Mangal Dass Arora vs The State of Punjab and Another

R.L. Anand, J.—By this judgment I dispose of three civil writ petitions Nos. 2617 of 1988 (Mangal Dass Arora v. The State of Punjab and Anr.) 16841 of 1992 (Hans Raj Mudh v. State of Punjab and Anr.) 13636 of 1994 (Sqn. Ldr. D.H. Sandhu v. Amritsar Improvement Trust and Ors.).

First of all I would like to take the pleadings of C.W.P. No. 2617 of 1988 in which Shri Mangal Dass Arora has prayed for the issuance of a writ of certiorari/directions quashing the orders dated 9.6.1987 (Annexure P-4) passed by the State Government rejecting the allotment of plots made by the Amritsar Improvement Trust (respondent No. 2) by draw of lots held on 21.10.1986 in accordance with the provisions of the Punjab Town Improvement (Utilization of land and Allotment of Plots) Rules, 1983 (for short ''the 1983 Rules''). The petitioner also prayed for issuance of a writ of mandamus directing the respondents to allot to him the plot as per the draw of lots already held on 21.10.1986. It has been pleaded that Amritsar Improvement Trust invited applications for the allotment of residential plots at Ajnala Road Area Expansion Scheme. The petitioner made an application for allotment of a plot of 300 sq. yards out of the plots reserved for State Government employees under Rule 4(1) of the 1983 Rules. According to clause (iv) of Rule 4(1) of the 1983 Rules, eight percent of the plots are supposed to be reserved for the persons appointed to Public Services by the State Government, who are holding posts in connection with the affairs of the State of Punjab and in case of their death while in service, their widows. The petitioner was working as Inspector in the Police Department at Amritsar at the time of the submission of the application and he being a State Government employee was entitled to be considered for allotment of plots reserved for such category of persons under Rule 4(1) (iv) of the said Rules. Rule 8 provides that residential plots shall be allotted by the Trust by draw of lots and commercial plots by auction. Rule 10 provides that persons exceeding gross annual income of Rs. 25,000/- and not owning jointly or severally with the spouse a residential plot or house other than an ancestral house in the Union Territory of Chandigarh or any Urban Estate or in any area covered by the Scheme framed under the Act or at Panchkula and who has not disposed of such plot or house, shall be eligible for allotment of residential plots measuring 300 square yards or more. The petitioner states that draw of lots for allotment of residential plots in Ajnala Road Area Expansion Scheme was held by the Trust on 21.10.1986 and plot No. E-117 measuring 300 sq. yards drew in his favour. The Trust informed the petitioner vide letter dated 12.12.1986 (PI) that the petitioner should furnish an affidavit about his not owning any other plot, house, his income and of his being a State Government employee, to enable the Trust to issue regular allotment letter. The petitioner submitted the necessary affidavit along with letter dated 22.12.1986. The affidavits are Annexure P2 and P3. The Trust referred to the State Government the draw held on 21.10.1986 for obtaining their sanction but the State Government vide letter dated 9.6.1987 rejected the allotment made by draw of lots without giving any reasons or opportunity of hearing either to the Trust or to the allottees (Annexure P4). The Trust thereafter vide letter dated 4.12.1987 (P5) cancelled the allotment of Plot No. E-117 in the Scheme to the petitioner in view of the rejection letter dated 9.6.1987 (P4). The petitioner alleges that the order dated 9.6.1987 (P4), rejecting the allotment of the plots by the Trust in accordance with the provisions of the 1983 Rules and the order dated 4.12.1987 (P5) issued by the Trust, cancelling the allotment of the plot to the petitioner, are illegal, arbitrary, unconstitutional, inoperative, unjust, unfair, and ultra vires of the provisions of the Act and the Rules and violative of the principles of natural justice and are liable to be quashed because the State Government has no power under the 1983 Rules to reject the allotment of plots made by the Trust in accordance with the provisions of the rules. The State Government nowhere figures in the 1983 Rules and no approval of the State Government was required for the allotment of the plot. The action on the part of the Slate Government is clearly without any authority and law. The State Government has not given any reasons for rejecting the allotment of the plots made by the Trust by draw of lots. The letter (Annexure P4) is not a speaking order. After the State Government has framed the rules for the guidance of the Trust, for allotment of plots, it cannot work as a supervisory body for the working of the Trust. The State Government could examine the matter before the allotment of the plots by the Trust, but it could not disapprove or decline to grant approval for any reason. The State Government has passed a blanket order rejecting the allotment of the plots to all the persons who were allotted plots in the draw of lots held on 21.10.1986. The State Government should have examined the case of each of the allottees individually. With the above averments the present -petitioner has made the prayer referred to above.

