IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17493 of 2008 Date of Decision: 29.07.2009 Harsh Kinra Petitioner Versus State of Haryana and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.N.C.Kinra, Advocate for the petitioner Mr.Sanjiv Kaushik, Additional Advocate General, Haryana Mr.Sachin Kapoor, Advocate Mr.Manish Bansal, Advocate ….. Jasbir Singh, J. This order will dispose of two writ petitions bearing CWP No.17022 of 2008 and CWP No.17493 of 2008, involving similar questions of law and facts. For the purpose of dictation, facts are being taken from CWP No.17493 of 2008. By filing this writ petition, the petitioner prays that a writ of certiorari be issued to quash order dated 19.1.2007 (P12), whereby request of the petitioner, for allotment of a plot, being an oustee, was rejected. It is case of the petitioner that he was owner of land measuring 504 sq.yards, in the revenue estate of Jamalpur Kalan, tehsil and district Sonepat, which he purchased on 3.1.1994. Notification, to acquire 445.72 sq.yards, out of above mentioned land was issued, before he purchased it, on 6.5.1992. Award was pronounced on 17.11.1994. Remaining land of the petitioner, measuring about 58.84 sq.yards, was acquired as per notification issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) Civil Writ Petition No.17493 of 2008 on 5.11.1999. Respondents framed a Policy to rehabilitate the oustees, on 18.3.1992, by offering residential plots to them. Petitioner applied for allotment of a plot, out of the plots reserved for the oustees, on 30.7.1998 (P2). His prayer was for allotment of 1 kanal plot. Vide letter dated 19.6.2003, Dhani Ram Saini petitioner in CWP No.17022 of 2008, was intimated that draw of lots has not been conducted, to allot plots, out of oustees quota. Similarly, vide letter dated 4.3.2005, the petitioner was directed to give detail of the land acquired, with proof of ownership and extent of area, to submit an affidavit that 70% of his total land has been acquired and further to give consent accepting allotment of plot in Sector 15, Sonepat or in any other sector, as per availability. In response to letter, mentioned above, the petitioner sent a letter dated 21.3.2005 and complied with the directions, mentioned in the earlier letter issued by the respondents. He also filed an affidavit dated 24.3.2005 (P6/1), stating therein the area of his land, acquired by the respondents and meeting other requirements of the respondents. Matter remained pending, on account of inter-se communication between the Estate Officer HUDA Sonepat and Chief Controller of Finance, HUDA at Panchkula, for few years. Ultimately, request of the petitioner, for allotment of a plot, was rejected vide order dated 24.3.2006(P9), by observing as under:- “On the above it is intimated that you have not deposited the required amount i.e. 10% earnest money with the application. Hence, it was decided by the committee headed by the Administrator, HUDA, Faridabad on 12.1.2006 to reject the claim of those applicants who have not deposited the earnest money with the application.” 2 Civil Writ Petition No.17493 of 2008 Petitioner challenged that order in this Court, by filing CWP No.7219 of 2006, which was disposed of by a Division bench of this Court on 11.5.2006. Relevant portion of the order reads thus:- “The grievance made by the petitioner is that an application filed by him for the allotment of plot under the oustee’s quota has been rejected only on the ground that along with the application, earnest money had not been deposited by the petitioner. However, from the perusal of the averments made in the present petition, we find that at no point of time the price of the plot had been fixed. In these circumstances, the petitioner obviously could not be expected to deposit any earnest money. Consequently, we dispose of the present petition and it is directed that the Estate Officer, Haryana Urban Development Authority, Sonepat shall reconsider the claim of the petitioner. It the petitioner is required to deposit any earnest money, the same shall be communicated to him and thereafter, his claim shall be considered in accordance with law. The necessary process in this regard shall be completed by the Estate Officer within a period of three months from the date a certified copy of this order is received.” It is an admitted fact that the respondents challenged that order in the Hon’ble Supreme Court by filing a SLP, which was dismissed on 27.11.2006 (P11). Thereafter, in compliance to the order passed by this Court on 11.5.2006, impugned order was passed, again rejecting claim of the petitioner for allotment of a plot. Hence, this writ petition. 