IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C.W.P. No.13365 of 1999 (O&M) United Services Cooperative House Building Society. ....... Petitioner through Shri Arun Nehra, Advocate. Versus Chandigarh Administration and another. ....... Respondent no1. through Shri P.K.Mutneja, Advocate. Respondent no.2 through Ms.Jaishree Thakur, Advocate. (2) C.W.P. No.7041 of 2000 The City Beautiful Cooperative House Building Society Limited. ....... Petitioner through Shri V.K.Jindal, Advocate. Versus Union Territory of Chandigarh and another. ....... Respondent no1. through Shri P.K.Mutneja, Advocate. Respondent no.2 through Ms.Jaishree Thakur, Advocate. (3) C.W.P. No.7052 of 2000 (O&M) Chandigarh Sector 16 Co-op. House Building Society & another. ....... Petitioners through Shri R.S.Mittal, Senior Advocate with Shri Atul Gaur, Advocate. Versus C.W.P.No.13365 of 1999 -2- .... Union Territory, Chandigarh and another. ....... Respondent no1. through Shri P.K.Mutneja, Advocate. Respondent no.2 through Ms.Jaishree Thakur, Advocate. (4) C.W.P. No.7274 of 2000 (O&M) Chandigarh Ordinance Cable Factory Employees Cooperative House Building Society Limited. ....... Petitioner through Shri Sarjit Singh, Senior Advocate with Shri Vikas Singh, Advocate. Versus Union Territory Administration and another. ....... Respondent no1. through Shri P.K.Mutneja, Advocate. Respondent no.2 through Ms.Jaishree Thakur, Advocate. (5) C.W.P. No.8443 of 2000 The City Star Coop House Building Society Limited. ....... Petitioner through Shri B.D.Sharma, Advocate. Versus Union Territory of Chandigarh and another. ....... Respondent no1. through Shri P.K.Mutneja, Advocate. Respondent no.2 through Ms.Jaishree Thakur, Advocate. C.W.P.No.13365 of 1999 -3- .... Date of Decision: 7.12.2010 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This common judgment will dispose of afore-mentioned five writ petitions as they involve commonality of facts and applicability of a scheme floated by the respondents for allotment of land to various cooperative house building societies including the petitioners for constructing dwelling units for their members and subsequent demand for enhanced price made upon them for such allotment. C.W.P.No.13365 of 1999 has distinct features and, therefore, it is being treated as a fountain-head petition from where the facts are being extracted. The petitioner-United Services Cooperative House Building Society is a society registered under the Societies Registration Act and applied for allotment of land pursuant to the Chandigarh Allotment of Land to Cooperative House Building Societies Scheme,1991 (hereinafter known as ``the 1991 Scheme') notified by the Chandigarh Administration (respondent no.1) on 28.5.1991 ( a copy thereof has been annexed with the writ petition as Annexure P2). The 1991 Scheme was floated with a view to C.W.P.No.13365 of 1999 -4- .... promote cooperative housing and to ensure maximum utilization of land by constructing multi-storeyed dwelling units after allotment of land to the eligible cooperative housing societies. To achieve the purpose, 95 acres of land in Sectors 61 snd 63 was allotted to the Chandigarh Housing Board (respondent no.2) for onward allotment to the cooperative house building societies. However, respondent no.1 cancelled this allotment as respondent no.2 did not deposit the requisite funds, but a fresh allotment of land was made on 30.10.1992 which was also cancelled leading to another allotment in Sector 48 in May,1993. Pursuant to Clauses (3) and (4) of the 1991 Scheme, respondent no.1 was required to conduct a survey of eligible societies, who had sufficient funds to carry out construction of dwelling units upon the land to be allotted to them which was to be done on chunk basis. For the purpose of reference, these clauses are extracted hereunder:- “3. The Chandigarh Administration may conduct survey to assess the demand by inviting applications on prescribed forms available from the Chief Executive Officer, Chandigarh Housing Board along with 25% of the premium of land tobe applied for as earnest money and proof that the Society has sufficient funds and resources to pay the balance of the premium of land and to undertake construction work on the land if allotted to them through the Chandigarh Housing Board. Such survey shall, however,not be construed as a commitment for allotment of land in any way. 4. The Chandigarh Administration shall allot land on chunk C.W.P.No.13365 of 1999 -5- .... basis to the Chadigarh Housing Board for its further allotment to the eligible Cooperative House Societies from whom applications were invited under clause 3 above, having sufficient funds and resources to the satisfaction of the Estate Officer, on Lease Hold Basis for 99 years for the construction of multistoreyed structures/ dwelling units (hereinafter called DU) and their allotment to its eligible members on the terms and conditions to be laid down in the allotment letter and lease