Notice of the writ petition was given to the respondents. The stand of the State Government is contained in para No. 8 of the written statement wherein it has been pleaded that the Government vide memo dated 28.11.1984 addressed to the Chairman, Improvement Trust, Pathankot, and copy to all the Chairman of the Trusts in the State of Punjab issued clarification that the Trust can allot reserved plots to the eligible persons as mentioned in Rule 4(1) of the 1983 Rules with the prior approval of the State Government. Before making allotment of plots to the reserved categories, including the category of the petitioner, the Government was requested to accord sanction, but the proposal was considered and rejected. Thereafter the Trust made allotment by draw of lots, which was held on 21.10.1986, to the persons falling in reserved categories and further request was made to the Government to grant ex post facto sanction, but the Government vide memo, dated 9.6.1987 rejected the allotment made by draw of lots held on 21.10.1986 and accordingly intimation was sent to the petitioner vide Annexure P5. The said action on the part of the Government is legal and constitutional. The stand of respondent No. 2 (the Improvement Trust) is on the lines of the State Government (respondent No. 1) It has also been pleaded by respondent No. 2 that the State Government has right to reject any allotment made by the Trust as laid down in the Memo dated 28.11.1984.

Replication was filed by the petitioner in which he reiterated his allegations made in the petitioner while denying those of the written statement. He further pleaded that there is no provision under the rules providing of taking prior approval of the State Government before making allotment of plots to the reserved categories. The alleged instructions contained in letter dated 28.11.1984 cannot override the statutory provisions of 1983 Rules and have no force in the eyes of law. These instructions even otherwise have been withdrawn by the Government vide Memo dated 28.10.1992 (P6). Even otherwise these instructions have been held to have no , force of law by the Civil Court in two Civil Suits, i.e., Civil Suit No. 864 decided on 15.9.1988 (Smt. Balwinder Kaur v. Amritsar Improvement Trust, and Civil Suit No. 715 decided on 29.3.1989 (Ved Pal v. Amritsar Improvement Trust). The decrees passed in these cases have become final and are binding so far as the draw of lots in question in concerned. Both the plaintiffs of those suits have been allotted plots and the action to deny the plot to the petitioner would amount to discrimination. Annexures P7 and P8 are the copies of the judgments.

