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IN THE HIGH COURT OF PUNJAB AND HARYANA
[FULL BENCH]
Before
Hon’ble Mr. Chief Justice S.J. Vazifdar
Hon’ble Mr. Justice Harinder Singh Sidhu
Hon’ble Mr. Justice Avneesh Jhingan
Civil Writ Petition No. 22252 of 2016
Rajiv Manchanda & Ors.
v.
Haryana Urban Development Authority & Anr.
{Decided on 22/11/2017}
(B) Constitution of India, Article 141 – Precedent – Judgment of Supreme Court ought not to be ignored merely because that does not set out all the facts and proportions of law – This approach is entirely incorrect. (Para 22)
(C) Constitution of India, Article 141 – Precedent – Allotment of Plot – Oustee quota – Judgment of Punjab & Haryana High Court in Sandeep’s case and the judgments of the Supreme Court in Sandeep’s case, Ved Pal’s case and Krishna’s case are not per-incurrium in view of the judgment of the Supreme Court in Brij Mohan’s case – Haryana Urban Development Authority Act, 1977 (Para 29)
(D) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Claims of Oustee for allotment of plots under the Oustee Quota are not required to be settled first before offering plots to the general public and other constitutionally permissible reserved categories.
(E) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Reservation of 10% for the oustee quota is based on valid rational criteria as the decision was taken after a detailed consideration of date collected by the HUDA – Held; The number of plots of a given size to be reserved under the oustee quota is a matter of policy which must be left to the respondents – There are various factors which the respondents would have to take into consideration while undertaking this exercise – The distribution, however, must be fair and based on rational criteria – Unless the distribution is arbitrary or mala fide, the Court ought not to interfere with the same. (Para 35)
(F) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Number of plots to the extent of the permissible reservation, authorities are bound to first allot the plots to the oustees.
The respondents are entitled to stipulate the extent of the reservation subject to maximum of 50% of the plots in each sector – The extent/percentage of the reservation is qua the total number of plots in a sector and not qua the number of plots floated each time in a sector – The plots in a sector must be allotted to the oustees to the extent of reservation for oustees before allotting the plots to the general public – It follows, therefore, that the balance plots in a sector must also be first allotted to the oustees to the extent of reservation – If there are any unallotted plots in a sector, they would henceforth be first allotted to the oustees to the extent of reservation in their favour and only thereafter be allotted to the general public – The allotments already made cannot be disturbed as that would affect the rights of third parties who are not before us and who understandably would have several defences against unsettling their settled position. (Para 40)
(G) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Authorities are bound to offer the oustees the plot under the oustees quota and the oustee is not bound to first apply for the same. (Para 42)
However, the claims of the oustees are required to be invited through press/newspapers and not by individual notices to the oustees personally. Moreover, upon such a development being published/issued it is for the oustee to make an application for the allotment of a plot under the oustee quota – The duty/obligation of respondents will be there only if an application is made by the oustee – An oustee may not be interested in acquiring a plot – In that case he cannot be forced to acquire one. (Para 42)
(H) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Authorities are bound to offer within reasonable time otherwise the purpose of the oustees policy would not be met – If mala fides are established, a writ to compel the respondents to develop a sector and to allocate the oustee quota, may lie – There cannot be a straight jacket formula in this regard. (Para 44)
(I) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – An oustee is entitled to be considered for allotment of a plot under the oustee category when the sector or the adjoining or the next residential sector is first floated for allotment – This would obviously be when the sector is first floated for allotment after the oustee becomes entitled to be considered for allotment – Thus after the oustee becomes entitled to be considered for allotment he can apply for the allotment of a plot under the oustee quota – If he does not get a plot for any reason he can apply again and again for the allotment of a plot in the oustee quota when the sectors concerned are floated till he is finally allotted a plot – However, oustees whose lands were acquired prior to 10.09.1987, would be entitled to plots only from the sectors in which their lands were acquired. (Para 47)
(J) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – An oustee who is not allotted a plot although, he applied for it, does not lose his entitlement to be considered for the allotment of a plot in future under the same category – Even if an oustee does not apply in response to the advertisement, he is not disentitled from submitting an application for the allotment of a plot under the oustee category subsequently. (Para 50)
(K) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Normal allotment rate would be the rate advertised by the HUDA in pursuance of which the applications are invited from the general public and the oustees, in pursuance of which the plots are allotted – Thus, the allotment rate would be the rate advertised while inviting applications from the oustees and in pursuance of which the plots are actually allotted – Thus, it is not merely the rate advertised by the HUDA while inviting the applications from the general public and the oustees which constitutes the normal allotment rate – There must be an actual allotment pursuant thereto.
In other words, it is only when pursuant to the application for allotment, a plot is actually allotted, that the normal allotment rate can be fixed and that rate would be the rate stipulated in the advertisement inviting the said application. Thus two requirements must be met. Firstly, there must be an advertisement by HUDA inviting applications from the general public and the oustees for allotment. Secondly, the oustee must be allotted a plot pursuant to an application as per such advertisement. If these two requirements are met, the normal allotment rate would be the rate stipulated in such advertisement. (Para 53)
(L) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Price Prevalent – Where the oustee is at fault or was for any reason responsible for the same, he must pay the price prevalent in the advertisement inviting applications and pursuant to which the oustee was actually allotted the plot – However, the oustee must pay reasonable interest from the date on which he could have been given the possession of the plot till the date he is actually given the possession of the plot, for in such a case the oustee has had the benefit of the use of his money during this period. (Para 59)
(M) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Criteria for fixing price – Price fetched of an auction can be the basis of price fixation for allotment for allotment of plots under the oustee quota – Authorities are entitled to fix the price in any reasonable and just manner keeping all the facts and circumstances in mind including the nature of the allotment to oustees and the purpose thereof. (Para 63)
(N) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Policy applicable to an oustee is the one which is in force when an application is made pursuant to an advertisement issued by HUDA and in pursuance of which the plot is allotted. (Para 72)
(O) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Entitlement in next residential sector – Policy dated 28.08.1998 does not restrict the entitlement of an oustee to be allotted a plot in an adjoining sector only where his land was acquired for the said four purposes – Namely (i) recreational sector, (ii) institutional zones, (iii) group housing societies and (iv) industrial purposes – In the circumstances, the entitlement of an oustee to be offered a residential plot in the next residential sector arises if the plot under the oustee policy cannot be offered to him in the same sector irrespective of the nature of the use his land is put to.
