Union Territory Vs. Parmod Kumar and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is well within its rights to enrol as many members provided such members agree to fulfil all conditions as stipulated in the rules. there is no other stipulation in the scheme of 1979 as well as of 1983. so, i find no merit in the plea of the respondent that since the petitioners have been enrolled after 31-12-1981 they cannot be allotted plots/sites. 1 to 4 were not members of the society on 31-12-1981 and, therefore, they were not eligible to be allotted plots under the 1979 scheme and they could, at best, claim allotment of flats under the 1991 scheme. the subsequent policy decisions taken by the chandigarh administration are precisely designed to avoid such consequences. that petition was disposed of on 28-2-1994 with the following directions :after hearing learned counsel for the parties and keeping in view the fact that some members of the society have relinquished their claim for allotment of plot/ flat, we consider it appropriate to issue a direction to the chandigarh administration as well as respondent-society to consider the name of the petitioners for the allotment of plot/flat in accordance with seniority inter se.g.s. singhvi, j. 1. shantivan cooperative house building society limited (for short the society) was registered on 3-1-1981 with the registrar co-operative societies, chandigarh. it submitted an application dated 29-9-1981 for allotment of land under the chandigarh allotment of sites to co-operative house building societies scheme, 1979 (hereinafter referred to as the 1979 scheme). the competent authority of chandigarh administration allotted land to the society in two lots subject to the conditions incorporated in the allotment letters. the society deposited the entire price enumerated in the allotment letters. four of its members, who were allotted 10 marla plots each, did not avail the allotment and, therefore, those plots were allotted to respondents no. 1 to 4. they deposited the price of the plots but the papers relating to the allotment were not sent to the concerned authorities for sanctioning of allotment. this led to the filing of civil suit which was decreed on 31-3-1993 by the trial court. thereafter, the society forwarded their cases to the estate officer for approval of allotment. vide memo no. 27820/m-9/gvi dated december 20, 1993, the estate officer, union territory forwarded the request of the society to the finance secretary, chandigarh administration who appears to have forwarded the same to the administrator, union territory chandigarh. by an order dated november 23, 1994, the adviser to the administrator, union territory, chandigarh conveyed the decision of the administrator declining the request of respondents no. 1 to 4 for allotment of plots on the ground that the action of the society was contrary to clause 14 of the letters vide which land had been allotted to it by the chandigarh administration.2. respondents no. 1 to 4 filed civil writ petition no. 17812 of 1994 for quashing of the order dated 23-11-1994 on the ground that it is ultra vires to the 1979 scheme and also violative of their fundamental right to equality guaranteed under article 14 of the constitution of india. in support of their case, respondents no. 1 to 4 relied on the provisions the 1979 scheme, memo no. 4797-utfu (2)-85/13375 dated 17-9-1985, memo no. 442-utfi(2)-87/1403 dated 3-2-1987 sent by the finance secretary, chandigarh administration to the estate officer, chandigarh and the order dated 28-2-1994 passed by the high court in civil writ petition no. 2450 of 1993, avtar sheoran v. union territory, chandigarh. copies of these documents were filed as annexures with the writ petition. the non-petitioner no. 1 (appellant herein) contested the writ petition and justified the rejection of the request made by the society for approval of the allotments made in favour of the petitioners. in the written statement on its behalf, it was averred that the members of the society, who were enrolled after 31-12-1981, are not entitled to allotment of plots and they can be considered only for allotment of fiats.3. the learned single judge accepted theplea of the respondents and allowed the writpetition by making the following observations :-- 'the only dispute pertains as to whether the society could enroll/substitute members in place of persons who cease to be members on account of death, resignation etc., and if so whether such members could become entitled to the allotment of plots which had fallen vacant. society duly registered under the registration of societies act performs its function as per its own rules, regulations and bye-laws. it is well within its rights to enrol as many members provided such members agree to fulfil all conditions as stipulated in the rules. thus once a person applied to be enrolled as a member and agrees to fulfil all conditions with regard to his enrolment, payments, the society has unhindered rights to enroll such persons as members. on the petitioners becoming members of the society their names were forwarded