- (1.) THE Ludhiana Gurunanak Cooperative House Building Society (Regd), Ludhiana, through present writ filed by it under Articles 226/227 of the Constitution of India, seeks writ in the nature of certiorari so as to quash Annexures P-9 and P-10. It also seek writ in the nature of mandamus directing the Ludhiana Improvement Trust to allot it plot in regard to remaining land out of land measuring 19 kanals 14 marlas as and to direct the respondents to refund an amount of Rs. 1,62,895. 25 Ps. which was got deposited from it illegally and under coercion in pursuance of the resolution No. 61 (Annexure P-7) as also not to demand exemption charges and development charges in excess of Rs. 2/- and Rs. 40. 60/- per Sq. Yards respectively.
(2.) THE facts on which the relief aforesaid, rests, reveal that petitioner Society owned land measuring 48308 square yards in the revenue estate of village Jawandi details of which have been given in para 2 of the petition. This land was purchased by it in 1968 for developing a residential colony of its members. Respondent No. 2 - Ludhiana Improvement Trust framed a housing scheme, known as "model Town Extension Part-II scheme' in a wide area including the land of village Jawadi. The said scheme was framed by respondent No. 2 under the provisions of Section 24 read with Section 28 of the Punjab Town Improvement Act, 1922 (herein- after to be referred as 'the Act' ). Petitioner Society alongwith certain other societies submitted representation to respondent No. 2 to exempt its land from acquisition for the execution of the said scheme. The Trust acceded to its request made by it through representation and by ressolution No. 24 dated November 28, 1972 exempted its land as also of 13 other House Building Societies. In accordance with its demands, petitioner society deposited Rs. 36,235/- as exemption charges on April 12, 1973. However the scheme framed in the year 1972 was revoked and fresh scheme styled as "model Town Part-II Extension Scheme was introduced in May, 1973. Meanwhile, the provisions of Section 56 of the Act had since been amended and the power to grant exemption which was earlier with the Trust was transferred to the State Government. In the wake of change in law, petitioner and 13 other societies again approached the Improvement Trust to recommend their case to the State Government for exempting their land under Section 56 of the Act. Vide resolution dated October 31, 1974 the case of petitioner was recommended to the State Government for exemption. In both the resolutions, that is, one passed earlier and the one which was passed later on October 31, 1974 the area of the land of petitioner regarding which exemption was sought, was stated to be 48308 Sq. Yards. The Government vide notification dated June 25, 1981 granted its approval for exemption on certain conditions. . . . . . . . . . . The Trust, thus, vide letter dated July 3, 1984 issued exemption letter to it in respect of area measuring 36089 sq. yards in the shape of 98 plots totaling an area under the plots measuring 18036 sq. Yards. Petitioner society paid the development charges stipulated in the exemption letter and also executed agreement for exemption on August 8, 1984. However, prior to when the exemption was granted, petitioner had also filed Civil Writ Petition for quashing notification acquiring their land. That writ was, however, withdrawn on the assurance given by the State Government that the question of grant of exemption would be considered only after writ petition had been withdrawn. After the above exemption was granted, representation was made by petitioner Society that it had total area of 48308 sq. yards and exemption had been granted only with regard to land measuring 360. 89 Sq. yards and, therefore, it was requested that the matter with regard to the remaining land should also be dealt with. However, no reply was received. The reason why the case of petitioner for exempting the remaining land was not being considered, was that compensation with regard to about 12000 sq. yards of land had been paid to those from whom it had purchased the said land and it was only with a view to cover up their own mistake, it is stated, that the respondents were not dealing with its case with regard to exemption of remaining land. It was way back in the year 1968 that the above land was purchased by it and in the year 1970 even mutations had also been sanctioned and yet compensation with regard to the said land was paid to those from whom it had purchased the same. Petitioner, therefore, had no choice but for to issue notice under Section 98 of the Act calling upon the respondents to accept its ownership in respect of land measuring 48308 Sq. yards instead of 36089 Sq. yards. However, when to reply was received, it filed a civil suit against the respondents in the court of Senior Subordinate Judge, Ludhiana for declaration and permanent injunction. During the pendency of that suit, it also made representation to the State Government and to the Secretary, Local Self Department, Chandigarh seeking justice and directions to the offices concerned to exempt its remaining land as well as to allot plots in lieu thereof. The Government asked the Chairman of the Improvement Trust, who in turn called report from the Executive Officer of the Trust. A report was submitted by the Executive Officer, copy whereof has been annexed as Annexure P-4 with this petition. When petitioner found that the report was not adverse to it and infact it was found that it was owner to the extent of 48038 Sq. yards, it withdrew its suit on August 14, 1985. The Chairman of the Trust thereafter examined the matter with the Executive Officer and Senior Legal Officer of the Trust. The following order came to be passed by the Chairman after consultations: "i agree that the Society should not be penalised because compensation has been wrongly paid to the persons from whom the society had o purchased the land. Further action may now be taken accordingly as per the advice of the Sr. Law Officer but 'x' at page 5 may be confirmed. If the documents produced by the Society at flag 'a' and 'b' are authentic then this society had become owner in the revenue record well before the date on which compensation was paid. It appears to be likely that considerable bungling has taken place in the office of the LAC otherwise it would not have been possible that wrongful compensation could be paid. I would request the present LAC to look into this matter in detail and bring out the factual position. " Even though such were the report and orders of the Chairman, no action was taken in the matter, thus, compelling petitioner to submit detailed representation to the Secretary, Local Government, Punjab, wherein it was once again mentioned that exemption should be granted with regard to remaining land measuring 12000 Sq. yards as well. It was only on June 15, 1987 that the Trust agreed to allot plots to petitioner Society against their area measuring 19 kanals 14 marlas and also to take proceedings against those who had been wrongly paid the compensation by Land Acquisition Collector. In pursuance of the resolution aforesaid, it deposited an amount of Rs. 1,62,205. 