construction fee / development charges etc, also deserves to be rejected, as it can not be a ground to reject the allotment. It is always open to the Municipal Committee to claim the amount due from any person. Admittedly till date no such recovery notice has been issued. However, keeping in view the fact, that the petitioners have been enjoying possession of the plots only on payment of token amount, while allowing the writ petition and quashing the impugned order Annexure P-31, it is ordered, that the petitioners besides the rate fixed by the State Government i.e. @ Rs. 1734/- (Rupees one thousand seven hundred and thirty four only) per sq. yard would also be liable to pay interest @ 10% per annum w.e.f. 14.8.2007, i.e. the date when the petitioners were permitted to deposit the price of plots in installments. It will be open to the petitioners to pay the amount in ten half early equal installments along with interest @ 10% per annum. The first installment shall be paid within 15 days of receipt of certified copy of this order. In addition, the petitioners shall also liable to pay the development charges, sanction fee etc. as per the provisions of the CWP No. 1599 of 2009 -12- **** Municipal Act, on demand by the Municipal Committee. It is made clear, that in case, there is default in making the payment of the instalments, development charges or other charges as claimed, then it will be open to the Municipal Committee to cancel the allotment and recover the possession of the plots in accordance with law. Writ is allowed subject to above mentioned terms. No costs. 17.08.2010 (VINOD K. SHARMA) 'sp' JUDGE