Bachat land

Consolidation Act, 1948 -- Re-partition of -- Prior to the incorporation of Section 42-A, there was no provision under the Consolidation Act, 1948 which specifically dealt with the Bachat or surplus land and how the same was to be dealt with -- There is no provision under the Consolidation Act, 1948 or the Consolidation Rules, 1949 which provide for partition or distribution of land reserved for common purpose amongst the proprietors of the village -- Definition of 'common purpose' under Section 2 (bb) is the answer, which is inclusive and wide enough, capable of taking care of any common need, convenience or benefit of the village and, therefore, leaves ample scope of utilizing this land in future with changed situations and circumstances -- Despite there being no provision of return of this type of land to the proprietors of the village by redistribution/repartition but in the absence of any specific provision dealing with the remaining land left out after earmarking the land for the common purposes as per the consolidation scheme, the concept of Surplus/Bachat land was coined and imported -- This resulted in proprietors of the village claiming repartition/ redistribution of common lands which were not specified in the Consolidation Scheme -- This concept although alien to the scheme of the Consolidation Act, 1948 but in the absence of there being any provision barring resort to such course, the same was accepted and given effect to – In Gurjan’s case 2000 (2) PLR 347 directions were based on the interpretation of the provisions of the statute existent then -- Had there been Section 42-A at the time when Gurjant Singh's case was decided, the directions therein could not have been issued as there would have been a specific provision dealing with the land reserved for common purposes which was not specified in the consolidation Scheme –  What Section 42-A provides is that land reserved for common purposes whether specified in the consolidation Scheme or not, shall not be partitioned amongst the proprietors of the village and it shall be utilized and continue to be utilized for common purposes notwithstanding anything contained in the Consolidation Act, 1948 or in any other law for the time being in force or in any judgment, decree, order or decision of any Court, or any authority, or any officer -- It cannot be said that in exercise of legislative powers, the legislature has over-ruled, revised or over-ridden a judicial decision which would be thus in violation of the legislative powers rather the Legislature had removed the basis on which the decision had been rendered -- Amendment, which has been brought about, is consistent with the provisions of the Constitution and the Legislature also has the competence to enact the same, which is not under challenge -- In exercising legislative powers, the Legislature can enact law with retrospective effect which may have the effect of making the decision of this Court in the case of Gurjant Singh's case (supra) ineffective but in the light of the affidavit filed by the State of Punjab stating therein that all judgments, decrees, orders or decisions of any Court or any authority or any officer where partition of Jumla Malkan lands has been implemented/given effect to before the date of notification i.e. 22.05.2007, the amendment would not be applicable – Stand of the State is very reasonable, just and equitable which cannot be faulted with --  Vires of Section 42-A in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Act, 2007 (Punjab Act No. 6 of 2007) are upheld (Applicability w.e.f. 22.5.2007). Mahatam Singh and others v. State of Punjab and others, 2011(2) L.A.R. 75 (P&H DB).

Jurisdiction of Director consolidation – Authorities under Punjab Village Common Lands Act – Power of -- After applying a pro-rata cut from the holdings of the proprietors as Jumla Mushtarka Malkan land to be used for common purpose of the village, whether utilized or not, shall vest with the Gram Panchayat even though in the column of ownership the entries may be Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc. -- Bachat Land is the land which was contributed by the proprietors on the basis of pro-rata cut during the consolidation proceedings and which was not even ear-marked for the common purpose in the consolidation scheme, which has been entered in the column of ownership as Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, does not vest in the Gram Panchayat and is to be re-partitioned among the proprietors -- Whether the land in dispute was reserved for common purpose of the village during the consolidation scheme or whether it was not so reserved, and the same be taken as Bachat Land, are questions of fact which can be gone into by the authorities under the Village Common Lands Act and not by the Director, Consolidation -- Director, Consolidation is not having jurisdiction to redistribute such land on an application filed by the proprietors of the village u/s Section 42 of the Consolidation Act -- Proprietors, if they are having any grouse, can claim their ownership right on the by availing the remedy to file a title suit u/s 11 of the Village Common Lands Act where they can establish by leading evidence that the disputed land is a Bachat Land and the same does not vest in the Gram Panchayat. Ujagar Singh v. Gram Panchayat, Behra and others, 2011(2) L.A.R. 111 (P&H DB).

Arrears of rent

Punjab Rent Act -- Assessment of provisional rent -- Interlocutory order – Non-filing of Appeal – Effect of – Whether can be challenged alongwith final order -- Held, Where a tenant does not challenge the order of the fixation of provisional rent passed u/s Section 13(2)(i) proviso in u/s 15(1)(b) and also fails to comply with that order, the order of eviction must follow as per the provisions contained in the 1949 Rent Act but when the tenant challenges the order of eviction in appeal and therein also challenges the order determining the provisional rent, it is not open to the Appellate Authority to refuse to consider the legality and validity of the order determining the provisional rent on the ground that the correctness of such order cannot be examined as no appeal was filed from that order though an appeal lay therefrom. Harjit Singh Uppal v. Anup Bansal, 2011(2) L.A.R. 486 (SC).

Punjab Rent Act -- Assessment of provisional rent – Interlocutory order – Non-challenge to -- Final order – Appeal -- Right of -- Rent Controller determining the provisional rent in an eviction petition -- Where the tenant fails to comply with that order may be a foundational order for an order of eviction that follows but nevertheless such order is an interlocutory order as that order does not determine the principal matter finally; it is only the order on subordinate matter with which it deals -- Section 15(1)(b) does not make it imperative upon the person aggrieved to appeal from an interlocutory order and, if he does not do so, his right gets forfeited when he challenges the final order -- Order of eviction, in its nature, being dependant on the correctness of the order fixing the provisional rent and there being no indication to the contrary in Section 15(1)(b) – it must be open to the Appellate Authority to go into correctness of such provisional order when put in issue. Harjit Singh Uppal v. Anup Bansal, 2011(2) L.A.R. 486 (SC).

Punjab Rent Act -- Assessment of provisional rent – Interlocutory order – Non-challenge to -- Final order – Appeal -- Right of -- Rent Controller determining the provisional rent in an eviction petition -- Where the tenant fails to comply with that order may be a foundational order for an order of eviction that follows but nevertheless such order is an interlocutory order as that order does not determine the principal matter finally; it is only the order on subordinate matter with which it deals -- Section 15(1)(b) does not make it imperative upon the person aggrieved to appeal from an interlocutory order and, if he does not do so, his right gets forfeited when he challenges the final order -- Order of eviction, in its nature, being dependant on the correctness of the order fixing the provisional rent and there being no indication to the contrary in Section 15(1)(b) – it must be open to the Appellate Authority to go into correctness of such provisional order when put in issue. Harjit Singh Uppal v. Anup Bansal, 2011(2) L.A.R. 486 (SC).

Rent Act -- Assessment of provisional rent – Denial of relationship of landlord-tenant – Effect of -- If relationship of landlord-tenant is denied by the tenant, then the Rent Controller is not supposed to assess the rent and to give an opportunity to the tenant to tender the rent -- Tenant first of all took false plea that he has paid entire amount of rent without any receipt and thereafter, himself denied the relationship of landlord–tenant between the parties and deposited lesser amount in the Court, which makes him defaulter and liable to be evicted. S.K. Kalia v. Om Parkash and others, 2011(2) L.A.R. 427 (P&H).

Rent Act -- Assessment of provisional rent – Tender of – Extension of time -- Amount of provisional rent was assessed and the tenants were directed to tender the provisional rent -- Amount was not available with the tenant on the date of tender – Rent Controller is not competent to extend the time for payment of provisional rent beyond the date fixed -- Once the tenant had failed to tender the rent in terms of the order of the Rent Controller, the ejectment of such a tenant is bound to follow. Union of India & Ors. v. Mrs. Harjinder Kaur, 2011(2) L.A.R. 478 (P&H).