to the respondent for allotment of four plots as the petitioners alone were seniors as per list of members. this prayer has been declined only on the ground that these members have been enrolled after the cutoff date i.e. 31-12-1981. counsel for the respondent has not been able to satisfy me as to the rationale of the cut off date nor could bring it to my notice the precise communication which was addressed to the society debarring it from enrolling any new members after 31-12-1981. even the copy of the allotment letter out of which clause 14 has been referred to, has not been annexed with the written statement. as per scheme floated by the respondent for allotment of sites to co-operative housing societies, all it provides is that none of the members of this society owns a dwelling unit or a residential structure at manimajra, panchkula or s.a.s. nagar, mohali either in his own name or in the name of his wife/husband or any of his dependent relation including unmarried children or as a member of huf either on free hold or on lease hold or on higher purchase basis. scheme further lays down the norms for allotment of these plots, keeping in view the monthly income of each one of the group of members. so, such persons, can be enrolled as members of the society who do not own a dwelling unit or a residential structure in any of the places mentioned above. there is no other stipulation in the scheme of 1979 as well as of 1983. so, i find no merit in the plea of the respondent that since the petitioners have been enrolled after 31-12-1981 they cannot be allotted plots/sites. in fact, in somewhat similar circumstances this court in cmp no. 2450 of 1993 gave a direction to the chandigarh administration to consider the names of the petitioners of that writ petition for allotment of plot/flat in accordance with seniority inter se.'4. shri subhash goyal relied on the provisions contained in the 1979 scheme, the chandigarh allotment of land to co-operative house building societies scheme, 1991 (hereinafter referred to as the 1991 scheme) and clause 14 of the allotment letters issued in favour of the society and argued that the order under appeal should be set aside because it suffers from an order of law apparent on the face of it. learned counsel further argued that respondents no. 1 to 4 were not members of the society on 31-12-1981 and, therefore, they were not eligible to be allotted plots under the 1979 scheme and they could, at best, claim allotment of flats under the 1991 scheme. he submitted that the persons who became members of the society after the cut-off date i. e. 31-12-1981 could not have been considered eligible for allotment of plots. according to shri goyal, clause 14 of the allotment letters issued by the competent authority of the chandigarh administration prohibited allotment of land to the persons whose names were not included in the list supplied by the society and, therefore, the respondents nos. 1 to 4, who became members of the society on 4-7-1989 were not eligible for allotment of land.5. shri viney mittal, counsel for respondents no. 1 to 4 supported the order passed by the learned single judge by arguing that the 1979 scheme does not specify any cutoff date of determination of eligibility of the members for allotment of plots and, therefore, clause 14 of the allotment letter cannot be a bar to the allotment of plots to those who became members of respondent no. 5 after 31-12-1981. learned counsel relied on the memo dated 17-9-1985 issued by the finance secretary, chandigarh administration and argued that having allowed the society to fill up the vacancies of those members who dropped out after the allotment of land, the authorities cannot question the right of respondents no. 1 to 4 to be allotted plots. shri mittal referred to the memo dated 3-2-1987 issued by the chandigarh administration in the case of haryana ias officers co-operative house building society and argued that if the said society could be given right to determine the eligibility of its members, the right of the society to determine the eligibility of respondents no. 1 to 4 to be substituted in place of those who did not accept the allotment cannot be questioned. shri mittal also made reference to the memo dated 4-5-1999 issued by the finance secretary, chandigarh administration on the subject of allotment of left-over plots and argued that even though that memo has been issued during the pendency of the appeal, the benefit of the rationale of the policy framed by the administration should be given to the respondents.6. we have thoughtfully considered the respective submissions. paragraph 5 of the 1979 scheme (as amended vide notification no. 229-uifi (3)-83/1341 dated 27-1-1983), clause 14 of the allotment letter dated 15-1-1986 issued by the assistant estate officer, the extracts of letter no. 5570-utfi(2)-86/1304 dated 30-1-1987, memo no. 4997-utfi (2)-85/13375 dated 17-9-1985, memo no. 442-utfi (2)-87/1403 dated 3-2-1987 and memo no. 998-utfi (4)-99/5032 dated 4-5-1990 on which reliance has been made by the counsel for the parties and which