Improvement Trust, Ropar through its Chairman, Ropar, Punjab vs Shashi Bala & Anr.

IMPROVEMENT TRUST, ROPAR THROUGH ITS CHAIRMAN, ROPAR, PUNJAB ..... Appellant

Vs.

SHASHI BALA & ANR. ..... Respondents

J U D G M E N T

SANJAY KUMAR, J.

1. Improvement Trust, Ropar [hereinafter, ‘the Trust’], is

in appeal against the directions of the High Court of Punjab &

Haryana, Chandigarh, to allot a plot under discretionary quota to

Shashi Bala, a social worker. By order dated 13.05.2008, this

Court granted stay and the same was made absolute on 10.08.2009.

2. Heard Shri Birendra Kumar Mishra, learned counsel,

appearing for the Trust; and Shri P.S. Patwalia, learned senior

counsel, appearing for Shashi Bala.

3. Facts, to the extent relevant, unfold thus: Shashi Bala,

a social worker, applied to the Chief Minister of Punjab for

allotment of a plot of 500 square yards under his discretionary Signature Not Verified

quota on 28.01.1987. Acting thereupon, by letter dated 11.02.1987, Digitally signed by ARJUN BISHT Date: 2023.04.17 18:14:40 IST Reason:

the Government of Punjab approved allotment of a residential plot

1 of 500 square yards in Development Scheme Giani Zail Singh Nagar

of Improvement Trust, Ropar, to Shashi Bala out of the

Government’s discretionary quota under Rule 4 of the Punjab Town

Improvement (Utilization of Land and Allotment of Plots) Rules,

1983 [for brevity ‘the Rules of 1983’], at double the reserve

price on usual terms and conditions. This allotment was subject to

furnishing of an affidavit by Shashi Bala, as provided in the

Rules, along with her Social Welfare Certificate. Upon exchange of

correspondence between Shashi Bala and the Trust, Memo dated

04.07.1988 was issued by the Trust calling upon her to submit her

duly attested affidavit, as per the enclosed proforma. The Trust

stated that upon submission thereof, further action would be taken

for allotment of a plot.

4. Shashi Bala claims to have complied with the aforestated

requirement but the allotment did not materialize, compelling her

to highlight the issue in local newspapers. Thereupon, Press Note

dated 10.01.1989 was issued by the Trust in Indian Express

Newspaper stating that the documents pertaining to Shashi Bala’s

case had been sent to the concerned department for necessary

action and the same would be intimated to her in due course.

However, by Memo dated 02.01.1989, the Government of Punjab

informed Shashi Bala that as there was no plot clearly available

for allotment under the Scheme, her claim would be considered only

after a plot became available.

5. Complaining of inaction and delay in processing the

allotment of a plot to her, Shashi Bala filed CWP NO. 9737 of 1992

2 before the Punjab & Haryana High Court. Her prayer therein was to

direct the authorities to allot her a plot of 500 square yards in

Development Scheme Giani Zal Singh Nagar, Ropar. By judgment dated

17.11.2006, a learned Judge allowed the writ petition, noting that

the Government had approved allotment of a plot in favour of

Shashi Bala and she had complied with the formalities and

submitted documents as required. The authorities were directed to

allot a plot to her at the price which was fixed at the time when

the Government had directed the Trust to allot her a plot in the

Development Scheme of Giani Zail Singh Nagar, Ropar.

6. Aggrieved thereby, the Trust filed Letters Patent Appeal

No. 12 of 2008. However, by judgment dated 23.01.2008, a Division

Bench of the Punjab & Haryana High Court dismissed the appeal,

holding that the Government had already approved allotment of a

plot to Shashi Bala and there was a finding of fact that she had

complied with the formalities and submitted documents as required.

Hence, the present appeal by the Trust.

7. The above facts demonstrate that the direction in favour

of Shashi Bala came to be passed by the learned Judge in November,

2006, and the same stood confirmed by the Division Bench in

January, 2008. However, a crucial fact was not brought to the

notice of either the learned Judge or the Division Bench, that is,

the legal status of the discretionary quota rule, under which the

Government of Punjab had approved allotment of a plot to Shashi

Bala, at that point of time. Significantly, CWP No. 7401 of 1996,

titled ‘Dr. Amar Singh and others Vs. State of Punjab and

3 another’, filed before the Punjab & Haryana High Court long prior

thereto had raised issues in the context of the Rules of 1983 and

more particularly, the validity of the reservation of plots for

select categories and the vires of the Government’s discretionary

quota. A Full Bench of the Punjab & Haryana High Court passed

judgment dated 25.07.2003 in ‘Dr. Amar Singh and others Vs. State

of Punjab and another’ [AIR 2004 P&H 67] following the decision of

another Full Bench of the High Court in the context of a similar

regime of reservation of plots and allotment through discretionary

quota in the State of Haryana. This earlier Full Bench decision

dated 21.03.1997 was rendered in CWP No. 5851 of 1996, titled

‘Anil Sabharwal Vs. State of Haryana’ [PLR (1997) 116 P&H 7(FB)].

