Allowed

Som Nath v. State of Punjab and Another

Punjab & Haryana HC8 May 2014CWP/4437/1984

Case brief

AI extract

What is this about?

This court directed the Punjab Urban Development Authority to allot a reserved plot to the petitioner. Finding that the affidavit defect was curable and disregarding the specific objection delay, the court ordered allotment at the prevailing 2012 rate, not the 1978 rate, and directed interest on the deposited amount.

What did the court decide?

Directed allotment of reserved plot at 2012 rates and award of interest on deposited amount.

Som Nath Vs State of Punjab… — Constitutional and Fundamental Rights | Punjab & Haryana HC (2014)

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CWP No.4437 of 1984

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[1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No. 4437 of 1984(O&M) Date of Decision: May 8, 2014.

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Som Nath Kaushal

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...... PETITIONER (s)

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Versus

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State of Punjab and others

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...... RESPONDENT (s)

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CORAM:- HON'BLE MR.JUSTICE SURYA KANT HON'BLE MRS.JUSTICE LISA GILL

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Present: Mr. Amar Vivek, Advocate for the petitioner.

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Mr. Amit Sethi, Addl.AG, Punjab.

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Mr. K.S.Mamrat, Advocate for Mr. Rupinder S.Khosla, Advocate for respondent No.2.

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Whether reporters of local papers may be allowed to see

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the judgment? 2. To be referred to the reports or not? 3. Whether the judgment should be reported in the digest?

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SURYA KANT, J. (Oral)

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The petitioner seeks a mandamus to direct the Housing and Urban

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Development Department, Government of Punjab and its agency, namely, Punjab Urban Development Authority, Patiala to allot him a plot measuring 500 sq. yards in the Urban Estate at Patiala.

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[2]

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[2] The facts giving rise to this claim may briefly be noted.

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[3] The petitioner was working as Sub Divisional Officer in PWD Department, Government of Punjab. In response to a circular issued by the State Government for allotment of plots to government employees in the year 1965, the petitioner applied for allotment of plot measuring 500 sq. yards in Urban Estate, Patiala. Vide letter dated 15.01.1974 (Annexure P1), the Estate Officer, Urban Estates, Punjab informed the petitioner that on acceptance of his application it was decided to allot a one Kanal plot in Urban Estate, Patiala. Hence, he was required to complete the following formalities:-

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“ 1. Send one self-addressed envelope with a postal order of Rs.1/- along with 35 paise postal stamp for getting the prescribed form and after filling completely, the form be sent to this office.

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2. A Bank draft for Rs.1250/- in favour of Estate Officer, Urban Estates, Punjab, Chandigarh be also sent. ”

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[4] The petitioner did comply with these formalities. Thereafter, vide memo dated 05.10.1978 (Annexure P2), the Estate Officer, Urban Estates, Punjab informed him that the Directorate of Urban Estate had carved out residential plots of different sizes to cater to the needs of various socioeconomic groups and while the plots measuring 500 sq. yards, 400 sq. yards and 250 sq. yards were put in Group I, the plots measuring 200 sq. yards, 150 sq. yards and 100 sq. yards were put in Group II.

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[5] The aforesaid letter dated 05.10.1978 further informed the petitioner as under:-

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“ Group-I plots (measuring 250 sq. yards to 500 sq. yards) will be sold on (cash Down Basis) except in the case of Punjab

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[3]

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Government and Defence (including B.S.E.) Employees, who will be allotted plots on deferred payment basis. The allotment of plots in Group-II (measuring 100 sq. yards to 200 sq. yards) will be made on deferred payment, the price being payable in four annual equated installments. Plots in Group-II will be available for allotment to specified income groups, indicated against each

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size:-

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Size of Plot Monthly Income (from all sources) 200 sq. yards Rs.751/- to 1000/150 sq. yards Rs.551/- to 750/100 sq. yards Rs. upto 350/125 sq. yards Rs.351/- to 550/-

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Note: In the case of Government employees/Defence Personnel income would mean salary plus income from all other sources. In all categories of plots, whether allotted out of the reserved or the general quota, first preference will be given to applicants who pay the entire prices of the plot in lump sum.