deed. The land so allotted shall be planned in consultation with the Chief Architect and Secretary, Architecture Department, Union Territory, Chandigarh and developed by the Engineering Department as usual. The proposed Plan shall be got sanctioned from the Chief Administration, Chandigarh as per the provisions of the Punjab Capital (Development and Regulation) Building Rules, 1952 as amended to date. The seniority of society may be determined from Registration Number and date. The Administrator may allot land to the societies within the limits of Union Territory, Chandigarh subject to the fulfilment of provisions of the scheme and the Capital of Punjab (Development and Regulation) Act,1952 as amended from time to time and the rules made thereunder including the Chandigarh Lease Hold of Sites and Building Rules,1973 (as amended from time to time). The society and its members shall be jointly severally responsible for payment of premium including C.W.P.No.13365 of 1999 -6- .... instalment and ground rent and for complying with the terms and conditions, rules and regulations and the provisions of the Act referred to above. The minimum quantum of land that can be allotted is one acre and 40 to 60 number of Welling Units (as approved by the Chief Architect) are to be provided by the Society per acre. The Chandigarh Administration may fix cut off date for the purpose of allotment of land to the Societies as well as to members.” Twenty five per cent of the premium of the land as earnest money was to be deposited by the eligible cooperative house building societies was to be deposited up to 31.3.1992. The petitioner received a letter on 4.11.1991 from respondent no.2 informing it about the 1991 Scheme under which multi-storeyed structures were to be constructed to provide dwelling units to the members of cooperative house building societies which were registered with Registrar, Cooperative Societies, Union Territory Chandigarh upto 31.3.1988/ 31.10.1990. It was further informed that the land was to be allotted on 99 years' lease hold basis and the applications were to be submitted along with list of eligible members and 25% of the premium of the land and the requisite documents along with 25% premium were to be deposited within sixty days. This letter was followed by another letter dated 24.12.1991 wherein the density was revised and by virtue thereof, the petitioner was informed that earnest money of 25% was to reach to respondent noi.2 by 31.1.1992 and rebate of 5% was offered in the C.W.P.No.13365 of 1999 -7- .... eventuality of the amount being deposited by the stipulated date. The petitioner applied for allotment of land on the requisite format to respondent no.2 and out of the list submitted by it, 32 members deposited 25% of the premium whereas 3 members paid 10% thereof. Thereafter, the amount qua 15 more members was also deposited on 30.5.1992 vide a letter of the same date. The petitioner has claimed that since 25% premium amount was deposited qua 59 members who fulfilled the entire requirements as per the 1991 Scheme, it ought to have been allotted land which was wrongly denied and that the cooperative house building societies, which were similarly placed and ranked lower than it, were granted land. This action has been pleaded to be unjustified, arbitrary and violative of Article 14 of the Constitution of India. The petitioner has averred that the sums of Rs.5,59,545/- and Rs.3,97,547/- deposited by it on 30.9.1994 and 1.8.1997 were wrongly retained by respondent no.2 for more than three years as the same were returned on 23.4.1997 & 18.7.2000 respectively and even thereafter, instead of allotting land, the said amounts were returned to it. It has further been averred that the successful societies were allotted land at the rate of Rs.750/- per square yard, but subsequent to this, in the year 2000, the demand was enhanced to Rs.2500/- per square yard. The petitioners in other writ petitions are only aggrieved by the aforesaid enhanced rate. Their case is that the demand was unjustifiable and that they ought to be allotted land at the rate of Rs.750/- per square yard C.W.P.No.13365 of 1999 -8- .... on which rate other societies were granted land and the insistence upon the demand of Rs.2500/- is arbitrary and cannot be sustained. The respondents have filed their written statements in all the petitions, even though in C.W.P.Nos.13365 of 1999, 7052 of 2000 and 7274 of 2000, the reply on behalf of respondent no.1 was filed belatedly after the Court imposed costs of Rs.25000/- in each case. Separate applications for recall of order dated 26.8.2010 passed in these cases imposing the costs have also been filed by respondent no.1 in which the lapse has been sought to be justified. These applications will be dealt with subsequently in the later part of the judgment. The stand taken by the respondents is that the petitioners had not deposited the earnest money within the stipulated time and that is