CIVIL WRIT PETITION NO.3462 OF 1998 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JANUARY 21, 2009
Kulwant Singh through his L.Rs
.....Petitioners
VERSUS
State of Punjab and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. M. L. Sarin, Sr.Advocate with
Mr. Gulshan Sharma, Advocate,
for the petitioners.
(in C.W.P. No.3462 of 1998)
Mr. Gulshan Sharma, Advocate,
for the petitioners.
(in Civil Writ Petition Nos.1433 and 1455 of 2008)
Ms. Charu Tuli, Sr.DAG, Punjab,
for the State.
****
RANJIT SINGH, J.(ORAL)
This order will dispose of three writ petition bearing
Nos.3462 of 1998 (Kulwant Singh through his L.Rs Vs. State of
Punjab and another), 1433 of 2008 (Anokh Singh and others Vs.
State of Punjab and others) and 1455 of 2008 (Surinder Singh
and others Vs. State of Punjab and others). The facts are being
taken from Civil Writ Petition No.3462 of 1998.
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 2 }:
Gurnam Singh, father of the petitioner Kulwant Singh,
was allotted land in Village Sheikhe Pind alongwith other 116
allottees in Sufi Pind. After the death of Gurnam Singh, the petitioner,
being his son alongwith his brothers and sisters, had inherited the
rights in the property left by Gurnam Singh. He has accordingly filed
this writ petition, to seek protection of his right in the property in
question.
This was an evacuee land and was initially allotted by the
Rehabilitation Authority to these persons by imposing a cut of 18-
3/4%. The cut was increased to 50% from that of 18-3/4% in the year
1952 and the proposal was accepted. This cut was imposed on all
117 allottees, including the father of the petitioner. The predecessor
in interest of the petitioner alongwith others filed Civil Writ Petitions
Nos.2671-2690 of 1965 in this Court, challenging the cancellation of
the area allotted to them and asking for enhanced price at the rate of
Rs.2200/- per standard acre. Only 20 allottees out of 117, which
included the father of the petitioner, had not accepted this cut and did
not deposit the amount. They had, thus, filed these writ petitions in
the year 1965, challenging the cancellation of the area allotted.
These writ petitions were dismissed, which order was
impugned by filing Letters Patent Appeals. The same were also
dismissed. The matter was then taken to Supreme Court. The
Hon’ble Supreme Court also dismissed the appeals. The Supreme
Court rather approved the view taken by the High Court while
dismissing the writ petitions and the Letters Patent Appeals.
While dismissing the appeal, Hon’ble Supreme Court,
however, observed that there is no justification for affording any
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 3 }:
differential treatment to those 20 allottees, particularly when, all the
117 allottees stood at par so far as the application of the decision
contained in order 3.2.1952 is concerned. Yet, the Hon’ble Supreme
Court went on to record an observation of significance, reading “it is
not known if under the changed circumstances, the same benefit is
available to be extended to the appellant (now petitioner), without
permitting him/them to pay the extra premium at present”. It was also
noticed that more than 30 years have passed and with this passage
of time, the changed situation must have come to prevail.
Accordingly, Hon’ble Supreme Court seems to have left liberty with
authorities to still consider the claim of the petitioners by observing
that dismissal of appeal should not preclude the respondent
authorities from entertaining the offer by the appellant if made to pay
extra premium or any further time with a view to obtain a lawful
settlement of the entire property without cut on the basis of the initial
allotment.
It is perhaps this part of the order which had given a new ray of
hope and a straw to the petitioners to swim. The petitioner addressed
representation to Chief Minister, which was dealt with by the then
Revenue Minister. He made a noting dated 2.2.1996, observing that
request is genuine and for taking action under the Rules. This came
as new leaf of life to the petitioners. The case was then examined.
Respondent No.1 took a decision to charge enhanced price at the
rate of 10% per year. This order/decision of respondent No.1-
Financial Commissioner (Revenue) is annexed with the petition as
Annexure P-1. It was decided to charge Rs.71,500/- per standard
acre from these allottees and statedly was conveyed to Deputy
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 4 }:
Commissioner, Jalandhar, vide letter dated 25.7.1996 (Annexure P2).
