Hira Tikkoo
Vs. Union Territory, Chandigarh & Ors [2004] Insc 270 (13 April 2004)
Shivaraj
V. Patil & D. M. Dharmadhikari.
With
Civil Appeal Nos. 4732-47,4748-49, 4728, 4729, 4750-51, 4730-31, 5319, 7260,
4752-4807, 4726-27, 4808-4809 of 2002 & 7109 of 2003 and SLP (c) Nos.
5115-17 of 2002. Dharmadhikari J.
These
appeals and special leave petitions are preferred against the common judgement
dated 30.8.2001 passed by the Division Bench of High Court of Punjab & Haryana
whereby a batch of writ petitions preferred by the applicants for allotment of
industrial plots in the development scheme framed by the Union Territory, Chandigarh
[shortly referred to as UTC] has been disposed of with certain directions.
Different classes of allottees of industrial plots and UTC all feel aggrieved
by the judgment of the High court and are before this Court.
The
full factual background leading to the dispute inter se between the applicants
for industrial plots and UTC is required to be set out :- With a view to
re-enact and modify the law in relation to the development and regulation of
the new capital of Punjab at Chandigarh, Legislation by name Capital of Punjab
[Development and Regulation] Act, 1952 [shortly referred to as the Act] was
passed in the year 1952 vesting the State Government with legal authority to
regulate the sale of building sites. In exercise of powers under the Act, rules
for allotment of sites for building have been framed known as the Chandigarh
Lease Hold of Sites and Building Rules, 1973 [hereinafter referred to as the
Rules], which among others provide that the Administration of UTC, may demise
'sites for industries and buildings by allotment or auction.
In
accordance with the provisions of the Act and Rules mentioned above, the
Administration of UTC issued an advertisement No. 1/81 on 14.4.1981 inviting
applications from interested entrepreneurs seeking allotment of the industrial
plots of different sizes ranging from 10 marlas to 4 kanals. Pursuant to the
said advertisement, 3735 applications were received from different parties.
The
Screening Committee of the Administration of UTC on 16.7.1982 short-listed 339
parties for allotment of industrial plots of different sizes after studying
their project reports and conducting interviews.
The
339 successful applicants, selected for allotment of plots of different sizes,
were directed to deposit 25% of the total cost of the plots. On 30.11.1982, for
allotting specific plots, a draw of lots was held among 339 successful allottees.
As a result of the draw of lots, 57 parties were given possession of their
plots in developed industrial areas i.e. Phase-I and Phase-II. Twenty one
parties took refund of their money. Seven allottees were given option for
change of their plots. Remaining 254 allottees could not be given possession of
the plots, allotted to them, as there were objections from the State
Authorities to the industrial development of the land it being covered by the
notification, issued in the year 1961, declaring area of the land as reserved
forest. The Administration of UTC could not deliver the possession of that land
which was covered in the reserved forest, to 254 allottees of the year 1989 but
it continued to accept the yearly installments fixed for payment from the
selected allottees.
Certain
allottees filed writ petitions in the year 1987 in the High Court seeking
directions to the Administration of UTC to deliver possession of the industrial
plots allotted to them in accordance with the short-listing done by the
Screening Committee and consequent draw of lots.
On
29.11.1990, the Director of Industries, Government of India, intimated to the allottees
that the Administration of UTC was not in a position to deliver possession of
the industrial plots allotted to them as the land was found to be a part of
reserved forest. The Administration proposed to allot one kanal land to each allottee
irrespective of the size of plot originally allotted.
On
10.12.1990, the Administration of UTC then framed a new industrial policy to
accommodate 250 allottees of 1982 who could not be given possession of the
industrial plots because of the land being reserved for forest. To meet
aforesaid difficult situation, the Administration decided to reduce the size of
4 kanal and 2 kanal of industrial plots by 25% so as to accommodate and to
enable itself to allot plots to all 254 allottees. In view of the new
industrial policy of 1990, the earlier letter dated 29.11.1990 proposing each allottee
one kanal of plot was withdrawn. On 05.2.1991, a letter was issued to allottees
of plots measuring 4 kanal and 2 kanal to give their consent for accepting
reduced size of plot by 25% of the original plot allotted to each of them. The
option was invited within a period of 30 days. No option was asked from the allottees
of plots measuring one kanal and 10 marlas.
Some allottees
had given their consent who shall be hereinafter referred to shortly as 'the consentees'.
Many
others who did not give their consent for reduced size of plots challenged the
action of the Administration of UTC in the High Court. The new declared
industrial policy of 1990 was also challenged.