Rent Act -- Excess payment – House tax -- Entire arrears of rent was tendered by the tenant within 15 days from the date of service of summon -- Tenant had tendered excess amount -- Excess amount can very well be adjusted towards the arrears of house tax. Vinod Kumar and another v. Ishwar Dayal, 2011(2) L.A.R. 545 (P&H).

Appeal against Suspension/Removal of Sarpanch

Punjab Panchayati Raj Act, 1994 -- Necessary party – Complainant is necessary party -- In view of the complaint and on the basis of inquiry reports, the Director removed respondent from the post of Sarpanch – Appeal was filed without impleading the complainants as parties – Held, complainants were the aggrieved parties, so the appellate authority slipped into a legal error in accepting the appeal, even without issuing notice to complainant, who were the necessary parties -- Appellate authority ought to have issued notice and provided adequate opportunity of being heard to the complainants before deciding the appeal against them in view of the doctrine of audi alteram partem. Baldip Pal Singh and another v. Financial Commissioner and Secretary, Punjab Govt. and others, 2011(2) L.A.R. 270 (P&H).

Punjab Panchayati Raj Act, 1994 -- Review application by complainant – Single line order “Review application is not liable to be accepted, therefore, it is dismissed” cannot possibly be termed to be a proper adjudication of rights of the complainants in the appeal -- Contention that review application of complainants was dismissed, so, they would be deemed to be parties in the appeal, is not only devoid of merit but misplaced as well. Baldip Pal Singh and another v. Financial Commissioner and Secretary, Punjab Govt. and others, 2011(2) L.A.R. 270 (P&H).

Punjab Panchayati Raj Act, 1994 -- Speaking order -- Appellate authority not adhered to the actual grounds of removal mentioned in the order of the Director based on the report of regular inquiry of ADC -- Real controversy between the parties was not decided – Held, order is non-speaking, appellate authority ought to have discussed the material on record -- Such statutory appellate authority, exercising the powers under the Act, should act independently -- Every action of such authority must be informed by reasons -- Order must be fair, clear, reasonable and in the interest of justice and fair play -- Every order must be confined and structured by rational and relevant material on record because the valuable democratic rights of the parties are involved in the lis. Baldip Pal Singh and another v. Financial Commissioner and Secretary, Punjab Govt. and others, 2011(2) L.A.R. 270 (P&H).

Appeal

Appointment of Lambardar – Appeal/ revision can be admitted after the limitation period if the appellant satisfies the court that he had sufficient cause for not preferring the appeal/ revision within such period -- Delay of every day has to be justified -- No plausible explanation has been given for the undue delay -- Thus the abnormal delay of 2465 days does not deserve condonation and the same is rejected -- Appeal is accordingly dismissed in limine being time barred. Gian Chand v. Deputy Commissioner-cum-District Collector, Hoshiarpur and others, 2011(2) L.A.R. 580 (FC Pb.).

Communication of order -- Petitioner was represented by the Advocate and the case was decided by the Commissioner and the orders was announced in the presence of his counsel – It was the duty to his counsel to communicate orders passed by the Commissioner to the petitioner. Surinder Mohan v. Administrator, New Mandi Township, Punjab, 2011(2) L.A.R. 571 (FC Pb.).

Haryana Rent Act -- Interlocutory orders -- Revision -- Prior to the Harjit Singh Uppal’s judgment, JT 2011(6) SC 236 passed by the Hon'ble Supreme Court, it was consistent view of the High Court that appeals filed against the order of Rent Controller except under Sections 4, 10, 12 and 13 of Rent Act were not appealable and only revision was maintainable before High Court against such orders – Held, thus, the earlier withdrawal of the appeal to avail the remedy of revision petition cannot come in their way to pursue their remedy of appeal filed before the Appellate Authority. Harish Chand and others v. Anil Kumar, 2011(2) L.A.R. 666 (P&H).

Punjab Rent Act -- Maintainability of appeal -- Interlocutory order – Final Order -- Section 15(1)(b) provides, to a person aggrieved by an order passed by the Rent Controller, a remedy of appeal -- Provision, for maintaining the appeal, does not make any difference between the final order and interlocutory order passed by the Rent Controller. Harjit Singh Uppal v. Anup Bansal, 2011(2) L.A.R. 486 (SC).

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction order – Stay of order -- In an appeal against the order of eviction/possession, first appellate authority while admitting the appeal or while issuing notice ordinarily should stay operation and effect of order/decree of eviction/possession. Ram Sarup v. State of Punjab and another, 2011(2) L.A.R. 275 (P&H).

Punjab Village Common Lands (Regulation) Act, 1961 -- Stay of eviction order – Right of – Appellate authority was not well within its jurisdiction while rejecting stay application seeking stay of the eviction order on the very first day without assigning any reason while observing reasoned order will be passed in future -- Action of the appellate authority cannot be appreciated and approved. Santa Singh and others v. State of Punjab and another, 2011(2) L.A.R. 208 (P&H).

Revision -- Appeal/ revision can be admitted after the prescribed period if the appellant satisfied the court that he had sufficient cause for not preferring the appeal/ revision within such period -- Delay of every day has to be justified -- No plausible explanation has been given for the undue delay on 13 years, 4 month and 30 days -- Thus the abnormal delay of more than 13 years does not deserve condonation, the same is rejected -- Revision petition dismissed being time barred. Surinder Mohan v. Administrator, New Mandi Township, Punjab, 2011(2) L.A.R. 571 (FC Pb.).

Stay of eviction order – Punjab Village Common Lands (Regulation) Act, 1961 – Held, in an appeal against the order of eviction/possession, first appellate authority while admitting the appeal or while issuing notice ordinarily should stay operation and effect of order/decree of eviction/possession. Santa Singh and others v. State of Punjab and another, 2011(2) L.A.R. 208 (P&H).

Allotment of plot

Challenge to – Delay in challenging – Effect of -- Allotment was made and the allottee has constructed and running the hospital -- Writ petition was filed nearly one and a half years after the allotment – Held, High Court was justified in not interfering with the allotment. U.G.Hospitals Pvt. Ltd. v. State of Haryana and others, 2011(2) L.A.R. 193 (SC).

