Fulj1t
Kaur Vs. State of Punjab & Ors. [2010] INSC 425 (3 June 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5292 OF
2004 FULJIT KAUR .... Appellant VERSUS STATE OF PUNJAB & ORS. ....
Respondents
Dr. B.S.
CHAUHAN, J.
1. This
is a unique case which reveals that an influential person can have allotment of
a residential plot in discretionary quota within 48 hours of submission of
application and then assert in Court that she has a right to have a land on a
throwaway price and not to deposit the sale price for quarter of a century.
2. This
appeal has been preferred against a Judgment and Order dated 21.12.1999 in Writ
Petition No. 4763 of 1992 of the High Court of Punjab & Haryana at
Chandigarh, dismissing the petition against the Demand Notice of additional
price for residential plot.
3. Facts
and circumstances giving rise to this case are that the appellant made an
application on 23.02.1987 for allotment of a residential plot in Urban Estates,
SAS Nagar, Punjab. The Administration, vide letter dated 25.02.1987, issued the
allotment letter in favour of the appellant in respect of plot No. 702,
measuring 400 sq. yards in Sector 70 Urban Estate SAS Nagar, making it clear
that as the proper calculation could not be made and tentative price had not
been determined, the allottee has to deposit provisional price of Rs. 93000/-
in four installments upto 15.10.1989. Subsequently, vide letter dated
25.03.1992, additional demand of Rs. 2,19,000/- was made, however, instead of
depositing the said amount, appellant challenged the said Demand Notice by
filing Writ Petition No. 4763 of 1992 before the High Court of Punjab &
Haryana contending that the additional demand was arbitrary and unreasonable. A
large number of similar cases were also pending before the High Court and some
had earlier been disposed of. However, the Writ Petition filed by the appellant
has been dismissed by the High Court vide impugned Judgment and Order dated
21.12.1999 upholding the demand dated 25.03.1992. Hence this appeal.
4. Sh.
Vijay Hansaria, learned senior counsel appearing for the appellant, has
submitted that the High Court committed an error in dismissing the said Writ
Petition relying upon the Urban Development Authority & Ors. (1996) 8 SCC
756. In 1993 Pub.&Har. 54, such unreasonable and arbitrary demand had been
quashed by the High Court and the State Government was issued direction to
re-determine the amount taking into consideration the provisions of the Punjab
Urban Estate (Sale of Sites) Rules, 1965 (hereinafter called as, "the
Rules") and provisions of Punjab Urban Estates (Development and
Regulation) Act, 1964 (hereinafter called as, "the Act").
The said
Judgment has attained finality as the State had preferred Special Leave
Petition against the said Judgment & Order before this Court but later on,
it was withdrawn. After re-determining the additional price, no recovery has
been made from Sh. D.S. Laungia till date. Therefore, the appeal deserves to be
allowed.
5. On the
other hand, Ms. Rachna Joshi Issar, learned counsel appearing for the
respondent vehemently opposed the appeal contending that the High Court has
rightly relied upon the Judgment in Preeta Singh (supra). In D.S. Laungia
(supra), the State Government, being aggrieved, had challenged the said
Judgment and Order before this Court by filing the Special Leave Petition but
it was withdrawn for certain reasons. Therefore, it cannot be held that the
Judgment in D.S. Laungia (supra) stood approved by this Court. Calculations had
been made strictly in consonance with the Statutory provisions of the Act and
the Rules, particularly taking note of Rule 2(aa) and 2(e) of the Rules and it
is to be recovered from D.S. Laungia also. The High Court was fully satisfied
regarding determination of the additional price and therefore, no fault can be
found with impugned Judgment and Order. Hence, the appeal is liable to be
dismissed.
6. We
have considered the rival submissions made by learned counsel for the parties
and perused the record.
7. The
questions do arise as to whether such an order of withdrawal passed by this
Court amounts to confirmation/approval of the judgment and order of the High
Court and as to whether appellant could be treated differently.
