Sarabjit Singh vs State of Haryana

G.S. Singhvi, J.

The petitioners have invoked writ jurisdiction of this Court for directing the respondents to allot plots to them in accordance with resolution No. 463 dated 27.2.1974 passed by the Karnal Improvement Trust, Karnal (hereinafter referred to as ''the Trust'').

A perusal of the record shows that for the purpose of implementing scheme No. 5 framed by it for development of a new Subzi Mandi at Karnal, the Trust acquired land measuring 5.25 Acres. The scheme was notified as early as on 8.8.1963 but the proceedings of acquisition could be finalised only in 1972 when the Land Acquisition Collector passed award dated 7.11.1972 in terms of which the landowners were paid compensation at the rate of Rs. 19/ per square yard with 15% solatium. After about 10 months, the Trust passed resolution No. 396 dated 25.9.1973 for extension of the Subzi Mandi over an area measuring 18.8. acres (approximate). For giving effect to the aforementioned resolution, the Trust decided to acquire more land but instead of going for acquisition by following the detailed procedure laid down in Sections 36 to 42 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as ''the Act''), it decided to purchase the land from the owners by negotiations. For this purpose, the Trust passed resolution No. 463 dated 27.2.1974 of which the salient features are detailed below :

(a) The land was to be purchased from the owners by negotiations.

(b) The market price of the land was assessed at the rate of Rs. 37/ per square yard on the basis of current market price prevailing in the area.

(c) It was also agreed that an alternate shop will be allotted to all those whose land would be purchased.

On 4.8.1975, the Trust framed scheme No. 47 for land measuring 18.8. acres proposed to be purchased in pursuance of resolution dated 27.2.1974. However, before the scheme could be sanctioned, the State Government dissolved the Trust vide notification No. 64804C(i)77/23148 dated 28.7.1977. After 4 months and 9 days, the Trust was reconstituted vide notification No. 11030 4C(i)77/38686 dated 6.12.1977. Soon thereafter, Secretary to Government Haryana, Local Bodies Department, Chandigarh issued circular letter No. 133033C(i)77/1069 dated 25.1.1978 indicating therein that all the schemes which were framed by the Trusts before their dissolution but which had not been sanctioned by the Government would stand automatically lapsed. After reconstitution, the Trust passed resolution No. 24B dated 7.2.1978 for preparation of the scheme for extension of Subzi Mandi. The same was re numbered as Scheme No. 67 and was published under Section 36 of the Act. While this scheme was awaiting sanction, the State Government again dissolved the Trust vide notification No. 7/80/4C(i)789 dated 6.7.1978. The same was reconstituted on 20.6.1990.

In the meanwhile, the Trust purchased land from different landowners by negotiations. Two parcels of land measuring 1 Bigha 7 Biswas each were purchased from the petitioners vide registered sale deeds dated 3.12.1980. Rs. 5,000/ were paid to each of the petitioners on 16.9.1975 as part payment of the total price. The remaining amount was paid to them at the time of execution and registration of sale deeds. Similar sale deeds appear to have been executed with 24 other persons. After 31/4 years, the Trust (dissolved) wrote letter No. 8466/KIT dated 19.3.1984 to the Commissioner and Secretary to Government of Haryana, Local Bodies Department, seeking the government''s permission to develop and disburse the plots in Subzi Mandi Extension Scheme No. 67. The State Government rejected this request of the Trust vide letter No. 33/50/813C(i) dated 1.10.1984. After one year and about 4 months letter No. 9991/KIT dated 7.2.1986 was written by the Trust to the government for grant of expost facto sanction to Scheme No. 67. Vide notification No. 29/1/853C(i) dated 27.5.1986 (published in the official gazette on 8.7.1986), the State Government granted the request of the Trust.

It appears from the record that after developing the area the Trust decided to auction the built up booths (Scheme No. 5) and booth sites (Scheme No. 67). This was challenged by Manohar Lal and others by filing C.W.P. Nos. 1893, 13171 and 13613 of 1989, 2945, 3820, 7506, 7507, 7749 and 10353 of 1990 and 6726 of 1991 with the prayer that a direction be issued to the respondents to allot built up booths and booth sites to them at the reserved price. By an ex parte interim order dated 14.2.1989 passed in C.W.P. No. 1893 of 1989, this Court stayed the proposed auction. After notice, the following interlocutory orders were passed by this Court.