Thereby, the Full Bench had observed that the discretion conferred

on the Chief Minister was not immune from judicial review and

ultimately declared illegal the allotment of residential plots

under such discretionary quota. The allotments were quashed,

subject to certain exceptions and directions. This Full Bench

decision was assailed before this Court in a batch of Special

Leave Petitions, but they came to be disposed of by the judgment

reported in ‘Harsh Dhingra Vs. State of Haryana’ [(2001)9 SCC

550], upholding the Full Bench decision with the only modification

that it would be effective from 23.04.1996, being the date on

which interim orders had been passed in CWP NO.5851 of 1996.

8. The system prevailing in the State of Punjab under Rule 4

of the Rules of 1983, apropos reservation of plots and the

Government’s discretionary quota, was practically identical to

4 that obtaining in the State of Haryana. Rule 4 of the Rules of

1983, to the extent relevant, reads as follows:

“4. Reservation of residential plots and multi- storeyed houses: - (1) Subject to the provisions of rule 10, residential plots and multi-storeyed houses shall be reserved for allotment to the following categories of persons to the extent specified against each: -

Category of Persons Extent of reservations

(i) to (vi)………………………. (vii) Non-Resident Four per cent of plots of 500 Indians square yards size only

Provided……… Provided………

Provided that 5 per cent of the residential plots and multi-storeyed houses shall be allotted by the Trust with the approval of the Government to such category or class of persons and in the manner as the Government may from time to time keeping in view the socio-economic conditions of such persons specify.”

9. The Government of Punjab took a policy decision with

regard to exercising power under this discretionary quota and

the same is reflected in Notification No. 5/537/3CII-88/1604

dated 31.01.1989. This notification reads to the effect that

the following categories of persons would be eligible for

allotment of plots under the 5 per cent discretionary quota:

“(i) Those persons or their dependents who have suffered at the hands of terrorists or rioters; (ii) those persons who have distinguished themselves in different fields eg. Sports,

Arts, Science, Education, Social Service etc.

5 and have been recognized by the Government through State/National Awards.

(iii) Army, Police, para-military personnel who have received gallantry or bravery awards from the State Government or the Government of India and those civilians who have rendered meritorious service and have been recognized as such by the State Government/Government of India.

(iv) any other deserving cases at the discretion of the competent authority.”

10. Considering this scenario, the Full Bench observed

in its judgment in Dr. Amar Singh (supra) that, as per Rules

8 and 12 of the Rules of 1983, residential plots and multi-

storeyed houses were to be sold either by a draw of lots or

by auction but an exception to the general rule was made

under Rule 4, which provided for reservation of residential

plots in favour of various categories of persons. Noting that

the earlier Full Bench decision pertaining to Haryana had

upheld the power of the Government to make reservations for

various defined categories and groups of persons, it was held

that the discretion conferred upon the Chief Minister had to

be in consonance with various Constitutional provisions, as

no absolute discretion would vest in the Government for

making either such reservation or allotment. It was further

observed that the reservation provided under Rule 4 and the

policy decision dated 31.01.1989 would have to satisfy the

criteria of reasonableness, as required by Article 14 of the

Constitution. As validity of the reservations akin to those

provided under Rule 4 (ii), (iii), (iv), (v) and (vi) of

6 the Rules of 1983, in favour of freedom fighters, political

sufferers, defence personnel, border security force

personnel, persons appointed to public service by the State

Government and persons belonging to the Scheduled Castes and

Backward classes, had already been upheld in Anil Sabharwal

(supra) by the earlier Full Bench in the context of the State

of Haryana, it was observed that it would not be necessary to

examine the validity of the said reservations

11. The Full Bench however held that the discretionary

quota of five per cent under the third proviso to Rule 4 was

vague and arbitrary and was, therefore, violative of Article

14 of the Constitution. The Full Bench further held that

allotments of residential plots to Members of Parliament,

Members of the Punjab Legislative Assembly and Non-Resident

Indians under the discretionary quota, w.e.f. 31.01.1989,

were illegal and void and accordingly quashed the same,

subject to certain exceptions. In cases where the bonafide

allottees under Rule 4 (i), (vii) and the third proviso had

already constructed houses and buildings as per sanctioned

plans before publication of the notice of CWP No. 7401 of

1996 on 06.06.1996, the Trust was directed to issue

instructions restraining alienation of the constructed

houses/buildings by such allottees for a period of five

years. Exceptions were also made in the case of allottees

who were members of the Armed Forces/Paramilitary Forces/

Police Forces who had fought against terrorism and civilians

7 affected by terrorist activities, subject to a review by a

committee to be constituted by the Government. Again, such

allottees were not to alienate their plots to third parties

for five years.

12. The Full Bench further directed that the Government/

Trust/Punjab Development Authority should immediately cause

publication of a notice in two newspapers having wide

circulation in the States of Punjab and Haryana and two

newspapers having wide circulation in the entire country,

indicating therein that, due to quashing of the allotments

made under the discretionary quota, such allottees were

entitled to refund of the money deposited by them and that

such amounts should be refunded within two months of the

making of applications by such persons, failing which the

refund would carry interest at the rate of 15% per annum.

