IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 13391 of 2007
Date of Decision: April 15, 2009
Suresh Goel .....Petitioner
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Subhash Kaushik, Advocate, for the petitioner.
Shri Randhir Singh, Additional AG, Haryana, for
Respondent Nos. 1, 2 and 4.
Shri J.P. Bhatt, Advocate, for respondent No.3.
HEMANT GUPTA, J.
The petitioner, alleging himself to be a social worker, has
approached this Court, seeking directions to the respondents to conclude
the inquiry/investigation with regard to alleged scam of allotment of plots
in Marble Market, Sector 21-C, Faridabad.
It is averred by the petitioner that being a social spirited person,
he has made representations, which were taken into consideration for
inquiry/investigation against the local builders and the employees of the
Haryana Urban Development Authority (for short `HUDA’). The petitioner
Civil Writ Petition No. 13391 of 2007 (2)
was associated in the said inquiry by the State Vigilance Bureau, as well as
by the Additional Director, HUDA. But the said inquiry has not been taken
to its logical conclusion.
It is pleaded that in the year 2000, a scheme was floated by
HUDA, to shift Marble dealers from Sectors 20-A and 20-B to Marble
Market Sector 21-C, Faridabad. The commercial plots at Sector 21-C,
Faridabad, as per the scheme, were to be allotted to the existing firms. The
total number of plots was 103. It is averred that at that time, there were 25
existing firms in dealing with Marble in Sectors 20-A and 20-B, Faridabad.
A list thereof, has been appended as Annexure P.2 to the writ petition. It is
alleged that with the collusion of local builders and some employees of
HUDA, vexatious firms, were created. Such firms were not having any
address or sale tax number. Such unregistered firms, were created for the
purpose of grabbing the said commercial plots in the Marble Market, Sector
21-C, Faridabad. As per the scheme, unallotted plots were to be allotted by
open auction, but allotments were made in the names of fictitious firms. It
is also pointed out that such plots could not be transferred but the plots
allotted in the names of fictitious firms, were immediately transferred in the
names of local builders. The inquiries were initiated on the complaint of the
petitioner, but the same have not concluded. The petitioner has appended
list of fictitious firms as Annexure P.4 with the paper book, though no
reference of such list is made in the writ petition.
On 28.8.2008, the petitioner agreed to file an affidavit
specifically stating the firms, which were fictitious and non existent on the
date of allotment. The petitioner filed an affidavit dated 4.9.2008, giving
the names of 30 firms, which were in existence at the time of publication of
the scheme as against 25 mentioned in the writ petition. The petitioner
Civil Writ Petition No. 13391 of 2007 (3)
also averred in para No. 6 of the said affidavit that 31 firms are fictitious,
created to grab the plots in the Marble Market. The petitioner has also
stated to the following effect:-
“10. That the deponent has been deprived of the
opportunity which he, along with the public, could have
got by participating in an open auction of the allotment
of the above said plots. And he would have got an
opportunity to purchase a plot in an open auction and to
do business to earn his livelihood from that plot.
Therefore, as per the deponent he has been deprived of
his fundamental rights.”
On the filing of such an affidavit, the respondents were given
time to file counter affidavit. In reply, it was pointed out that a preliminary
inquiry was conducted by Shri Ramesh Kumar, Assistant Sub Inspector.
Such inquiry conducted by the Assistant Sub Inspector, was not found to be
satisfactory by this Court on 29.09.2008, as there was no record relating to
said inquiry nor there was any formal inquiry report. Resultantly, the Chief
Administrator, HUDA, was directed to hold an inquiry into the allegations
made by the petitioner and to submit a report to this Court, after
associating the petitioner in the inquiry.
