Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5564 OF 2009
IMPROVEMENT TRUST, ROPAR
THROUGH ITS CHAIRMAN, ROPAR, PUNJAB ..... Appellant
Vs.
SHASHI BALA & ANR. ..... Respondents
J U D G M E N T
SANJAY KUMAR, J.
1 . Improvement Trust, Ropar [hereinafter, ‘the Trust’], is
in appeal against the directions of the High Court of Punjab &
Haryana, Chandigarh, to allot a plot under discretionary quota to
Shashi Bala, a social worker. By order dated 13.05.2008, this
Court granted stay and the same was made absolute on 10.08.2009.
2 . Heard Shri Birendra Kumar Mishra, learned counsel,
appearing for the Trust; and Shri P.S. Patwalia, learned senior
counsel, appearing for Shashi Bala.
3 . Facts, to the extent relevant, unfold thus: Shashi Bala,
a social worker, applied to the Chief Minister of Punjab for
allotment of a plot of 500 square yards under his discretionary
Signature Not Verified
quota on 28.01.1987. Acting thereupon, by letter dated 11.02.1987,
Digitally signed by
ARJUN BISHT
Date: 2023.04.17
18:14:40 IST
Reason:
the Government of Punjab approved allotment of a residential plot
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of 500 square yards in Development Scheme Giani Zail Singh Nagar
of Improvement Trust, Ropar, to Shashi Bala out of the
Government’s discretionary quota under Rule 4 of the Punjab Town
Improvement (Utilization of Land and Allotment of Plots) Rules,
1983 [for brevity ‘the Rules of 1983’], at double the reserve
price on usual terms and conditions. This allotment was subject to
furnishing of an affidavit by Shashi Bala, as provided in the
Rules, along with her Social Welfare Certificate. Upon exchange of
correspondence between Shashi Bala and the Trust, Memo dated
04.07.1988 was issued by the Trust calling upon her to submit her
duly attested affidavit, as per the enclosed proforma. The Trust
stated that upon submission thereof, further action would be taken
for allotment of a plot.
4 . Shashi Bala claims to have complied with the aforestated
requirement but the allotment did not materialize, compelling her
to highlight the issue in local newspapers. Thereupon, Press Note
dated 10.01.1989 was issued by the Trust in Indian Express
Newspaper stating that the documents pertaining to Shashi Bala’s
case had been sent to the concerned department for necessary
action and the same would be intimated to her in due course.
However, by Memo dated 02.01.1989, the Government of Punjab
informed Shashi Bala that as there was no plot clearly available
for allotment under the Scheme, her claim would be considered only
after a plot became available.
5 . Complaining of inaction and delay in processing the
allotment of a plot to her, Shashi Bala filed CWP NO. 9737 of 1992
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before the Punjab & Haryana High Court. Her prayer therein was to
direct the authorities to allot her a plot of 500 square yards in
Development Scheme Giani Zal Singh Nagar, Ropar. By judgment dated
17.11.2006, a learned Judge allowed the writ petition, noting that
the Government had approved allotment of a plot in favour of
Shashi Bala and she had complied with the formalities and
submitted documents as required. The authorities were directed to
allot a plot to her at the price which was fixed at the time when
the Government had directed the Trust to allot her a plot in the
Development Scheme of Giani Zail Singh Nagar, Ropar.
6 . Aggrieved thereby, the Trust filed Letters Patent Appeal
No. 12 of 2008. However, by judgment dated 23.01.2008, a Division
Bench of the Punjab & Haryana High Court dismissed the appeal,
holding that the Government had already approved allotment of a
plot to Shashi Bala and there was a finding of fact that she had
complied with the formalities and submitted documents as required.
Hence, the present appeal by the Trust.