the reason for not allotting the land to them. It is the categoric case of the respondents that even though, the petitioners applied for allotment of land as per the 1991 Scheme, 25% of the earnest money was to be deposited along with the application form for various categories of the dwelling units for which the criteria was given in the Scheme itself as follows:- (1) 40 Dwelling nits per acre Category “A” (2)50 Dwelling Units per acre Category “B” (3) 60 Dwelling Units per acre Category “C” The aforesaid particulars constituted the density of the dwelling units. It has further been submitted that density was revised to 25, 35 and 45 for Category “A”, “B” and “C” regarding which intimation was given to the aspiring societies and they were required to pay 25% earnest money up C.W.P.No.13365 of 1999 -9- .... to 31.3.1993 on the unrevised density as well as 25% on the revised density on behalf of the newly screened members and this amount was to be deposited up to 12.8.1994. the petitioners failed to deposit the requisite amount and instead filed C.W.P. No.1454 of 1992 and others writ petitions asking for allotment of plots instead of flats, which were dismissed. To the allegation of the petitioners that two of the societies had been allotted land, who had not deposited the amount within the stipulated time, namely, I.P.S. Cooperative House Building Society and Punjab & Haryana High Court Advocates House Building Society, the reply given is that it was done so under the orders of the High Court. It has next been averred that the condonation of delay in the deposit of earnest money after 12.8.1994 which was cut off date, had been considered since there were 12 defaulting societies and the same was rejected and conveyed to the petitioners on 31.5.2000. It has been stated that a Committee of three members considered the case of the petitioners, but rejected the same. During the pendency of the writ petitions, affidavit dated 27.8.2010 was filed by Assistant Estate Officer, exercising the powers of Estate Officer, Union Territory, Chandigarh, in C.W.P. No. 13365 of 1999, wherein in paragraphs 2 and 3, it has been averred as follows:- “2. That the case of the petitioner society was considered by the three member committee on 17.5.2000, (Annexure A-III is a copy of the minutes of the meeting of the members of the committed held on 17.05.2000. Taking into consideration the C.W.P.No.13365 of 1999 -10- .... policy decision already taken in respect of the societies, who had deposited 10% earnest money at unrevised density upto 01.06.1992 and in case of freshly screened members in 1994 who had not deposited 10% earnest money or 25%, as the case may be, by 12.08.1994 and further completed 25% earnest money at revised density in time, be considered for allotment of land and the facts of the petitioner society that it deposited 10% earnest money in 1992 and in respect of certain freshly screened members by 12.08.1994, who had further completed 25% earnest money at revised density in 1997, the Committee recommended that the society be assessed for allotment of land by charging 18% interest on the earnest money up to 1996 in the light of the judgment of this Hon'ble Court dated 18/12/1996. That, thus, it can be said that the Chandigarh Administration has already decided to accept the money from the society along with 18% interest upto 1996 in pursuance of the Hon'ble High Court's orders as has been done in the case of other petitioner society. Since the society has already deposited some amount, 18% interest shall be charged on the balance amount of the earnest money to be accrued as difference of the amount on old density/ revised density. Further, the society is to deposit the difference of the earnest money at the revised rates of Rs.2500/- per square yards (as per the Notification C.W.P.No.13365 of 1999 -11- .... dated 1.02.2000, a copy whereof is Annexure A/IV) as has been demanded from other petitioner societies. The question of accepting money from the petitioner society after cut off date by condoning delay does not arise as the case has been considered being the society a petitioner society. 3. That the petitioner society will be considered for assessment of land along with other petitioner societies proved (sic. provided) it deposits the demanded amount by Chandigarh Housing Board in their letter dated 18.08.2000 according to which the society was to deposit the amount within 96 days i.e. upto 21.10.2002. In case it does not deposit the amount so demanded, it can be considered now eligible for assessment/ allotment of land. However, keeping in view the pendency of writ petition filed by the petitioner society in this Hon'ble High Court, it has been decided that the specific directions/ orders of the Hon'ble High Court may be awaited and till then the petitioner society may not be assessed for allotment of land.” The contention of the learned counsel for the petitioner in C.W.P.No.13365 of 1999 is that 