In the written statement filed on behalf of HUDA, it was
pointed out that there were number of marble trading shops scattered on the
outskirts of different sectors of Faridabad. The said marble traders had to
repeatedly shift to different locations due to acquisition of land for
development of sectors. The marble traders formed an Association and
made repeated representations for setting up a special market. It was
decided to set up a marble market in Sector 21-C Part-1, Faridabad, in
which 103 plots were carved out. Out of the list submitted by the Faridabad
Marble Vayapar Mandal, 83 members were found genuine and eligible but
Civil Writ Petition No. 13391 of 2007 (4)
only 63 applied for plot with 10% earnest money out of which 60 were
found in order and approved by the Chief Administrator. It was also
pointed out that since number of marble traders were existing in different
sectors of Faridabad, different Associations were formed and made
applications with the request to allot the remaining plots to their members
on the same terms and conditions on which 60 plots were allotted by draw.
Two of such Associations filed civil suits against the auction of the plots
planned by HUDA. The complaints filed by few, including the one by the
petitioner, was found to be false and filed on 22.11.2005.
The Chief Administrator, had submitted a detailed inquiry
report dated 18.2.2009 in terms of the directions issued by this Court on
29.09.2008. It has been reported that as per Annexure P.4, 36 firms were
fictitious, but the name of firm at Serial Nos. 12 and 13 has been repeated,
leaving the number at 35. The investigations were carried out by the
Chief Administrator, in respect of 35 firms named in Annexure P.4. The
petitioner was heard and was also associated in the course of inquiry. The
Chief Administrator, visited Faridabad on 22.12.2008 and perused the entire
record in the Estate Office, including the sales tax numbers and other
records of the firms. Out of 35 firms, sales tax number were found to be
issued to 19 firms prior to the date of survey and their names also figured
in the survey dated 29.2.2001, carried out by HUDA. The said firms were
also registered with the Faridabad Marble Vyapar Mandal (for short `the
FMVM’). Thus said 19 firms were kept out of the purview of the inquiry as
such allotment to such firms could not be said to be bad. One firm, namely,
M/s Trishul Marbles & Granite, had surrendered the allotment. Therefore,
further inquiry was limited to the remaining 15 firms in respect of their
genuineness or otherwise.
Civil Writ Petition No. 13391 of 2007 (5)
Show cause notices were issued to the said firms to produce
original documents to find out whether such firms were really in existence
and working at the time of survey and that the allotments were not fictitious.
Out of these 15 cases, ownership in 11 cases stood transferred and,
therefore, the notices were issued to the transferees as well. All the 15
allottees submitted written statements and given common evidence i.e., an
appeal dated 9.11.1998 from the President of the FMVM addressed to the
Hon’ble Minister of Urban Development, Government of Haryana, for
allotment of commercial sites , wherein names of their firms existed. Such
reliance was to prove that the said firms had actually been running their
units before the date of survey i.e. 27.2.2001. The Chief Administrator also
considered the evidence produced by the said firms, which includes the
record of registration of the firms; telephone bills; sales tax registration
number etc. It was concluded as under:-
“A. From careful perusal of all relevant records and
hearing the parties, I am of the opinion that most of the
allotments were made to the persons, who were running
marble business at one site or the other before they were
allotted the present sites, except in following cases where
there is doubt because they could not produce any
documentary evidence in support of the fact that they
were running marble business before the date of survey:-
(i) Classic Marbles – Site No. 62 and M/s
Vasundhra Marbles – Site No. 67:-
Both the above sites were allotted to father and
son. They could not produce any authentic evidence in
support of the fact that they were doing marble business
prior to the date of survey but have produced some bills
of purchases from other parties i.e., M/s Shubham
Marbles & Granite, M/s Rahul Hardware & Diamond
Civil Writ Petition No. 13391 of 2007 (6)Tools and bills/cash memo issued by itself in case of
M/s Classic Marbles and from M/s Shubham Marbles &
Granite, M/s Bhagwati Marble & M/s Rahul Hardware &
Diamond Tools and bills/cash memo issued by itself in
case of M/s Vasundhra Marbles. Moreover, one of the
sites has already been disposed off which puts a question
mark on the allotment of two sites to the same family.
(ii) M/s Balaji Enterprises – site No. 132:-
The original allottee was admittedly doing the
work of preparing only name plates of brass material in
100 sq. yds near Thomson Press, which was also rented
out to him.