have bearing on the decision of this appeal read as under :--'paragraph 5 of the 1979 scheme : eligibility -- a society shall be eligible to apply for allotment of a site only if each of its members fulfils the following conditions :- (i) he shall be a bona fide resident of the union territory of chandigarh for atleast three years immediately preceding the date of application ; or(if) he shall be an employee of the central government stationed at chandigarh; or (iii) he shall be an employee of the union territory of chandigarh or the state of punjab/haryana or any corporation owned or controlled by the central/state govts. referred to above; or(iv) he shall be retired from service of govt. and corporations referred to above having retired within three years prior to the date of application. provided that no society shall be eligibility for allotment of a site under these rules, if any, of its members already owns a dwelling unit or a residential structure at chandigarh, manimajra, panchkula, s.a.s. nagar (mohali) either in his own name or in the name of his wife/husband or any of his dependent relations including unmarried children or as a member of huf either on free hold or lease hold on hire purchase basis.clause 14 of the allotment letter:the society should allot the plots to its members category-wise. a copy of allotment letter each may be sent to this office. if the allotment of plot is made to some other persons whose names are not included in the list supplied by the society, the allotment of the said plot will be cancelled and earnest money forfeited.extract of letter no. 5570-utfi(2)-86/1304 dated 30-1-1987 : fromthe finance secretary, chandigarh administration.tothe estate officer, chandigarh administration.no. 5570-utfi (2)-86/1304 dated, chandigarh the 30-1-1987subject: allotment of plots to shanti van cooperative house building society, chandigarh.reference correspondence resting with your memo no. 13328/m-9/g-v, dated 16-10-1986 on the subject noted above.the administration agree with the recommendation contained in your communication under reference for the allotment of 44 plots to the eligible members of the shanti van cooperative house building society, chandigarh provided that the society has deposited 25% of the premium, in respect of all these plots. the eligibility of the members to be substituted by it in place of the ones who have opted out of it shall, however, be determined by the society itself. the names of these members and other relevant details thereof may, however, be obtained by you from the society direct. action may, therefore, be taken accordingly under intimation to the administration. extract of memo no. 4749-utfi(2)-85/ 13375 dated 17-9-1985 :fromthe finance secretary, chandigarh administration. tothe estate officer, chandigarh.memo no. 4749-utfi(2)-85/13375 dated chandigarh 17-9-1985.subject: allotment of land to the cooperative house building societies at chandigarh.reference your no. 19220/n/777/g.v. dated 2-9-1985, on the above subject.2. the idea in mentioning that no additional member would be accommodated was to debar a society to include any additional member in the list which they had supplied to the administration by the appointed day. further the consensus has been that a society may be permitted to substitute a member whose name was not included in the list originally supplied by them provided a member from the original list drops out'and the new member belongs generally to the category which has constituted the cooperative society. to specific, it may be stated that in a society name 'x' if there were 50 members originally given out as 1 to 50 a member figuring at sr. no. 51 drop out. you are advised to take further action in the light of this decision.extract of memo no. 442-utfi(2)-87/1403 dated 3-2-1987 :fromthe finance secretary, chandigarh administration.tothe estate officer, chandigarh.memo no. 442-utfi(2)-87/1403 dated chandigarh 3-2-1987subject: allotment of land to the haryana las officers cooperative house building society at chandigarh.reference correspondence resting with your memo no. 484-m-2/g.v. dated 22-1-1987 on the subject noted above.2. the administration agree with the proposal as contained in your communication under reference for the release of 8 plots of 1 marlas category in sector 44 for the haryana ias officers cooperative house building society at chandigarh to its eligible members 'subject to the condition that the society deposit 2 of the premium in respect of all these plots. the eligibility of the members, to be substituted by it, in place of the ones who have opted out of it, shall however, be determined by the society itself. it is accordingly requested that the names of the members and the other relevant details therein may be obtained from the society at your level direct and the matter may be processed further, under intimation to the administration.extract of memo no. 998-utfi(4)-99/5032 dated 4-5-1999:fromthe finance secretary, chandigarh administration. tothe chief executive officer,chandigarh housing board,chandigarh. memo no. 998-utfi(4)-99/5032dated 4-5-1999subject : 'regarding allotment of flats surrendered by members of co-operative house building societies.kindly refer to your memo no. hb(s)/ cao/50/iii/99/2583 dated 9-3-1999 on the subject mentioned above.2. the matter was discussed with all concerned officers in detail. on thorough examination of the matter, it has been decided that:--(i) the surrendered plots/flats 'cannot' be allowed to remain unallotted. the plots/ flats surrendered by any cooperative house building society should be offered to the seniormost eligible member of the society.