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You have already paid an amount of Rs.1250/- as earnest money along with your application. The price of land in Phase I & II has been fixed Rs.50/- per sq. yards. You are, therefore, requested to remit the balance amount of Rs.23,750/- to the Estate Officer, Urban Estates, Punjab, Chandigarh, through bank draft by 17.10.1978. You will continue to enjoy your original seniority in registration for allotment of a plot in case you remit the balance amount by the stipulated period.

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On account of changed circumstances, if you now require a smaller sized plot either on cash payment or on installment basis as per Govt. Policy enunciated above, please intimate your choice within 15 days from the issue of this letter, to enable this office to process your application further. Please also send the affidavit (Specimen enclosed) on three rupees stamped papers, duly attested by Magistrate/Oath Commissioner.

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(emphasis applied) ”

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[4]

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[6] It is pertinent to mention here at this stage that the specimen of the affidavit enclosed with this letter required the applicant to give an affidavit to the effect that he or his family members or his dependent family members had not obtained any residential plot, shop-cum-flat or house in Chandigarh or in any Urban Estate or the colonies set up by the Improvement Trusts in Punjab nor such an allotment was made by the Urban Estate Department etc. In addition to that, the affidavit to be furnished by the applicant required as follows:-

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“ ON THREE RUPEES NON JUDICIAL STAMP PAPER

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I, ____ son of ____ aged ___ years, resident of _____ solemnly declare that my total family income from all sources in Rs.___ (Rupees __) per month. I do hereby declare that the above information is correct to the best of my knowledge. If at any time, this information proves to be incorrect, the Estate Officer, Urban Estates, Punjab will be competent to resume the plot allotted/being allotted to me.

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Place: Deponent ”

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[7] It appears that the petitioner did not opt in terms of letter dated 05.10.1978 hence, the Estate Officer, Urban Estate sent him a final notice dated 28.07.1980 (Annexure P3) informing him to the following effect:-

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“ The work of the allotment in Patiala Urban Estate is in full progress. A number of times notices have been issued to you, as referred to above for completing the formalities regarding allotment, but till today you have not completed the formalities. At this time, the following plots are available for allotment. Now you are being given the final notice for completing the formalities

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[5]

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upto 10.8.1980, failing which it will be considered that you are not interested in having plot in Urban Estate, Patiala and then your name will not be considered for allotment .

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(emphasis applied)”

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[8] In response to the above reproduced letter, the petitioner vide his reply dated 01.08.1980 (Annexure P4) sent a demand draft of `23,750/- though under protest towards lump sum payment for allotment of one Kanal plot in Urban Estate, Patiala. He also enclosed “the affidavit”.

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[9] A perusal of the affidavit enclosed by the petitioner with the above mentioned letter though disclosed that he or his family members were not allotted any residential plot, shop-cum-flat or house in Chandigarh or in any Urban Estate of the colonies set up in Punjab State by the Government or its agencies, the other part of the affidavit, namely, the total income of his family from all sources, was not mentioned in the affidavit.

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[10] The petitioner thereafter received another communication dated 12.03.1981 (Annexure P5) informing that the State Government had revised the policy and as per the new policy the residential plots of the sizes mentioned in the said letter were carved out. The aforesaid letter further recited as follows:-

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“ 25% of the plot in Group I shall be allotted to the old applicant whose application for the allotment of plots are pending at the average auction price which will be communicated to you after the auction for the such plots taken place. ”

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The petitioner thereafter approached this Court in May, 1984

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[11]

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[6]

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through the instant writ petition questioning the revised policy contained in memo dated 12.03.1981 (Annexure P5) on the assumption that the allotment had already been made in his favour and he was entitled to such allotment as per the old price, which he had deposited in lump sum. The writ petition was, however, subsequently amended. The respondents have filed their written statement dated 22.01.1985 to the unamended writ petition. They have also filed reply/affidavit dated 22.03.2012 to the amended writ petition as well.

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[12] It appears from the record of unamended writ petition that during the pendency of the writ petition, petitioner also approached the respondentauthorities and submitted a comprehensive representation dated 04.03.1994 alongwith two affidavits of even date and one of such affidavits reads as follows:-

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“ I, Som Nath Kaushal, S/o Sh. Ramji Das aged about 54 years resident of 215/7 Bishan Nagar, Patiala, solemnly declare that my total family income from all sources is Rs.3000/- (Rupees Three thousand only) per month.