However, if we consider the market conditions
prevailing at that time, it can be seen that the property
prices were not such which could have made people to
form fictitious firms and apply in their names which is
evident from the following facts:-
a) Out of 133 persons/firms, who were
members of the two Associations, only 63
persons/firms applied for allotment of plots
alongwith earnest money.
b) Even out of these 63 persons/firms, 2
persons withdrew their requests and took back the
earnest money before allotment.
c) The allottee of site No. 99, namely, M/s
Trishul Marbles and Granite surrendered the site
after allotment.”
Therefore, above facts fortify the impression that
only those persons, who were either running marble
business or were interested in running the same, applied
for allotment of sites. However, there were some lacunae
in the scheme in the sense that the HQs did not
Civil Writ Petition No. 13391 of 2007 (7)
prescribe any procedure for identification of the
beneficiaries and left it to the field staff. Instead, it
should have made it compulsory to obtain some
documentary proof like Sales Tax No., Electricity
Connection, Telephone No., Income Tax Returns etc., to
prove the claim but since this was not in the scheme of
things, it was not insisted upon the field office. It was
ascertained that some photographs were taken at the time
of survey, but same could not be found despite best
efforts. It is only subsequently that when the property
prices have arisen enormously, that people are thinking
in retrospect about fictitious firms.
B. There was no bar on transfer of these sites either
in the Scheme approved by the Authority or the
instructions issued by the HQs and therefore, if the sites
have been transferred after allotment, it is not in
contravention of any Rules/Instructions.
C. As far as reduction in the rates from Rs.7000/- per
sq. yd. to Rs.6000/- per sq. yd., is concerned, there is no
infirmity at all because the rates have been reduced after
representations made by the allottees on the ground that
cost of acquisition was wrongly taken to be of Sector 21-
C (Part-III) instead of Sector 21-C (Part-I) while
calculating the rates of Rs.7000/- per sq. yd. The rates
were revised downwards after taking into account
correct cost of acquisition and it has the approval of the
highest decision making body of the organization i.e. the
“Authority” and there is absolutely no malafide.
D. It is interesting to note that two sites were allotted
to the petitioner/complainant and his family, M/s Vishnu
Marbles – site No. 14 & M/s Shiv Stone House – site No.
113 and he has already transferred one of these sites No.
14 to Shri Rahul Sharma, s/o Shri R.S. Sharma. Hence,
neither there was any bar on allotment of more than one
site to one family nor the possibilities can be ruled out
that more than one member of the family were doing this
Civil Writ Petition No. 13391 of 2007 (8)
business.”
The petitioner filed objections to the report of the Chief
Administrator, HUDA. It has been alleged that the inquiry report is false,
frivolous and vexatious and beyond the truth and travesty of the true facts.
The petitioner alleged that 19 firms found by the Chief Administrator to be
genuine is incorrect as only seven plots out of 19 plots are genuine plots. In
respect of Bharat Marble and Bajrang Hardware Store, it was alleged, they
were running their business in Tikona Park and not in Sector 20-A and 20-
B; whereas M/s G.N. Marble, Jai Jagdamba Marble, Kapil Marble and
Granites, Laxmi Rattan, Zee Marble Shop, Kasturba Shyam Marble, Marble
Centre, Ankesh Marble have given wrong sale tax registration number. It
was alleged that other firms have given the premises on rent after allotment.
