L.P.A. No. 678 of 2010 1 In the High Court for the States of Punjab and Haryana at Chandigarh … L.P.A. No. 678 of 2010 Date of decision: 3.10.2011 Nirmal Singh ..Appellant Versus State of Punjab and another ..Respondents Coram: Hon’ble the Acting Chief Justice Hon'ble Mr. Justice Rajiv Narain Raina Present: Mr. Arun Jain,Sr. Advocate with Mr. Amit Jain, Advocate for the Appellant. Mr. Rupinder Khosla, Sr. Addl. A.G.Punjab for respondent no.1. Mr. S.C. Pathela, Advocate for respondent No.2. Mr. Akshay Bhan, Advocate for respondent No.4. .. 1. To be referred to the reporters or not ? 2. Whether the judgment should be reported in the digest ? Rajiv Narain Raina,J. 1. This Letters Patent Appeal under Clause X of the Letters Patent,1919 arises out of the order dated 12.5.2010 passed by the learned Single Judge dismissing CWP No.3711 of 1996. 2. The petitioner, now appellant before this Court is a Sikh migrant from Burnpur District Burdwan (WB) relocated in District Gurdaspur, Punjab following the 1984 riots in the country. The district administration registered him as a “Sikh migrant” enabling him to apply for schemes of rehabilitation floated by the State Government to ameliorate L.P.A. No. 678 of 2010 2 their lot including providing of residential and commercial plots to re- establish themselves in their home state. This was done by State Government by issuing directions to various Improvement Trusts to provide 5 % quota in residential plots and 20 % in commercial sites for this special category as a concession. It appears from the record of this case that the Department of Local Government, Punjab issued a memo dated 5.2.1986 (P1) referring to an earlier memo dated 1.1.1986 regarding LIGH Flats and plots in the Improvement Trusts, permitting Trust to go ahead with auctions of commercial plots/Booths etc. within the respective jurisdictions of the Improvement Trusts only after reserving 20 % of these plots/booths for allotment to Sikh migrants. The appellant made an application to the Improvement Trust, Pathankot on 15.2.1990 for allotment of a commercial site. It is stated in the writ petition filed under Article 226 of the Constitution that the application for allotment of SCF was placed before the Improvement Trust for its consideration on 16.3.1990 and on 17.4.1990 the Improvement Trust by a resolution recommended the case of the appellant as a Sikh migrant for allotment provisionally of SCF 10 and transmitted its resolution No.5 dated 17.4.1990 to State Government for its approval. It is further stated in the petition in para 6 that the Secretary to Government, Punjab, Local Government Department approved the allotment on 24.6.1994. The matter thereafter appears to have remained in limbo till a Civil Suit came to be filed by one Harwant Kaur before the learned Sub Judge Ist Class, Pathankot claiming permanent injunction restraining the Improvement Trust from allotting SCF No.10 in area No.2 and 3, Part I Scheme of the Trust. The Civil Suit was filed on 16.8.1994 and that there was initially a restraint order against the Improvement Trust. 3. The Improvement Trust filed its written statement in the suit (P11). The appellant was defendant No.3 in the suit. The status of plaintiff L.P.A. No. 678 of 2010 3 Harwant Kaur as a riot victim of 1984 was disputed and Government instructions dated 13.1.1993 was cited to dispel her claim. No final order was passed allotting SCF to the appellant when auction notice (P12) was advertised by Improvement Trust, Pathankot for auctioning various properties on free hold basis on 21.2.1996 including the SCF site claimed by the appellant at the reserve price of Rs 34,000/- per marla. 4. Against the auction notice, the appellant came before this Court and upon notice being issued the Improvement Trust filed its reply. 5. A definite stand was taken by it in the response that commercial units cannot be reserved or allotted to any one and the same can only be sold by public auction. Rule 8 of the Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983 was relied upon, which reads as under:- “Rule 8. Mode of sale (1) Unless otherwise provided under these rules every trust shall allot residential plots and multi storied houses by draw of lots and shall sell the commercial plots by auction.” 