Further, the benefit of this policy would enure to the oustees making an application for allotment of a plot under the oustee quota after 28.08.1998 even if it is a subsequent application – In other words even if the application for allotment was made prior to 28.08.1998 and was rejected for any reason whatsoever, the subsequent application if made after 28.08.1998 must be considered by extending the benefit of the policy dated 28.08.1998. (Para 80 & 81)
(P) Haryana Urban Development Authority Act, 1977 – Allotment of Plot – Oustee quota – Concept of next residential sector vis.à.vis an adjoining sector – The words “next residential sector” in the policy dated 28.08.1998 read with the policy dated 08.12.2003 is not limited only to the sectors that abut the sector from which the oustee’s land has been acquired and that if in the adjoining sector the plots are not available for any reason, the oustee would be entitled to a plot in the nearest sector where a plot under the oustee quota is available. (Para 82)
(Q) Haryana Urban Development Authority Act, 1977 – Allotment of Plots – Oustee quota – Rights of Co-sharer – Once a person establishes his right to be allotted a plot under the oustee quota as a co-sharer, his application must be decided in the same manner in which the application of any other oustee is considered – All the policies and the principles governing any other persons would also apply to co-sharers – For instance, a co-sharer would also be entitled to the benefit of an alternate plot in the next/adjoining plot if he is not allotted a plot in the sector from which his lands were acquired – The co-sharers rights would be determined based on his individual share – For instance, a co-owner may not loose 75% of his independent holding – In that event he would not be entitled to be allotted a plot under the oustee quota. (Para 88)
Mr. S.J. Vazifdar, CJ.:- These petitions concern the rights of the parties whose lands have been acquired to the allotment of plots in lieu thereof in addition to the compensation received under the Land Acquisition Act, 1894. The allotment is to an extent on a preferential basis and has come to be referred to as the ‘oustee quota’.
2. Commencing from the year 1987, policies have been introduced by the State of Haryana governing the rights of the oustees to the allotment of plots under the oustee quota. There are several issues with respect to the rights of the oustees, many of which have been the subject matter of decisions of this Court which have attained finality before the Supreme Court. There are, however, several issues relating to the interpretation of the policies and the applicability as well as the interpretation of the judgments and orders of this Court and of the Supreme Court which require consideration. From time to time we clubbed several of these petitions. Instead of disposing of all the petitions, we choose to restrict this judgment to three petitions which together cover most of the issues that require urgent consideration.
3. A Division Bench of this Court, of which two of us (S.J.Vazifdar, CJ and Harinder Singh Sidhu, J.) were members, by an order dated 15.09.2017 thought it appropriate that these petitions be decided by a larger Bench on account of the importance of the matter and the large number of matters pending in this Court. Several issues were framed by the Division Bench.
4. By an administrative order dated 15.09.2017, the Chief Justice constituted this Full Bench for the determination of these issues.
5. The order of reference raised various questions. However, during the course of the hearing, we modified the questions and allowed the parties to raise certain additional questions. The questions as finalized and answered by us are as follow:-
1. Whether the claims of oustees for allotment of plots under the oustee quota are required to be settled first before offering plots to the general public and other constitutionally permissible reserved categories?
2. Whether the reservation of 10 percent for the oustee quota is based on a valid rational criteria?
3. Whether the number of plots to be reserved for oustees ought to be first allotted to the oustees?
4. Are the authorities bound to offer the oustee the plot under the oustee quota or is the oustee bound to first apply for the same?
5. If the authorities are bound to offer the oustee the plot under the oustee quota are they entitled at their absolute discretion to decide when the offer is to be made to the oustees? If not, when are the authorities bound to make the offer?
6. When is an oustee entitled to be considered for allotment of a plot under the oustee category?
7. What is the right of an oustee who does not exercise his right of allotment when it first accrues or of an oustee who does not get a plot though he applies for it?
8. Is the oustee liable to pay the price fixed for allotment on the date of acquisition of the oustee’s land, the date of entitlement for allotment under the oustee quota, the date of offer of allotment under the oustee quota or the date of exercise of option for allotment under the oustee quota?
9. The basis on which the price is to be quantified/calculated for allotment under the oustee quota?
10. Which policy is applicable to an ousteethe policy in force on the date of entitlement, the date of acquisition, the date of offer the date when the sector is floated or the date of exercise of option?
11. Whether in view of the Policy dated 28.08.1998, a person is entitled to the oustee quota only if his land is acquired for the purposes mentioned therein?
12. Is an oustee who cannot be allotted a plot in the same sector entitled to the allotment of a plot in the next/adjoining sector? What is the concept of next residential sector vis.a.vis. an adjoining sector?
13. What are the rights of co-sharers?
14. Whether t
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