In C.W.P. No. 16841 of 1992 Hans Raj Mudh petitioner has pleaded that respondent No. 2, i.e., the Trust, developed a scheme known as Ajnala Road Area Expansion scheme, concerning residential plots, which were to be allotted by the Trust by draw of lots as per the provisions of the 1983 Rules, and the Trust advertised in the newspapers calling upon the general public to submit applications to the Trust for allotment of plots to various categories as per the terms and conditions stipulated in the advertisement. The petitioner is a public servant working as Sub-Divisional Officer in the Punjab State Electricity Board. He applied for allotment of a plot and also deposited a sum of Rs. 4,000/- with the Improvement Trust on 20.8.1985 vide receipt No. 43410. The draw of lots was held on 21.10.1986 and the petitioner was lucky enough to get a plot in his favour in the draw. The number of the plot was D-156 and it measured 200 square yards. An intimation dated 9.12.1986 with regard thereto was sent by the Trust to the petitioner. However, he was conveyed by respondent No. 2 vide letter dated 4.12.1987 (P3) that draw dated 21.10.1986 was cancelled by the Government vide Memo, dated 9.6.1987. Thereafter the petitioner served a legal notice upon respondent No. 2, which did not give any reply to the said notice. The case set up by the petitioner is that respondent No. 2 being a statutory body itself is competent to make allotment as per the 1983 Rules and no approval of the Government was required nor it was mentioned in the advertisement that the allotment would be subject to the approval of the Government. Approval of the Government is required only with respect to those residential plots which fell within the 3rd proviso of Rule 4 of the aforesaid rules, but the case of the petitioner did not fall within the ambit of that proviso the action of the respondents in the cancellation of the allotment of the plot to the petitioner was arbitrary and uncalled for. Various eligible persons challenged the decision of the Trust by filing civil suits and in those civil suits the cancellation of the plots given by draw of lots held on 21.10.1986 was upset and directions were given to the Trust to make allotments to the persons who filed the suit. The Trust accepted the verdict of the Civil Court and so much so it allotted a plot in favour of Smt. Balwinder Kaur. Once the respondent-Trust has accepted the verdict of the Civil Court, it cannot discriminate between allottees on one excuse or the other. The petitioner made several requests to the respondents for the allotment of the plot but to no effect. Ultimately he served a legal notice on 30.10.1992. The Trust is bound to allot the plots to all the similarly situated persons under the same scheme and it is not necessary that every person should approach the Court in order to get his relief. In para No. 15 of the writ petition, the petitioner propounded his cause of action with effect from 15.9.1988 when the Civil Court gave the finding against the Trust and on 15th July, 1991 when the sale deed was executed in favour of the Smt. Balwinder Kaur in the same draw of lots and lastly in the month of October 1992 when respondent No. 2 refused to listen to the petitioner. The petitioner also submits that he has continuous cause of action till the allotment is made in his favour.

Written statement was filed by respondent No. 2 and a preliminary objection was raised that the writ petition was liable to be dismissed on the ground of an unexplained delay of more than 5 years as the plot in favour of the petitioner was cancelled on 9.6.1987 and the petitioner was duly intimated on 4.12.1987. The present writ petition has been filed in the month of December 1992. There is no valid explanation. Even the void order can be challenged within 3 years. The petitioner cannot take the benefit of the verdicts of the Civil Court as he was not a party in those suits. His limitation for filing the suit has lapsed and now after the expiry of limitation he cannot challenge the action of the respondent (Trust). On merits the stand of the Trust is that the approval of the Government for allotment of the plots to the persons falling in reserved categories was required. The matter was, accordingly, referred to the State Government for approval. When the approval was not received, the then Deputy Commissioner-cum-Chairman fixed the date for draw and allotment was made on 21.10.1986. However, the Government vide Memo dated 9.6.1987 did not accord the approval. Accordingly, an intimation to that effect was given to the petitioner, stating that his name would be considered in the next draw of lots, if he did not want to withdraw his consideration money of Rs. 4,000/-. The petitioner never asked for the refund of the earnest money and he agreed to the conditional letter and, therefore, he is estopped from challenging the cancellation of the allotment of the plot to him. In the 1983 Rules it has been made clear that if any question arises as to the interpretation of these rules, the Government shall decide the same. The petitioner did not approach the State Government for the interpretation of the Rules and, therefore, he cannot file the writ petition. The Trust filed appeals before the appellant authorities in the case of the persons who filed the civil suits. Those appeals have been admitted for regular hearing and the stay of the execution of the decree has been granted. Regarding Balwinder Kaur, the stand of the Trust is that it wanted to file an appeal against the decision of the Civil Court but by that time the limitation had expired and for that reason the sale deed was executed in her favour. The Trust has challenged the decisions of the Civil Courts in all other cases except the case of Smt. Balwinder Kaur. With the above defence respondent No. 2, i.e., the Trust, has prayed for the dismissal of the writ petition of Hans Raj Mudh.