Such allottees
who did not give consent for smaller sizes of plots and approached the High
Court shall be, hereinafter, referred to as 'the non-consentees'. These non-consentees
in the petitions filed by them in the High Court obtained stay against the draw
of lots scheduled to be held on 27.3.1991 for allotment of specific plots of
smaller sizes to the consentees. The non-consentees made a three-pronged attack
in the writ petitions by challenging the notification of declaring the area as
reserved forest, the new industrial policy of 1990 and the decision to reduce
the size of plots taken by the Administration of UTC. A single Judge of the
High Court by order dated 15.11.1991 dismissed the writ petitions filed by the
non-consentees. But as the Administration of UTC was found to be blameworthy
for the situation created, the learned single Judge merely expressed a wish
that they would be accommodated in the alternative schemes. After decision of
the case by the single Judge of the High Court, the Administration of UTC on
07.2.1992 issued a letter asking all the 254 allottees to furnish an affidavit
in prescribed form indicating that none of them possessed any industrial plot
in the territory of Chandigarh, Panchkula or Mohali in his/her name or in the
name of his/her spouses/children. This affidavit was demanded in terms of the
new industrial policy of 1990. Out of 254 allottees only 161 consentees gave
their affidavits. Some of the non-consentees again approached the High Court
challenging the new industrial policy of 1990 by filing fresh petitions and
others filed letters patent appeals. In their petitions and appeals, they
insisted on grant of relief of directing delivery of possession of the original
plots allotted to them. The filing of this petition and appeals resulted in
stalling the allotments of alternative plots pursuant to the new industrial
policy of 1990 even to consentees who had agreed for plots of reduced sizes at
alternative locations and had filed affidavits in the requisite form. The consentees
approached the High Court with a prayer that the Administration be directed to
give them possession of the alternative plots of smaller sizes. The Division
Bench of the High Court passed an order dated 22.11.1994 and by modifying its
earlier order dated 13.1.1992 clarified that the Administration of UTC can
proceed to allot the industrial plots to consentees subject to the condition
that the plots of the size allotted to the non-consentees, who are in
litigation, shall be kept reserved and not reduced. Despite the above
modification and clarification made by the High Court, the Administration of
UTC did not deliver possession of the plots even to consentees stating that in
some other cases, stay orders against the allotments were operating against the
Administration. On 12.8.1995, the High Court again modified its earlier orders
and gave liberty to the Administration to give possession of alternative plots
to consentees.
Despite
the above order, the Administration of UTC did not choose to deliver possession
of the alternative plots even to consentees as in their view, the interim
orders of the High Court restrained them from reducing the size of plots
allotted to non-consentees.
The consentees
then approached by substantive petitions before the High Court seeking relief
in their favour of issuing direction to the Administration of UTC to deliver
possession of alternative plots to them. In response to the writ petitions
filed by consentees, the Administration expressed its inability to deliver
possession of the plots even to consentees. It was stated that some part of the
land to be allotted as alternative plots falls within the restricted zone under
the notification issued under the Aircrafts Act for Air-Force base.
The
Division Bench of the High Court, after long drawn hearing and detailed
consideration of the competing claims of consentees and non-consentees as also
the stand of the Administration, passed a common judgement with the directions
which are subject matter of these appeals preferred by non-consentees who are
aggrieved by denial to them of alternative plots. Consentees feel aggrieved by
direction permitting from them demand of the price at the rate prevailing on
the date of draw of lots i.e. 27.3.1991. According to the Chandigarh
Administration, during long pendency of litigation, a new industrial policy of
2001 has been promulgated in which one phase of industrial area is to be
reserved for setting up the Information Technology industries. The
Administration is aggrieved by the directions permitting them to charge price
only at the rate prevailing on the date of draw of lots i.e. 27.3.1991 and not
at current rate.
Amongst
the consentees and non-consentees, there are individuals and parties who did
not file any writ petitions in the High Court and as the relief granted is
restricted to the parties before the court, such parties and individuals have
filed applications seeking intervention and/or impleadment as parties in this
group of appeals.
The
directions given by the High Court in the impugned judgment are as under :-
1. The
prayer of the appellants/petitioners for directing the authorities of Chandigarh
Administration to hand over possession of the plots allotted on the basis of
draw held in November, 1982 is rejected.
2.
However, the authorities of Chandigarh Administration are directed to issue
allotment letters to those appellants/petitioners who had given consent for
allotment of alternative plots of smaller sizes and who were successful in the
draw held on 27.3.1991. They should be charged price at the rate prevailing on
the date of draw.
3.
Those who were declared successful in the draw held on 27.3.1991 but cannot be
allotted plots due to non-availability of sufficient land in the wake of
prohibition imposed vide notification dated 5.1.1988 shall be allotted plots in
any other scheme already framed or which may be framed hereafter by Chandigarh
Administration.
4.
Those who were declared successful in the draw held in 1982, but did not give
consent for allotment of alternative plots shall be refunded the amount
deposited by them with interest at the rate of 12% from the date of deposit
till the date of actual payment.
5.
Within one month from the date of receipt of this order, Chandigarh
Administration shall get published in the Tribune the list of the applicants
who had given consent for allotment of alternative plots and were declared
successful in the draw held on 27.3.1991 specifying the number of plots earmarked
for them.
6.
Notification dated 28.4.2000 is held inapplicable and inoperative qua the
allotments made to the appellants/petitioners on the basis of the draw held on
27.3.1991.
....................
In
this Court when the arguments commenced, it was felt by all parties involved as
also by this Court that some amicable solution reasonably acceptable to all the
parties can be found out on the basis of mutual discussions and negotiations
between the authorities of the Chandigarh Administration, the contesting consentees
and non- consentees.