6. This rule is statutory. Executive instructions, guidelines or concessions authored by the State Government can be consistent only with statutory provisions. It is the stand of the Improvement Trust in the written statement that in view of Rule 8, the State Government had revised its policy decision inasmuch as there would be no reservation for commercial plots. Reliance was also placed on a Division Bench decision of this court in CWP No.15728 of 1992 titled Guljit Singh Lamba v. The State of Punjab decided on 30.11.1993 where a Sikh riot victim's claim for a residential plot and commercial plot on the basis of instructions of the State Government was negatived. L.P.A. No. 678 of 2010 4 7. We have heard learned counsel for the parties at length and with their able assistance have perused the record and carefully read the judgment of the Ld Single Judge. 8. Rule 8 of the 1983 rules stares us as grimly as it did to the learned Single Judge inasmuch as a commercial plot/SCF could not have been parted by the Improvement Trust except by way of auction. The memo issued by the State Government (P1) dated 5.2.1986 creates a reservation of 20 % for allotment to Sikh Migrants. Though the concession granted to Sikh Migrants may be laudable, however, the method of sale of commercial plots/booths/SCFs can be regulated only by statutory Rule 8. A Sikh Migrant can compete and participate for property only in auctions within their reservation. The power of relaxation contained in Rule 14 can only be used to relax ‘guidelines provided in the rules to meet the special requirement of any scheme’. It does not give a carte blanche to an Improvement Trust for disposing of property except by way of auction. The learned Single judge, we feel is correct in his reasoning that guidelines would be subservient to statutory rules. Rule 11 deals with procedure which governs manner of allotment. The rule would come into play only if a right to allotment is established. Such right must not be inchoate. The appellant has no concluded right in his favour sufficient for the court to estop the Improvement Trust in its tracks and compel this Court to issue a mandamus putting the appellant in ownership and possession of plot No.10 or any other for that matter. The admissions in the written statement filed by the Improvement Trust in the Civil Court cannot also be read as an estoppel against the State when prima-facie there would be violation of Rule 8 of the 1983 Rules in disposing of property other than by public auction. There must be a legal right in existence which is judicially recognized and enforceable and at the same time legally protected before L.P.A. No. 678 of 2010 5 the appellant could seek mandamus injuncting the Improvement Trust, Pathankot from continuing with the auction notice impugned in the petition. 9. The major premise on which the petition is based is that one of the plots being put to auction was ‘already allotted’ to the appellant. This was a mistaken impression in the mind of the appellant. There was no allotment as such. No final decision was communicated to the appellant establishing his status as an allottee of SCF 10. The Rubicon had not been crossed. The provisional decision was contrary to Rule 8. There could be no ‘selective allotment’ to the appellant as correctly held by the learned Single Judge as the Trust would in any eventuality have to act consistent with Article 14. 10. At no stage was the appellant asked to make any payment towards the price of the plot so that a plea of promissory estoppel could be entertained and considered. The appellant had in no way altered his position to his detriment. A mere provisional offer to the appellant will not create a binding obligation enforceable by Court. It was at best an ill considered promise. 11. Mr. Arun Jain, learned Senior Counsel for the appellant would rely on the admission in the affidavit of the Joint Secretary to Government, Punjab, Department of Local Government that several allotments of property were made by Improvement Trusts to Sikh Migrants including commercial plots in relaxation of the auction process. The learned Single Judge has found that no definite material in this regard was placed before him to draw an inference one way or the other. No such material has been shown to us in the appeal. In any case, an illegality, if committed would not give rise to passing another order perpetuating that wrong and put the Court’s imprimatur on it. Third party rights have intervened. Respondent No.4 is the auction purchaser of the plot in question. L.P.A. No. 678 of 2010 6 12. We see no reason to disagree with the judgment under appeal and to quash the public notice of auction. 13. We accordingly uphold the order of the learned Single Judge on merits and dismiss the appeal. Before parting with the judgment we would like to observe that the appellant was led up the garden path by the Improvement Trust. (M.M.KUMAR) (RAJIV NARAIN RAINA) ACTING CHIEF JUSTICE JUDGE October 3,2011 nk