8. There
is no dispute to the settled proposition of law that dismissal of the Special
Leave Petition in limine by this Court does not mean that the reasoning of the
judgment of the High Court against which the Special Leave Petition has been
filed before this Court stands affirmed or the judgment and order impugned
merges with such order of this Court on dismissal of the petition. It simply
means that this Court did not consider the case worth examining for the reason,
which may be other than merit of the case. Nor such an order of this Court
operates as res judicata. An order rejecting the Special Leave Petition at the
threshold without detailed reasons therefore does not constitute any
declaration of law or a binding precedent. [Vide The Workmen of Cochin Port
Trust AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico AIR 1986 SC 1780;
Supreme Court Employees' Welfare Singh & Ors. AIR 1997 SC 1796; V.M.
Salgaocar & Bros. (P) Mandal Revenue Officer, Andhra Pradesh (2009) 9 SCC
447].
1991,
this Court considered a case wherein against the judgment and order of the High
Court, special leave petition was not filed but when other matters were
disposed of by the High Court in terms of its earlier judgment, the Authorities
approached this Court challenging the correctness of the same. It was submitted
in that case that if the State Authorities had accepted the earlier judgment
and given effect to it, it was not permissible for the Authority to challenge
the subsequent judgments/orders passed in terms of the earlier judgment which
had attained finality. This Court repealed the contention observing that the
circumstances for non-filing the appeals in some other or similar matters or
rejection of the SLP against such Judgment in limine by this Court, in some
other similar matters by itself, would not preclude the State Authorities to
challenge the other orders for the reason that non-filing of such SLP and
pursuing them may seriously jeopardize the interest of the State or public
interest.
10. In
Kunhayammed & Ors. v. State of Kerala & Anr. AIR 2000 SC 2587, this
Court reconsidered the issue and some of the above referred judgments and came
to the conclusion that dismissal of special leave petition in limine by a
non-speaking order may not be a bar for further reconsideration of the case for
the reason that this Court might not have been inclined to exercise its
discretion under Article 136 of the Constitution.
The
declaration of law will be governed by Article 141 where the matter has been
decided on merit by a speaking judgment as in that case doctrine of merger
would come into play. This Court laid down the following principles:- "(i)
Where an appeal or revision is provided against an order passed by a court,
tribunal or any other authority before superior forum and such superior forum
modifies, reverses or affirms the decision put in issue before it, the decision
by the subordinate forum merges in the decision by the superior forum and it is
the latter which subsists, remains operative and is capable of enforcement in
the eye of law.
(ii) The
jurisdiction conferred by Article 136 of the Constitution is divisible into two
stages. The first stage is upto the disposal of prayer for special leave to
file an appeal. The second stage commences if and when the leave to appeal is
granted and the special leave petition is converted into an appeal.
(iii)
Doctrine of merger is not a doctrine of universal or unlimited application. It
will depend on the nature of jurisdiction exercised by the superior forum and
the content or subject-matter of challenge laid or capable of being laid shall
be determinative of the applicability of merger. The superior jurisdiction
should be capable of reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution the Supreme Court may reverse,
modify or affirm the judgment-decree or order appealed against while exercising
its appellate jurisdiction and not while exercising the discretionary
jurisdiction disposing of petition for special leave to appeal. The doctrine of
merger can therefore be applied to the former and not to the latter.
(iv) An
order refusing special leave to appeal may be a non-speaking order or a
speaking one. In either case it does not attract the doctrine of merger. An
order refusing special leave to appeal does not stand substituted in place of
the order under challenge. All that it means is that the Court was not inclined
to exercise its discretion so as to allow the appeal being filed.
(v) If
the order refusing leave to appeal is a speaking order, i.e., gives reasons for
refusing the grant of leave, then the order has two implications. Firstly, the
statement of law contained in the order is a declaration of law by the Supreme
Court within the meaning of Article 141 of the Constitution. Secondly, other
than the declaration of law, whatever is stated in the order are the findings
recorded by the Supreme Court which would bind the parties thereto and also the
court, tribunal or authority in any proceedings subsequent thereto by way of
judicial discipline, the Supreme Court being the Apex Court of the country.
But, this does not amount to saying that the order of the court, tribunal or
authority below has stood merged in the order of the Supreme Court rejecting
the special leave petition or that the order of the Supreme Court is the only
order binding as res judicata in subsequent proceedings between the
parties."