Despite
giving them repeated opportunities to settle the matter through negotiations,
we are unhappy to record that the counsel for the parties reported that efforts
to amiably solve the issue have failed.
Learned
senior counsel Shri M. L. Verma appearing for the non- consentees very fairly
stated that the notification reserving certain lands for the forest and the
restrictions imposed on construction in periphery of 900 metres from the
Air-Force base under the Aircrafts Act cannot be questioned and that part of
the judgment of the High Court is not being assailed in these appeals. With
regard to the restrictions under Aircrafts Act, it is however, pointed out that
the period of restriction under notification dated 22.5.2001 has expired and
therefore, the said restriction of 900 metres under the Aircrafts Act is no
longer in operation.
Learned
counsel appearing for the Administration of UTC had pointed out to us that the
contents of the letter dated 20.11.2003 received by the Administration from
Ministry of Defence, Government of India do show that the period of
notification imposing restriction has expired but it has been intimated in the
same letter that the similar restriction is under contemplation and a fresh notification
imposing same is likely to be issued in future. In the aforesaid circumstances,
learned counsel for the Chandigarh Administration submitted that allotment of
alternative plots within 900 metres would be subject to any imposition of
restriction under the Aircrafts Act and if such restrictions are imposed, the allottees
of plots falling in that area would have no right to claim any compensation or
damage from the Administration.
We
shall take up first for consideration the grievances raised and the challenges
made to the directions of the High Court by the learned counsel appearing on
behalf of the non-consentees. On their behalf, learned counsel states that
amongst them are large number of allottees who, on having been only given
letter of allotment, have paid full price of the plots. Lease-deeds have been
executed in their favour and they have been placed in formal possession of the
plots although they have not been allowed to take physical possession and raise
super-structures. Such allottees, it is contended, have acquired a vested right
to obtain the plots. Reliance is placed on section 3(3) of the Act read with
rules 4, 6 & 10 of the Rules which read as under :- "Section 3. Power
of Central Government in respect of transfer of land and building in Chandigarh.
(1)..............
(2)
...................
(3)
Notwithstanding anything contained in any other law for the time being in
force, until the entire consideration money together with interest or any other
amount, if any, due to the Central Government on account of the transfer of any
site or building, or both, under sub-section (12) is paid, such site or
building, or both, as the case may be, shall continue to belong to the Central
Government.
Rule
4. The Chandigarh Administration may demise sites and buildings at Chandigarh
on lease for 99 years. Such leases may be given by allotment or by auction in
accordance with these rules.
Rule
6. Commencement and period of lease. The lease shall commence from the date of
allotment or auction, as the case may be, and shall be for a period of 99
years. After the expiry of the said period of 99 years, the lease may be
renewed for such further period and on such terms and conditions as the
Government may decide.
Rule
10. Delivery of possession. Actual possession of the site/building shall be
delivered to the lessee on payment of 25 per cent of the premium in accordance
with rule 8 or rule 9 as the case may be.
Provided
that no ground rent payable under rule 13 and interest on the instalments of
premium payable under sub-rule(2) of rule 12 shall be paid by the lessee till
the actual and physical possession of the site/building is delivered or offered
to be delivered to him, whichever is earlier.
Some
decisions, which need not detain us for consideration, were cited to contend
that on execution of lease-deads, payment of price and formal delivery of
possession of the plots, a vested right in law in the plots allotted has been
created in favour of the allottees regardless of their consent or non-consent
for alternative plots.
We
have examined the scheme and provisions of the Act and the Rules. They do not
seem to contemplate creation of any vested right where any other state or
central legislation bars use of a particular land for industrial development.
The Chandigarh Administration, in these cases, had prepared a scheme, carved
out plots, auctioned them and received part or full payment of the price. In
implementing its development scheme, it ignored the notification issued
reserving a major portion of the land covered by the scheme as 'forest'. It is
in this circumstance that the Administration is showing its inability to honour
the commitment made by offering the plots, acceptance of price and giving
delivery of possession. When a scheme of development of land and the allotments
made thereunder are found to be in contravention of any law and contrary to
general public interest, no claim based on so called vested right can be
countenanced. Similar is the position with regard to 900 metres restriction imposed
under the Aircrafts Act. No citizen can be allowed to claim any vested right
which would result in violation of a statutory provision of law or
Constitution.
The
claim, therefore, based on alleged vested right, has to be outright rejected.
The
learned senior counsel then made some attempts to rely on the doctrines of
'promissory estoppel' and 'legitimate expectation'.