7 . The above facts demonstrate that the direction in favour
of Shashi Bala came to be passed by the learned Judge in November,
2006, and the same stood confirmed by the Division Bench in
January, 2008. However, a crucial fact was not brought to the
notice of either the learned Judge or the Division Bench, that is,
the legal status of the discretionary quota rule, under which the
Government of Punjab had approved allotment of a plot to Shashi
Bala, at that point of time. Significantly, CWP No. 7401 of 1996,
titled ‘ Dr. Amar Singh and others Vs. State of Punjab and
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another ’ , filed before the Punjab & Haryana High Court long prior
thereto had raised issues in the context of the Rules of 1983 and
more particularly, the validity of the reservation of plots for
select categories and the vires of the Government’s discretionary
quota. A Full Bench of the Punjab & Haryana High Court passed
judgment dated 25.07.2003 in ‘ Dr. Amar Singh and others Vs. State
of Punjab and another ’ [AIR 2004 P&H 67] following the decision of
another Full Bench of the High Court in the context of a similar
regime of reservation of plots and allotment through discretionary
quota in the State of Haryana. This earlier Full Bench decision
dated 21.03.1997 was rendered in CWP No. 5851 of 1996, titled
‘ Anil Sabharwal Vs. State of Haryana ’ [PLR (1997) 116 P&H 7(FB)] .
Thereby, the Full Bench had observed that the discretion conferred
on the Chief Minister was not immune from judicial review and
ultimately declared illegal the allotment of residential plots
under such discretionary quota. The allotments were quashed,
subject to certain exceptions and directions. This Full Bench
decision was assailed before this Court in a batch of Special
Leave Petitions, but they came to be disposed of by the judgment
reported in ‘Harsh Dhingra Vs. State of Haryana’ [(2001)9 SCC
550] , upholding the Full Bench decision with the only modification
that it would be effective from 23.04.1996, being the date on
which interim orders had been passed in CWP NO.5851 of 1996.
8 . The system prevailing in the State of Punjab under Rule 4
of the Rules of 1983, apropos reservation of plots and the
Government’s discretionary quota, was practically identical to
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that obtaining in the State of Haryana. Rule 4 of the Rules of
1983, to the extent relevant, reads as follows:
“4. Reservation of residential plots and multi-
storeyed houses: - (1) Subject to the provisions of
rule 10, residential plots and multi-storeyed houses
shall be reserved for allotment to the following
categories of persons to the extent specified
against each: -
Category of Persons Extent of reservations
(i) to (vi)……………………….
(vii) Non-Resident
Indians
Four per cent of plots of 500
square yards size only
Provided………
Provided………
Provided that 5 per cent of the residential plots
and multi-storeyed houses shall be allotted by the
Trust with the approval of the Government to such
category or class of persons and in the manner as
the Government may from time to time keeping in
view the socio-economic conditions of such persons
specify.”
9 . The Government of Punjab took a policy decision with
regard to exercising power under this discretionary quota and
the same is reflected in Notification No. 5/537/3CII-88/1604
dated 31.01.1989. This notification reads to the effect that
the following categories of persons would be eligible for
allotment of plots under the 5 per cent discretionary quota:
“(i) Those persons or their dependents who
have suffered at the hands of terrorists or
rioters;
(ii) those persons who have distinguished
themselves in different fields eg. Sports,
Arts, Science, Education, Social Service etc.
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and have been recognized by the Government
through State/National Awards.
(iii) Army, Police, para-military personnel
who have received gallantry or bravery awards
from the State Government or the Government of
India and those civilians who have rendered
meritorious service and have been recognized
as such by the State Government/Government of
India.
(iv) any other deserving cases at the
discretion of the competent authority.”