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I do hereby declare that the above information is correct to the best of my knowledge. If at any time this information proves to be incorrect, the Estate Officer, Urban Estates, Punjab, will be competent to resume the plot allotted/being allotted to me. ”

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[13] The respondents, however, did not take cognizance of the abovementioned letter as the matter was sub judice before this Court. The precise defence taken by the respondents for not allotting the subject plot to the petitioner find mentioned in para 7 of the reply-on-merit of their reply to the unamended writ petition on 22.01.1985, which reads as follows:-

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[7]

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“ 7. The contents of Para 7 are admitted. The petitioner did not comply with the requirements in so far as he has not till to-day submitted an affidavit regarding his income from all sources whereby he is eligible for the allotment of plot measuring 1 kanal. Since the petitioner has not completed the formalities till to-day, the question of issuing any allotment letter does not arise .”

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[14] In their reply/affidavit dated 22.03.2012 filed to the amended writ petition also, the respondents have come up with the following plea:-

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“... ......... However copies of the writ petition alongwith Annexures have been obtained, from which it becomes clear that vide memo no.565, dated 15.01.1974 (Annexure P-1), the petitioner was asked to complete the formalities mentioned therein so that his application may be considered for allotment of 1 Kanal plot. Subsequently, vide memo no.18514, dated 05.10.1978 (Annexure P-2) he was intimated regarding the policy of allotment of residential plots and also asked to remit the balance amount of Rs.23,750/- along with an affidavit regarding his salary plus income from all other sources. Then vide memo no.15206, dated 28.07.1980 he was issued final notice for completing the formalities up to 10.08.1980 but vide Annexure P-4 the petitioner only remitted the amount of Rs.23,750/- and as per assertions made in Para No.7 of the written statement by the then Estate Officer, Urban Estates, Punjab, Chandigarh, he failed to submit proof regarding his income from salary and all other sources whereby his eligibility was to be considered for allotment of 1 Kanal plot. Since the petitioner failed to complete the formalities by that time, as such his name could not be considered for allotment .

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(emphasis by us)”

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[8]

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[15] The question, thus, arises for consideration is whether the respondents were justified in withholding the allotment only because the petitioner had failed to furnish the affidavit of total family income from all sources?

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[16] At the very outset, we may be mentioned here that vide letter dated 05.10.1978 (Annexure P2) the respondent-authorities informed the petitioner regarding formation of two groups of plots and first part of the letter does suggest that the plots under Group I were to be sold on cash down basis except to the Government employees to whom allotment was to be made on deferred payment basis, but in the case of plots under Group II, the eligibility for allotment was to be determined on the basis of specified income. In other words, first part of the letter gave an impression that the income certificate was relevant in the case of those Government employees/defence personnel only who were interested to seek allotment of plots measuring 100 sq. yards to 200 sq. yards. However, the later part of this very letter required the petitioner to send an affidavit in the specimen enclosed therewith on `3/- stamp paper duly attested by the Magistrate. The petitioner's explanation that he bonafidely assumed that such an affidavit was to be submitted by those employees only who were interested in allotment of smaller plots measuring between 100 sq. yards to 200 sq. yards, has some merit though one cannot overlook the fact that if both parts of the letter are read together, the affidavit of family income was required to be submitted by every Government employee.

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[17] Unfortunately, the respondent-authorities though kept on asking the petitioner vide subsequent communication dated 28.07.1980 to deposit the

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[9]

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requisite lump sum amount and “ complete the formalities ”, nowhere they informed him that he had yet not submitted the income affidavit. Such a specific objection was first time raised by them only before this Court in their written statement.

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[18] The petitioner rectified the said deficiency in the year 1994 when he admittedly submitted such an affidavit.

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[19] The other aspect of the matter is that if the respondent- authorities were of the view that the petitioner's income component was required to be verified for the purpose for allotment of a 500 sq. yards plot also, such an information could be obtained from his parent department as well. The resultant effect was that due to the petitioner's misconstruction of the letter dated 05.10.1978 (Annexure P2) and the reluctance of the authorities in asking him to furnish a specific affidavit with regard to his family income, led to the denial of allotment of the subject plot to the petitioner though all other similar placed Government employees were undisputedly allotted the plots.