25/ -. This amount had to be deposited as one of the conditions while exempting the remaining land was that petitioner should deposit the amount of compensation that had been paid to those from whom it had purchased the land. It is pleaded and so argued by learned counsel for the petitioner that the Society had no choice in the matter even though the said condition was illegal and infact action should have been take against those who had paid the money to the persons, who were not owners of the land and such persons should have also been proceeded with a view to recover the said amount. However, after it deposited the amount aforesaid, it was agreed vide resolution dated July 23, 1990 to allot plots to the petitioner society with regard to the remaining land measuring about 12000 Sq. yards, again, on certain conditions. A copy of the order has been annexed as Annexure P-9. In pursuance of the resolution aforesaid, petitioner was issued letter dated January 16,1991 by respondent No. 2 wherein it was informed that six plots in 'a' block of the scheme and 15 plots in block 'd' shall be allotted to it on the conditions of paying development charges @ Rs. 90/- per Sq. yard and exemption fee of RS. 5/- per Sq. yard. Earlier when land measuring 36089 Sq. yards was exempted, petitioner was asked to pay exemption fee of Rs. 0. 75 Ps. per Sq. yards. Thereafter, exemption charges were increased from 0. 75 Ps. to Rs. 2/- per Sq. yard and the development charges were demanded @ Rs. 40. 60 Ps per Sq. yard which were duly paid in respect of exemption of land measuring 36089 Sq. yards. In wake of the facts that have been detailed above, Mr. Jagan Nath Kaushal, learned Senior Advocate, appearing on behalf of petitioner Society contends that the action of the respondents in issuing letters Annexures P-9 and P-10, and in particular Annexure P-10, wherein petitioner has been asked to pay development charges @ 90 Rs.- per Sq. yard and exemption fee @ Rs. 5/- per Sq. yard, are wholly illegal and without jurisdiction. It is mainly argued that the petitioner can not be penalised for the default and fraud committed by others.
(3.) THE cause of petitioner has been opposed and in the written statement that has been filed on behalf of respondent Nos. 1 and 2, it has been pleaded by way of preliminary objections that petitioner has deliberately suppressed material facts. Earlier it filed civil suit for grant of permanent injunction against answering respondents with a prayer not to allot or deliver possession of plot Nos. 309-AZ to 329 AZ measuring 100 sq. yards each to any other person in the Model Town Extension Scheme Part-II, Ludhiana. During the pendency of the said suit, respondent No. 2 addressed letter dated January 16, 1991 (Annexure P-10) to petitioner Society offering it to allot plots No. 315 ZA to 320za and 15 plots of 100 Sq. yards in 'd' Block with four stipulated conditions mentioned in Annexure P-10. Petitioner did not fulfill the condition with regard to withdrawing the civil suit within fifteen days as stipulated in the letter, Annexure P-10, and infact withdrew the suit after more than seven months of the issuance of letter, Annexure P-10 and as such it was not entitled to any relief. Further the Punjab Government vide letter addressed to it, allotted plot No. 320za in the Model Town Extension Part-II, Ludhiana in favour of Baljinder Kumar and the same was kept reserved for him vide letter dated May 2,1991, Annexure R-2. It was done as petitioner did not withdraw pending court case within 15 days of issuance of letter, Annexure P-10, dated January 16, 1991. Baljinder Kumar filed an application under Order 1 Rule 10 of the Code of Civil Procedure for impleading him as defendant in the civil suit which was allowed on October 7, 1991. It is further pleaded that since the petitioner did not deposit the development charges as stipulated in Annexure P-10, the writ petition deserves to be dismissed on that count as well. With regard to an additional area of 19 kanals 14 marlas petitioner never demanded any exemption at earlier stages and it was recorded as owner of 59 kanals 13 marlas i. e. 36089 Sq. yards of land which was acquired by the Trust and for which exemption was accorded by the Government of Punjab. Petitioner did not raise any dispute regarding the additional area which was recorded in the names of Inderjit Singh, Teja Singh, Udhe Singh and Atma Singh and the aforesaid landowners had received compensation from the court of Land Acquisition Collector. It was for the petitioner to raise the dispute regarding claim of ownership as also disbursement of compensation during acquisition proceedings before the Land Acquisition Collector or for referring the dispute to the Court. In this situation, it is pleaded, the petitioner can not ask for any relief at this stage. Possession of 21 plots has also not been taken by petitioner as it did not fulfill any of the conditions mentioned in Annexure P-10 and for that reason also dismissal of writ has been asked for. On merits, it has been pleaded that petitioner is recorded to be owner of 36089 Sq. yards of land with others. Inderjeet Singh son of Basant Singh was recorded owner of Khasra Nos. 325, 403,324,337 to 342 and 551 measuring 3000 sq. yards and Teja Singh, Udhe Singh sons of Mota Singh and Atma Singh son of Sampuran Singh were recorded to be owners of Khasra Nos. 325, 324,337 to 342 and 351 measuring 9000 sq. The total land measuring 19 kanals 14 marlas was recorded in favour of the aforesaid landowners and they obtained compensation of the land so acquired from the office of Land Acquisition Collector and petitioner did not raise any objection regarding disbursement of the same to the aforesaid persons in the acquisition proceedings. It is on that count, it is further pleaded that petitioner is not entitled to claim exemption in respect of 12000 sq. yards of land. No further meaningful defence has been projected in the written statement nor any arguments on the basis of pleadings other than mentioned above, have been raised. It would, thus, be an exercise in futility to mention other grounds taken in the written statement.;