Devinder Kaur vs State of Punjab and Others

Hemant Gupta, J.—Challenge in the present writ petition is to the communication dated 03.10.1997, whereby allotment of plot No. 93-E, measuring 400 Sq. yards in 256 Acres, Maha Rishi Balmik Nagar, Ludhiana was cancelled for the following reasons:

"i)You did not apply for the allotment of plot as local Displaced Person in accordance with the advertisement and the rules framed for this purpose.

ii) That there was no resolution of the Trust for allotting this plot to you.

iii) Your title of the land is not clear against which the said plot was allotted to you.

iv) That as per Rules, you are co-sharer in the joint khata of the land acquired by the Trust and no plot can be allotted to you in your individual capacity.

v) That on 11.09.1997, you were specifically requested to appear personally and show cause that why this plot may not be canceled, but you did not turn up inspite of service."

Petitioner Davinder Kaur (since deceased) was owner in possession of 1/30th share of the land measuring 55 kanals 16 marlas, situated in Habbowal Khurd, Tehsil and District Ludhiana. The said land was acquired along with other land by the Improvement Trust in the year 1976. The possession thereafter was taken by the Improvement Trust after payment of the compensation.

The petitioner submitted an application dated 19.06.1981 through her attorney Gurbax Singh Grewal for purchase of 500 sq. yards plot in terms of "Utilization of land and Allotment of plots by the Improvement Trust Rules, 1975" (for short "the Rules"). The application was submitted along with the requisite fee. It was on 11.12.1990, plot No. 93-E was allotted to the petitioner @ Rs. 180/- per sq. yard. The petitioner deposited 25% of the amount but when the first installment was to be paid, the office refused to accept the same on the ground that all the allotments made by Mr. B.D. Aggarwal, the then Chairman of the Improvement Trust, are under scrutiny by the higher authorities and therefore the payment shall be received only after the clearance of those files. The petitioner then filed Civil Writ Petition No. 13314 of 1996 before this Court. In the said writ petition, the Improvement Trust took the stand that the allotment of the plot was illegal and that the allotment were made bye-passing all Rules and Regulations including communication dated 02.05.1995 issued by the State Government. The aforesaid writ petition was disposed of on 06.05.1997 with the following observations:

"That in view of the aforesaid stand taken by respondent No. 2 in its written statement this Hon''ble Court was pleased to dispose of the said writ petition of the petitioner on 6.5.97 by passing the following order:-

"Learned counsel for the respondent states that they have not initiated the process of cancellation though no cancellation has been effected as yet. The respondents are directed to complete the process within three months. In case of respondents come to the conclusion that plot is not to be canceled, the possession of the same would be given to the petitioner within one month on the receipt of the remaining amount. The petitioner will be at liberty to raise all objections before the authorities who may issue show cause notice for cancellation.

In view of the above writ petition is held premature and is hereby dismissed."

It is thereafter, the impugned communication dated 03.10.1997 has been issued. The petitioner challenges the cancellation of allotment of plot, inter alia, for the reason that the petitioner applied on a prescribed form along with requisite fee, therefore, it cannot be said that the petitioner did not apply in accordance with Rules. It was also denied that there is no resolution of the Trust for allotment of plots to the local displaced persons. The allotment was made after nine years of the submission of the application. The other reasons were said to be self contradictory. It was asserted that no other co-sharer of joint khata has been allotted any plot under the Local Displaced Persons'' category.

On behalf of the respondents, the stand is that the Chairman alone is not competent to make allotment of plots as the allotment is to be made by the Trust only in terms of Rule 8 of the Rules. It is pleaded that Punjab Town Improvement (Utilization of land and allotment of plots) Rules 1983 (for short 1983 Rules) are attracted and not the Rules. It is also pleaded that the petitioner has claimed that she was sole owner of the land measuring 45 kanals 16 marlas, though she is a co-sharer. It is pointed out that large number of allotment of the plots was made by Mr. B.D. Aggarwal, the then Chairman of the Improvement Trust, in violations of the Rules and Regulations and that all such allotments have been cancelled. The allotment of plots cannot be made in the year 1990 on the basis of repealed Rules 1975. The petitioner was said to be not eligible for allotment of plot under 1983 Rules.