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[20] It may also be noticed at this stage that while admitting this writ petition, this Court vide order dated 25.01.1985 directed the respondents to reserve one plot for the petitioner. When this case was substantially heard by a co-ordinate Bench on 28.02.2012, the respondent-authorities on the asking of this Court filed an affidavit dated 21.05.2012 acknowledging that plot No. 4322 measuring one Kanal in Urban Estate, Phase II, Patial has been reserved for the petitioner.

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[21] We have heard learned counsel for the parties and gone through the entire record.

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[10]

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[22] In our considered view, the petitioner having satisfied the substantive eligibility conditions, namely, (i) that he was a Government employee; (ii) his application was accepted by the competent authority; (iii) he deposited the lump sum amount in compliance to final notice dated 28.07.1980; (iv) the respondent-authority never ever raised any objection with regard to his eligibility; and (v) the petitioner had furnished the affidavit to the effect that he or his family members had never been allotted any residential plot, shop-cum-flat or any other property in the State of Punjab or Chandigarh by the State Government or its agencies, mere non-submission of the income affidavit or the delay in furnishing thereof was only a curable defect and not a fatal ineligibility altogether to reject the petitioner's claim.

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[23] To say it differently, the petitioner ought not to have been denied the allotment merely for non-furnishing of such an affidavit, moreso when no specific notice to furnish such an affidavit was ever sent by the respondentauthorities to him after 01.08.1980 when he deposited the lump sum amount demanded by the authorities vide notice dated 28.07.1980.

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[24] Assuming that the affidavit of total income of the family was a mandatory condition, yet the allotment could be made conditionally giving an opportunity to the petitioner to furnish such an affidavit within a reasonable period. Unfortunately, no such recourse was adopted by the respondent – authorities. In these circumstances, it appears to us that the action of the authorities in denying the allotment to the petitioner does not stand to the test of reasonableness or equality within the meaning of Article 14 of the Constitution of India.

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[11]

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[25] We may hasten to add here that all other applicants comprising government officials were admittedly allotted such plots and the original record produced by the respondents does substantiate this conclusion of ours. The fact that one such plot is lying vacant for the petitioner for the last several years also persuade us to invoke equitable jurisdiction in his favour, especially when he is an old retiree, a senior citizen who does not own any house of his own.

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[26] The question that requires further determination is should the petitioner be allotted plot at the allotment price prevailing in the year 1978?

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[27] We have given our thoughtful consideration to the rival submissions made in this regard.

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[28] With a view to strike balance between the public interest or State Exchequer on the one hand and the petitioner's individual interest on the other, it appears to us fair, just and equitable that the rate of allotment as it was prevailing at the time when a Coordinate Bench of this Court expressed its views on the merit of petitioner's claim on 28.02.2012 should be the relevant date of allotment.

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[29] Learned counsel for respondents on the basis of written instructions received from the Patiala Development Authority vide memo dated 11.01.2012 informs that the rate of allotment in the year 2012 was 15,000/per sq. yard (the petitioner was offered allotment at the rate of 50/- per sq. yard in the year 1978).

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[30] We are, thus, inclined to direct the respondent – authorities to allot the plot reserved for the petitioner at the above-mentioned rate of `15,000/- per

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sq. yard.

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.4437 of 1984

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[12]

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[31] Ordered accordingly.

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[32] Since the amount of `25,000/- deposited by the petitioner is lying with the respondent-authorities since the year 1980, we direct the respondentauthorities to award interest on the said amount at the rate of 8% per annum and accordingly, adjust the same towards the allotment price of the subject plot. The balance payment shall be made by the petitioner as per the terms and conditions of allotment.

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[33] Needful shall be done within a period of two months from the date of receiving a certified copy of the order.

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[34] Disposed of accordingly.

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( SURYA KANT ) JUDGE

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May 8, 2014. ‘om’

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( LISA GILL ) JUDGE

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Singh Omkar 2014.07.02 15:10 I attest to the accuracy and integrity of this document Chandigarh

Som Nath v. State of Punjab and Another

Case brief

What is this about?

What did the court decide?

Som Nath v. State of Punjab and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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