59 members of the society concededly had deposited 25% of the premium amount as was required which fact has been admitted by the respondent no.2, who had sent letter dated 26.2.1993 (Annexure P9) along with which a list of twenty five societies was circulated stating that they had deposited the requisite amount and in view of this admission, once the petitioner had paid 25% of the premium amount C.W.P.No.13365 of 1999 -12- .... within the prescribed period, it could not have been denied allotment of land, more-so when societies, like I.P.S. Cooperative House Building Society and Punjab & Haryana High Court Advocates Cooperative House Building Society, had been allotted land despite the fact that they had defaulted in payment of such amount. He then contended that another society, namely, The Jeewan Adhar Cooperative House Building Society, was given land even though it was junior to the petitioner and such an action was contrary to the 1991 Scheme. It was, thus, submitted that the action of the respondents in not allotting land to the petitioner is arbitrary and violative of Article 14 of the Constitution of India. It was also contended by the counsel for the petitioners in their respective writ petitions that the enhancement of price is arbitrary and has no rationale and the particulars of such enhancement to justify the demand have also not been furnished and, therefore, the impugned demand is liable to be struck down. To support this contention, they placed reliance on Indore Development Authority Versus Sadhana Agarwal (Smt.) and others, (1995) 3 S.C.C. 1; Surinder Singh Versus State of Punjab, 1998(1) R.C.R. (Civil) 89 (P&H); Chandigarh Police Cooperative House Society Versus Chandigarh Administration, 2001(1) R.C.R. (Civil) 222 (P&H); Rasila Ram Kaushal and others Versus The Chandigarh Housing Board, Chandigarh and others, 2006(1) R.C.R. (Civil) 403 (P&H); and Mathura Parshad and others Versus Chandigarh Housing Board, 2006(1) R.C.R. (Civil) 535(P&H). The counsel for the respondents, on the other hand, set up a plea that since the amount had not been deposited within time, the C.W.P.No.13365 of 1999 -13- .... respondents were justified in denying allotment of land to the petitioners and in any eventuality, pursuant to the decision in C.W.P.No.1454 of 1992, delayed amount can be paid along with interest at the rate of 18% per annum and their case can be considered for allotment at the prevalent rates. I have considered the rival contentions and have perused the material on record. Undeniably petitioner-United Services Cooperative House Building Society had submitted a list of 59 members along with 25% premium amount which fact has been admitted by respondent no.2 in letter dated 26.2.1993 (Annexure P9) issued to it along with a list of twenty five societies, who had made deposit of 25% premium amount by the stipulated date and the petitioner was one of them. Paragraph 2 of the said letter, which is relevant, is reproduced below:- “2. In a meeting held under the Chairmanship of the Advisor to the Administrator, UT, Chandigarh, on 19.1.1993, it has been decided that the societies which have deposited 25% of the premium amount, but do not have the minimum membership to maintain the necessary density per acre, may be requested to approach the Registrar, Cooperative Societies, for merger permission. Accordingly a list of the 25 societies which have deposited the 25% premium amount, is enclosed. You may approach the societies of your choice for clubbing and the Registrar, Cooperative Societies, for according permission for merger.” C.W.P.No.13365 of 1999 -14- .... The relevant extract of the statement/list of Cooperative House Building Societies which was enclosed with Annexure P9, is also reproduced below:- “Sr. Name of the Regn.No. No. Society. & Date. 1.Chandigarh Reserved 46 dt.2.9.1968 Bank of India Staff Co-op. H.B.Society. 2. Punjab University Teachers 47 dt. 15.9.1968 Coop. H.B.Society. 3. RCS Punjab Gazetted Officers 143 dt.28.1.1969 Coop. H.B.Society. 4. Indian Express Coop.H.B. 221 dt. 29.4.1972 Society. 5. Punjab I.A.S.Coop. House 295 dt. 3.5.1979 Building Society. 6. Haryana I.A.S. Coop. 299 dt. 31.01.1979 House Building Society. 7. Punjab State I.P.S. H.B.Society. 331 dt. 30.6.1981 8. Chandigarh Accredited Press 343 dt. 15.12.1981 Correspondent Coop. H. B. Society. 9. P.G.I. Faculty Coop. H.B. Society. 412 dt. 18.5.1983 10. Pb. Secretariate Employees Coop. 427dt. 26.8.1983 H.B.Society. 11. Gagan Coop. House Building Society. 445 dt. 22.3.1984 C.W.P.No.13365 of 1999 -15- .... 12. Universal Coop. H.B.Society. 460 dt. 24.4.1984 13. Chandigarh Processional Coop. 465 dt. 28.8.1985 House Building Society. 14. Executive Coop. H.B.Society. 505dt. 18.12.1987 15. State Bank of India Coop. H.B. - Society. 16.The Rajdhani Coop. H.B.Society. 513 dt.25.3.1988 17. The Chandigarh Sector 34 Coop. 411 dt. 15.5.1983 H.B.Society. 18.C.S.I.O. Employees H.B.Society. 