3 Civil Writ Petition No.17493 of 2008 Upon notice, reply has been filed, wherein it has been stated that the petitioner moved an application for allotment of a plot without earnest money, to the extent of 10% of the price of the plot in question. Further, he has failed to submit ‘no objection certificate’ from other co- sharers, to get allotment of a plot in his favour. Heard counsel for the parties. This Court feels that passing of the order dated 19.1.2007 (P12), against the petitioner is not justified. Claim of the petitioner to get a plot was rejected primarily on three counts. (1) that he did not file any application for allotment of a plot with earnest money i.e. 10% price of the plot, (2) that the petitioner was not owner of the land acquired when notification under Section 4 of the Act was issued on 6.5.1992 and (3) that only one plot can be allotted to all the co-sharers in the acquired Khewat, besides the petitioner, there are 40 other co-sharers. It is not in dispute that as per Policy dated 18.3.1992, oustees from the land acquired are entitled to get residential plot(s) subject to some conditions. Relevant restrictions are enumerated as under:- (i) Plots to the oustees would be offered if the land proposed to be acquired is under the ownership of the oustee prior to the publication of the notification under Section 4 of the Land Acquisition Act and if 75% or more of the total land owned by the land-owners in that sector is acquired. (ii) Oustees whose land acquired is: (a) Less than 500 sq.yards would be offered a plot of 50 sq.yards. 4 Civil Writ Petition No.17493 of 2008 (b) Between 500 sq.yards and one acre would be offered a plot of 250 sq.yards. (c) From 1 acre and above would be offered a plot of 500 sq.yards or where 500 square yards plots are not provided in the layout plan, two plots of 250 square yards, each may be given. (iii) The above policy shall also apply in case there are a number of co-sharers of the land which has been acquired. If the acquired land measures more than one acre, then for the purpose of granting benefits under this policy, the determining factor would be the area owned by each co-sharer respectively as per his/ her share in the joint holding. In case the acquired land of the co- sharer is less than one acre, only one plot of 250 sq.yards would be allotted in the joint name of the co- sharers. (iv) xxxx (v) xxxx (vi) Allotment of plots to the oustees will be made at the allotment rates advertised by the Haryana Urban Development Authority for that sector. Land-owners will be given compensation for their land which is acquired. (vii) Claims of the oustees for allotment of plots under this policy shall be invited by the Estate Officer, Haryana Urban Development Authority concerned before the sector is floated for sale.” 5 Civil Writ Petition No.17493 of 2008 It is not in dispute that the petitioner purchased land measuring 504 sq.yards on 3.1.1994. Out of the land, so purchased, 445.72 sq.yards of area was acquired, for which notification under Section 4 of the Act was issued on 6.5.1992. In view of above, prayer of the petitioner has rightly been rejected for allotment of one Kanal plot in lieu of the area acquired, as mentioned above, because he was not reflected as owner in the revenue record when notification under Section 4 of the Act was issued. It is also an admitted fact that 58 sq.yards of area was acquired by the respondents by issuing notification under Section 4 of the Act in the year 1999, when admittedly, qua that portion of land, the petitioner was shown as owner in the revenue record. As per Policy statement, mentioned above, the petitioner is eligible to get a plot of 50 sq.yards allotted to him. His prayer was rejected on the ground that he moved application without payment of requisite amount of earnest money. This Court feels that in view of order passed by a Division Bench of this Court on 11.5.2006 (P10), it was not open to the respondents to reject claim of the petitioner on that score. In that order, it was held that the petitioner was justified in not depositing the amount of earnest money, because the price of the plot, to be allotted to the petitioner was not yet fixed. It was further directed that case of the petitioner be re-considered and in case he is required to deposit