KAMAL KANTA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Soon after partition of the country in August 1947, there was influx of hundreds of thousands of refugees from West Pakistan to the Indian Part of the State of Punjab, which was then known as East Punjab, and also to the other parts of the country. To rehabilitate these refugees and also to provide them with vocations, the Legislature of the erstwhile State of East Punjab enacted the East Punjab Refugees Rehabilitation (Building and Building Sites) Act, 1948, (hereinafter called 'the Act'), to enable the State Government to acquire land for the purpose of carving it out into plots for the construction of residential houses, shops, cattle sheds, garages, workshops, factories etc. The plots or the buildings constructed by the State Government thereon were to be leased out or sold to the displaced persons from West Pakistan. Under the Act, a residential colony called 'Model Town Jullundur' was planned. While some houses were built by the State Government in the said colony and were sold by auction, the remaining sites for buildings were sold and the construction thereon were later on made by the vendees. Model Town Jalandhar is a well laid out colony. Besides carving out plots for residential purposes, separate market was also established. Sites were provided for establishment of religious and educational institutions besides parks etc. The petitioners as well as respondents Nos. 4 and 5 have, along with their pleadings, placed on the record copies of the plans of Model Town Jalandhar, Annexure P-3A and Annexure-R-6/4 respectively. In the present writ petition, we are concerned with a group of houses bearing Nos.400 to 408. A look at the plans aforesaid would show that these houses are located side by side in the form of a rectangle. On the outer side of this group of houses there is a road all around on which these houses open. A particular feature of this group of houses is that none of these houses adjoin each other on the back side. Rather on the back of these houses, there is an open space which, as admitted by both sides, measures 7 Kanals in area. The colony is so planned that a similar group of houses with a road all around and an open space on the rear is across the 60 feet wide road. These houses bear Nos. 190 to 197. It is further not in dispute that all these houses have a door each from the backyard which opens on this open space. The open space is not completely enclosed by these houses. There are two paths, 10 feet wide brick-lined, leading from the road towards this open space. The open space was apparently not brought into use for any specific purpose, although according to some official correspondence, to which reference will be made later, it was intended that a tubewell would be installed and a park would be established there, but this never materialised. Petitioners Nos. 1 to 5 are occupiers and owners of houses Nos.401R, 405L, 402R, 407 and 404R respectively, while Dr. Gulwant Singh Parhar respondent No. 5 is the owner and occupier of House No.403-L. All these houses are in the group, referred to above. The case of the petitioners is that when it was found that the open space was not brought into use by the Government for any specific purpose. Respondent No.5 encroached upon about 258 square yards of the land out of this open space adjoining his house on the backyard, and later raised a pacca construction thereon, so as to make it a part of his house. Taking cue from respondent No.5, the owners of the other houses in the group, including the petitioners, also extended the territory of their respective houses by encroaching upon some land out Of the open space, firstly by surrounding the encroachment by barbed wire and later by raising pacca walls. However, on resentment expressed by the public these encroachments were later on demolished, but the pacca construction raised by respondent No.5 was allowed to remain intact Respondent No.5 made efforts to purchase a part of the aforesaid open space. The petitioners also made applications for making a similar purchase out of the open space. The petitioners complain that while nothing has been heard about the fate of their applications, 2 Kanals 11 Marias 155 square feet of area shown in red colour in the plan Annexure-P-1 has been sold out by the State Government to Kuldip Parhar Memorial Charitable Hospital Society respondent No.4, which society, according to the petitioners, is nothing but a proprietary concern of respondent No.5 and his close relations. The petitioners, through the present writ petition, have challenged the aforesaid sale of land in favour of respondent No. 4 through the letter of the State Government dated April 21, 1981 (Annexure-P-22).

(2.) It may be mentioned here that this writ petition was earlier dismissed in limine by a Division Bench of this Court. Petitioner No. 1 preferred a Special Leave Petition before the Supreme Court, which was allowed, and Civil Appeal No.3334 of 1983 (Smt. Kamal Kama Anand v. State of Punjab) was disposed of vide judgment of the Supreme Court dated March 21, 1983. While allowing the appeal and setting aside the order, dismissing the writ petition in limine, by this Court, the Supreme Court remitted the writ petition "for due consideration of all the points involved in it and for disposing of the matter by a considered judgment after hearing all the parties". A direction was also contained in the judgment that the parties shall be at liberty to file additional documents before the High Court. When the writ petition was again listed for Motion hearing before a Division Bench of this Court, the petitioners filed an amended writ petition, in which they incorporated various additional averments and also appended a number of documents as annexures. The petitioners made certain allegations of mala fide against Shri Beant Singh, the then Minister for Revenue and Rehabilitation. Punjab, personally, and impleaded him as respondent No. 6. When the present writ petition came up for arguments before me on November 21, 1985, it was found that respondent No. 6 had not been served and in fact according to the office note, no process-fee was filed for his service. At this. Mr. D. S. Nehra, learned counsel for the petitioners, stated that he did not press the allegations of mala fide against respondent No. 6 personally and that he should be given up as unnecessary. I accordingly passed an order on November 21, 1985, deleting the name of respondent No. 6 from the array of parties.

(3.) The learned counsel for the parties addressed arguments on the following two questions which arise out of this writ petition :- (i) Whether the State Government had the power to transfer a part of the open space in question to the Society-respondent No.4; and (ii) Whether the transfer of the land in favour of respondent No.4 is arbitrary, discriminatory and damages the cause of the petitioners and other owners of residential houses Nos.401 to 408 and is, therefore, violative of Article 14 of the Constitution.