49 dt. 15.5.1983 19. The Jeewan Adhar Coop.House 414 dt. 18.5.1983 Building Society. 20.Punjab Engineering College 305 dated ..... Teachers Co-op. H.B.Society. 21.United Services Co-op. H.B. 334 dt.18.5.1983 Society. (sic. 12.8.1981) 22.G.B.S. Worker Co-op. House 408 dt.26.8.1983 Building Society. 23.PSB Officers Coop. 399 dt. 31.3.1983 H.B.Society. 24.Labour Bureau Emp. 99 dt. 19.6.1978 H.B.Society. 25.Pb. & Haryana High Court 221 dt........ Advocates Coop.H.B.Society Ltd. ..........” C.W.P.No.13365 of 1999 -16- .... As mentioned above, the respondents have not denied the issuance of the aforementioned letter and the fact that the petitioner-United Services Cooperative House Building Society had deposited 25% premium amount qua 59 members, even though the counsel for the respondents have sought to urge before this Court that such letter is non-existent as it is not traceable in their records which fact was belied when the record was summoned although the appendage to the letter detailing the list of cooperative societies, who had deposited 25% premium amount was conveniently missing therefrom. The Court is also convinced that such letter along with its annexure was sent to the petitioner in the wake of the fact that it has not been denied by the respondents in their reply and also for the reason that the above reproduced paragraph finds mention in the subsequent communication sent by them to the petitioner on 23.4.1997 (Annexure P15). In this very letter dated 23.4.1997, the respondents have again admitted that 59 members, who had deposited earnest money before 1.6.1992, were eligible for allotment of land under the 1991 Scheme. This letter being addressed to the petitioner-United Services Cooperative House Building Society deals in extenso its case and fortifies the contentions which have been raised by its counsel. If, that be so, then this petitioner admittedly fulfilled the criteria and satisfied the norms of the time, money and density provided in the 1991 Scheme and was, thus, eligible to be allotted land. The plea of the respondents that there was a list of fabricated members whose names had been entered with pencil in the list submitted to C.W.P.No.13365 of 1999 -17- .... them by the petitioner and which was one of the reasons which weighed with them to deny allotment of land to it, is unacceptable for the simple reason that 59 members satisfied the criteria fixed by them and even if the names of so-called fictitious members were to be ignored, yet, the petitioner ought to have been allotted land considering the relevance of the fact that 59 members satisfied all the para-meters laid down by the respondents in the 1991 Scheme. A perusal of Clause (3) of the 1991 Scheme reproduced above also shows that the seniority of the societies was to be maintained on the basis of registration of such societies and concededly, according to the respondents themselves, the petitioner was senior to some of the societies, who have been allotted land and particularly the Jeewan Adhar Cooperative House Building Society. Likewise, for no justifiable reason, two of the societies, namely, IPS Cooperative House Building Society and Punjab & Haryana High Court Advocates Cooperative House Building Society, were allotted land even though according to the respondents themselves, they had not deposited the amount in time,but they were allotted land under the orders of this Court. Strangely enough, those orders were not shown to this Court during the course of arguments nor was any writ petition mentioned by them which could have enabled this Court to summon the record to evaluate their contention. The action of the respondents, thus, seems arbitrary on three counts:- (1)59 members concededly fulfilled all the para-meters, but this C.W.P.No.13365 of 1999 -18- .... fact was not considered by them; (2) the principle of seniority was violated while making allotment of land as Jeevan Adhar Cooperative House Building Society was allotted land even though according to the own showing of the respondents, it was junior to the petitioner; and (3) the grant of land to I.P.S. Cooperative House Building Society and Punjab & Haryana High Court Advocates Cooperative House Building Society implies that there was arbitrariness in approach and execution. The action, therefore, has to be termed to be illegal and it is held that the petitioner-United Services Cooperative House Building Society was entitled to allotment of land and was unjustifiably denied such allotment. The next question that is to be determined, is as to what ought to be the terms of allotment and whether the petitioners are entitled to allotment at the rate of Rs.750/- per square yard or the land can be allotted to them at the rate of Rs.2500/- per square yard as per the demand raised in the year 2000 or they are to be allotted land at the prevalent rate or still further, whether the respondents are entitled to recover the amount from the petitioners to allot land to them by charging interest whatever