(ii) if in case of any doubt regarding the eligibility and bona fides of a member on the waiting list, the same may be referred to the registrar, co-operative societies, who will examine the same and convey his decision.(iii) in order to discourage any irregularities in the enrolment of members and preparation of waiting list, the registrar, cooperative societies must separately evolve a set of clear guide-lines in this regard. he should also ensure that decision of chandigarh administration is implemented in its right spirit and no irregularities/malpractices are committed by any body.'7. a conjoint reading of the conditions of eligibility enshrined in para 5 of the 1979 scheme clause 14 of the allotment letter issued to the society and the policy decisions taken by the chandigarh administration shows that no cut-off date has been specified in the scheme for determination of eligibility of the members. therefore, the appellant could not have refused to approve the alltoments of plots made by the society to the non-official respondents. the doubt, if any, on the issue of induction of new members by way of substitution of the existing members stood clarified when the administration decided to allow substitution of the new members in place of drop-outs. in view of this, the finding recorded by the learned single judge on the issue of entitlement of respondents no. 1 to 4 to be allotted left-over plots cannot be treated as erroneous warranting interference in the letters patent appeal.8. the issue relating to legality of the allotment of plots made to the non-official respondents deserves to be examined from another (sic) admittedly, the administration of the union territory had given land to the society for the purpose of allotment of plots to its members. the 1973 scheme, under which the administration had allotted land to the society, does not contain any provision under which the land of the leftover plots could revert back to the administration. in fact, any such provision or condition would have been declared unconscionable and struck down because the administration had charged full price of the land from the society and after doing that it could not have indirectly resumed a part of the land without paying compensation to the society. we are further of the view that the contention urged on behalf of the appellant should not be accepted because it would lead to wholly inequitable and anomalous consequences i.e. either the land forming part of the unaccepted plots will have to be left vacant or the same would revert back to the chandigarh administration. the subsequent policy decisions taken by the chandigarh administration are precisely designed to avoid such consequences. hence, we agree with shri mittal that the right of the society to determine the eligibility of its members cannot be questioned and the allotment of plots made to respondents no. 1 to 4 cannot be nullified on the premises that they were not members of the society on 31-12-1981.9. the view which we have taken is consistent with the order passed by another division bench in civil writ petition no. 2450 of 1993, avtar sheoran v. union territory, chandigarh a copy of which is available on the record of the writ petition as annexure p5. in that case, the petitioners had prayed for issuance of mandamus directing the respondents to accept the eligible members of the society mentioned in list annexure p-1 for allotment of sites/plots/flats.that petition was disposed of on 28-2-1994 with the following directions :--'after hearing learned counsel for the parties and keeping in view the fact that some members of the society have relinquished their claim for allotment of plot/ flat, we consider it appropriate to issue a direction to the chandigarh administration as well as respondent-society to consider the name of the petitioners for the allotment of plot/flat in accordance with seniority inter se. however, it is clarified that the amount which the petitioners will deposit with the society-respondent no. 4, will be refunded to those members who had relinquished their claim for allotment, and to whom the administration would not object.'this writ petition is disposed of in the abovesaid terms.'10. it has not been shown to us that the administration had filed any appeal against the order passed in that case and, therefore, it is reasonable to presume that the same has become final. in view of this, we do not find any valid ground to upset the order passed by the learned single judge.11. hence, the appeal is dismissed.