In C.W.P. No. 13636 of 1994 Sqn. Ldr. D.S. Sandhu petitioner has added Shri Hans Raj Mudh aforesaid as respondent No. 3, besides Amritsar Improvement Trust and the Trust Engineer, respondents Nos. 1 and 2, respectively, and claimed the relief seeking directions to the respondents to allow the petitioner to raise the construction of residential building on Plot No. D/156, Defence Colony, Ajnala Road, Amritsar. The case set up by the petitioner is that he being a Defence Services Officer, applied to the Chairman, Amritsar Improvement Trust, Amritsar for the allotment of a plot of 400 square yards in Sector ''D'' of Ajnala Road Extension Scheme, Amritsar, vide letter dated 4th January, 1988, in response to the advertisement of the Trust dated 9.12.1987. He also sent a sum of Rs. 8,000/- by way of demand draft towards earnest money and the certificates regarding his bonafides. In response to his application the petitioner received Memo No. AIT/SS/79 dated 9.2.1988 acknowledging his application and the demand draft. Thereafter he received Memo dated 1.3.1988 from the Trust stating that he had been allotted plot No. 156 measuring 400 square yards in the Scheme and it was further clarified that the total cost of the plot would be Rs. 81,000/-. Thereafter the petitioner executed an agreement of sale of Plot No. 156 of 400 square yards and this agreement was sent on 27.3.1988. Vide letter dated 13.6.1988 the petitioner was advised to be present at the site on 12.7.1988, so that the area of the plot could be measured and further more the petitioner could collect the copy of the agreement dated 11.6.1988 from the office of the Improvement Trust. As per clause 3 of the agreement dated 11.6.1988 the petitioner was to submit his house plan within 36 months of having been given possession of the plot which was to be approved by the Trust. The petitioner was supposed to complete the construction within three years from the date of the delivery of the possession. The petitioner being on a transferable job was posted out of the country from 7.7.1988 to 6.6.1991. He executed a power of attorney dated 6.5.1988 in favour of Ajit Singh. Thereafter the petitioner submitted the site plan in the office of the Trust on 1.6.1994. However, he received a letter dated 15.6.1994 from the Trust wherein it was stated that the plot in question was the subject matter of the case pending in this Court. It was further stated that due to this, no action would be taken on his site plan and the same would be kept in abeyance. The petitioner made inquiries regarding the said case and came to know that respondent No. 3, i.e. Hans Raj Mudh, had filed a writ petition in the High Court for the allotment of the plot, which has been cancelled, in his favour. The petitioner alleged that the plot of 200 square yards allotted to Shri Hans Raj Mudh and subsequently cancelled was having the same number as that of the present petitioner. According to the petitioner, though the plot number was the same but the scheme under which it had been allotted was different and also pertained to different period of time. The plot allotted to respondent No. 3 and then cancelled was of 200 square yards, whereas the plot regarding which the possession was delivered to the attorney of the petitioner measured 400 square yards. Respondent No. 3 was not given possession of the plot of 200 square yards and he did not execute any agreement of sale. The plot allotted to the petitioner came into existence vide Improvement Trust Scheme in 1987, whereas respondent No. 3 applied for the allotment of the plot in the year 1985. The petitioner has made full and final payment of the plot. The last installment was paid in April 1994. The petitioner made a representation to the Trust on 14.7.1994 to allow him to construct the house at the earliest. He received no reply.

The petitioner alleges that doctrine of promissory estoppel would apply in the case of respondent No. 2 when it had been accepting the instalments of the plot. The petitioner cannot be allowed to suffer due to inaction or mala fide intention on the part of respondents Nos. 1 and 2.

The writ petition of Sqn. Ldr. D.S. Sandhu has also been contested by the Trust, which took the preliminary objections that plot No. D-156 in Defence Colony was earlier allotted to Shri Hans Raj Mudh through a draw of lots held on 21.10.1986. The State Government did not approve of that draw and accordingly it was cancelled on 9.6.1987. All the allotments made to various persons, including Shri Hans Raj Mudh, were cancelled. After the action of the State Government, the plot in question was allotted to the petitioner on 1.3.1988. The previous allottee Shri Hans Raj Mudh filed a writ petition in the High Court and the action of the Trust and that of the State Government was given challenge. An ex parte stay order was granted while admitting the writ petition- of Shri Hans Raj Mudh. Thereafter the stay order dated 18.12.1992 passed by the Division Bench was vacated by the Single Bench. Shri Hans Raj Mudh again obtained stay order dated 30.7.1993 and directions were given by the High Court that Plot No. D-156 be not allotted during the pendency of the writ petition. Shri D.S. Sandhu submitted the plan for sanction on. 1.6.1994 and the Trust replied to him that the case regarding plot No. D-156 is pending in the High Court and hence no action is called for and the action on the plan submitted by the petitioner shall be taken according to law after the decision of the writ petition No. 16841 of 1992 filed by Shri Hans Raj Mudh.