"Order dated 21.8.1989.

Mr. Goel says that on principle it has been decided to make available for allotment to the petitioners and others similarly situated sites measuring 2.5 x 3.5 mtr. in the extended scheme No. 67 at Karnal City, which site the allottees would be able to construct by digging a basement and raising three storeys thereon after getting the require plans sanctioned. He says that the allotment shall be made by draw of lots to all eligibles. Lastly, he states that the price of the site has yet to be worked out and on that question the learned Counsel or the petitioners is apprehensive that it may turn out to be exorbitantly high. In order to set the matter at rest, we direct Mr. Goel to apprise us the price of the site at which it is likely to be allotted by draw of lots. Adjourned for the purpose to October 10, 1989."

Order dated 12.1.1990.

"Admitted.

Allotment of commercial plots within the jurisdiction of the Improvement Trust, Karnal shall not be made unless the plots are offered to the petitioners at a price which would be approved/fixed by this Court. In para 6 of the Civil Misc. 514 of 1990, it is stated that the Improvement Trust has allotted between 20 to 30 plots in spite of the order of this Court dated 21st August, 1989. The allotment of these plots, if any, shall not be finalised and in case there is any contravention of the aforesaid order, the petitioners will be at liberty to move for the contempt of Courts."

On 7.2.1997, a the learned Single Judge of this Court disposed of the above mentioned writ petitions with the direction that the writ petitioners should be considered for allotment in pursuance of resolution No. 172 passed by the Trust.

During the pendency of the writ petitions filed by Manohar Lal and others, petitionersSarbjit Singh and Gajinder Singh submitted applications dated 23.4.1992 and 24.4.1992 for allotment of shop sites in accordance with the Trust''s resolution dated 27.2.1974. They reiterated this request vide representation dated 29.3.1995. In reply to the last mentioned representation, the Chairman of the Trust wrote letter Annexure P.5 dated 23.6.1995 that allotment of commercial sites will be made as per the agreement as soon as the stay order passed by the High Court in vacated. This letter was written on the basis of note Annexure P.4 dated 14.6.1995 recorded by the Secretary of the Trust. Soon after the decision of the writ petitions, petitioner No. 1 wrote letter Annexure P.6 dated 27.2.1997 to the Administrator/Chairman of the Trust reviving his request for allotment of commercial site but he failed to get any response. This is the reason why they have filed this petition under Article 226 of the Constitution of India for directing the respondents to allot pots to them in Scheme No. 67 at the reserved/minimum price by contending that the Trust is bound to act in accordance with the terms of saledeeds dated 3.12.1980 which were executed in view of resolution No. 463 dated 27.2.1974 passed by the Trust for purchase of their land. They have also raised the plea of discrimination by stating that the Trust has arbitrarily withheld allotment of commercial sites to them although other similarly situated persons have already been given commercial sites.

In the written statement filed by it through the Administrator, the Trust has questioned the maintainability of the writ petition on the ground that it involves adjudication of disputed questions of fact. On merits, it has admitted that the land of the petitioners was purchased by negotiations in view of the resolution dated 27.2.1974 but at the same time it has pleaded that the petitioners do not fall within the definition of ''local displaced person'' as defined in the Land Disposal Rules, 1976 and, therefore, they cannot claim allotment of alternative sites.

In compliance of the Court''s order dated 12.11.1998, Shri Balraj Singh, Additional Deputy CommissionercumAuthority, Improvement Trust, Karnal filed an affidavit dated 4.1.1999. In that affidavit, Shri Balraj Singh has given the details of the steps taken in connection with the framing of schemes and sanction thereof, purchase of land from the petitioners and the communication dated 23.6.1995 sent to the petitioners. The details of the orders passed by the Court and the particulars of allotments made in favour of similarly situated persons have also been incorporated in that affidavit. He has also justified the nonallotment of plots/shop sites to the petitioners on the following grounds :

(i) The applications submitted by the petitioners are highly belated.

