Daljit Kaur vs State of Punjab and Others

H.S. Bedi, J.—This petition disposes off C.W.P, Nos. 9800, 9984, 9933 and 10005 of 1988 and 9199 of 1991.

The petitioner Daljit Kaur was allotted Flat No. 13-FF in 5.53 Acres Scheme of Improvement Trust, Ludhiana, vide allotment Memo dated 26th August, 1987 (Annexure P-l to the petition). In the said scheme, it was provided that the cost of the flat would be Rs. 1,40,000/-, out of which, Rs. 50,000/- was to be payable within 30 days of the issuance of the allotment letter and the remaining amount would be recovered in 120 monthly instalments with interest @ 10% p.a. It appears that the petitioner was unable to pay Rs. 50,000/- in terms of Annexure P-l and subsequently moved an application before the Chairman of Improvement Trust, Ludhiana-respondent No. 3, seeking permission to deposit Rs. 50,000/- by instalments. Permission was given to the petitioner and it was directed that the first instalment of Rs. 10,000/would be deposited by 16th September, 1987, whereas the balance amount of Rs. 40,000/- would be deposited by the end of 1987. The Improvement Trust also entered into an agreement for sale in form ''D'' (Annexure P-2) and in the said agreement, it was recited that the deposit would be made in the instalments and that the allotment was being made pursuant to an application that had been made by the petitioner. It is the admitted case that the petitioner was unable to deposit the total amount of Rs. 50,000/- by the end of 1987, although in para 4 of the petition, it has been averred that certain other deposits has also been made right up to the years 1988. The petitioner further pleaded that after getting possession of the flat which was delivered immediately on the execution of the document Ex. Pl, she spent Rs. 40,000/- for making the flat habitable by fixing 13 doors, 32 windows and furnishing the bath rooms etc. The petitioner has further stated that on 19th April, 1988, the Joint Secretary, Local Government, Punjab, issued a notice to her u/s 72-E of the Punjab Town Improvement Act, 1922 (hereinafter called ''the Act'') requiring her to show cause as to why the allotment order dated 26th August, 1987 Annexure P-l be not cancelled. In this notice, it was pointed out that the allotment order was liable to be cancelled on the four grounds :-

"i) You did not apply to the Improvement Trust, Ludhiana in response to the advertisement given in the press by the Trust, for the purpose of allotment of these flats;

ii) Your name was not in the waiting list prepared by Trust for the purpose;

iii) You did not deposit the required amount i.e. Rs. 50,000/- at the time of allotment.

iv) The Chairman, Improvement Trust, Ludhiana, is not competent to make out of turn allotment."

The petitioner submitted a reply to the show cause notice denying the allegations that had been levelled against her and specifically pointing out that she had applied for a flat in the year 1982 and that her name was therefore in the waiting list. It was also stated that as there was recital in Annexure-P2, that such an application had been made, this fact stood proved from this recital as well. The petitioner also pointed out that she had spent a huge amount on the flat and in any case, the Chairman was competent to make allotment to her. The State Government, however, considered the matter vide Annexure-P4 dated 21.9.1988 and cancelled the allotment made to her. It is against this order that the present petition has been filed.

Notice was issued in this case on 1st November, 1988 and it was directed that the petitioner would not be dispossessed till further order. This petition was admitted on 13.2.1989 and the interim order was directed to continue and that order is continuing since then.

A reply has been filed on behalf of respondent No. 3-the Improvement Trust in which it has been denied that any application had been made by the petitioner prior to the allotment in question. It has also been emphasised that the Chairman, Improvement Trust without any authority had made the allotment to the petitioner and it was after due consideration that the State Government had cancelled u/s 72-E of the Act as the allotment was not in the interest of the Improvement Trust. It has also been submitted that even going by the terms of the allotment, the same was subject to payment of Rs. 50,000/- by the end of December, 1987 and this condition too had not been fulfilled.

Mr. B.S. Khoji, the learned counsel appearing in support of this petition has urged that the petitioner had made an application for allotment of a flat in the year 1982 and this fact stands proved from the recital in Annexure-P2. He has further urged that it was open to the Chairman to make an allotment in this manner.

I have heard the learned counsel for the parties and have gone through the record.

The allotment of a flat is covered by Rules 8 and 11 of the Punjab Town Improvement (Utilisation of Land and Allotment of Plots), Rules, 1983, which reads as under :-

"8. Mode of Sale - (1) Unless otherwise provided under these rules every Trust shall allot residential plots and multi storeyed houses by draw of lots and sell the commercial plots by auction;

Provided that non-residential Indians shall be allotted residential plots.

(i) If the number of application is less or equal to the number of plots available for allotment to such category of persons, on the basis of ''First come First served'' &

(ii) If the number of application is more than the number of plots available for allotment to such category of persons, by draw of lots.