On merits the stand of the Trust is that, in fact, plot No. D-156 is the same which was allotted to Shri Hans Raj Mudh and it did not exist in a different scheme. In para No. 9-B of the written statement it has been explained by the Trust that while allotment of Plot No. D-156 was made to Shri Hans Raj Mudh, the area of this plot as per sanctioned lay out plan bearing No. AIT/2443/82 was 200 square yards, but later on the lay out plan was changed and in the revised sanctioned lay out plan No. AIT/2557/87 dated 25.9.1987 the scheme in which plot Nor D-156 was falling was converted into 400 sq. yards. As such it is not correct that plot allotted to Shri D.S. Sandhu is not the same which earlier was allotted to Sh. Hans Raj Mudh. No agreement for sale had been executed by the Trust in favour of respondent No. 3 and no sale deed had been executed in his favour. It has also been reiterated by the Trust that once the stay order granted by the High Court came to an end, the further action would be taken according to law.

I have heard Shri B.R. Mahajan, Advocate, on behalf of Shri Mangal Dass Arora, petitioner in C.P.W. No. 2617 of 1988; Shri D.S. Pheruman, Advocate, on behalf of petitioner Hans Raj Mudh in C.W.P. No. 16841 of 1992; and Shri H.S. Mattewal, Senior Advocate with Ms. Gurveen Singh, Advocate, on behalf of the petitioner Sqn. Ldr. D.S. Sandhu in C.W.P. No. 13636 of 1994; Shri N.B.S. Gujral, Advocate, with Shri T.S. Gujral, Advocate, for the Improvement Trust, Amritsar; Shri P.S. Chhinna, Senior Deputy Advocate General, Punjab, on behalf of the State of Punjab; and with their assistance have gone through the record of this case.

First of all I would like to take up the case of Shri Hans Raj Mudh, as I am of the opinion that his writ petition is liable to be dismissed on the short ground of delay and laches. It is the categoric stand of the Trust that the plot which was allotted in his favour was cancelled on 9.6.1987 and intimation to that effect was sent to him on 4.12.1987. The petitioner also admits these facts in his writ petition but he has tried to take up the cause of action in view of the averments contained in para No. 15 of the writ petition by alleging that Smt. Balwinder Kaur was given the relief in the month of October 1992 when the Trust executed the sale deed in her favour and that the petitioner served a legal notice upon the Trust. The cancellation of the allotment in favour of the petitioner furnishes a continuous cause of action till the allotment is made in his favour. The petitioner filed a writ petition in the year 1992 but did not file any suit. There is no cogent explanation why he did not file the writ petition earlier when he was intimated about the cancellation of the plot and the absence of explanation for the delay in the filing of the writ-petition can legitimately lead to an inference that the petitioner is guilty of laches. Time and again the Courts have recognised the delay and laches as one of the factors which can appropriately be taken note of and refused relief in the exercise of extra-ordinary jurisdiction. The idea underlying this principle is that stale claims should not be entertained by the High Court because that would unsettle the settled position and the rights of the third parties would be adversely affected. Another reason for not entertaining the delayed writ petition is that the delay defeats the equity and while exercising equitable jurisdiction, the Court would always require the parties to invoke its jurisdiction at the earliest and no indulgence would be shown to those who sit over the reference for a long time and then challenge the action of the public authorities. It is true that no hard and fast rules can be laid down and no strait jacket formula can be prescribed as to when the High Court should entertain a writ petition and when it should exercise its jurisdiction in favour of a party. Each case has to be decided on its own facts and the Court will have to keep in mind the factor of delay while exercising its equitable jurisdiction and the Court would be extremely slow where the petitioner does not approach the Court expeditiously. Even the suit of the plaintiff in the year 1992 was prima facie barred and a relief which he could not get by way of suit cannot be granted to him in the present writ petition.