(ii) The land of the petitioners was not acquired by the Trust and, therefore, they cannot be treated as local displaced persons within the meaning of Land Disposal Rules, 1976.

(iii) The petitioners have already been benefited by the payment of price at the rate of Rs. 37/ per square yard which is almost twice the price paid for the adjoining land acquired by the Trust.

(iv) The land purchased by the Trust was owned by Shri Kirpal Singh who transferred the same to the petitioners by means of collusive decree obtained on 19.4.1970.

(v) Shri Piara Singh and others got allotment of plots/shop sites due to political influence and such allotments cannot be made the basis for directing the Trust to accept the prayer made by the petitioners.

Shri Arun Palli argued that in view of resolution No. 463 dated 27.2.1974 passed by it to acquire the land by negotiations and to allot one plot to the landowner, the Trust is under a legal obligation to issue letters of allotment to the petitioners. Learned Counsel invoked the doctrine of promissory estoppel and submitted that a direction be issued to the Trust to fulfil the promise made by it to the petitioners while acquiring their land that after developing the scheme they will be allotted commercial sites. Shri Palli also raised the plea of discrimination and argued that after having allotted commercial sites to other similarly situated persons from whom the Trust had purchased the land by negotiations, it cannot refuse to allot plot to the petitioners. Shri H.S. Hooda, senior counsel appearing for the Trust strenuously urged for dismissal of the writ petition on the ground of delay and laches and also on the ground that the petitioners cannot seek enforcement of the terms of the sale deeds by filing petition under Article 226 of the Constitution of India. Shri Hooda submitted that failure of the petitioners to apply for allotment of commercial sites within a reasonable time after the execution of the sale deeds and the filing of application by them after almost 12 years should be treated as sufficient to nonsuit them. He then urged that the petitioners cannot be treated as local displaced persons for the purposes of Land Disposal Rules, 1976 and the acquisition of land by private negotiations cannot be equated with the acquisition made under Sections 36 to 42 of the Act so as to entitle them to seek allotment of land. Learned Counsel submitted that the terms of the resolution passed by the Trust for purchase of land by negotiations and the sale deeds executed by the petitioners in pursuance thereof should not be enforced by the Court by exercising its extraordinary jurisdiction. Shri Hooda then argued that the plea of discrimination raised on behalf of the petitioners should not be entertained because the allotments made in favour of Piara Singh and his relatives was an act of sheer favouritism. He stated that the Trust must have been forced to make allotment in favour of Piara Singh and others due to political influence and extraneous considerations and submitted that such allotments cannot be made basis for directing the Trust to make similar allotments in favour of the petitioners.

A brief recapitulation of the facts and reference to some of the documents would enable us to properly appreciate the respective contentions urged by the learned Counsel for the parties and the rationale of the decision (unwritten) taken by the Trust not to allot shop/booth sites to the petitioners. Admittedly, the land of the petitioners was purchased by the Trust by negotiations held with them in pursuance of resolution No. 463 dated 27.2.1974. That resolution reads as under :

"463 : Office Report, that as the decision of the Improvement Trust, the land adjacent to the present Subzi Mandi for the extension of the Subzi Mandi proposed to be set up, as desired by the Vegetable vendors, negotiations were held with the private landowners. The learned Collector who is the superior most revenue officer in the District, was asked to recommend the present market value of this land. He assessed the value of this land at the rate of Rs. 37/ per square yard. In this letter he also observed that in the scheme the newly built Gurdwara and other permanent structures be also adjusted. Office reports that Gurdwara and the other structures are covered within the notification issued under Section 4 by the Town and Country Planning Department, but the same does not come within the scheme of the Improvement Trust, but a very small portion of its comes therein. The approval be granted so that the land be purchased by the Improvement Trust at the rate of Rs. 37/ per square yard. This be also decided as to who would bear the expenses. The Trust will not have to incur the extra expenditure at the rate of 15% as the land is not being purchased under the Land Acquisition Act. Copy of the letter is not enclosed.