Doctrine
of 'legitimate expectation' has developed as a principle of reasonableness and
fairness and is used against statutory bodies and government authorities on
whose representations or promises, parties or citizens act and some detrimental
consequences ensue because of refusal of authorities to fulfil their promises
or honour their commitments. The argument under the label of 'estoppel' and
'legitimate expectation' are substantially the same. The Administration herein
no doubt is guilty of gross mistake in including in its development scheme, a
portion of land covered by the forest and land with restrictions under the
Aircrafts Act. A vital mistake has been committed by the Chandigarh
Administration in overlooking the notification reserving land under the Forest
Act and the restrictions imposed under the Aircrafts Act, but overriding public
interest outweighs the obligation of a promise or representation made on behalf
of the Administration. Where public interest is likely to be harmed, neither
the doctrine of 'legitimate expectation' nor 'estoppel' can be allowed to be
pressed into service by any citizen against the State Authorities. In M/s Jit
Ram Shiv Kumar & Ors. vs. State of Haryana & Ors. [1981 (1) SCC 11], a
two-Judge Bench of this Court by explaining and distinguishing Union of India
vs. Indo- Afgan Agencies Ltd., [1968 (2) SCR 366] and Motilal Padampat Sugar
Mills Co. (P) Ltd. vs. State of U.P. [1979 (2) SCC 409], observed thus :- 'It
is only in public interest that it is recognized that an authority acting on
behalf of the government or by virtue of statutory powers cannot exceed his
authority. Rule of ultra vires will become applicable when he exceeds his
authority and the government would not be bound by such action. Any person who
enters into an arrangement with the government has to ascertain and satisfy
himself that the authority who purports to act for the government, acts within
the scope of his authority and cannot urge that the government is in the
position of any other litigant liable to be charged with liability'.
In the
aforesaid case of M/s Jit Ram Shiv Kumar (supra), the Municipal Committee of Bahadurgarh
town to develop a Mandi promised that the traders who purchase plots in Mandi
would be exempted from paying octroi duty on goods imported for trade to the Mandi.
The State Government in exercise of powers under the Punjab Municipal Act
directed the Municipal Committee to withdraw the exemption from payment of octroi
duty. When the traders, who had set up their business in the Mandi on promise
of getting exemption from octroi duty, challenged the action of the
Municipality and the Punjab Government and raised on plea of 'estoppel' it was
rejected by this Court by relying on the decision of Constitution Bench of this
Court in the case of M. Ramanatha Pillai vs. The State of Kerala & Anr.
[1973 (2) SCC 650] and State of Kerala & Anr vs. The Gwalior Rayon Silk Manufacturing (WVG.) Co.
Ltd. Etc. [1973 (2) SCC 713]. This Court in M/s Jit Ram Shiv Kumar (Supra),
recorded the following conclusion which supports the view we propose to take in
the circumstances of the present case :- 'On a consideration of the decisions
of this Court, it is clear that there can be no 'promissory estoppel' against
the exercise of legislative power of the State. So also the doctrine cannot be
invoked for preventing the government from acting in discharge of its duty
under the law. The government would not be bound by the act of is officers and
agents who act beyond the scope of their authority and a person dealing with
the agent of the government must be held to have notice of the limitations of
his authority. The court can enforce compliance by a public authority of the
obligation laid on him if he arbitrarily or on his mere whim ignores the
promises made by him on behalf of the government. It would be open to the
authority to plead and prove that there were special considerations which necessitated
his not being able to comply with his obligations in public interest'.
In
public law in certain situations, relief to the parties aggrieved by action or
promises of public authorities can be granted on the doctrine of 'legitimate
expectation' but when grant of such relief is likely to harm larger public interest,
the doctrine cannot be allowed to be pressed into service. We may usefully call
in aid Legal Maxim :
'Salus
populi est suprema lex : regard for the public welfare is the highest law. This
principle is based on the implied agreement of every member of society that his
own individual welfare shall in cases of necessity yield to that of community.
His property, liberty and life shall under certain circumstances be placed in
jeopardy or even sacrificed for the public good'.
On the
same principle and to protect larger public interest, the Chandigarh
Administration can be relieved of fulfilling legitimate expectation arising
from its allotment of plots on the ground that their development schemes under
consideration have been found to be in contravention of Forest Act and
Aircrafts Act. Another legal maxim which can be invoked to their aid is : 'Lex
non cogit ad impossibilia : the law does not compel a man to do that which he
cannot possibly perform'.
The allottees
of the plots are, no doubt, faced with an uncertain situation with loss already
caused to them due to negligence and mistake on the part of the Planning
Authorities of the Chandigarh Administration. In preparing the development
scheme, the existing notification reserving major part of land as forest under
the Indian Forest Act and restriction on construction in periphery of 900 metres
from the Air-force base under the Aircrafts Act were overlooked. As we have
held above, on a representation that the land is available for allotment of
industrial plots, the allottees staked their money and plans for setting up
their industries. The representations made to them by the Planning Authorities
have turned out to be misleading as a substantial part of the land could not
have been included in the development scheme. The allottees paid price for the
plots and incurred expenses in preparing their industrial projects. We have
held above that the doctrine of 'legitimate expectation' and 'estoppel' cannot
be applied against the Administration to compel it to allot the original plots
because that would be permitting violation of Statutes intended to conserve
forest and restrictions imposed in the interests of general public and security
of Nation under Aircrafts Act. Doctrine of 'estoppel' cannot, therefore, be
allowed to be urged against the Administration. This Court cannot direct the
Administration to commit breach of statutory provisions and thus harm general
public interests.
De
Smith, Woolf and Jowell in their authoritative book on 'Judicial Review of
Administration Action' [5th Edition at page 565 para 13-028], have stated one
of the principles of public law powers thus : 'A public body with limited
powers cannot bind itself to act outside of its authorised powers; and if it
purports to do so it can repudiate its undertaking, for it cannot extend its
powers by creating an estoppel'.