11. The
Court came to the conclusion that where the matter has been decided by a
non-speaking order in limine the party may approach the Court for reconsideration
of the case in exceptional circumstances.
12. In
view of the above, in the fact-situation of the case in D.S. Laungia (supra),
question of application of doctrine of merger did not arise and even by no
stretch of imagination it can be held that this Court has approved the judgment
in D.S. Laungia (supra), rather a different view is required to be taken in
view of the fact that this Court had expressed doubts about the correctness of
the impugned Judgment by making the following observations :- "In the
instant matter as also in the matters enumerated in the letter of Mr. G.K.
Bansal, Advocate for the petitioners dated January 25, 1994, seeking withdrawal
of all these matters, we are constrained to remark that no reasons have been
assigned as to why the State of Punjab is submitting to the impugned orders of
the High Court which prima facie appear to us to be unsustainable. The direct
result of the withdrawal would not only be compounding to an illegality but
would otherwise cause tremendous loss to the State exchequer. We, therefore,
direct that the reasons which impelled the State to seek withdrawal of these
matters be placed before us in the form of an affidavit by the Chief Secretary,
Punjab or the Secretary of the Department concerned justifying the step for
seeking withdrawal." (Emphasis added)
13. The
respondent cannot claim parity with D.S. Laungia (supra) in view of the settled
legal proposition that Article 14 of the Constitution of India does not
envisages for negative equality. Article 14 is not meant to perpetuate
illegality or fraud. Article 14 of the Constitution has a positive concept.
Equality
is a trite, which cannot be claimed in illegality and therefore, cannot be
enforced by a citizen or court in a negative manner. If an illegality and
irregularity has been committed in favour of an individual or a group of
individuals or a wrong order has been passed by a Judicial Forum, others cannot
invoke the jurisdiction of the higher or superior court for repeating or
multiplying the same irregularity or illegality or for passing wrong order. A
wrong order/decision in favour of any particular party does not entitle any
other party to claim the benefits on the basis of the wrong decision. Even
otherwise Art.14 cannot be stretched too far otherwise it would make function
of the administration impossible. [vide of India & Ors. (2009) 15 SCC 705].
14. Thus,
even if some other similarly situated persons have been granted some benefit
inadvertently or by mistake, such order does not confer any legal right on the
petitioner to get the of U.P. & Ors., AIR 1996 SC 540; Jalandhar
Improvement International Trading Company & Anr., AIR 2003 SC 3983;
Jammu
& Kashmir & Ors., (2008) 9 SCC 24).
15. In
view of the above, the submissions made by Shri Hansaria, Amicus Curiae in this
regard are preposterous and not worth consideration.
16. In
the instant case, the High Court has taken into consideration all statutory
provisions and calculations made by the respondents as under what circumstances
the "tentative- price" had been fixed and reached the conclusion that
the demand was justified. The Court also rejected the submissions made on
behalf of the allottees that judgment in D.S. Laungia (supra) was an authority
on the issue.
17. Rules
2(aa), 2(e), 4 and 5 of the Rules which have direct bearing on the questions
raised in this appeal read as under:
"2(aa)-
`Additional Price' means such sum of money as may be determined by the State
Government, in respect of the sale of a site by allotment, having regard to the
amount of compensation by which the compensation awarded by the Collector for
the land acquired by the State Government of which the site sold forms a part,
is enhanced by the Court on a reference made under Section 18 of the Land
Acquisition Act, 1894, and the amount of cost incurred by the State Government
in respect of such reference.
2(e)-
`tentative price' means such sum of money as may be determined by the State
Government from time to time, in respect of the sale of a site by allotment,
having regard among other matters, to the amount of compensation awarded by the
Collector under Land Acquisition Act, 1894 for the land acquired by the State
Government of which the site sold forms a part.
4. Sale
Price:- In the case of sale of a site by allotment the sale price shall be:
(a) where
such site forms part of the land acquired by the State Government under the
Land Acquisition Act, 1894; and (i) no reference under Section 18 thereof is
made against the award of the Collector of such reference having been made has
failed, the tentative price.