Oustees claim – Consideration in general category – Effect of -- Petitioner is entitled to consider for allotment of a plot in reserved category of oustees -- Action of the respondents in treating him in the category of general for consideration for allotment is legally not sustainable and is not proper -- Oustees are a distinct class and cannot be clubbed with general policies of allotment of plot -- Direction issued to the HUDA to consider the claim of the petitioner in the reserved category of oustees. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Co-owner – Right of -- Pleas that all the co-sharers would be only entitled to one plot in terms of a policy instruction issued in the year 1993 may be in violation of law laid down by the Full Bench in Jarnail Singh’s case, CWP No.2575 of 2009, decided on 1.10.2010 -- Notification for acquisition was issued on 20.8.1992 -- It would be legally appropriate to direct that each co-sharer is entitled to allotment of a plot individually and the right could not be restricted to allotment of one plot for all the co-sharers. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Decision to restrict allotment of a plot to an oustee in a sector in which his land was acquired, was given go-bye through a policy dated 28.8.1998 – Sometimes the land acquired was for the purpose other than residential, through this policy, a provision was made for allotment of a plot in the next residential sector, which may be floated by HUDA -- Action of HUDA to deny allotment on the ground that the plot is not available in the sector where land is acquired may not be justified in the policy and the reason behind issuing this policy -- This reasoning would equally apply to all the cases under consideration even before this policy came into being. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Delay – In the absence of claims having been invited in proper and appropriate form as per the policy the order rejecting claim may not be sustainable -- Delay cannot be considered fatal -- In such like cases, it will be appropriate to issue some general directions to HUDA to invite claim of all the oustees by issuing a general advertisement in this regard either through press/New-Paper or publication -- Form and sufficient time should be given to the oustees to submit their claim -- As per the schemes, claims of such oustees, who have either not applied or have applied or their claim are under consideration can be so considered, if the plots are still available in Sector for which their land was acquired and if any oustee cannot be adjusted in the sector, then his claim can also be considered for allotment of a plot in any of the adjoining sectors. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Delay in applying – Effect of -- Land was acquired on 27.08.1987 -- Petitioner ultimately has filed a claim on 26.5.2009 along with 10% cost of the plot as earnest money – Claim of the petitioner is being declined only on the ground that the acquisition was prior to 10.9.1987 and as such is not covered by the policy instructions issued on the said date – Policy instructions were issued on 27.3.2000 providing that the claim of all the oustees be considered irrespective of date of acquisition in case the plots are still available for allotment -- Even the oustees have prior right of allotment and after satisfying their claim only the plots would be allotted to other persons – Some plots are still available -- Accordingly, the case is made out for issuing direction to the respondents to consider the claim of the petitioners under the category of oustees in accordance with above noted scheme and plots be accordingly allotted to the petitioners as per their entitlement. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Earnest money – Non-deposit of -- Policy instructions issued on 12.3.1993 -- Oustees claims were rejected on the ground that they had not deposited 10% of the earnest money as was required under the policy -- Estate Officer concerned is to invite the claims through press/News-Papers for allotment of plots under the oustees policy much before floating of Sector -- Then each of the applicant is required to send his application in the prescribed proforma along with the supporting documents and earnest money equivalent to 10% of the cost -- HUDA had not followed the policy to invite claims from oustees separately through press or news-papers -- Claim of the oustees was invited while floating the scheme for allotment of plots in the sector for all eligible persons -- Inviting claim of oustees along with general public is in violation of the policy – Right of the petitioner for consideration for allotment of plot in oustees quota, thus cannot be forfeited on the ground that he had not earlier made application along with cost of 10% -- Direction is issued to HUDA to consider the claims of the petitioners in the reserved category of oustees. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Land acquired in 1983 – Claim was filed on 21.8.2000 for allotment of plot under oustees quota alongwith 10% amount of the total price of the plot -- Claim was rejected on the ground that his claim could be considered only for allotment in a sector for which his land was acquired -- Another reason given is that he had delayed too long in making the present approach – Held, responsibility to invite claim of the oustees as per the policy started from 1987 was that of the HUDA -- Not only that respondents were under obligation to invite such applications before floating the sector for general public but it was to be done separately -- Further the respondents were also first required to satisfy the claim of the oustees before even floating the sector – Ground of denial is in violation of the policies -- Direction issued to the HUDA to consider the claim of the petitioner for allotment of a plot under the Oustees quota in the sector in which his land was acquired, if no plot is available in the said sector, the claim shall be considered and satisfied in any of the sectors that may now be under consideration, but in the city of Gurgaon – HUDA can be asked to consider the claim in any of the sectors which may be floated in future. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Policies for oustees claim – Earnest money – Deposit of -- Concept of -- Requirement of depositing 10% of the price would arise only if the claims are first invited as per the policies and it has to be through press or news paper -- Price, as per the policy instructions dated 12.3.1993, is to be deposited once the claim is finally accepted by the competent authority and when the sector scheme is floated – In order to set the position right and as one time measure, it is appropriate to direct HUDA to invite claims of all the oustees through an advertisement in the newspaper, giving them sufficient time to make applications -- Those who make applications pursuant to such an advertisement may be asked to deposit 10% of the price, if the plots are still available -- Their claims be considered in the light of the policies formulated by HUDA -- Plots be allotted to such applicants in the Sector for which their land was acquired, if such plots are available in the said Sector or in the adjoining Sector in the terms of the policy and if the plots are still available -- This aspect is made as a one time measure so as to satisfy the claims of those left over either because of ignorance or because of act of HUDA not following the policies in letter and spirit -- HUDA was to keep the claims in a live register which has not been done -- HUDA was to demand 10% price which it has failed to do -- Course as suggested is thus the only fair and appropriate method to set the wrong right. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Policies for oustees claim -- Oustees are to be treated as a separate class and their claim can not be considered, alongwith the claim of general public -- Claims of oustees are to be invited by Estate Officer, HUDA before sector is floated -- Policy required of HUDA to invite claim of the oustees separately before floating any Sector -- In fact land losers have option to buy first before applications are invited from the general public -- Claim of allotment of a plot to general public would arise after satisfying the claim of the oustees who have first option to buy -- Once the claim of oustees is invited alongwith general public, the possibility of first satisfying the claim of the oustees would stand defeated -- That is why oustees have been held to be separate and distinct class -- It is because of this that HUDA is required to invite claims of oustees before floating of the Sector. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Oustees claim – Policies required of HUDA authority to invite the claim of the oustess separately before floating of sector -- HUDA was required to consider and allow such claims even prior to floating the scheme or at any rate allot these plots to oustees before working out availability of plots for floating the same for general public -- Applications for allotment of the plots were invited from the general public, there were no separate claims invited either through newspaper or press from the oustees – Held, it is clear violation of the policies by the HUDA as framed from time to time -- Government and its instrumentality can not ignore or fail to follow polices formulated and such policies would have binding effect on them -- Claim from the oustees was to be separately invited and could not have been clubbed or joined with the general category -- HUDA directed to allot the residential plot to the petitioner as per his entitlement. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of land

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat  deh -- Sales effected prior to the judgment in Malwinder Singh’s case, AIR 1985 SC 1394 have been protected by virtue of amendment inserted vide Punjab Act No.8 of 1995 -- Since the vendors of the petitioners have been allotted land prior to 09.07.1985 i.e. the date of judgment in Malwinder Singh’s case (supra), therefore, the petitioners being vendee of vendors, whose allotment is protected, are entitled to the possession of the land so purchased. Amarjit Singh and others v. State of Punjab and another, 2011(2) L.A.R. 669 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh -- Allotment in favour of the vendors of the petitioners was made prior to 09.07.1985 -- Such allotment is protected by virtue of amendment inserted vide Punjab Act No.8 of 1995 -- However, the question whether the allotment is actuated by fraud or misrepresentation, it shall be open to the Panchayat or such other competent authority to take such remedy as is permissible on any legally permissible grounds, but till such time the allotments are set aside, it cannot be said that the sales in favour of the petitioners are not protected by the aforesaid Act. Amarjit Singh and others v. State of Punjab and another, 2011(2) L.A.R. 669 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(5)(ii)(a) (as inserted by Haryana Act No.13 of 1996) – Non-payment of installments – Applicability of Section 2(g)(5)(ii)(a) -- As per the Government Instructions, the petitioner was required to make the installments towards the balance amount in 15 half yearly equal installments which were to start after two harvests from the date of the delivery of the physical possession – Petitioner failed to make the installments inspite of having taken over the actual physical possession of the land and being aware of the fact that the earnest money as well as the land was liable to be forfeited – Order was passed forfeiting the amount and also resuming the land on the ground that the petitioner has not deposited the overdue installments -- Contention of the petitioner that the land was required to revert back to him as the same was allotted to him prior to 1985, need not to be gone into. Mohinder Kumar v. State of Haryana and others, 2011(2) L.A.R. 596 (P&H).