Surely,
the doctrine of estoppel cannot be applied against public authorities when
their mistaken advice or representation is found to be in breach of a Statute
and therefore, against general public interest.
The
question, however, is whether the parties or individuals, who had suffered
because of the mistake and negligence on the part of the statutory public
authorities, would have any remedy of redressal for the loss they have
suffered. The 'rules of fairness' by which every public authority is bound,
requires them to compensate loss occasioned to private parties or citizens who
were misled in acting on such mistaken or negligent advice of the public
Authority. There are no allegations and material in these cases to come to a
conclusion that the action of the authorities was mala fide. It may be held to
be careless or negligent. In some of the English cases, the view taken is that
the public authorities cannot be absolved of their liability to provide
adequate monetary compensation to the parties who are adversely affected by
their erroneous decisions and actions. But in these cases, any directions to
the public authorities to pay monetary compensation or damages would also
indirectly harm general public interest. The public authorities are entrusted
with public fund raised from public money. The funds are in trust with them for
utilisation in public interest and strictly for the purposes of the Statute
under which they are created with specific statutory duties imposed on them. In
such a situation when a party or citizen has relied, to his detriment, on an
erroneous representation made by public authorities and suffered loss and where
doctrine of 'estoppel' will not be invoked to his aid, directing administrative
redressal would be a more appropriate remedy than payment of monetary
compensation for the loss caused by non- delivery of the possession of the
plots and consequent delay caused in setting up industries by the allottees.
[See the Administrative Law by H.W.R. Wade & C.F. Forsyth, Eight Edition at
pages 370-373. Also the book on 'Judicial Review of Administration Action' by
De Smith, Woolf and Jowell, 5th Edition at page 565 para 13-028].
In the
predicament aforesaid, the Administration has adopted a fair attitude. It has
come out with a proposal to give alternative plots but of smaller sizes because
of the paucity of land available in development schemes in Phase-I & II.
The statutory compulsion and the rule of fairness have both to be evenly
balanced. This Court cannot allow the Administration to commit breach of law
and harm public interest. At the same time, it cannot be absolved of its
liability to give appropriate redressal and compensation to the parties and
citizens who have suffered loss because of their grossly mistaken decisions and
actions. The allottees of the plots, when they were given option to accept
alternative plots of smaller sizes, ought to have accepted the offer being the
appropriate compensation to them in the circumstances obtaining. The allottees who
have consented to accept alternative plots even of smaller sizes and others who
did not consent, maybe, because they were in litigation and required plots of
bigger sizes, constitute two different groups requiring different treatment in
the matter of directing grant of appropriate redressal to them by the
Administration.
The
learned counsel on behalf of non-consentees submitted that in denying choice of
alternative plots to non-consentees at par with consentees, the High Court
unreasonably discriminated the non- consentees. It is submitted that the non-consentees
were legitimately fighting for their rights for the original plots allotted of
required sizes and which suited to their industrial projects. Merely because in
the course of court proceedings, draw of lots for alternative plots were stayed
and held up, is no ground to deny non-consentees the allotment of alternative
plots, when in many of their cases, full prices have been paid, lease-deeds
executed and even formal possessions have been obtained although they could not
set up industries. It is submitted that the rule of fairness requires consentees
and non- consentees be treated at par for allotment of alternative plots. No
prejudicial treatment could be meted out to non-consentees by completely
depriving them of alternative plots and merely directing refund of their
prices. In this respect, it is urged that pendency of court proceedings should
harm no one and mere approach to the law courts for enforcement of their legal
and constitutional rights should not be taken as a circumstance against the
parties. The contention advanced is that discrimination between consentees and
non- consentees is violative of right of equality guaranteed under Article 14
of the Constitution.
We
have also heard the learned senior counsel Shri M. N. Krishnamani appearing for
the consentees, who has very stiffly opposed the claim for alternative plots
advanced on behalf of the non- consentees. The plots of small sizes are limited
in number in which both consentees and non-consentees cannot be accommodated.
Learned
counsel submits that differential treatment given to consentees and non-consentees
by the High Court is fully justified for various reasons. It is submitted that
the writ petitions filed by the non- consentees challenging the notification of
reservation of land for forest and their refusal to accept alternative plots of
smaller sizes, occasioned long delay in making available the alternative plots
to all.
The consentees
had to intervene and fight independently in the High Court as also in this
Court to obtain possession of the plots which they could have obtained on the
basis of their consent and draw of lots on 27.3.1991. It is submitted that non-consentees
were mainly responsible for stalling actions of the Administration and attempts
by them to accommodate as much number of allottees in the alternative plots as
was possible on the basis of availability of developed land and the size of
plots. They submitted that the non-consentees having entered into a long drawn
litigation against the Administration and failed, they cannot now, for the
first time in this Court, be allowed to change their stand and compete with consentees
in draw of lots for smaller sizes of available alternate plots. The High Court,
therefore, was right in completely excluding the non-consentees from being
considered for grant of alternative plots. The other grievances raised on
behalf of the consentees is with regard to direction no. 2 in the judgment of
the High Court by which the consentees have been directed to be allotted
alternative plots under draw of lots held on 27.3.1991 but on the price
prevailing on the date of the draw of lots.