(ii) On a
reference made under Section 18 thereof the compensation awarded by the
Collector is enhanced by the Court. The aggregate of the tentative price and
the additional price;
(b) in
any other case, such final price as may be determined by the State Government
from time to time.
(2) In
case of sale of site by auction the sale price shall be such reserve price as
may be recommended by the State Government from time to time or any higher
price determined as a result of bidding in an open auction.
5-A:
Liability to pay additional price.
(1) In
the case of sale of site by allotment the transferee shall be liable to pay to
the State Government in addition to the tentative price, the additional price,
if any determined in respect thereto under these rules.
(2) The
additional price shall be payable by the transferee within a period of thirty
days of the date of demand made in this behalf by the Estate Officer.
Provided
that the Chief Administrator may in a particular case, and for reasons to be
recorded in writing allow the applicant to make payment of the said amount
within a further period not exceeding thirty days."
18. A
perusal of the above quoted rules shows that the "tentative price"
means the price determined by the State Government from time to time in respect
of a sale of site by allotment and while doing so, the Government has to take
into consideration various factors including the amount paid as compensation.
19. The
phrase `additional price' has been defined as the price determined by the State
Government having regard to the enhanced compensation payable to the land
owners in pursuance of the award passed by the court on a reference made under
Section 18 or further appeal under the Act 1894.
The sale
price is the price payable in respect of an allotment of site. If the site sold
by the competent authority forms part of the land acquired by the State
Government under the Act 1894 and no reference under Section 18 thereof is made
against the award of the Collector or such reference having been made has
failed, the sale price is the tentative price as defined in Rule 2(e) of the
Rules but if the compensation awarded by the Collector is enhanced by the court
on a reference made under Section 18 of the Act 1894, then the sale price means
the aggregate of the tentative price and the additional price. If the site
allotted by the competent authority does not form part of the land acquired by
the State Government under the Act 1894, then the sale price would mean such
final price as may be determined by the State Government. However, there is
nothing in the scheme of the Act 1964 and the rules from which it can be
inferred that tentative price is synonymous with the provisional price, and
that a person, to whom the plot has been allotted on provisional price, cannot
be asked to pay the tentative price determined by the government. There is a
difference between the "provisional price" and the "tentative
price" and it may take a long time for the State to determine the
tentative price.
20. In
the instant case, the calculations had been furnished by the respondents as on
what basis tentative price had been determined.
A. Cost
of land
1. Cost
of land per acre of Sector 70 SAS Nagar Rs.90,000/-
2.
Solatium charges @30% Rs.27,000/-
3.
Interest charges from the date of Notification till the date of Award @12% from
1980 to 1984 for 4 Years Rs.43,000/-
4.
Interest charges 15% from 1984 to 1990 for 6 years on the cost of land
Rs.1,44,180/- ______________ Rs.3,04,380/- B. Cost of Internal and External
Development
1. Water
Supply @ Rs.1.35 lacs. Rs.1,35,000/-
2.
Sewerage @ Rs.59,000/- Rs. 59,000/-
3. Sterm
Water @ Rs.1,32,000/- Rs. 1,32,000/-
4. Roads
@ Rs.55,000/- per acre Rs. 55,000/-
5.
Bridges & Others @Rs.11,000/-per acre Rs. 11,000/-
6.
Horticulture @ Rs.36,000/- per acre Rs. 36,000/-
7. Street
lightening @Rs.15,000/-per acre Rs. 15,000/-
8.
Electrification @Rs.15,000/-per acre Rs. 15,000/-
9.
Conservancy charges @Rs.9,000/-per acre Rs. 9,000/-
10.
Utility services @Rs.20,000/-per acre Rs. 20,000/-
11.
Maintenance & Re-surfacing of roads for 5 years @ Rs.63,000/- per acre Rs.
63,000/-
12.
Maintenance of Public Health service @ Rs.39,000/- per acre Rs. 39,000/-
13.
Maintenance & Re-surfacing of roads Beyond 5 years @Rs.45,000/- per acre
Rs. 45,000/-
14.