any earnest money, the same shall be communicated to him and then his claim be considered as per law. Against order, mentioned above, SLP filed by the respondents was dismissed by the Hon’ble Supreme Court on 27.11.2006. Not only this, in their grounds of appeal in the Hon’ble Supreme Court, the respondents have averred as under:- “It is submitted that the Petitioner Authority receives scores of the Application each time allotment of new plots are announced. The logistical problems faced by the Petitioner 6 Civil Writ Petition No.17493 of 2008 Authority in processing incomplete Applications is immense. In any event the Respondent is at liberty to file a fresh Application with earnest money in response of plot available and the same will be processed by the Petitioner Authority as per the procedure and therefore, no prejudice is caused to the Respondent.” In view of above, the respondents were not justified in rejecting claim of the petitioner on that very ground, which was virtually set aside by this Court, by passing order on 11.5.2006. It is an admitted fact that the petitioner had purchased 504 sq.yards vide registered sale deed on 3.1.1994, as such, he was sole owner of that property. His claim cannot be declined on the ground that there were other co-sharers. Admittedly, when land measuring 58 sq.yards was acquired in the year 1999, the petitioner was entered in the revenue record as owner. Furthermore, it is not case of the respondents that for the land acquired, any plot was allotted to any other co-sharer. In view of stand taken by the respondents before the Hon’ble Supreme Court, as has been mentioned in earlier part of this order, the respondents were not justified in rejecting claim of the petitioner, rather they should have decided it as a fresh application and opportunity should have been given to the petitioner to deposit earnest money, if any. Despite directions given by this Court, the petitioner was never directed to pay any amount. Not only this, when we look into order Annexure P15 dated 22.1.2009, defence taken by the respondents, to reject claim of the petitioner falls flat on the ground. Vide that order, Apex Appellate Body of the respondents allotted plot(s) to similarly situated applicants, who were also parties in the writ petitions earlier filed and decided in the year 2006. In their case also, application was rejected on the ground that they had failed to deposit earnest money when application was moved. The Apex Appellate 7 Civil Writ Petition No.17493 of 2008 Body set aside order passed by the competent officer, rejecting claim of those applicants and order was passed to allot plot(s) to them. It is very surprising that the grounds, which were ignored in the case of beneficiaries in order dated 22.1.2009(P15), were applied against the petitioner to reject his claim. In view of above, this Court is of the opinion that for acquisition of 58 sq.yards of land in the year 1999, the petitioner was eligible for allotment of a plot measuring 50 sq.yards, as per Policy Annexure P1. So far as CWP No.17022 of 2008, is concerned, besides taking similar grounds, which were raised against the petitioner in CWP No.17493 of 2008, it was stated that because acquired land of the petitioner was less than 70% of his total land, as such, he was not entitled to get a plot allotted. This Court feels that this defence has no legs to stand. In the impugned order passed, claim of the petitioner was not rejected on that score. It is an after thought. Vide letter dated 26.11.1998, the petitioner in this case, was directed to give detail regarding his entire land. In response thereto, he filed an affidavit dated 9.3.2005 (P7/1), stating therein that his land to the extent of 99% has been acquired. Earlier, at no point of time, this fact was agitated against the petitioner. In view of above, this argument is liable to be rejected. As per the facts mentioned above, both the writ petitions stand allowed, the respondents are directed to allot one plot, measuring 50 sq.yards to petitioner Harsh Kinra in CWP No.17493 of 2008 and one plot, measuring one kanal to the petitioner Dhani Ram Saini in CWP No.17022 of 2008. The plots shall be allotted at the present reserved price. The petitioners in both the writ petitions, be intimated of the amount to be paid by them. Needful be done within a period of three months from the date of receipt of a copy of this order. 8 Civil Writ Petition No.17493 of 2008 29.7.2009 (Jasbir Singh) gk Judge 9