Approval : By agreement it is unanimously resolved and sanction is granted and whosoever''s land would come within this, would be allotted an alternate shop, and copy of the agreement would be supplied within one week. At this time Administrator, Municipal Committee and Ajit Singh went out."

The land of the petitioners was purchased by the Trust by negotiations held in pursuance of the above quoted resolution. After purchase of the land by negotiations, the Trust undertook development and prepared scheme for extension of Subzi Mandi. The State Government did not approve the scheme in the first instance but vide notification dated 27.5.1986 it granted expost facto approval of the revised scheme No. 67. Thereafter,. the Trust initiated the process for auction of the booths and booth sites in Schemes No. 5 and 67 respectively but that process was halted because of the stay order passed by the High Court on 14.2.1989. That order remained operative till the decision of the writ petitions on 7.2.1997. In the meantime, in reply to the representations made by the petitioners the Chairman of the Trust informed them that allotment of commercial sites will be made to them as soon as the stay order of the Hon''ble High Court regarding allotment is vacated. This was done keeping in view the note recorded by the Secretary of the Trust that the petitioners be informed about the allotment of sites after vacation of the stay order by the High Court. After the decision of the writ petitions filed by Manohar Lal and others, the petitioners revived and reiterated their request for allotment of sites in accordance with the resolution of the Trust and finding that the authorities of the Trust are not inclined to entertain their plea, they sought intervention of the Court by filing the writ petition.

From the above noted sequence of facts, it is clearly borne out that the petitioners were at no stage lax in pursuing their cause for allotment of sites in terms of the resolution dated 27.2.1974 and the sale deeds executed on 3.12.1980. Therefore, they cannot be held guilty of laches and denied relief on that ground. In any case, after having accepted their entitlement to the allotment of sites, a fact which is sufficiently proved from the note Annexure P.4 dated 14.6.1995 recorded by the Secretary of the Trust and letter No. 296/KIT dated 23.6.1995 (Annexure P.5) written by its Chairman, it is no longer open to the Trust to raise the plea of delay to defeat the right of the petitioners to seek allotment. In Sualal Yadav v. State of Rajasthan and others, A.I.R. 1977 S.C. 2050, their Lordships of the Supreme Court were called upon to decide the issue whether the High Court was justified in dismissing the writ petition on the ground of delay and laches simply because there was a delay in the submission of review petition by the appellant. While reversing the order of the High Court, their Lordships held as under :

"Since the Governor had not dismissed the review application on the ground of delay and having entertained the same held it to be a case not fit for review, we take the view that the Governor dismissed the review application on merits. That being the position, it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ application."

Moreover, in view of the fact that this Court had, by an interim order dated 14.2.1989 passed in C.W.P. No. 1893 of 1989, stayed the allotment of booths and booth sites and that order remained operative till 7.2.1997, the petitioners cannot be held guilty of laches. Even if we were to insist for allotment of booths or booth sites in terms of the resolution dated 27.2.1974, it was impossible for the Trust to accept their request without violating the order passed by the Court and that, in our considered view, a public authority like the Trust could not have done.

We shall now deal with the issue whether the petitioners are entitled to be allotted plots in terms of the resolution passed by the Trust for acquisition of land by negotiation. The respondents have not disputed the passing of the resolution by the Trust and the execution of sale deeds by the petitioners in furtherance of that resolution. Therefore, the only point which requires consideration by the court is whether the resolution passed by the Trust can be enforced by issuing a writ under Article 226 of the Constitution of India. The argument of the learned Counsel representing the Trust is that the petitioners do not fall within the scope of the expression ''local displaced person'' and, as such, they cannot claim allotment under the Land Disposal Rules, 1976. The other facet of his argument is that the sale deeds executed in pursuance of the resolution of the Trust can, at the best, be treated to have created a contract between the parties but the petitioners cannot seek enforcement of such contract by issuance of a writ.