Division of H.T. Line@ Rs.7,000/- per acre Rs. 7,000/-
15. Earth
Filling @Rs.10,000/- per acre Rs. 10,000/- _______________ Rs.6,51,000/-
C.(Establishment charges@14% + 3% on the cost of land. Rs. 51,745/- (ii)
Interest charges @1% for plotable area(55%)Rs. 2,662/- (iii) Interest charges
for 3 years @10% each Year on development charges Rs.1,51,200/- (iv) Unforeseen
charges as well as escalation Charges @10% Rs.1,16,098/- __________________
Total expenditure per acre Rs.12,77,064/- Total Expenditure of 306.59 acres of
land Acquired for Sector 70 SAS Nagar Rs.39,15,34,824/- Saleable area 6,74,233
Sq.yds.
Rate per
sq.yd. 39,15,34,824 = Rs.580/- 6,74,233
21. The
plots measuring 100 sq.yds. were to be allotted at tentative price calculated
at subsidized rate of 10% less than the reserve price while plots measuring
150, 200 and 250 sq.yds. were to be allotted at tentative price equal to the
reserve price. The plots 300 and 400 sq.yds. area are to be allotted at
tentative price equal to 1-1/2 times of the reserve price and plots measuring
500 sq.yds. were to be allotted at tentative price equal to double the reserve
price. Taking the overall position into account, the Government fixed the
reserve price at Rs.520/- per sq.yd. for calculating the tentative prices, in
the above manner, for plots of various sizes.
22. There
is nothing on record to show that the tentative price determined by the State
could be unreasonable or arbitrary and it is not the case of the allottee that
the market value of the land has not been enhanced while deciding the reference
under the Act 1894.
While
deciding this case, the High Court placed heavy reliance upon the judgment of
this Court in Preeta Singh (supra) wherein after taking note of various
statutory provisions of Act 1964 and Rules 1965, particularly, Rule 2(aa) and
sale price as determined in Rule 4, this Court came to the following
conclusion:
"7.
A conjoint reading of the above Rules would clearly indicate that the allottee
is liable to pay a sale price including the additional price and the cost
incurred and also the cost of improvement of the sites. It is to be remembered
that the respondent HUDA is only a statutory body for catering to the housing
requirement of the persons eligible to claim for allotment. They acquire the
land, develop it and construct buildings and allot the buildings or the sites,
as the case may be.
Under
these circumstances, the entire expenditure incurred in connection with the
acquisition of the land and development thereon is required to be borne by the
allottees when the sites or the buildings sold after the development are
offered on the date of the sale in accordance with the regulations and also
conditions of sale. It is seen that in the notice dated 9-8-1990, the total
area, net area, the payable amount for the gross acreage, the acreage left for
the developmental purpose, balance recoverable from the plot-holders,
plot-table area have been given for each of the areas and recovery rate also
has been mentioned under the said notice.
Under these
circumstances, there is no ambiguity left in the calculations. If, at all, the
appellants had got any doubt, they would have approached the authority and
sought for further information. It is not the case that they had sought the
information and the same was withheld. Under these circumstances, we do not
find any illegality in the action taken by the respondents. The High Court,
therefore, was right in refusing to interfere with the order."
Bank
(2007) 6 SCC 711, this Court, while considering a similar issue, laid down
large number of principles including the following : - "Where the
plot/flat/house has been allotted at a tentative or provisional price, subject
to final determination of price on completion of the project (that is
acquisition proceedings and development activities), the development authority
will be entitled to revise or increase the price. But where the allotment is at
a fixed price, and a higher price or extra payments are illegally or
unjustifiably demanded and collected, the allottee will be entitled to refund
of such excess with such interest, as may be determined with reference to the
facts of the case."
Apartments
Owners' Welfare Association (2008) 3 SCC 21, while deciding the similar issue,
this Court held as under :- "So far as price is concerned, in 1991, when
the names of applicants were registered, it was clarified that the price
indicated was 'tentative price' and it was subject to 'final price' being fixed
by the Board. In any case when the scheme was altered from seven types to
fifteen types flats, it was stated that the amount shown was merely tentative
selling price. The intending purchasers, therefore, were aware of the fact that
the final price was to be fixed by the Board.
