NIRMAL SINGH Vs. STATE OF PUNJAB AND ORS

JUDGEMENT

(1.) The petition seeks for quashing of the sale of a plot in an open auction in favour of the 4th respondent and for directions that the possession of the plot No. SCF 10, Area No. 2 and 3, Part-1, opposite Improvement Trust office, shall not be delivered to the 4th respondent auction purchaser. The petitioner claims in effect preemptive right of allotment pursuant to a resolution that had been passed by the Improvement Trust purporting to operate as a firm contractual obligation to allot the property to the petitioner in his capacity as a Sikh riot victim. The petitioner claims that the necessary sanction had also been obtained from the Government and points out that the Government had granted a 2% reservation of all public allotments to riot victims and he was qualified to obtain such an allotment.

(2.) The Improvement Trust does not deny that it had passed a resolution and it had also obtained a sanction from the Government for the allotment of the property to the petitioner. The contention is that the petitioner had not parted with any consideration and the decision that had been previously taken, was not in conformity with the rules. The sanction which the Government had only granted that the allotment shall be as per rules and, therefore, an interdict against the offer of a commercial plot in any other manner than by a public auction applied to the sanction order. The Counsel appearing on behalf of the Improvement Trust would also refer to the provisions of the Punjab Town Improvement (Utilization of land and allotment of plots) Rules of 1983, to contend that before a person applies for an allotment, he shall make an application for allotment in Form-B and C appended to the rules and shall also make a token in advance of earnest money. The mere provisional offer will not create a binding obligation. The 3rd respondent, who has been the purchaser of the public auction, would urge that the condition for sale of a commercial plot is mandated under Rule 8 of the aforesaid rules to take place only through auction and there could not have been any resolution for allotment of the property to the petitioner. Pointing to a plea of relaxation of this rule by reference to Rule 14 which empowers the State to make relaxation, it is contended by the Counsel appearing on behalf of the 3rd respondent that the language employed in Rule 14 is such that only such of those guidelines provided under the rules could be relaxed and, in this case, there is specifically no order giving such relaxation and further a decision not to put up the property for auction is not a decision that could be said to be a relaxation of a guideline mentioned under the rules. To him, guidelines must be understood as distinct from the essence of the rules themselves and while a power existed for relaxation of such guidelines, the power did not extent to relax the essential features of the rules, which, according to him, in relation to a commercial plot was mandated to be done only through an auction.

(3.) The decision to allot the property in favour of the petitioner has come through in several stages. At the first instance, the Learned Counsel appearing on behalf of the petitioner would rely on the policy issued by the Government of Punjab, Department of Local Government, on 01.01.1987, that there shall be a reservation of 5% residential plots, 20% reservation of commercial plots for the Sikh migrants. This was affirmation of an earlier statement of policy made on 05.02.1986 that all Trusts were allowed to auction commercial plots or booths only after reserving 20% of the plots for allotment to Sikh migrants. It must be noticed while the policy mentioned about reservation of 20% for commercial plots, it does not state anywhere that such reservation would be possible by merely identifying the person to be a Sikh migrant. The manner of sale itself is not indicated there and, therefore, we may have to only look to rule which specifies the mode of effecting such sale. It appears that the petitioner had come to know that one property had been reserved for allotment for Sikh migrants and he had made such an application on 15.02.1990, The Sales Branch of the Trust by a noting dated 29.03.1990 had recorded the fact that one SCF falling within the scheme of Area No. 2 and 3 was reserved for Sikh migrants and that as per the Government letter dated 08.04.1988, the Shop-cum-Flat could be allotted to the petitioner, who was an applicant, after the approval from the Government. This note was placed in the Trust meeting for consideration on 29.03.1990 but it appears that the subject was taken up and put through resolution No. 5 of 17.04.1990. On that day, the resolution had been passed that the property could be allotted to the petitioner, who was a red card holder and had granted an approval for further transmission of its decision to the Government to secure its sanction. The Government's sanction did came soon thereafter on 24.06.1994 to approve the allotment of the property to the petitioner and a formal order of allotment had been directed to be issued. The petitioner made an application dated 05.07.1994 and requested the authorities to inform him about the price of the property which was allotted to him to enable him to deposit the first installment in the office.