It was alleged that Zee Marble shop has given fake sales tax registration
number of 1977 where there was no shop of marble in entire District of
Faridabad. It has been stated that remaining 15 firms have given fake sales
tax number and are bogus firms. In respect of the finding that two sites were
allotted to the petitioner and his family, it was stated by the petitioner as
under:-
“(D) That in reply to the contents of para No. (D) of the
Enquiry Report it is submitted that in compliance of
general letter issued by the Administrator, HUDA,
Faridabad in March, 2001 Vishnu Marble through its
partners Smt. Prema Devi and Satish Goel, who is the
nephew of petitioner had applied for allotment of one
site and given application in the name of M/s Vishnu
Marble and site No. 14 was allotted to Vishnu Marble
after the draw in accordance with law, but later on the
nephew of the petitioner Satish Goel had left the firm in
which the wife of petitioner Smt. Prema Devi and Satish
Civil Writ Petition No. 13391 of 2007 (9)Goel were partners, in his place Rahul Sharma the son of
Radhey Shyam Sharma has started working alongwith
the wife of petitioner, but that Rahul Sharma has taken
the thumb impression of wife of petitioner without the
knowledge of the petitioner and got transferred the plot
No. 14 in his name, while as per Rules, HUDA cannot
transfer the site unless and until the seller and purchaser
both are physically present in their office. Information to
this effect has been given by the HUDA authorities vide
their letter dated 24.12.2008. So far the allotment of Site
No. 113 is concerned, the same has been allotted in the
name of petitioner firm M/s Shiv Stone House in the
draw and the petitioner firm is having the sales tax
registration number of 1992, hence there is no question
of having any more than one site to one family by the
petitioner.”
The contents of such counter objections are verified by the
petitioner to be true and correct to his knowledge. The petitioner has also
filed an affidavit in support of such objections verifying that the contents of
para Nos. A to F and 1 to 4 are true and correct to the best of his knowledge.
It was also stated that nothing is false or has been concealed therefrom.
During the course of hearing, learned counsel for the petitioner
submitted that certain firms, which were earlier stated by him to be
fictitious, were actually genuine. The petitioner was asked to file an
additional affidavit, but instead of filing an affidavit, he made a solemn
affirmation, which reads as under:-
“I have gone through the inquiry report submitted by Shri
T.C. Gupta. M/s Amba Marbles & Granites, M/s Mahesh
Marbles, M/s N.R. Marbles, M/s Shree Trupati Stone,
M/s Swastika Marbles and M/s S.K. Marbles referred to
in that report are genuine concerns to my knowledge and
also as per report. It is true that in Para No. 6 of my
Civil Writ Petition No. 13391 of 2007 (10)additional affidavit filed on 4th September, 2008, I had
enumerated 31 different firms, which were stated to be
fictitious including the one mentioned above but that
statement was made by me on account of some mistake
and not deliberately. It is also correct that in my
additional affidavit, I have not mentioned anything about
my having taken a plot in the name of M/s Shiv Stone or
my nephew Satish Goel who is also an allottee of the plot
with my wife as a partner in the firm.”
After hearing learned counsel for the parties at some length, we
are of the opinion that the inquiry conducted by the Chief Administrator,
HUDA, gives cogent reasons based upon facts and circumstances to
conclude that the 19 firms out of the list of 35 firms given by the petitioner,
are genuine. The names of such 19 firms existed in the survey list dated
27.2.2001. Even as per counter affidavit filed by the petitioner, seven firms
out of 19 firms found genuine by the Chief Administrator are genuine. The
said assertion in the objections dated 4.3.2009 submitted by the petitioner
are contrary to the affidavit dated 04.09.2008 sworn by the petitioner. The
firms stated to be fake by the petitioner are for the reason that they were not
dealing with mable in Sectors 20-A and 20-B or that sales tax numbers are
of the year 1977 or do not relate to the firms that have been allotted the
plots. The said assertion is not tenable, inter alia, for the reason that the
petitioner has not produced the documents to show the assertion of said 19
firms to be incorrect before the learned Chief Administrator. Still further,
the mere fact that M/s Bharat Marble or M/s Bajrang Hardware Store were
running their business in Tikona Park and not in Sector 20-A or 20-B is
immaterial. In fact, they were running the Marble business in Faridabad.
M/s Zee Marble Shop is stated to be registered in the year 1977. Except the
Civil Writ Petition No. 13391 of 2007 (11)
bald statement that said firm has given sales tax number of the year 1977
there is nothing on the record to show that said registration number is
incorrect. Similar allegation of wrong sales tax number of other firms is
based upon ipsi dixi of the plaintiff without producing any document to
show that the sales tax registration number of such firms is incorrect and in
what manner.
