Balbir Singh v. The State of Punjab & Ors.

CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.K.Chopra, Senior Advocate with Ms.Maninder, Advocate, for the petitioner. Mr.Anil Kumar Sharma, Additional Advocate General, Punjab, for respondents 1 and 2. Mr. G.S. Attariwala, Advocate, for respondent No.3. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral)

1. The petitioner challenges the memo issued on the petitioner by the 3rd respondent demanding Rs.5,86,856/- being the cost of the plot which was allotted to him on 12.08.1994, that is, the memo issued 15 years after the initial allotment. The process of allotment proceeded in this fashion and the following facts have given rise to the dispute.

2. In a scheme of development of a colony in Patiala, many persons had lost right over their properties held by them on account of a road which was being proposed through the private lands. A principled decision has been taken to allot to such persons, who were displaced Civil Writ Petition No.15852 of 2009 - 2 - alternative plots of equal value. The petitioner was one such displaced person, who claimed that he had 100 square yards in his possession and for the property that was being dislocated, the respondent Trust had allotted 100 square yards of land. The decision for allotment and the actual allotment was made after the decision was communicated to the petitioner through the letter of the Executive Officer of the Improvement Trust on 19.05.1988.

3. It is not in dispute that the development charges was to be collected from the various allottees and it was also collected from the petitioner. The petitioner had sought for No Due Certificate from the authorities when affidavits were taken from the petitioner that if there were any adverse report coming from the Government on the enquiry, he would abide by the rules and regulations of the Improvement Trust. He had also given another affidavit saying that after the issuance of No Due Certificate if any amount became due against him after the assessment through an audit, he would also be liable to deposit the same as per the Trust Rules.

4. The apple of discord was, when on some complaints against actions of the Trust that several persons, who were not even the owners of the property had also obtained allotments, investigation had been undertaken and it appears that it was ascertained by the Improvement Trust that the petitioner did not actually have a registered sale deed in his favour. He had held only an agreement of sale in his favour dated

09.06.1983. It also transpired that the property which was actually recovered from the petitioner was only 80 square yard and the remaining Civil Writ Petition No.15852 of 2009 - 3 - 20 square yard held by him, it was a public property, which he had encroached. In respect of 20 square yards, which the petitioner could not have had any lawful claim to ownership, the amount was also recovered by the Improvement Trust. The dispute was only that the allotment could not have been made to a person, who did not have a registered sale deed but held only an agreement.

5. The demand for the price of the plot arises only by the fact that in the assessment of the 3rd respondent, the property could have been allotted only if the petitioner had been the owner and if the property had been merely held in possession through an agreement, the petitioner could not have been allotted an alternative plot free of cost. In my view, such a claim by the respondent is untenable. The allotment itself has come about only through a letter by a person by name Bishan Singh dated 19.05.1988 when he has declared that he had sold the property on the strength of an agreement and the date of the agreement has also been mentioned. He has stated that he would have no objection for an allotment of the property to this 'purchaser' and the construction that may be put there on, if the property were to be given to the agreement holder. In essence, it was a disclaimer by a person, who held a registered deed in favour of the petitioner and he was affirming that he had handed over the right to the petitioner and that an allotment need not be done to the registered owner but it might be done to the petitioner. When ultimately a decision was taken to make the allotment, they were doing so on the basis of the letter that had already come. The petitioner could not be imputed with any misrepresentation or concealment. A later policy that Civil Writ Petition No.15852 of 2009 - 4 - the respondent may have come by, viz., that in all cases of fresh allotments, they shall be guided only by registered ownership of owners could have been applied only to allotments that would take place in future and a later formulation of policy cannot impinge on the rights of persons, who had already obtained an allotment or cast any new obligation which was not contemplated at the time of allotment. Even the affidavit given by the petitioner at the time of seeking 'No Objection Certificate' that he would be liable for any amount that would be determined by audit cannot be extended illogically also to an untenable demand from the respondent that in their scheme of things that the property could have been allotted only to the registered owner. As I have observed, a change in the policy that has come about, will operate only prospectively and cannot affect the rights of person, which have come through a proper allotment on due appraisal of all facts and who has paid the entire amount as determined as development charges.

6. The right to demand the price for the property allotted simply does not arise and the memo impugned in the writ petition is quashed and the writ petition is allowed with cost assessed at Rs.5,000/-.

15.01.2010 sanjeev (K.KANNAN) JUDGE