In fact
an agreement to that effect was executed by all prospective allottees wherein
they agreed that they would pay the amount which would be finally fixed by the
Board................In the circumstances, it cannot be said that the allottees
were not aware of the above condition and they were compelled to make payment
and thus were treated unfairly or unreasonably by the Board."
25. The
instant case is squarely covered by the aforesaid Judgments of this Court and
particularly, Preeta Singh (supra) and in view thereof, the appeal is liable to
be dismissed.
26.
Before parting with the case, it may be pertinent to mention here that the
allotment had been made to the appellant within 48 hours of submission of her
application though in ordinary cases, it takes about a year. Appellant had
further been favoured to pay the aforesaid provisional price of Rs. 93,000/- in
four installments in two years, as is evident from the letter dated 8.4.1987.
Making the allotment in such a hasty manner itself is arbitrary and
unreasonable and is hit by Article 14 of the Constitution. This Court has
consistently held that "when a thing is done in a post-haste manner,
malafide would be presumed." Anything done in undue haste can also be
termed as "arbitrary and cannot be condoned in Ors. AIR 1981 SC 2181; Madhya
Pradesh Hasta Shilpa Vikas Kamalia & Ors. AIR 2004 SC 1159; and Zenit
Mataplast P.
Thus,
such an allotment in favour of the appellant is liable to be declared to have
been made in arbitrary and unreasonable manner. However, we are not inclined to
take such drastic steps as the appellant has developed the land subsequent to
allotment.
27. We
further find no force in submission made by Sh. Vijay Hansaria, Sr. Advocate,
that in spite of making recalculation in view of the directions issued by the
High Court in the case of D.S. Laungia (supra), State could not make any
recovery from Sh. Laungia. This Court, vide order dated 20.05.2010, asked the
respondents to explain this aspect and file an affidavit of the Administrator
of the Authority. In response thereto, an Affidavit had been filed by the Chief
Administrator, Greater Mohali Development Authority, explaining the entire
position in respect of the allotment and recovery of dues furnishing all
details and according to this Affidavit, the money is being recovered from all
defaulters including Shri D.S. Laungia along with interest.
28. In view
of the above, we find no force in the appeal, it lacks merit and is,
accordingly, dismissed. No order as to costs.
...... .................................J. (Dr. B.S. CHAUHAN)
.......................................J. (SWATANTER KUMAR)
New Delhi,
June 3, 2010.
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
3546 OF 2007 STATE OF PUNJAB & ORS. .... Appellants VERSUS COL. KULDEEP
SINGH .... Respondent
Dr. B.S.
CHAUHAN, J.
We have
heard Ms. Rachna Joshi Issar, learned counsel appearing for the appellant. In
spite of notice, respondent did not enter appearance. We requested Sh. Vijay
Hansaria, learned senior counsel for the respondent, to assist the Court as
Amicus Curiae.
For the
reasons recorded in Civil Appeal No. 5292 of on this date, the appeal stands
allowed. Judgment and Order of the High Court dated 06.12.2006 is set aside and
the Demand Notice is upheld. The appellant is entitled to make recovery in
accordance with law.
.......................................J. (Dr. B.S. CHAUHAN)
.......................................J. (SWATANTER KUMAR)
New Delhi,
June 3, 2010.
26
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 3392 OF 2007 STATE OF PUNJAB & ORS. .... Appellants VERSUS G.S.
RANDHAWA .... Respondent
Dr. B.S.
CHAUHAN, J.
We have
heard Ms. Rachna Joshi Issar, learned counsel appearing for the appellant. In
spite of notice, respondent did not enter appearance. We requested Sh. Vijay
Hansaria, learned senior counsel for the respondent, to assist the Court as
Amicus Curiae.
For the
reasons recorded in Civil Appeal No. 5292 of 2004 date, the appeal stands
allowed. Judgment and Order of the High Court dated 06.12.2006 is set aside and
the Demand Notice is upheld. The appellant is entitled to make recovery in
accordance with law.
.......................................J. (Dr. B.S. CHAUHAN)
.......................................J. (SWATANTER KUMAR)
New Delhi,
June 3, 2010.
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