Oustees claim/ Oustees Quota

Allotment of plot -- Consideration in general category – Effect of -- Petitioner is entitled to consider for allotment of a plot in reserved category of oustees -- Action of the respondents in treating him in the category of general for consideration for allotment is legally not sustainable and is not proper -- Oustees are a distinct class and cannot be clubbed with general policies of allotment of plot -- Direction issued to the HUDA to consider the claim of the petitioner in the reserved category of oustees. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of plot -- Decision to restrict allotment of a plot to an oustee in a sector in which his land was acquired, was given go-bye through a policy dated 28.8.1998 – Sometimes the land acquired was for the purpose other than residential, through this policy, a provision was made for allotment of a plot in the next residential sector, which may be floated by HUDA -- Action of HUDA to deny allotment on the ground that the plot is not available in the sector where land is acquired may not be justified in the policy and the reason behind issuing this policy -- This reasoning would equally apply to all the cases under consideration even before this policy came into being. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of plot -- Earnest money – Non-deposit of -- Policy instructions issued on 12.3.1993 -- Oustees claims were rejected on the ground that they had not deposited 10% of the earnest money as was required under the policy -- Estate Officer concerned is to invite the claims through press/News-Papers for allotment of plots under the oustees policy much before floating of Sector -- Then each of the applicant is required to send his application in the prescribed proforma along with the supporting documents and earnest money equivalent to 10% of the cost -- HUDA had not followed the policy to invite claims from oustees separately through press or news-papers -- Claim of the oustees was invited while floating the scheme for allotment of plots in the sector for all eligible persons -- Inviting claim of oustees along with general public is in violation of the policy – Right of the petitioner for consideration for allotment of plot in oustees quota, thus cannot be forfeited on the ground that he had not earlier made application along with cost of 10% -- Direction is issued to HUDA to consider the claims of the petitioners in the reserved category of oustees. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of plot -- Land acquired in 1983 – Claim was filed on 21.8.2000 for allotment of plot under oustees quota alongwith 10% amount of the total price of the plot -- Claim was rejected on the ground that his claim could be considered only for allotment in a sector for which his land was acquired -- Another reason given is that he had delayed too long in making the present approach – Held, responsibility to invite claim of the oustees as per the policy started from 1987 was that of the HUDA -- Not only that respondents were under obligation to invite such applications before floating the sector for general public but it was to be done separately -- Further the respondents were also first required to satisfy the claim of the oustees before even floating the sector – Ground of denial is in violation of the policies -- Direction issued to the HUDA to consider the claim of the petitioner for allotment of a plot under the Oustees quota in the sector in which his land was acquired, if no plot is available in the said sector, the claim shall be considered and satisfied in any of the sectors that may now be under consideration, but in the city of Gurgaon – HUDA can be asked to consider the claim in any of the sectors which may be floated in future. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of plot -- Policies for oustees claim -- Oustees are to be treated as a separate class and their claim can not be considered, alongwith the claim of general public -- Claims of oustees are to be invited by Estate Officer, HUDA before sector is floated -- Policy required of HUDA to invite claim of the oustees separately before floating any Sector -- In fact land losers have option to buy first before applications are invited from the general public -- Claim of allotment of a plot to general public would arise after satisfying the claim of the oustees who have first option to buy -- Once the claim of oustees is invited alongwith general public, the possibility of first satisfying the claim of the oustees would stand defeated -- That is why oustees have been held to be separate and distinct class -- It is because of this that HUDA is required to invite claims of oustees before floating of the Sector. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of plot -- Policies for oustees claim – Earnest money – Deposit of -- Concept of -- Requirement of depositing 10% of the price would arise only if the claims are first invited as per the policies and it has to be through press or news paper -- Price, as per the policy instructions dated 12.3.1993, is to be deposited once the claim is finally accepted by the competent authority and when the sector scheme is floated – In order to set the position right and as one time measure, it is appropriate to direct HUDA to invite claims of all the oustees through an advertisement in the newspaper, giving them sufficient time to make applications -- Those who make applications pursuant to such an advertisement may be asked to deposit 10% of the price, if the plots are still available -- Their claims be considered in the light of the policies formulated by HUDA -- Plots be allotted to such applicants in the Sector for which their land was acquired, if such plots are available in the said Sector or in the adjoining Sector in the terms of the policy and if the plots are still available -- This aspect is made as a one time measure so as to satisfy the claims of those left over either because of ignorance or because of act of HUDA not following the policies in letter and spirit -- HUDA was to keep the claims in a live register which has not been done -- HUDA was to demand 10% price which it has failed to do -- Course as suggested is thus the only fair and appropriate method to set the wrong right. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Allotment of plot -- Policies required of HUDA authority to invite the claim of the oustess separately before floating of sector -- HUDA was required to consider and allow such claims even prior to floating the scheme or at any rate allot these plots to oustees before working out availability of plots for floating the same for general public -- Applications for allotment of the plots were invited from the general public, there were no separate claims invited either through newspaper or press from the oustees – Held, it is clear violation of the policies by the HUDA as framed from time to time -- Government and its instrumentality can not ignore or fail to follow polices formulated and such policies would have binding effect on them -- Claim from the oustees was to be separately invited and could not have been clubbed or joined with the general category -- HUDA directed to allot the residential plot to the petitioner as per his entitlement. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Co-owner – Right of -- Allotment of plot -- Pleas that all the co-sharers would be only entitled to one plot in terms of a policy instruction issued in the year 1993 may be in violation of law laid down by the Full Bench in Jarnail Singh’s case, CWP No.2575 of 2009, decided on 1.10.2010 -- Notification for acquisition was issued on 20.8.1992 -- It would be legally appropriate to direct that each co-sharer is entitled to allotment of a plot individually and the right could not be restricted to allotment of one plot for all the co-sharers. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Delay – Allotment of plot -- In the absence of claims having been invited in proper and appropriate form as per the policy the order rejecting claim may not be sustainable -- Delay cannot be considered fatal -- In such like cases, it will be appropriate to issue some general directions to HUDA to invite claim of all the oustees by issuing a general advertisement in this regard either through press/New-Paper or publication -- Form and sufficient time should be given to the oustees to submit their claim -- As per the schemes, claims of such oustees, who have either not applied or have applied or their claim are under consideration can be so considered, if the plots are still available in Sector for which their land was acquired and if any oustee cannot be adjusted in the sector, then his claim can also be considered for allotment of a plot in any of the adjoining sectors. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Delay in applying – Effect of -- Allotment of plot -- Land was acquired on 27.08.1987 -- Petitioner ultimately has filed a claim on 26.5.2009 along with 10% cost of the plot as earnest money – Claim of the petitioner is being declined only on the ground that the acquisition was prior to 10.9.1987 and as such is not covered by the policy instructions issued on the said date – Policy instructions were issued on 27.3.2000 providing that the claim of all the oustees be considered irrespective of date of acquisition in case the plots are still available for allotment -- Even the oustees have prior right of allotment and after satisfying their claim only the plots would be allotted to other persons – Some plots are still available -- Accordingly, the case is made out for issuing direction to the respondents to consider the claim of the petitioners under the category of oustees in accordance with above noted scheme and plots be accordingly allotted to the petitioners as per their entitlement. Sandeep v. State of Haryana and others, 2011(2) L.A.R. 327 (P&H).

Co-owners – Right of -- Policy for oustees dated 26.9.1994, clause 6(V) -- Clause restricting the allotment of one plot to all co-owners is irrational, arbitrary and with no reasonable nexus with the objective to be achieved and thus, not sustainable -- Clause 6(V) of the Policy dated 16.9.1994 restricting allotment of one plot to all the co-sharers, is illegal and void. Jarnail Singh and others v. State of Punjab and others, 2011(2) L.A.R. 210 (P&H FB).