Learned counsel Shri D.S. Pheruman submitted that once the writ petition of his client has been admitted by this Court, it will be presumed that the point of delay and laches had been condoned, and cannot be taken up for consideration at the time of the final argument. I am not in a position to agree with the argument raised by the learned counsel Shri Pheruman. At the motion stage the law courts admits the case on the assumption that there is some arguable point which required adjudication on merits after hearing full length arguments. In the case of Shri Hans Raj Mudh the Division Bench never overruled the objection of the Trust regarding delay and laches. Even otherwise the petitioner cannot be given any relief because of the loss of identity of the subject matter. He was allotted plot No. D-156 when its area was 200 sq. yards. The same number of the plot, i.e. D-156, has been changed in the new laid down scheme and its area has been increased to 400 square yards and was allotted to Shri D.S. Sandhu, who was also eligible under the defence quota. With the allotment in favour of Mr. Sandhu, the intervener has intervened and it will be most unfair on the part of this Court to give any relief in favour of Shri Hans Raj Mudh.

So far as the merits of the cases of Shri Mangal Dass Arora and Shri Hans Raj Mudh are concerned, 1 am in agreement with the contentions of Shri B.R. Mahajan and Shri D.S. Fherunnan that the cancellation of plots in favour of their clients was an illegal act on the part of the Trust and the Government because in the advertisement it was not stipulated by the Trust that the draw of lots should be subject to the approval of the State Government, which, in fact, does not come into picture. According to the 1983 Rules the Trust, which is a statutory body, is competent to allot on its own level, once it is. satisfied that the applicants are eligible. The applicants were never informed that their allotments would be subject to the approval of the State Government. If there were any instructions issued by the State Government directing the Trust to seek the prior approval of the Government before allotment of the plots, those instructions were never communicated or convened to the persons who got the plots in the draw of lots. By mere executive instructions, even the statutory rules cannot be altered or varied. The Government while rejecting the draw of lots has not given any reasons in its Memo. not the petitioners were heard either by the Trust or by the Government before the cancellation of the allotment. For all these reasons the cases of Sarvshri Mangal Dass Arora and Hans Raj Mudh, so far as the merits are concerned, they are entitled to the allotment of plots. But Shri Hans Raj Mudh cannot succeed on the ground of delay and laches.

The case of Shri D.S. Sandhu is on different footing. He was found eligible to the allotment of 400 square yards plot No. D-156. He completed all the formalities. In fact, there is no cancellation orders against him. Action has been withheld on his request for sanction of the site plan due to the decision of the writ petition filed by Shri Hans Raj Mudh. The stand of the Trust in the written statement is that further action on the request of Shri D.S. Sandhu would be taken after the decision of the writ petition of Shri Hans Raj Mudh. The Trust is bound to give the approval to the site plan submitted by Shri Sandhu. It is also bound to deliver the possession to him, if not already granted, according to law.

Resultantly, C.W.P. No. 16841 of 1992 (Hans Raj Mudh v. State of Punjab), is hereby dismissed. However, C.W.P. No. 2617 of 1988 (Mangal Dass Arora v. The State of Punjab and Anr., and C.W.P. No. 13636 of 1994 (Sqn. Ldr. D.S. Sandhu v. Amritsar Improvement Trust and others), are hereby allowed. Directions are issued that order dated 9.6.1987 (P4) is hereby quashed. Further directions are given to the State of Punjab and the Improvement Trust, Amritsar to allot to Shri Mangal Dass Arora petitioner plot No. E-117 measuring 300 square yards, as per terms and conditions of the Trust prevalent at that time. In C.W.P. No. 13636 of 1994 directions are issued to respondents No. 1 and 2 to allow the petitioner to construct residential building on plot No. D-156, Defence Colony, Ajnala Road, Amritsar, according to law and the rules of the Trust as applicable in the matter of construction of residential building. There shall be no order as to costs in all the writ petitions.