This
part of the direction no. 2 of the High Court is questioned on behalf of the consentees
by stating that they had paid full or part price for the original plots as
allotted to them in the year 1982 and the said money was throughout with the
Administration. Now directing the consentees to pay the price for the
alternative plots on the price prevailing on the date of draw i.e. 27.3.1991 is
prima facie unfair and highly burdensome because the consentees for no fault on
their part are made to pay much higher price. The Administration despite their
vital mistake in preparing schemes for the land partly covered by reserved
forest should not be allowed enrichment by allowing them to charge higher price
for smaller sizes of plots in the same scheme or the alternative schemes.
We
have heard learned senior counsel Shri Rakesh Dwivedi assisted by Ms. Kamini Jaiswal
appearing for the Administration on the question of charging of price for
alternative plots of smaller sizes in the same scheme or the other schemes. The
justification advanced for demanding higher price is that in the course of long
drawn litigation, additional expenditure was required to be incurred for replotting
and prices of land have gone up in the meantime. It is also submitted that it
may not be possible to accommodate all consentees even for smaller sizes of
plots in the same scheme. Some of them will have to be accommodated in other
schemes. The acquisition cost of land in other schemes is higher. The direction
of the High Court to charge from the consentees for alternative plots, price as
was prevailing on the date of draw of lots held on 27.3.1991 is, therefore,
described as highly unreasonable.
After
considering the rival submissions made on behalf of various parties, we are of
the view that the rule of reasonableness and fairness by which every statutory
authority is bound, demands that the consentees, who, for no fault on their
part, were deprived of the original plots of larger sizes, should not be
further made to suffer by demanding from them higher price for the alternative
plots of smaller sizes. It would be highly iniquitous to demand from them
higher price for smaller sizes of plots and add to their losses caused by undue
delay in setting up their industries. The Administration is mainly to be blamed
for the situation in which the allottees of plots find themselves today. In
preparing scheme and allotting plots, it could not have ignored the
notification reserving a part of land for the forest and the restriction to the
extent of 900 metres around the Air-Force base. The allottees of the plots have
paid full or part price and that amount throughout remained with the
Administration. In such circumstances, the Administration must bear a portion
of loss, if any, occasioned to it and compensate to some extent the loss caused
to the consentees who never objected to allotment of alternative plots of
smaller sizes.
The
direction no. 2 of the High Court, therefore, to the extent of charging price
from the consentees as prevailing on the date of draw of lots i.e. 27.3.1991,
deserves to be set aside and substituted with the directions that the consentees
on being allotted a particular plot of smaller size shall be charged the same
price which was prevailing at the time of original allotment of the plot in
their favour. Necessary adjustment or refund of price, as the case may be,
shall be given to them for the small size of plot allotted.
So far
as the non-consentees are concerned, we are not prepared to accept that by
their action and/or inaction, they can claim parity for allotment with the consentees.
The consentees have to be considered in priority as, at the first available
opportunity, they agreed to the offer of alternative plots of smaller sizes.
The non-consentees not only questioned the offer made by the Administration to
provide them plots of smaller sizes but even assailed the government
notification declaring major part of the land in the scheme as reserved forest.
They might have a legitimate right to approach the courts for necessary reliefs
but having failed in their challenges in the court, they can claim no right of
being treated similarly with consentees who right from the earliest opportunity
were willing and trying through the Administration and the court for early
allotment of alternative plots.
The consentees
and the non-consentees, on the basis of their actions and inactions, constitute
two different classes of allottees and a differential treatment to them cannot
be held to be unjustified or in violation of Article 14 of the Constitution. On
a just and reasonable ground, the consentees deserve a more favourable
treatment than non-consentees more so because plots of small sizes available in
the existing scheme in Phase-I & II are extremely limited in number.
After
mutual negotiations for settlement between the allottees and the Administration
failed, the Assistant Estate Officer, Chandigarh Administration has filed a
detailed affidavit on 16.2.2004 showing the latest position with regard to the
availability of alternative plots in the same scheme in phase-I & II for
which the original allotments were made and in the new scheme in phase-III in Mouli
Jagran. We have to proceed on the facts mentioned in the latest affidavit dated
16.2.2004 filed on behalf of the Administration. It is necessary to briefly
indicate the facts and developments which have been brought to our notice in
the affidavit and the proposals now made on behalf of the Administration to
accommodate the consentees and non-consentees.
In the
affidavit, it has been stated that after the order dated 17.9.2003 of this
Court, parties involved in the litigation were invited before a committee in
meetings held between 3.10.2003 to 12.12.2003. Other 164 applicants who were
also parties to the draw of lots on 27.3.1991 and some of whom are intervenors
or seeking impleadments as parties were also invited as a measure personnel to
them. In accordance with the new industrial policy of 1990, the parties in the
court were required to furnish necessary information in the prescribed form as
to whether in their own name or in the name of their spouses and children they
own any plot in Mohali, Panchkula and in the Union Territory of Chandigarh. The
second information demanded was whether the applicant is a government or semi-
government employee because there is prohibition for allotment of plot to such
employees.