Provided persons shall be allotted residential plots in accordance with the criteria specified in the sub rule (2) of the Rule 4."

"11. Manner of allotment - Every Trust shall invite applications for allotment of residential plots or multi-storeyed houses by the dates to be specified in the notice to be published in the Newspapers widely circulated in the locality for this purpose.

(2) Every intending purchaser shall make application to the concerned Trust in Form ''B'' by the date specified in the notice alongwith an affidavit in Form ''C'' to the effect that he fulfills the conditions of eligibility under Rule 10.

(3) No application made under Sub-rule (2) shall be valid unless accompanied by a bank draft in favour of the Trust in token of earnest money as under :

Area of plot. Amount of earnest money. 500 square yards Rs. 10,000/- 400 square yards Rs. 8,000/- 300 square yards Rs. 6,000/- 250 square yards Rs. 5,000/- 200 square yards Rs. 4,000/- 150 square yards Rs. 3,000/- 100 square yards Rs. 1,000/-

Provided that an application for allotment of a multi-storeyed houses shall be accompanied by a bank draft of the amount equivalent to 10% to the estimated cost of such house.

(4) Every person, whose application for allotment of residential plot or multi-storeyed house is pending shall also be required to apply afresh for allotment of residential plot or multi-storeyed house, as the case may be, in Form ''B'' in accordance with his eligibility as specified in Rule 10;

Provided that if such a person fails to so apply to the trust within a period of three months from the date of notice under Sub-rule (1) within a period of three months from such commencement, whichever period is later he shall be considered for allotment of a residential plot or a multi-storeyed house for which he is eligible in accordance with the gross annual income show in the application already pending with the Trust.

(5) All valid applications received by the Trust in response to the notice published under Sub-rule (1) and all applications pending with the Trust before the commencement of these rules in lieu whereof such applications have not been received under Sub-rule (4) shall be entered in a register to be maintained for this purpose and shall be allotted a serial number.

(6) Immediately on the expiry of the date fixed for receipt of applications the register referred to in sub rule (5) shall be closed and the Chairman of the Trust shall attest the last entry made therein on that day by subscribing the words "Entry closed."

(7) A list of all the persons who have applied in a pursuance of the notice published under Sub-rule (1) shall be caused to be prepared by the Trust and posted outside its office and copy of such list shall also be sent to the Government for information."

A reading of Rules 8 and 11 would reveal that the allotment of residential plots and multi storeyed house (such as the one made to the petitioner) ''shall be by draw of lots and in no other way. Rule 11 talks about the method of allotment, and presuppose that before allotments are made the Trust is to invite applications for allotment by notices to be published in Newspaper widely circulated in the locality for this purpose in Form ''B'' by the dates to be specified in the notice alongwith certain other enclosures. Sub-rule (2) to Rule (3) provide that no application shall be entertained unless it is accompanied by a bank draft in terms of the rule. It is the admitted case now before me that the allotment made to the petitioner was not by draw of lots and made merely on an application to the Chairman and even the order of allotment was made on the application itself. It is the admitted case that the application was to be made in Form ''B'' an mentioned in Rule 11 and was also to be accompanied by token of earnest money. The application made by the petitioner does not satisfy even these two conditions and as a matter of fact, the petitioner vide order dated 15th September, 1987 of the Chairman was allowed to make the deposit of Rs. 50,000/- that was required to be made by her in instalments up to December, 1987 and even the deposit was not made. It is also evident from a reading of Rules 8 and 11 that an application for allotment had to be moved in terms of the advertisement issued. The writ petition is silent as to when and how such an advertisement had been issued and as to whether the application made in the year 1983 pursuant to any such advertisement. In the light of the facts stated, it has to be held that no application had been made in the year 1982 as alleged by the petitioner.

Mr. Sanjay Majithia, the learned counsel appearing for the Improvement Trust in C.W.P. No. 9199 of 1991 has raised an additional argument. He has argued that allotment was made to one Randhir Singh but he executed a general power of attorney in favour of Deepak Arora, who had further executed a power of attorney in favour of Anil Kumar and this indicated that the allotment was not only defective and in violation of the Rules but as the flat had been sold and resold thrice no equity existed in favour of this petitioner.

There is some merit in the stand of the learned counsel but in the light of what is to follow, this petition cannot be treated in a very different way to the other petitioner.

In the light of what has been held above, I am of the view that these petitions merit dismissal and the same are, accordingly dismissed. However, in the light of the fact that some of the petitioner are in possession since long as a result of the interim stay order of this Court and have also spent a considerable amount of money in making their flats habitable, I leave it to Improvement Trust as also the State Government to consider the case of the petitioners sympathetically for re-allotment.