Learned counsel for the petitioner refers to a judgment of Division Bench of this Court passed in CWP No. 940 of 2007 titled as "Ranjeet Kaur v. State of Punjab and another". In Ranjeet Kaur''s case (supra), it has been held that Rules applicable on the date of acquisition of land would be applicable. Therefore, it is contended that it is the 1975 Rules, which would be applicable in respect of allotment of plot to the petitioner. Relying upon Rule 5(4) of the Rules, it is argued that the tenements or the plots are required to be allotted on ''first come, first serve'' basis and that no out of turn allotment is to be made. Therefore, it is argued that the petitioner having applied for a plot in the year 1981 was rightly allotted plot in the year 1990.

We have heard learned counsel for the parties and find no merit in the present writ petition.

Learned counsel for the petitioner has contended that plots can be allotted on ''first come, first serve'' basis. The condition of ''first come, first serve'' basis is not in-consonance with the principle of the disposal of the public property. All public properties have to be sold by public advertisement by inviting applications from the general public or a class of persons such as Local Displaced Persons in the present case. Without inviting applications through a public notice, any Rule permitting allotment of plots on ''first come, first serve'' basis is not tenable in law. Reference may be made to Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Others, .

Ranjeet Kaur''s case (supra) was a case where seven out of eight co-sharers were allotted plots and the petitioner therein was the 8th co-sharer, who was claiming independent plot. In terms of 1975 Rules, a plot cannot be allotted to each of the co-sharers. In fact such right of co-sharer for claiming independent plot has been dealt with by the Full Bench of this Court in'' "Jarnail Singh and others v. State of Punjab and others" (CWP No. 2575 of 2009 decided on 1.10.2010) wherein it has been held that the restriction of allotment of one plot to all the co-sharers is not tenable and each co-sharer has to be considered for allotment of plot according to the extent of his land holding.

In view of the said fact, the judgment of Division Bench of this Court is not applicable to the facts in the present case, where allotment of plot is sought to be made on the basis of ''first come, first serve''. Similar policy of allotment on first come, first serve'' basis, came up for consideration before this Court in another scheme, which was called ''off sell scheme''. This Court has set aside such ''Off the Shelf Scheme'', which is similar in nature of allotment of plots on ''first come, first serve'' basis. The Court in Hero Cycles Limited Vs. International Cycle and Strips Ltd. and Others, , held as:-

"29. The requirement to advertise was salutary. An advertisement guarantees an open invitation. It ensures an equality of opportunity to all. It is in conformity with the requirements of Article 14. It is in consonance with the principles of fair play. It widens the filed of choice. It reduces the chances of unfair differentiation. It excludes arbitrariness. It helps in the selection of the best. It was obviously on account of these reasons that the condition of advertisement had been laid down in the notification.

However, in respect of allotments under off-the-shelf scheme the procedure of advertisement was not to be followed. Similar was the position in case of the discretionary allotment by the Chief Minister. Why? What were the reasons for ruling out an open competition? Why was the choice being restricted? If open advertisement was good in the case of small plots, why not in case of allotment of plots measuring 20 to 100 acres? Or is it that the allotments under off-the-shelf scheme were like the discretionary allotments by the Chief Minister? Both falling within the exclusive domain of absolutely unguided and unbridled discretion of bureaucrats and politicians? The counsel for the appellants could offer no explanation except to say that different dignitaries had addressed seminars and meetings to invite industrialists to apply for allotment of land. Is it really so? Who had addressed? When? And where? The record does not support the claim."

The allotment of plot has been made to the petitioner without any public advertisement inviting applications from similarly situated eligible applicants. Therefore, the cancellation of plot cannot be said to be unjustified. Still further, the allotment has been made by the Chairman of the Improvement, but such allotment has to be approved by the Trust. The powers of the Chairman are defined in Section 96 of the Improvement Trust Act. The statutory power does not empower to the Chairman to make allotment of plots.

Learned counsel for the petitioner has argued that two writ petitions filed by the co-sharers of the petitioners stand allowed by this Court. Therefore, the petitioner is entitled to a plot. The petitioner cannot claim any parity on the basis of the said orders. Reference may be made to Chandigarh Administration and another Vs. Jagjit Singh and another, , wherein, it has been held that there cannot be any parity in the illegality. In view thereof, we do not find any merit in the present case. Accordingly, the present writ petition is dismissed.