In the meanwhile, one Ashok Kumar filed Civil Writ
Petition No.7296 of 1996, seeking allotment of sub-urban land as
was the claim being made by the petitioners. This writ petition was
admitted on 9.9.1999. Since the issue of allotment of sub-urban land
was in issue in this writ petition, Government decided to keep the
allotment in abeyance till the matter was decided by this Court. The
decision of the Government to hold the allotment in abeyance was
communicated to Deputy Commissioner, Jalandhar, through
Annexure P-3. This gave a cause to the petitioners, who were
awaiting allotment. The petitioners, thus, challenged this order by
filing the present writ petitions. Plea is that decision to hold the
allotment in abeyance on the basis of challenge made in Civil Writ
Petition No.7296 of 1996 would not have any effect on the rights of
the petitioners for the allotment. These writ petitions were also
admitted to be heard with Civil Writ Petition No.6168 of 1995 filed by
others and Ashok Kumar.
Reply is filed. The stand of the respondents is that the
land, which is sub-urban, can not be allotted to the petitioner as this
land is required to be put to auction in terms of the rules framed in
the Punjab Package Deal Properties (Disposal) Act, 1976. This
apart, the State counsel would refer to the order passed in Civil Writ
Petition Nos.6168 of 1995, 7296 of 1996 and 6169 of 1995 to
highlight that the prayer of the petitioners in these writ petitions for
allotment of sub-urban land has been declined by this Court. By
referring to the prayer made in these petitions, it is urged that the
instructions concerning disposing of sub-urban land by way of
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 5 }:
auction have been upheld by this Court by dismissing the writ petition
filed by Ashok Kumar and others on 6.11.2006 The State counsel
would, thus, plead that there is no merit in the instant writ petitions
containing identical prayer and the same, thus, would deserve to be
dismissed.
During the course of arguments, the State counsel has
placed before me the file containing original notings, on the basis of
which the order passed by the Financial Commissioner (P-1) was
ordered to be held in abeyance. The challenge is made to this order
(P-3). This is a communication from Financial Commissioner
(Revenue) to Deputy Commissioner, Jalandhar. In fact, through this
order, Financial Commissioner (Revenue) has informed the Deputy
Commissioner, Jalandhar, that decision to allot land was
superseded and not held in abeyance as made out by the
petitioners. This communication is annexed by the petitioners.
Learned State counsel would refer to the original notings which also
show that the decision was taken by the Government to cancel
Annexure P-1. This part of the noting in Punjabi is read over and
perused when the file was placed before the Court. Counsel for the
petitioner says that this noting was not brought to the notice of the
petitioners and they are, thus, taken by surprise.
I have heard learned counsel for the parties.
Mr.M.L.Sarin has made a prayer, more in the nature of a
mercy to say that the petitioners (in all the three writ petitions), who
are the allottees of evacuee property and displaced persons would
need a sympathetic consideration of these cases. Submission,
primarily is that the decision taken by Financial Commissioner,
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 6 }:
Revenue, was held in abeyance and so would need to be
implemented with directions to the Government to allot the land at
the enhanced price as ordered by the then Financial Commissioner
(Revenue). The respondents ofcourse would stoutly oppose the
prayer by pointing out that the decision which was cancelled would
not call for implementation and that the land, which is sub-urban is
now required to be put to auction and hence, can not be allotted.
The petitioners herein are victim of their own unwise
decision to challenge the increase in cut and, thus, have put
themselves to a great loss. They now plead for mercy to seek
equivalence with those who were wise enough to deposit the amount
and accept the offer made by accepting allotment.
It clearly comes out that the allotment, if any in favour of
the petitioner, was cancelled. This cancellation of allotment was
challenged by the petitioner and others by filing various Writ Petitions
No.2671-2690 of 1965. The petitioners remained unsuccessful. They
took the matter to Supreme Court but the cancellation was up-held.
The petitioners, thus, can not rely upon the allotment which was
made in their favour and was cancelled, which was up-held upto
Supreme Court. The petitioners do not have any right in this regard.
They are taking support from the observation made by Hon’ble
Supreme Court which lead to passing of an order by Financial
Commissioner (Revenue). No doubt, the Financial Commissioner,
Revenue, did make an order for charging some enhanced rate but it
is now revealed that this order has been cancelled. On the basis of
this order, no communication was made to the petitioners. In fact,
Annexure P-1 appears to be a noting and it is not claimed that any
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 7 }:
communication has followed thereafter to the petitioners. It is not
made out, how this came in the hands of the petitioners. This was
subsequently cancelled. Where would be the need to communicate
cancellation, when no order of allotment was sent to the petitioners. I
need not go into the right of the petitioners to receive communication
about decision taken in the form of notings. No offer on the basis of
order, Annexure P-1, was ever made to the petitioners. Reliance on
Annexure P-2, which was a decision taken by the Government and
communicated to the Deputy Commissioner, Jalandhar, would also
not help as concededly, this was never addressed to the petitioners.