Policy for oustees dated 26.9.1994 – Law summarized -- Oustees, whose land is compulsorily acquired for a public purpose, form a class in itself, having a rational basis with the object of resettlement -- Clause 6(V) of the Policy dated 26.9.1994 is struck down as it has no reasonable nexus with the objective to be achieved -- A co-owner, as per the eligibility criteria fixed by the State Government, shall be entitled to be considered for allotment of plot irrespective of the fact that his holding of land is joint with other co-owner -- However, the oustees, as a class in themselves, would be entitled to reservation of plots to such an extent as the State Government may deem appropriate -- State Government shall be at liberty to reframe policy for reservation of plots to constitutionally permissible classes and within limit of 50% of plots; and till such time an appropriate policy is framed, the State Government or its instrumentalities shall not allot plots under the oustees quota. Jarnail Singh and others v. State of Punjab and others, 2011(2) L.A.R. 210 (P&H FB).

Rehabilitation and resettlement of landowners, where land has been acquired, has been held to be a facet of Article 21 of the Constitution -- Policy framed by the State Government for allotment of a plot on fulfillment of the eligibility conditions, in fact, is creating a class requiring preferential allotment -- Thus, the oustees form a distinct class, a class whose land has been acquired -- Policy contemplating allotment of plots to the oustees creates a class of persons entitled to preferential allotment than the general public -- Policy of allotment to an oustee, is in fact reservation of plots to such class of eligible erstwhile land owners -- If the oustees do not form a class entitled to reservation of plots, the scheme itself would be hit by the doctrine of equality enshrined by Article 14 of the Constitution of India -- Therefore, the Policy contemplating the plots for oustees is nothing but a reservation of plots for such class. Jarnail Singh and others v. State of Punjab and others, 2011(2) L.A.R. 210 (P&H FB).

Whether certain percentage of plots is required to be reserved for oustees or that the oustees are entitled to preferential allotment of plots first without allotting the same to the general public -- It is on record that 46% of plots are reserved for different categories and if all the oustees, who are eligible as per the eligibility conditions, are allotted independent plots, then there may not be any plots left for the general public -- Acquisition of land is not for settling the land owners, whose land has been acquired -- Public purpose generally is for development of residential and commercial area -- Said public purpose would be defeated if all the plots to be carved out after acquisition are reserved for one or the other category. Jarnail Singh and others v. State of Punjab and others, 2011(2) L.A.R. 210 (P&H FB).

Agreement to sell

Bank loan – Sale deed after discharge of loan – Contingent Contracts – Vendors have agreed to sell the property but agreed to execute the sale deed after discharge of the mortgage in favour of the defendants -- Agreement to discharge the loans of the Bank and handover the original title deeds to the plaintiff cannot be construed as impossible event and it would affect the terms of contract to become void, same cannot be termed as a contingent contract. M/s J.P. Builders & Another v. A. Ramadas Rao & Another, 2011(2) L.A.R. 12 (SC).

Specific performance of – Clause of damages – Effect of -- Agreement does not specifically provide for specific performance -- Nor does it bar specific performance -- It provides for payment of damages in the event of breach by either party -- Provision for damages in the agreement is not intended to provide the vendor an option of paying money in lieu of specific performance -- Therefore, plaintiff will be entitled to seek specific performance (even in the absence of a specific provision therefor) subject to his proving breach by the defendant and that he was ready and willing to perform his obligation under the contract, in terms of the contract. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Specific performance of -- Clause of damages – Effect of -- It is evident from section 23 of the Specific Relief Act, 1963 that even where the agreement of sale contains only a provision for payment of damages or liquidated damages in case of breach and does not contain any provision for specific performance, the party in breach cannot contend that in view of specific provision for payment of damages, and in the absence of a provision for specific performance, the court cannot grant specific performance -- But where the provision naming an amount to be paid in case of breach is intended to give to the party in default an option to pay money in lieu of specific performance, then specific performance may not be permissible. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Specific performance of -- For a plaintiff to seek specific performance of a contract of sale relating to immovable property, and for a court to grant such specific performance, it is not necessary that the contract should contain a specific provision that in the event of breach, the aggrieved party will be entitled to specific performance -- Act makes it clear that if the legal requirements for seeking specific enforcement of a contract are made out, specific performance could be enforced as provided in the Act even in the absence of a specific term for specific performance in the contract. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Pleading -- Evidence of -- To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Pleadings – Evidence -- In a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Ready and willingness to perform – Evidence of -- Marking the presence of plaintiff in the office of Sub-Registrar on 7.6.1979 was only to save the position of plaintiff -- Correspondence clearly established that plaintiff was not ready and willing to get the sale deed executed within the time prescribed or even as on 7.6.1979 which was the last day of the extended period -- Evidence also demonstrates that plaintiff was not in a position to perform the contract as the purchaser had to purchase the stamp paper and that on 7.6.1979, the stamp paper was not purchased; and that the plaintiff had in his bank account Rs.114000 but that amount was not drawn from the bank -- Such evidence is of no assistance in the absence of evidence as to availability of money for purchase and about the readiness and willingness of plaintiff to perform the contract. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Ready and willingness to perform – Pleadings – Evidence of -- A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Ready and willingness to perform – Pleadings – Evidence of -- Even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Ready and willingness to perform – Pleadings – Evidence of -- Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not ‘ready and willing’ to perform his obligations. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Suit for specific performance – Ready and willingness to perform – Evidence of – Power of attorney – Witness of – Value of -- If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue -- A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness -- A third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. Man Kaur (Dead) by Lrs v. Hartar Singh Sangha, 2011(2) L.A.R. 446 (SC).

Acquisition of land

Challenge to -- If the acquisition is intended to benefit private person(s) and the provisions contained in Section 17(1) and/or 17(4) are invoked, then scrutiny of the justification put forward by the State should be more rigorous in cases involving the challenge to the acquisition of land, the pleadings should be liberally construed and relief should not be denied to the petitioner by applying the technical rules of procedure embodied in the Code of Civil Procedure and other procedural laws. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Challenge to -- In cases where the acquisition is made by invoking Section 4 read with Section 17(1) and/or 17(4), the High Court should insist upon filing of reply affidavit by the respondents and production of the relevant records and carefully scrutinize the same before pronouncing upon legality of the impugned notification/action -- A departure from this rule should be made only when land is required to meet really emergent situations like those enumerated in Section 17(2). Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Challenge to -- Pleadings – A reading of the averments contained in the writ petition coupled with the appellants’ assertion that the acquisition of their land was vitiated due to discrimination inasmuch as land belonging to influential persons had been left out from acquisition, but their land was acquired in total disregard of the policy of the State Government to leave out land on which dwelling units had already been constructed, show that they had succeeded in making out a strong case for deeper examination of the issues raised in the writ petition -- High Court committed serious error by summarily non-suiting them. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Challenge to -- While examining the land owner’s challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach, and decide the matter keeping in view the constitutional goals of social and economic justice and the fact that even though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Compensation of land -- Land Acquisition Act, 1894 -- A person whose land is acquired is entitled to: (a) Compensation determined u/s 23(1) of the Act (comprising the market value of the land referred to as the first factor and any damages/expenses referred to as the second to sixth factors under the said sub-section), (b) Solatium at 30% on the market value determined as the first factor under section 23(1) of the Act, (c) Additional amount at 12% per annum of the market value of the land referred to as the first factor under Section 23(1) of the Act, for the period specified in Section 23(2), (d) Interest on the aggregate of (a), (b) and (c) above for the period between the date of taking possession to date of payment/deposit at the rate of 9% per annum for the first year and 15% per annum for the remaining period. State of Punjab v. Amarjit Singh & Anr., 2011(2) L.A.R. 181 (SC).

Delay in challenge – Locus standi -- Power of compulsory acquisition has been used fraudulently, all objections concerning delay in challenging acquisition and locus standi are not sustainable as it is well settled that all actions taken fraudulently are vitiated in law. Harkishan v. Union of India and others, 2011(2) L.A.R. 371 (P&H DB).