10 . Considering this scenario, the Full Bench observed
in its judgment in Dr. Amar Singh ( supra ) that, as per Rules
8 and 12 of the Rules of 1983, residential plots and multi-
storeyed houses were to be sold either by a draw of lots or
by auction but an exception to the general rule was made
under Rule 4, which provided for reservation of residential
plots in favour of various categories of persons. Noting that
the earlier Full Bench decision pertaining to Haryana had
upheld the power of the Government to make reservations for
various defined categories and groups of persons, it was held
that the discretion conferred upon the Chief Minister had to
be in consonance with various Constitutional provisions, as
no absolute discretion would vest in the Government for
making either such reservation or allotment. It was further
observed that the reservation provided under Rule 4 and the
policy decision dated 31.01.1989 would have to satisfy the
criteria of reasonableness, as required by Article 14 of the
Constitution. As validity of the reservations akin to those
provided under Rule 4 (ii), (iii), (iv), (v) and (vi) of
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the Rules of 1983, in favour of freedom fighters, political
sufferers, defence personnel, border security force
personnel, persons appointed to public service by the State
Government and persons belonging to the Scheduled Castes and
Backward classes, had already been upheld in Anil Sabharwal
( supra ) by the earlier Full Bench in the context of the State
of Haryana, it was observed that it would not be necessary to
examine the validity of the said reservations
11 . The Full Bench however held that the discretionary
quota of five per cent under the third proviso to Rule 4 was
vague and arbitrary and was, therefore, violative of Article
14 of the Constitution. The Full Bench further held that
allotments of residential plots to Members of Parliament,
Members of the Punjab Legislative Assembly and Non-Resident
Indians under the discretionary quota, w.e.f. 31.01.1989,
were illegal and void and accordingly quashed the same,
subject to certain exceptions. In cases where the bonafide
allottees under Rule 4 (i), (vii) and the third proviso had
already constructed houses and buildings as per sanctioned
plans before publication of the notice of CWP No. 7401 of
1996 on 06.06.1996, the Trust was directed to issue
instructions restraining alienation of the constructed
houses/buildings by such allottees for a period of five
years. Exceptions were also made in the case of allottees
who were members of the Armed Forces/Paramilitary Forces/
Police Forces who had fought against terrorism and civilians
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affected by terrorist activities, subject to a review by a
committee to be constituted by the Government. Again, such
allottees were not to alienate their plots to third parties
for five years.
12 . The Full Bench further directed that the Government/
Trust/Punjab Development Authority should immediately cause
publication of a notice in two newspapers having wide
circulation in the States of Punjab and Haryana and two
newspapers having wide circulation in the entire country,
indicating therein that, due to quashing of the allotments
made under the discretionary quota, such allottees were
entitled to refund of the money deposited by them and that
such amounts should be refunded within two months of the
making of applications by such persons, failing which the
refund would carry interest at the rate of 15% per annum.
13 . Be it noted that the Full Bench specifically dealt
with the reservation of 5% of the plots in favour of select
categories or classes of persons under the third proviso to
Rule 4 of the Rules of 1983 and it was observed that such
discretion was wholly unguided and unlimited and the only
criteria which had been placed on record was the policy
contained in the Notification dated 31.01.1989. The Full
Bench further observed that if such discretion was to be
limited only to categories (i),(ii) and (iii) in the said
notification, the reservation would have to be held to be
valid as reservation similar to those contained in categories
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(ii) and (iii) made by the State of Haryana had already been
upheld by the Court in Anil Sabharwal ( supra ). However, the
power granted to the Government under Clause (iv) was held to
be wholly arbitrary and capable of abuse and that was the
reason why the Full Bench held the entire discretionary quota
of 5%, as contained under the third proviso to Rule 4, was
vague and arbitrary and was, therefore, violative of Article
14 of the Constitution of India.
14 . Further, the Government of Punjab was directed to
frame a policy for allotment of plots to specified classes of
persons and notify such policy. Allotment under such policy
was to be made by inviting applications through public notice
from all those who belonged to that particular class.
Therefore, even if the specified categories (i), (ii) and
(iii) in the Notification dated 31.01.1989 were held to be
eligible for special reservation and allotment, the above
direction with regard to formulation of a policy would be
applicable to those categories also, including the ‘Social
Service’ category.