In the
affidavit, it is further stated that, in accordance with the new industrial
policy, the environmental restrictions have been imposed categorising different
industrial projects into three categories i.e. Red, Orange and Green. In accordance with the
environmental norms, in the new industrial policy of 1990, the parties
litigating were given option to submit their fresh project reports. Some of the
parties neither provided necessary information on affidavit nor submitted their
revised project reports conforming to the environmental norms.
According
to the Administration, allotments are possible only to such parties who fulfil
the conditions shown in the prescribed affidavit and conform to environmental
norms. On the basis of the information received in the course of the mutual
negotiations for settlement, it is reported to this Court that 47 projects fall
in red category and 4 projects fall in orange category. These projects cannot
be considered to be set up as per the prevalent pollution norms. They can be
considered if they submit fresh project reports which comply with the latest
environmental/pollution norms and are viable in the existing marketing
conditions. It has been stated on affidavit by the Administration that out of
35 consentees who have furnished the necessary information, only 23 consentees
are fulfilling the laid down criteria. The names of those 23 allottees with
full details are shown in paragraph no. 7 of the affidavit and the names and
details of other 12 consentee allottees who did not furnish complete
information and do not fulfil the requisite conditions are also given in the
same paragraph of the affidavit.
In the
affidavit, there is a second category shown by the Administration as comprising
such allottees from whom consent was not asked for as it was proposed to allot
them the same size of plot measuring one kanal which they had applied for. In
this category, from whom no consent was needed, are allottees of one kanal of
plots.
Thirteen
applicants have been found to have given complete information and fulfilling
requisite environmental norms. Their names are also mentioned under category-II
of the affidavit.
We
have stated above that there is no justification for the non- consentees to
claim parity with consentees. The third category pointed out by the
Administration and some of whom are also before us represented through their
counsel are allottees of one kanal of plots.
They
are being offered same size of alternative plots and from them no consent was
asked for. This category of allottees of one kanal of plot are also required to
be accommodated in the available alternative plots.
On
this identification of 23 consentees and 13 allottees of one kanal of plot
each, the Administration is justifiably required to consider their cases to
allot them alternative plots available in industrial areas phase-I and phase-II
as shown in their chart (Annnexure-A) annexed to their affidavit. This chart
(annexure-A) annexed to the affidavit shall be read as part of our order and is
reproduced as under :- ANNEXURE A LIST OF INDUSTRIAL PLOTS LYING VACANT IN THE
INDUSTRIAL AREA, PHASE I & II, CHANDIGARH.
---------------------------------------------------------------------------------------------------------------
Sr. Category Vacant Trees & Other Major Encroachment Total Encroachments
like Elect. Transformer Which can be Electric pole, Telephone removed pole
which cannot be removed ---------------------------------------------------------------------------------------------------------------
INDUSTRIAL AREA PHASE I
1. 1.5
Kanal 1 4 - 5
2. 1 Kanal
1 8 - 9 INDUSTRIAL AREA PHASE II
3. 3 Kanal
- 1 - 1
4. 1.5
Kanal 3 18 1 22
5. 1 Kanal
18 1 1 20
6. 10
Marla 9 12 2 23 ---------- --------- ----------- ----------- ---- -------
Total
32 44 4 80 ------------ ----------- ----------- ----------- ------------
From
the available plots of different sizes totalling 80, both the consentees and allottees
of one kanal of plots have to be accommodated. The directions made by the High
Court in favour of the consentees are, therefore, required to be suitably
modified with additional directions which we propose to make in these batch of cases
:- So far as non-consentees are concerned, we have already held above that they
can claim no parity with the consentees and allottees of one kanal of plots.
The number of plots of smaller sizes are also limited and therefore, the non-consentees
cannot be allowed to compete with consentees and allottees of plot of one kanal.
In the
latest affidavit submitted by the Administration mentioned above, it has been
stated that 152 acres of land has been acquired in the Revenue Estate of
village Mouli Jagran and Raipur Kalan which fall entirely outside the reserved
forest area and are being developed as industrial area phase-III. According to
the Administration since alternative sites available in industrial areas
phase-I & II as mentioned in annexure-A are limited, all other left-out allottees
can be accommodated in industrial area phase-III. The Administration has,
however, stated that in the new industrial zone Mouli Jagran, the cost of
acquisition and development has been much higher calculated at Rs.2,892 per sq.
yard. Based on the above affidavit, the only relief that can be granted to the
non-consentees would be to permit them to submit their willingness within a
period of one month from the date of our order in writing to the Administration
to be considered for allotment of a suitable plot in the new industrial zone
i.e. Mouli Jagran but at the price prevailing on the date of such fresh
allotment.
Suitable
direction is, therefore, required to be issued in favour of such willing non-consentees.
Now we
are left with the individuals and parties falling in none of the three
categories i.e.
1) consentees,
2)
non-consentees, or
3) allottees
of one kanal of plot.