Industrial purpose -- Urgency provisions – Objection – Right of --  It is neither the pleaded case of the respondents nor any evidence has been produced before the Court to show that the State Government and/or agencies/instrumentalities of the State are intending to establish industrial units on the acquired land either by itself or through its agencies/instrumentalities – Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4) – Time required for ensuring compliance of the provisions contained in Section 5-A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of acquisition. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Release of land -- Court cannot ignore the releases/wrongs which has become final and the persons have been benefited immensely on accounts of such wrongs by retaining those benefits illegally and this may have to be undone -- To prevent illegal benefit being retained, the Court may quash release or withdrawal from acquisition if the same is held to be vitiated by fraud -- The Court may require the State to recall such release and also to ascertain whether release was for any extraneous consideration and how wrongful gain or wrongful loss can be readjusted -- Released land may be restored to the State or sold in public auction -- State itself may recall its illegal actions -- It may not be possible to lay down any rigid rule as to how relief can be moulded by Court in an individual fact situation -- If order of release is to be cancelled, it may be necessary to hear the affected party by the Court or the authority passing the order. Harkishan v. Union of India and others, 2011(2) L.A.R. 371 (P&H DB).

Release of land -- Many parcels of land were released from acquisition because the land owners had already raised constructions and were using the same as dwelling units -- A large chunk of land measuring 4.3840 hectares was not acquired apparently because the same belong to an ex-member of the legislative assembly -- Appellants had also raised constructions on their land and were using the same for residential and agricultural purposes -- Why their land was not left out from acquisition has not been explained in the counter affidavit filed by the respondents -- High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Structure thereupon -- Expert witness – Expert has not given any specific evidence as to what was the age of the structure -- Cost of construction of the ground floor is always on the higher side while the cost of construction of first floor and second floor is on the lower side, the expert examined has also ignored the said fact -- Only evidence available is the circular issued by the Chief Engineer, regarding District Schedule Rates in respect of cost of construction with reference to Building and Construction Department of State – Cost of construction, which would be admittedly lower in 1983 than in 1991, must also be juxtaposed with the depreciation that would have accrued to the structures owing to wear and tear over a period of 8 years -- In the year 1991, the cost of construction of residential building was Rs.2,800 per square meter for the ground floor and Rs.2,200 per square  meter for the second and third floors -- Deduction of 60 per cent (approximate) from the said valuation of the cost of construction in 1991 would be appropriate, and accordingly arrive at a compensation of RS.1700 per square meter for the structure -- Decision to deduct the said percentage of 60% is based on the Building Cost Index between 1983 and 1991 published by the Central Public Works Department, which reflects the rise in cost of construction over the said period of time. Prabhakar Raghunath Patil & Ors. v. State of Maharashtra, 2011(2) L.A.R. 654 (SC).

Urgency provisions – Objection – Right of --  Land Acquisition Act, 1894 -- Authorities completed the exercise of survey and preparation of documents in one year and almost three months in issuance of notification u/s read with Section 17(1) and 17(4) – Held, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5-A would have defeated the object of acquisition. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Urgency provisions invoked -- Challenge to – Burdon of proof – Pleadings -- Land Acquisition Act, 1894 -- High Court should not literally apply the abstract rules of burden of proof enshrined in the Evidence Act -- Held, an assertion by the appellants that there was no urgency in the acquisition of land; that the concerned authorities did not apply mind to the relevant factors and records and arbitrarily invoked the urgency provisions and thereby denied him the minimum opportunity of hearing in terms of Section 5-A(1) and (2), should be treated as sufficient for calling upon the respondents to file their response and produce the relevant records to justify the invoking of urgency provisions. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Writ jurisdiction – Limitation – In relation to the land acquisition proceedings, the Court should be loathe to encourage stale litigation as the same might hinder projects of public importance – Courts are expected to be very cautious and circumspect about exercising their discretionary jurisdiction under Article 226 or Article 32 of the Constitution if there has been inordinate unexplained delay in questioning the validity of acquisition of land. Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., 2011(2) L.A.R. 284 (SC).

Writ jurisdiction – Limitation -- Writ petition filed 16 years after the award was announced by the Collector, must fail -- It is trite law that delay and laches is one of the important factors which the High Court must bear in mind while exercising discretionary power under Article 226 of the Constitution -- High Court must refuse to invoke its extra-ordinary jurisdiction and grant relief to the writ petitioner. Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., 2011(2) L.A.R. 284 (SC).

Writ jurisdiction

Acquisition of land -- Limitation – In relation to the land acquisition proceedings, the Court should be loathe to encourage stale litigation as the same might hinder projects of public importance – Courts are expected to be very cautious and circumspect about exercising their discretionary jurisdiction under Article 226 or Article 32 of the Constitution if there has been inordinate unexplained delay in questioning the validity of acquisition of land. Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., 2011(2) L.A.R. 284 (SC).

Acquisition of land -- Limitation -- Writ petition filed 16 years after the award was announced by the Collector, must fail -- It is trite law that delay and laches is one of the important factors which the High Court must bear in mind while exercising discretionary power under Article 226 of the Constitution -- High Court must refuse to invoke its extra-ordinary jurisdiction and grant relief to the writ petitioner. Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., 2011(2) L.A.R. 284 (SC).

Appointment of Lambardar -- Criminal case – Acquittal from – Appointed candidate was tried in criminal case, however, was acquitted by Judicial Magistrate, 1st Class much before Lambardari became open -- Revenue officers appointed him Lambardar, after considering his better merit -- No ground to judicially review the orders, in exercise of extraordinary writ jurisdiction. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab & others, 2011(2) L.A.R. 6 (P&H).

Appointment of Lambardar -- Land-holding -- Minor exaggeration in – Choice of the Collector has been upheld by the Financial Commissioner, as the Collector is required to take work from the Lambardar -- No such demerit, such as, pendency of a criminal case or unauthorized occupation of Panchayat land has been pointed out in the case of respondent -- In regard to land holding, minor exaggeration on the part of respondent cannot be a sufficient circumstance to interfere in extra ordinary writ jurisdiction and judicially review the impugned order. Balwinder Singh v. State of Punjab & Others, 2011(2) L.A.R. 52 (P&H).

Mutation -- Mutation proceedings – Challenge to -- Writ petition arising out of summary proceedings of mutation should ordinarily be not entertained and parties should be left to get their respective title decided in a suit for declaration. Shamsher Singh v. Commissioner, Patiala Division, Patiala and others, 2011(2) L.A.R. 524 (P&H).

Suspension of Sarpanch – Review of – Sarpanch was suspended, on account of allegations of illegal possession of her husband on shamilat land -- Illegal possession purportedly had been removed and therefore, application for reinstatement was filed – Sarpanch was reinstated, however, with the stipulation that regular enquiry would be conducted by District Revenue Officer -- Suspension or reinstatement is a temporary measure during the pendency of a regular enquiry -- If misconduct is established after regular enquiry, surely, the authorities would take action as per law -- No interference against an interim arrangement is called for, in exercise of extraordinary writ jurisdiction. Lakhmi Chand v. State of Haryana & others, 2011(2) L.A.R. 40 (P&H).

Suspension of Sarpanch/Panch – Regular Enquiry – Since regular inquiry is pending against the petitioner, therefore, the court not inclined to invoke jurisdiction under Article 226 of the Constitution of India to see the correctness of the suspension order on the basis of preliminary inquiry, wherein petitioner was prima facie found guilty for the charges. Gurcharan Singh, Sarpanch v. State of Punjab and others, 2011(2) L.A.R. 535 (P&H).

26.11.2011

For the first time since its inception, the Greater Mohali Area Development Authority (GMADA) will be offering over 6,000 pre-constructed apartments in Sector 88, Mohali.

The scheme will be launched in the first week of December and allotments will be made through a draw of lots. Possession will be handed over in 30 months from date of draw.


GMADA Chief Sarvjit Singh said the apartments will be spread across 120 acres of land in Sector 88, with at least 50 per cent of the space to be used for open green spaces.