15 . In the light of the above Full Bench judgment, the
inchoate allotment of a plot in favour of Shashi Bala was
rendered redundant and ineffective as only those persons, who
were actually allotted specific plots and had constructed
houses/buildings thereon as per sanctioned plans prior to
06.06.1996, stood protected by the Full Bench and even those
allottees who were actually allotted plots but had not
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constructed houses/buildings thereon by the effective date
were to be refunded the monies paid by them within a time
frame. Shashi Bala did not stand on par with these people as
she was yet to be allotted an identified plot, even if she
did comply with all the requirements as claimed by her, such
claim being disputed by the Trust. Significantly, she did not
even claim that she paid any sale consideration for a plot.
16 . It is pertinent to note that the Punjab Urban
Planning & Development Authority (PUDA) filed a review
petition, viz., RA No. 64 of 2004 in CWP No. 7401 of 1996,
claiming that allotment of plots by it would be affected by
the Full Bench decision and seeking prospective overruling of
allotments from a date later than 31.01.1989, by following
the modification in Harsh Dhingra ( supra ). However, by order
dated 09.07.2004, the Full bench dismissed the review
petition. Thereupon, the Full Bench judgment dated 25.07.2003
and its order dated 09.07.2004 were subjected to challenge by
the PUDA before this Court in SLP(C)No. 7285 of 2007, titled
‘Punjab Urban Planning & Development Authority Vs. Amar Singh
and others’ . The said SLP was disposed of on 24.09.2014,
noting that no details were available of the allottees who
were adversely affected by the Full Bench judgment, as none
of them had come before this Court or had moved the High
Court seeking relief, and in the absence of requisite and
relevant details, this Court observed that it was not
inclined to go further into the claim made by the PUDA. This
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Court therefore did not entertain the appeal, leaving it open
to the affected persons to seek their remedies in law in the
light of the decision of this Court in Harsh Dhingra , if they
were so advised. Even this liberty does not come to the aid
and assistance of Shashi Bala, as she was never actually
allotted a plot, be it before or after 31.01.1989.
17 . Though Shri P.S. Patwalia, learned senior counsel,
would contend that the allotment of a plot in favour of
Shashi Bala stood complete upon approval by the Government of
Punjab, his contention cannot be countenanced as the letter
dated 11.02.1987 of the Deputy Secretary, Department of Local
Government, Government of Punjab, clearly stated that the
Government had merely approved the allotment of a residential
plot admeasuring 500 square yards and directed the Trust to
allot an identified plot to her under Rule 4 of the Rules of
1983. Therefore, the act of identifying and allotting a
specific plot was to be undertaken by the Trust and it was
only approval that had been conferred by the Government. That
is how Shashi Bala herself understood it, as is clear from
her prayer in her writ petition. Therefore, allotment of an
identified plot in favour of Shashi Bala did not crystallize
by the date of the Full Bench judgment in the year 2003 and
remained stagnant at the stage of the Government’s approval.
18 . As stated hereinbefore, the decision of the Full
Bench, invalidating the actual allotments made under the
discretionary quota and directing the Government of Punjab to
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draw up a policy in relation to reservation for various
categories, including Social Service, was not brought to the
notice of either the learned Judge or the Division Bench of
the High Court. Notwithstanding the same, the directions
issued contrary to the said Full Bench judgment, which
practically stood affirmed by this Court, cannot now be
accepted or acted upon.
19 . On the above analysis, this civil appeal is allowed,
setting aside the impugned orders dated 23.01.2008 and
17.11.2006 passed in LPA No.12 of 2008 and CWP No.9737 of
1992 respectively by the Punjab & Haryana High Court at
Chandigarh.
Parties shall bear their own costs.
………………………………………...J
[VIKRAM NATH]
………………………………………...J
[SANJAY KUMAR]
NEW DELHI;
April 17, 2023.
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