They
were not parties before the High Court and were invited to participate in the
discussions and negotiations which have taken place during pendency of these
cases before us. They have approached by way of special leave petitions or
applications seeking interventions or impleadment as parties in the present
cases. This group of individuals and parties, who were not parties before the
High Court either as petitioners or respondents and who are merely intervenors
or parties seeking impleadments and/or have sought permission to file special
leave petitions cannot be allowed to join race for allotment of available
alternative plots. It will have to be presumed that having not ventilated their
grievances and enforced their rights, if any, at any earlier stage, they have
abandoned their claims. Merely because during pendency of court proceedings,
some rounds of negotiations and discussions took place in which the
Administration also invited them, would not furnish them a cause of action to
raise their claims which they had earlier given up by their inaction and lapse.
In adjusting equities and on rule of fairness, those who have languished and
slept over their rights have to be denied any relief more so when there has
been such a time lag between the original allotment and the proposed allotment
of alternative plots. In the meantime, there have been various developments
including escalation of land prices. Any speculative deals and attempt to take
chance of getting allotment by such parties have to be discouraged. We,
therefore, refuse to grant any relief to remaining class of consentees or non-consentees
and other allottees who were not parties in the litigation before the High
Court.
As a
result of detailed discussion aforesaid, the appeals and connected matters are
disposed of by partly maintaining the directions contained in the impugned
order of the High Court but with the modifications, substitution and addition
of directions as mentioned below :-
1. The
prayer of the appellants/petitioners for directing the authorities of Chandigarh
Administration to hand over possession of the plots allotted on the basis of
draw held in November, 1982 is rejected.
2. The
total available plots of different sizes as mentioned in Annexure-A to the
affidavit of the Administration of UTC, shall be allotted by draw of lots
separately or jointly as per the procedure evolved by the Administration to 23 consentees
found eligible in accordance with the new environmental norms and to 13 allottees
of one kanal plot. It is for the Administration of UTC to work out the manner
in which draw of lots will be held between 23 consentees and 13 allottees of
one kanal plot for the available number of plots of different sizes as
contained in Annexure-A to the affidavit. It is made clear that the
Administration of UTC will have liberty, keeping in view the industrial
projects submitted by the consentees and other restrictions, if they make it necessary,
to suitably alter the sizes of plots to accommodate the identified 23 consentees.
It is clarified that allotment of plots from the area of the scheme which falls
within restricted 900 metres zone from the air-base under Aircrafts Act, would
be granted by the Administration with a condition that if in future, any such
restriction is reimposed, the allotments may be cancelled and there would be no
liability on the Administration of UTC to pay any damage or compensation to the
parties due to non-utilisation of plots or its cancellation. If the allotments
of plots in the restricted zone are cancelled due to restriction aforesaid, the
price paid for the plots shall be refunded to the parties concerned without any
liability of interest on the price which remained as deposit with the
Administration.
3. The
consentees and allottees of one kanal plot, who even though found eligible for
allotment, because of limited number of plots (as mentioned in annexure-A), do
not get accommodation in the available plots, they be considered on the same
price paid by them for alternative plots in the new industrial area phase-III
i.e. Mouli Jagran. It is made clear that the requirement of the Act and the
Rules and the new environmental norms as existing on the date of fresh
allotment of plots in the industrial area phase-III would be made applicable to
such consentees and allottees of one kanal plot.
4. The
non-consentees shall be granted by the Administration of UTC, option by asking
them to submit their willingness in writing within a period of one month from
the date of this order for considering allottment to each of them a suitable
plot in the new industrial zone Phase III at Mouli Jagran. It is left to the
Administration of UTC to evolve a fair and just method of allotment by draw of
lots in accordance with the Act and the Rules. It is made clear that the
allotment of plots in the new industrial area III i.e. Mouli Jagran would be at
the price prevailing on the date of fresh allotments. The price already paid by
the non-consentees for their original plots, if so far not refunded to them,
shall be adjusted towards the total price payable for the new sites. It is also
made clear that in accordance with existing industrial policy and the
environmental norms, the allottees will have to submit their project reports
for considering viability of their proposed industries by the Administration.
In the
event, the non-consentees are unwilling to take plots in the new industrial
zone phase III or their project reports are ultimately found to be not
approvable, the price deposited by them for the original plots would be
refunded to them with interest at the rate of 12% per annum from the date of
initial deposit.
5. The
reliefs in the nature of directions made in favour of consentees and non-consentees
and allottees of one kanal plot are restricted only to such of them who were
parties before the High Court. All claims of remaining consentees or non-consentees
or allottees of one kanal plot, who were not parties in the cases before the
High Court, stand rejected.
6.
Notification dated 28.4.2000 containing new Industrial Policy would not be made
applicable to the allottees of plots in phase-I & II who are successful in
fresh draw of lots to be held under the above directions.
7. The
Administration of UTC shall complete the requisite formalities and carry out
the directions made above in accordance with law within a period of four months
from the date of this order and hand over possession of the plots to the
successful allottees.
8. All
applications seeking interventions, impleadment as parties and special leave
petitions filed by parties, who were not parties before the High Court, are,
hereby, rejected.
As a
result of the discussion aforesaid, the appeals and connected matters are disposed
of by substituting/modifying above- mentioned directions for the directions
contained in the impugned order of the High Court.
Keeping
in view the peculiar circumstances of the case, we make no order as to costs
which shall be borne by the parties as incurred by them.
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