He added that the flats will be distributed in high rise buildings. The number of buildings and storeys in each are yet on decided. “It depends on the various pending clearances for the project,” said Sarvjit.


GMADA will offer one, two and three bedroom flats with size ranging between 500 square feet to 1,500 square feet. All sizes come with an attached but independent entry servant quarter. The price range will be Rs 42 lakh for the smallest flats to Rs 65 lakh for the largest. “Though bank finance will be available we are contemplating a three-year lock-in period on sale after possession so that need stands a better chance than greed,” said Sarvjit.  

Appointment of Lambardar

Age – Land Holding -- Comparative merit – “A” is 47 years of age, B.Sc. pass, owns 138 kanals 4 marlas of land and has 8 certificates in various fields – “B” is 50 years of age, 9th Class pass and owns 99 kanals of land – “C” is 51 years of age, 8th Class pass, owns 46 kanals 8 marlas of land and has served in the Home Guards and has done social service by way of blood donation – Considering the comparative merit, Commissioner, appointed “A” while considering him most suitable to serve as Lambardar -- No legal infirmity in the order passed by the Commissioner. Rajinder Singh v. The Financial Commissioner and others, 2011(2) L.A.R. 9 (P&H).

Appeal/ revision can be admitted after the limitation period if the appellant satisfies the court that he had sufficient cause for not preferring the appeal/ revision within such period -- Delay of every day has to be justified -- No plausible explanation has been given for the undue delay -- Thus the abnormal delay of 2465 days does not deserve condonation and the same is rejected -- Appeal is accordingly dismissed in limine being time barred. Gian Chand v. Deputy Commissioner-cum-District Collector, Hoshiarpur and others, 2011(2) L.A.R. 580 (FC Pb.).

Choice of Collector -- Collector is the best judge in the case of appointment to the post of a Lambardar, his decision can be interfered with only if it is perverse in law and on facts. Mohinder Singh v. Financial Commissioner, Appeals-II, Punjab and others, 2011(2) L.A.R. 416 (P&H DB).

Choice of Collector -- Collector's choice, unless it is vitiated in law and on facts, is not to be interfered in the case of appointment of a Lambardar. Ranjit Singh v. Financial Commissioner, Animal Husbandry, Punjab and others, 2011(2) L.A.R. 399 (P&H DB).

Choice of Collector -- District Collector appointed the respondent being younger candidate, better qualified and having more land -- District Collector ignored the fact that the petitioner was a mature person of 50 years, remained Sarbrah of the deceased Lamabrdar and having good experience of lambardari and that the petitioner was having 2-1/2 acres of land whereas the respondent had 5-1/2 acres of land, out of which he had mortgaged 3-1/2 acre with the Bank – Held, petitioner is more meritorious than the respondent, revision accepted -- Petitioner is appointed as Lambardar. Kashmir Singh v. Khajan Singh, 2011(2) L.A.R. 563 (FC Pb.).

Choice of Revenue Officers – De-merits of Candidate – Non-consideration of -- As a normal course, High court would not interfere with the choice of revenue officers, particularly if the orders are not perverse or arbitrary -- Where however, a significant aspect namely; the demerits of a candidate remains unexplained or unanswered, High court would be obliged to pass appropriate order. Rohtas v. Financial Commissioner, Haryana and another, 2011(2) L.A.R. 588 (P&H).

Choice of the Collector can be interfered with when higher authorities or this Court come to the conclusion that while taking a decision, the Collector failed to take into consideration the relevant factors or based its decision on extraneous considerations or on irrelevant factors not germane therefor. Ram Chander v. State of Haryana and others, 2011(2) L.A.R. 196 (P&H).

Comparative merits -- Petitioner is better qualified, being a graduate, vis-à-vis respondent who is 5th class pass -- Petitioner has more land in the village -- Petitioner is an ex-serviceman and no demerit is attached to the claim of the petitioner -- Petitioner is also younger in age by 9 years as compared to respondent No.4 -- Petitioner is more meritorious as compared to respondent No.4. Didar Singh v. Financial Commissioner (Appeals-II), Punjab & Others, 2011(2) L.A.R. 59 (P&H).

Comparative merits -- Respondent No.3 is 40 years of age, whereas the petitioner is 52 years of age -- Respondent No. 3 has 39 kanals 9 marlas of land and petitioner is having 25 kanals -- Respondent No.3 also has experience as Sarbrah Lambardar, being nephew of the deceased Lambardar -- Other criteria's are by and large comparable – District Collector has taken into account the relevant merit factors while directing appointment of respondent No.3 as Lambardar -- Order passed is perfectly justified -- So far as merits of both the candidates are concerned, in other segments, the respondent No. 3 has an edge. Ranjit Singh v. Financial Commissioner, Animal Husbandry, Punjab and others, 2011(2) L.A.R. 399 (P&H DB).

Conduct of the candidate -- After the appointment was set aside by Commissioner, the appellant could have immediately filed appeal/ revision against the order of the Commissioner (Appeals), but he did not challenge the same and continued to work as Lambardar without any authority for about seven years -- Laxity on the part of revenue authorities for not making a fresh proclamation in the village for filling up the post of Lambardar after the order of Commissioner (Appeals), did not entitle the appellant to work as Lambardar, when he knew that his appointment has been set aside -- District Collector is directed to comply with the order passed by the Commissioner. Gian Chand v. Deputy Commissioner-cum-District Collector, Hoshiarpur and others, 2011(2) L.A.R. 580 (FC Pb.).

Criminal case – Acquittal from – Writ jurisdiction -- Appointed candidate was tried in criminal case, however, was acquitted by Judicial Magistrate, 1st Class much before Lambardari became open -- Revenue officers appointed him Lambardar, after considering his better merit -- No ground to judicially review the orders, in exercise of extraordinary writ jurisdiction. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab & others, 2011(2) L.A.R. 6 (P&H).

Death of Lambardar was required to be reported forthwith so that a Lambardar could be appointed by the Collector, after following due process of law, same, however, was not done – Besides this, respondent No.4 kept on serving as Sarbrah Lambardar for a long period of 12 years -- Considering the conduct having abused the process of law in continuing to serve as Sarbrah Lambardar without there being any order to that effect, such misconduct cannot be supported by way of appointment as Lambardar. Didar Singh v. Financial Commissioner (Appeals-II), Punjab & Others, 2011(2) L.A.R. 59 (P&H).

Defaulter – Candidature of -- Respondent No.2 misled the Collector by making wrong, incorrect and false statement -- He was defaulter at the time of consideration of his candidature – Held, his candidature ought to have been rejected by the Collector, which was wrongly accepted by the Collector as well as by the Financial Commissioner. Ram Chander v. State of Haryana and others, 2011(2) L.A.R. 196 (P&H).

Employee -- Being employed is no bar for the post of Lambardar, but availability of Lambardar to the villagers is of paramount importance -- If the Lambardar is not easily available to the villagers, then he is of no use to the villagers as well as to the administration -- In such cases employment becomes hindrances in the appointment of the Lambardar -- Respondent failed to prove that he can continue with his job and be available to the villagers at the same -- Order of Commissioner whereby he appointed respondent as Lambardar is set aside. Narinder Singh v. Kuldip Singh, 2011(2) L.A.R. 572 (FC Pb.).

Ex-Serviceman – Candidature of -- Ex-Serviceman should be given preference vis-à-vis the other candidate in the matter of appointment of Lambardar, particularly when the post is reserved for the Scheduled Caste community. Jagjit Singh v. State of Punjab and others, 2011(2) L.A.R. 118 (P&H DB).