In our opinion, the submission of the learned Counsel appears attractive but on a closer scrutiny of the same, we are convinced that the petitioners cannot be denied allotment of land in terms of the resolution passed by the Trust merely because they do not fall within the scope of the expression ''local displaced person''. Section 28 which falls in Chapter IV of the Act contains the provision relating to combination of schemes and matters which may be provided for in the scheme. Subsection (2) of Section 28 enumerates the matters which may be provided for in a scheme framed under the Act. Clauses (i) and (ii) thereof, which have direct bearing on the claim of the petitioners, read as under :

"28. Combination of schemes and matters which may be provided for in the scheme.

xx xx xx

(2) A scheme under this Act may provide for all or any of the following matters :

(i) the acquisition under the Land Acquisition Act, 1894, as modified by this Act, or the abandonment of such acquisition under Sections 56 and 57 of this Act, of any land or any interest in land necessary for or affected by the execution of the scheme, or adjoining any street, thoroughfare, open space to be improved or formed under the scheme;

(ii) the acquisition by purchase, lease, exchange or otherwise of such land or interest in land;"

Sections 36 to 42 contain the procedure which is required to be followed for framing of the scheme and acquisition of land. These provisions apply to the scheme envisaged in Section 28. In terms of subsection (2) of Section 28 acquisition of the land can be made either under the Land Acquisition Act, 1894 or by purchase, lease, exchange or otherwise. This means that for the purpose of framing a scheme and implementation thereof, it is not necessary to make compulsory acquisition of land and it is open to the Trust to acquire land by purchase, lease etc. Thus, resolution No. 463 dated 27.2.1974 will be deemed to have been passed by the Trust under Section 28(2)(ii) of the Act. As a logical corollary, it must be held that the said resolution in pursuance of which the petitioners sold their land for enabling the Trust to execute the scheme has the statutory backing and the petitioners can legitimately seek enforcement of the right acquired by them on the basis of the said resolution by invoking writ jurisdiction of this Court.

The argument of Shri Hooda that the petitioners should not be given relief by directing the Trust to allot alternative sites to them because they have already been benefited by payment of price which is almost double the price paid to those whose lands were acquired in 1972 is based on an erroneous assumption that the petitioners were paid higher price due to some extraneous reasons. A bare reading of the resolution passed by the Trust shows that the price of the land was fixed at Rs. 37/ per square yard on the basis of the recommendation made by the superiormost Revenue Officer of the district and there is nothing on the record to suggest that the petitioners had influenced the officer concerned in securing higher price. While dealing with this question, we cannot ignore the fact that the initial scheme was initially framed by the Trust in 1963 and the price paid to the landowners in lieu of the acquisition made at that time must have been determined keeping in view the then prevailing market price and there must have been substantial increase in the market price of the land in the time gap between the first and the second acquisition. Therefore, the factum of payment of higher price to the petitioners cannot be made a ground to deny relief to them.

The last objection raised on behalf of the respondents to the petitioners'' entitlement to be allotted alternative sites is that they had obtained land from their father by collusive decree. In our opinion, this cannot be made a ground for denying relief to the petitioners and in any case the Trust cannot raise such plea because it had purchased land from the petitioners after they have become owners thereof on the basis of the so called collusive decree.

Before concluding this aspect of the matter, we may mention that persons similarly situated have been allotted plots in pursuance of the order passed by the Apex Court in Civil Appeal No. 3050 of 1988 The Improvement Trust and others v. Mangat Ram Jain and others (Annexure P.8). In that case, the Apex Court had, on the basis of agreement arrived at between the parties, directed the allotment of plots to the respondents who had succeeded in persuading this Court to direct the Trust to make allotment of plots in pursuance of resolution dated 27.2.1974.

On the basis of above discussion, we hold that the Trust is bound to allot shops/shop sites to the petitioners in accordance with the resolution dated 27.2.1994 and the conditions incorporated in the sale deeds dated 3.12.1980.

The issue whether the impugned action of the Trust is discriminatory does not require adjudication in view of the conclusions recorded herein above.

For the reasons mentioned above, the writ petition is allowed. The trust is directed to allot shops/shop sites to the petitioners keeping in view the terms of the agreement dated 3.12.1980. It will be open to the Trust to make allotment of one shop measuring 4.5 mtrs. x 12 mtrs. to both the petitioners jointly in view of the statement made by the learned Counsel for the petitioners on 3.11.1998. The letter(s) of allotment shall be issued to the petitioners within one month of the submission of certified copy of this order.