We also find that the conclusion drawn by the Chief
Administrator, HUDA, in respect of the remaining 15 firms, is reasonable
and possible conclusion drawn on the basis of documents produced before
him. The allegations leveled by the petitioner are omnibus. The name of all
the firms found mention in the representation submitted by Faridabad
Marble Vayapar Mandal. The petitioner has not been able to bring any
document to so as to contradict the finding recorded by the Chief
Administrator. In view of the facts now brought on record, the conclusion
drawn by the Chief Administrator, does not warrant any further
investigation or action by this Court.
The petitioner had stated on solemn affirmation in his affidavit
dated 4.9.2008 that firms at serial Nos. 14 and 23 of para 6, were fictitious.
But in his statement before the Court, the same are stated to be genuine.
Seven firms have been said to be genuine in his affidavit dated 04.03.2009
out of 19 firms found by the Chief Administrator to be genuine. The
petitioner has earlier averred in his affidavit that such firms were fake. It
shows that the averments made in the affidavit dated 4.9.2008 declaring
that the said firms are fictitious, is not correct as per the stand of the
petitioner himself. The said affidavit was filed in pursuance of an order
passed by this Court on 28.8.2008. Such stand of the petitioner shows that
he did not make truthful statement in his affidavit dated 4.9.2008.
Civil Writ Petition No. 13391 of 2007 (12)
Still further, the petitioner has approached this Court alleging
himself to be a social worker. The petitioner has not disclosed in the writ
petition that he was also one of the applicants and has been allotted a plot
in the Marble Market. In fact, the inquiry report discloses that two sites
bearing Nos. 14 and 113, were allotted to the petitioner and his family
members. In the counter objections, the petitioner has not disputed the
allotment of site No. 113 to him. However, in respect of allotment of site
No. 14, the petitioner has not disputed the allotment but averred that Vishnu
Marbles has two partners i.e., Smt. Prema Devi and Satish Goyal. Prema
Devi is the wife of the petitioner and Satish Goyal is his nephew. The said
site was allotted in a draw, but later on Satish Goyal, left the firm and Shri
Rahul Sharma, had started working along with the wife of the petitioner.
The petitioner has averred that Rahul Sharma, has taken the thumb
impression of the petitioner’s wife without the knowledge of the petitioner
and got transferred plot No. 14 in his name.
The petitioner has not disclosed in the writ petition or in
affidavit dated 4.9.2008 that he was allotted a plot in his individual right,
whereas another plot was allotted to a firm of which his wife was a partner.
Such non-disclosure of material facts, clearly shows that invocation of the
jurisdiction of this Court in public interest, lacks bona-fide. It may be
noticed that in affidavit dated 4.9.2008, the petitioner had made categorical
statement that he has been deprived of an opportunity to participate in an
open auction to purchase a plot and to do the business to earn his
livelihood. The said averment made in affidavit dated 4.9.2008, is obviously
incorrect in view of the finding recorded in the inquiry report and admitted
by the petitioner in his objections dated 4.3.2009, supported by an affidavit.
The statement of the petitioner in the affidavit dated 4.9.2008 that he has
Civil Writ Petition No. 13391 of 2007 (13)
been deprived of an opportunity of participation for purchasing a plot in an
open auction, is false. Even the statement in the affidavit dated 4.9.2008,
that two firms, as referred to above, out of the list of 31 firms, were not
genuine, is again false. We, thus, find that the writ petition is nothing but
gross abuse of process of law.
The petitioner had consistently made false averments on
affidavit and has, thus, committed perjury. In the facts aforesaid, it is a fit
case where the petitioner has made himself liable for prosecution for the
offence under sections 191 and 193 of the Indian Penal Code, 1860. But,
keeping in view the age of the petitioner, we do not wish to initiate
prosecution against the petitioner. Consequently, the writ petition is
dismissed with costs. Costs assessed at Rs.10,000/-. The petitioner shall
deposit the costs within one month with the Haryana State Legal Services
Authority, Chandigarh.
(T.S. Thakur) (Hemant Gupta) Chief Justice Judge April 15, 2009 ds