Fabrication of documents -- De-merits of Candidate – Certificates submitted by respondent no.2, i.e. matriculation certificate and the 8th class certificate, disclose different dates of birth i.e. 7.5.1969 and 1.3.1959 -- Discrepancy in date of birth may be irrelevant for the purpose of eligibility, but assumes significance as one of the certificates is incorrect -- Whether the discrepancy is a bonafide error or a fabrication should have been satisfactorily explained by respondent no.2 or examined by the Commissioner or the Financial Commissioner -- Matter remitted to the Financial Commissioner to decide the revision afresh by taking into consideration the certificates submitted and only after due consideration thereof, pass a fresh order in accordance with law. Rohtas v. Financial Commissioner, Haryana and another, 2011(2) L.A.R. 588 (P&H).

Heart patient – Autorickshaw puller -- Choice of Collector – Interference in -- Commissioner was not justified in interfering in the choice of the Collector, on flimsy ground that a candidate was plying an autorickshaw and was a heart patient -- On such a ground, choice of the Collector appointing a person, who is Ex-Serviceman and also belongs to the community for which the post is reserved, should not have been interfered – Such interference is an arbitrary and perverse. Jagjit Singh v. State of Punjab and others, 2011(2) L.A.R. 118 (P&H DB).

Hereditary claim – Provision giving preference to hereditary claim is ultra-vires the Constitution of India, being violative of Articles 14, 15 and 16 of the Constitution of India -- Held, where other merit parameters are equal, hereditary claim could be considered a favourable factor in view of the fact that a person coming from the family of a lambardar has experience of the functioning of the office -- Petitioner has an edge in context of comparative merit, being more qualified, is appointed as Lambardar. Rajinder Singh v. The Financial Commissioner and others, 2011(2) L.A.R. 9 (P&H).

Land-holding -- Minor exaggeration in – Writ jurisdiction -- Choice of the Collector has been upheld by the Financial Commissioner, as the Collector is required to take work from the Lambardar -- No such demerit, such as, pendency of a criminal case or unauthorized occupation of Panchayat land has been pointed out in the case of respondent -- In regard to land holding, minor exaggeration on the part of respondent cannot be a sufficient circumstance to interfere in extra ordinary writ jurisdiction and judicially review the impugned order. Balwinder Singh v. State of Punjab & Others, 2011(2) L.A.R. 52 (P&H).

Literate candidate -- Petitioner is 4th standard pass and respondent No.2 is also 3rd standard pass -- During the consideration of the candidature by the appellate authority, new Rule 15(i) came into force w.e.f 2.6.2008 providing that candidate for the post of Lambardar should be literate, preferably middle pass -- Rule prescribing qualification shall ordinarily be having prospective effect and cannot be made applicable retrospectively unless provided otherwise -- However, in the peculiar facts and circumstances of the case it would be proper to direct the authorities to call for fresh applications by fresh Munadi and preference should be given to the candidate, who is literate and preferably middle pass. Ram Chander v. State of Haryana and others, 2011(2) L.A.R. 196 (P&H).

Matters to be considered -- Authorities are required to consider, not only the comparative merit of the candidates, but also the demerits in the claim of candidates -- Suitability of a candidate is required to be considered and judged in the context of duties to be discharged by a Headman. Smt. Angrez Kaur v. Financial Commissioner, Animal Husbandry, Punjab & Others, 2011(2) L.A.R. 41 (P&H).

Registration of F.I.R. – Mere registration of FIR against a candidate does not make him ineligible for the post of Lambardar. Kashmir Lal v. Sadhu Ram, 2011(2) L.A.R. 575 (FC Pb.).

Remand back of case – Reasons for -- Petitioner had already been appointed as Lambardar by the Commissioner and Financial Commissioner, recorded a confirmed finding that private respondent cannot be appointed as Lambardar in view of his age -- Contest had been carried to the Commissioner and the Financial Commissioner at the instance of the petitioner and private respondent only – Financial Commissioner remanded back the matter to Collector with the direction that a fresh procedure for appointment of Lambardar be initiated – Held, in the absence of reasons for remand, order is not legally tenable -- Entire issue of appointment of Lambardar cannot be made open without any plausible reason. Randhir Singh v. Financial Commissioner and Principal Secretary to Government, Haryana, Revenue Department & Others, 2011(2) L.A.R. 8 (P&H).

Resident of village – Proof of – Voter of village – Contention that the petitioner was not a voter of the Village and, therefore, was not even eligible to apply for the post of Lambardar -- Contention cannot be accepted. Naresh Kumar v. The Financial Commissioner, Haryana & Another, 2011(2) L.A.R. 1 (P&H).

Residential status -- Driving Licence of the petitioner issued in the year 2003, Ex-serviceman Identity Card, Voters' List for the year 2007 and Ration Card, indicate the residence of the petitioner to be in the village -- In view of the documents referred to above, conclusion drawn by the Collector and upheld by the Financial Commissioner to the effect that the petitioner might be living in another place, is without any basis and foundation. Didar Singh v. Financial Commissioner (Appeals-II), Punjab & Others, 2011(2) L.A.R. 59 (P&H).

Respondent is a Government School Teacher, teaching away from the village and his availability to the villagers is doubtful on a regular basis, moreover he is an encroacher -- Appellant is a young person of 42 years of age and has a Karyana and STD shop in the village, thus he will be easily available to the villagers – Appellant is matriculate and has passed Giani also – Collector appointed appellant as Lambardar, however the Commissioner has wrongly set aside his appointment – Commissioner order set aside and the Collector’s order confirmed. Bakshish Singh v. Bhag Singh, 2011(2) L.A.R. 568 (FC Pb.).

Revisional Power – Remand back of case -- Financial Commissioner remanded back the case to the Collector to verify about the encroachment on panchayat land by the applicants – Held, Financial Commissioner may to seek a specific report from District Collector, in regard to the encroachment by the applicants over Panchayat land and, thereafter, adjudicate and take a decision himself, so as to avoid multiplicity of litigation and delay in the matter. Surinder Kumar v. State of Haryana & Others, 2011(2) L.A.R. 5 (P&H).

Service to nation -- Respondent No.5 had served in Indian Army for the period of more than 15 years, he had participated in three wars in the years 1961, 1965 and 1971 and was awarded Shauraya Chakara for his bravery shown at the time of those wars -- Father of the respondent No.5, who was working as a Lambardar and at whose death vacancy had occurred, also served the nation by participating in the war of independence and the second world war -- Brother of the respondent No.5 also served the nation and retired as a Captain from the Indian Army -- Paternal uncle of respondent No.5 also served the Indian National Army -- In view of the service rendered for the nation by the family of respondent No.5, decoration given to him, by appointing him as a Lambardar of the village, is perfectly justified. Tarsem Singh v. Financial Commissioner and others, 2011(2) L.A.R. 396 (P&H DB).

Unauthorised occupation – Ex-serviceman -- Allegation against the appellant that he was found in unauthorised occupation of the land, which was reserved for a passage during consolidation proceedings – Appellant with a view to remove that evidence, put up earth in the land measuring 1 ft. x 40 ft. -- Merely because the appellant was an Ex-Serviceman, the benefit of appointment cannot be given to him. Ranjit Singh v. Financial Commissioner, Animal Husbandry, Punjab and others, 2011(2) L.A.R. 399 (P&H DB).

Voter of village – Necessity of -- Contention that the petitioner was not a voter of the Village and, therefore, was not even eligible to apply for the post of Lambardar -- Contention cannot be accepted. Naresh Kumar v. The Financial Commissioner, Haryana & Another, 2011(2) L.A.R. 1 (P&H).

Younger age – Education -- Merely because the petitioner is younger in age and is little more qualified would not be a reason enough to upset the choice exercised by the Collector, whereas these facts were duly considered by the Collector. Ajay Kumar @ Mange Ram v. Financial Commissioner, Haryana & others, 2011(2) L.A.R. 531 (P&H).