It now transpires that decision, Annexure P-1, of the Financial
Commissioner, apparently was not held in abeyance as made out
but was superseded as per showing by the petitioners. The noting
now placed before the Court would not leave any doubt in this regard
and show that decision then was taken to cancel the decision taken
by the Financial Commissioner, Revenue. Internal notings are not to
be communicated as per settled position of law. No offer was made
to the petitioner on the basis of a decision, Annexure P-1.
Concededly, order Annexure P-1, even if passed by Financial
Commissioner, Revenue, was not communicated to the petitioner for
implementation. Accordingly, no right would accrue in favour of the
petitioner, for which direction need to be issued, as prayed.
It may not be possible to issue direction as sought by the
petitioner. The allotment in favour of the petitioner stood cancelled
long long ago. They had raised challenge against this cancellation
but remained unsuccessful upto Hon’ble Supreme Court. The matter
can not now again be allowed to be re-opened. It will not be within
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 8 }:
the scope of writ Court to re-open this matter and issue fresh
direction either for allotment or for accepting the enhanced amount
as determined by the Financial Commissioner, Revenue. The internal
decision, which was taken but not communicated, would not create
any right in favour of the petitioner, which could be enforced through
writ Court.
While dismissing the appeals filed by the petitioners,
Hon’ble Supreme Court had observed:-
“In dealing with a matter of this type that broad
perspective of the scheme has to be kept in view. People
who were uprooted from Pakistan and became displaced
persons were to be compensated on the footing that they
had left behind lands in Pakistan and lands of people who
had left India for Pakistan had become evacuee property
and the compensation to the displaced persons could be
by settlement of such lands. In a case of this type no one
can look for undue enrichment. Once it is held as a fact
that the properties are semi-urban and admittedly this had
not been kept in view when original allotment had been
made, it should always be possible to make an
adjustment. Such an adjustment is just and fair. It is
appropriate to take note of a very significant feature,
namely, there were 117 allottees in these villages which
were declared sub-urban and 97 of these allottees paid
the extra premium, and were allowed to acquire the entire
land given to them. Twenty allottees including the
appellant took steps to challenge the decision regarding
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 9 }:
levy of premium as also cut in the allotments. There is no
justification as to why any differential treatment should be
shown to these twenty allottees particularly when all the
117 allottees stood at par so far as the application of the
decision contained in the order dated February 3, 1952 is
concerned. We do not know if under the changed
circumstances the same benefit is available to be
extended to the appellant now, viz., permitting him to pay
the extra premium at present. More than 30 years have
passed and with the passage of such a length of time
changed situations must have come to prevail. We see no
justification to accept the appeal and allow the benefit
claimed by the appellant. But our dismissal of the appeal
should not preclude the respondent authorities from
entertaining the offer by the appellant, if made, to pay the
extra premium and/or any further demand with a view to
obtaining a lawful settlement of the entire property without
cut on the basis of the initial allotment. We make no order
for costs in this appeal.”
After observing that displaced persons are to be
compensated, it is noticed that the fact that the properties allotted
were semi-urban was not kept in view. Accordingly, the Court has
advocated for seeing the possibility of adjustment, which should be
just and fair. Still, the Court declined to extend the benefit of paying
extra premium as prayed. Hon’ble Supreme Court still did not
preclude the authorities from entertaining the offer from the
petitioners. Though the petitioners may not have right to seek
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 10 }:directions as prayed but still it would be open for the respondents to
consider if they so wish, to make any reasonable just and fair offer.
One such suggestion, which was made by the Court during the
course of hearing was to offer this land to the petitioners at the price
determined by way of open auction. This was, however, not
acceptable to the petitioners. Respondents, if still want to show any
sympathetic consideration, may do so. The respondent-Government
would be at liberty to take any appropriate action in accordance with
law.
The writ petitions are, however, dismissed. No order as to
costs.
January 21,2009 ( RANJIT SINGH ) khurmi JUDGE