13. Be it noted that the Full Bench specifically dealt

with the reservation of 5% of the plots in favour of select

categories or classes of persons under the third proviso to

Rule 4 of the Rules of 1983 and it was observed that such

discretion was wholly unguided and unlimited and the only

criteria which had been placed on record was the policy

contained in the Notification dated 31.01.1989. The Full

Bench further observed that if such discretion was to be

limited only to categories (i),(ii) and (iii) in the said

notification, the reservation would have to be held to be

valid as reservation similar to those contained in categories

8

(ii) and (iii) made by the State of Haryana had already been

upheld by the Court in Anil Sabharwal (supra). However, the

power granted to the Government under Clause (iv) was held to

be wholly arbitrary and capable of abuse and that was the

reason why the Full Bench held the entire discretionary quota

of 5%, as contained under the third proviso to Rule 4, was

vague and arbitrary and was, therefore, violative of Article

14 of the Constitution of India.

14. Further, the Government of Punjab was directed to

frame a policy for allotment of plots to specified classes of

persons and notify such policy. Allotment under such policy

was to be made by inviting applications through public notice

from all those who belonged to that particular class.

Therefore, even if the specified categories (i), (ii) and

(iii) in the Notification dated 31.01.1989 were held to be

eligible for special reservation and allotment, the above

direction with regard to formulation of a policy would be

applicable to those categories also, including the ‘Social

Service’ category.

15. In the light of the above Full Bench judgment, the

inchoate allotment of a plot in favour of Shashi Bala was

rendered redundant and ineffective as only those persons, who

were actually allotted specific plots and had constructed

houses/buildings thereon as per sanctioned plans prior to

06.06.1996, stood protected by the Full Bench and even those

allottees who were actually allotted plots but had not

9 constructed houses/buildings thereon by the effective date

were to be refunded the monies paid by them within a time

frame. Shashi Bala did not stand on par with these people as

she was yet to be allotted an identified plot, even if she

did comply with all the requirements as claimed by her, such

claim being disputed by the Trust. Significantly, she did not

even claim that she paid any sale consideration for a plot.

16. It is pertinent to note that the Punjab Urban

Planning & Development Authority (PUDA) filed a review

petition, viz., RA No. 64 of 2004 in CWP No. 7401 of 1996,

claiming that allotment of plots by it would be affected by

the Full Bench decision and seeking prospective overruling of

allotments from a date later than 31.01.1989, by following

the modification in Harsh Dhingra (supra). However, by order

dated 09.07.2004, the Full bench dismissed the review

petition. Thereupon, the Full Bench judgment dated 25.07.2003

and its order dated 09.07.2004 were subjected to challenge by

the PUDA before this Court in SLP(C)No. 7285 of 2007, titled

‘Punjab Urban Planning & Development Authority Vs. Amar Singh

and others’. The said SLP was disposed of on 24.09.2014,

noting that no details were available of the allottees who

were adversely affected by the Full Bench judgment, as none

of them had come before this Court or had moved the High

Court seeking relief, and in the absence of requisite and

relevant details, this Court observed that it was not

inclined to go further into the claim made by the PUDA. This

10 Court therefore did not entertain the appeal, leaving it open

to the affected persons to seek their remedies in law in the

light of the decision of this Court in Harsh Dhingra, if they

were so advised. Even this liberty does not come to the aid

and assistance of Shashi Bala, as she was never actually

allotted a plot, be it before or after 31.01.1989.

17. Though Shri P.S. Patwalia, learned senior counsel,

would contend that the allotment of a plot in favour of

Shashi Bala stood complete upon approval by the Government of

Punjab, his contention cannot be countenanced as the letter

dated 11.02.1987 of the Deputy Secretary, Department of Local

Government, Government of Punjab, clearly stated that the

Government had merely approved the allotment of a residential

plot admeasuring 500 square yards and directed the Trust to

allot an identified plot to her under Rule 4 of the Rules of

1983. Therefore, the act of identifying and allotting a

specific plot was to be undertaken by the Trust and it was

only approval that had been conferred by the Government. That

is how Shashi Bala herself understood it, as is clear from

her prayer in her writ petition. Therefore, allotment of an

identified plot in favour of Shashi Bala did not crystallize

by the date of the Full Bench judgment in the year 2003 and

remained stagnant at the stage of the Government’s approval.

18. As stated hereinbefore, the decision of the Full

Bench, invalidating the actual allotments made under the

discretionary quota and directing the Government of Punjab to

11 draw up a policy in relation to reservation for various

categories, including Social Service, was not brought to the

notice of either the learned Judge or the Division Bench of

the High Court. Notwithstanding the same, the directions

issued contrary to the said Full Bench judgment, which

practically stood affirmed by this Court, cannot now be

accepted or acted upon.

19. On the above analysis, this civil appeal is allowed,

setting aside the impugned orders dated 23.01.2008 and

17.11.2006 passed in LPA No.12 of 2008 and CWP No.9737 of

1992 respectively by the Punjab & Haryana High Court at

Chandigarh.

Parties shall bear their own costs.

………………………………………...J [VIKRAM NATH]

………………………………………...J [SANJAY KUMAR]

NEW DELHI;

April 17, 2023.

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