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Judgment
V.K. Bali, J.
This order will dispose of Civil Writ Petition Nos. 4221, 9568, 9569 and 9570 of 1992 as common questions of fact and law are involved in all the cases. The facts, however, have been extracted from Civil Writ Petition No. 4221 of 1992 "Vijay Chopra Versus Haryana Urban Development Authority."
Haryana Urban Development Authority (hereinafter referred to as HUDA) invited applications for allotment of residential plots of different sizes in Sector 21 Panchkula. The last date for receipt of applications for general category was 12.2.1987. In response to the invitation of applications, the petitioner applied for purchase of 10 Marlas plot and deposited 10% of the tentative cost. The petitioner was successful in the draw of lots and was allotted plot bearing No. 1444 of 209 square metres on tentative price of Rs. 53,680/. An amount of Rs. 8,052/ was deposited within 30 days from the date of issuance of allotment letter as stipulated. He had since been paying the balance amount in yearly instalments in accordance with the terms and conditions of letter of allotment. Every thing was going on smoothly but vide letter dated 24.10.1991 i.e. after a period of about four years, the petitioner was informed that due to change of drawings of Sectors his plot has been changed from 1444 to 1028C. On receipt of letter aforesaid, the petitioner is stated to have made a representation wherein he objected to the change of site after more than of allotment. He did not get any reply and was, thus, constrained to send a letter to the newspaper and his complaint was published by the Tribune on January 3, 1992 under the head "Our Readers Complain". The petitioner thereafter also kept on representing but when no tangible results were in sight, he has filed the present petition. It has been mainly contended that the change of site after four years of allotment was without issuing notice or hearing the petitioner as also that there was no provision in the Act and the Rules which may empower HUDA to unilaterally change the site of an allottee. It is also pleaded in the petition that as per allotment letter Annexure P1, there was no such term which could legitimately confer any power with the authorities to shift the site as also the petitioner could not be legally deprived of the site duly allotted to him after he was successful in the draw of lots. It is also pleaded that the petitioner had earlier got a plot which was centrally located being in close proximity to the Community Centre, Health Centre and other public amenities, High School and Shopping Centre whereas the later plot allotted to him was at a far off distance where none of the amenities aforesaid were anywhere near and in fact the plot was near Ghaggar rivulet.
In response to the notice issued to HUDA, written statement has been filed and the cause of the petitioner has been opposed. It has been mainly contended that the action complained of was purely executive one where certain changes in the layout plan as per the exigencies of situation had been challenged and the same was not permissible as the wisdom of executive action is not within the purview of judicial review under Article 226 of the Constitution of India unless such action is found to be mala fide, and contrary to some statutory provision or Constitutional guarantee. It has been further averred in the written statement that the change in layout plan at the most is in contravention of the terms of allotment which constitute a contract, and for breach of contract, the petitioner should be shown the doors of the Civil Court. It has also been pleaded that the broucher for allotment of plots in Sector 21 categorically mentioned a note which clearly talked of that the layout plan was purely tentative and subject to variation. Further, in the layout plan dated 12.12.1986 a note was appended that the numbers size and position of the plots and open spaces are subject to site condition/demarcation of site. The change of plot conveyed to the petitioner vide Annexure P6 is, thus, stated to be purely tentative and variation therein till the delivery of possession did not involve any violation of any right of the petitioner. It was within the powers of the authorities to change the site particularly when the exigencies of situation so warranted. In so far as the facts of the case are concerned, the same have been, by and large, admitted.
The petitioner has chosen to file replication controverting the averments made in the written statement and during the course of arguments, the respondent was permitted to file additional written statement which was accordingly filed and the petitioner even filed reply thereto. In the additional written statement, it has been pleaded that the site where the allotment was made to the petitioner had necessarily to be changed on account of the fact that there was revision in the layout plan dated 12.12.1986. After taking possession upon the acquisition of the land, the department conducted survey on the basis of the revenue record to know the existing features of the area. On the basis of survey, a tentative plan was prepared indicating the location of open spaces, the location of community services, the location of residential plots of various sizes, shopping centres etc. A big chunk of land on the eastern side comprised a Government farm owned by the Department of Agriculture, Haryana, the boundaries of which were zig zag. In the year 1985, in the meeting between the Chief Administrator, HUDAcumDirector, Town & Country Planning and Director of Agriculture, the latter verbally consented for the regularisation of the boundaries. In the process of reallotment of boundaries, a substantial area of agriculture farm was sought to be reduced and on that basis, a tentative layout plan dated 12.12.1986 regularising the boundaries of the agriculture farm was prepared and the plots were shown therein. The plan was approved by the Chief Administrator, HUDAcumDirector, Town and Country Planning. However, after the approval of the tentative plan, actual measurements at the spot were carried out in accordance with each of the blocks and a Block Dimension Plan was prepared. After carrying out actual transfer of the blocks, discrepancies, if any, were pointed out and by removing those discrepancies, the final layout plan was prepared. The discrepancies in the present case necessitated location of a large number of plots for two major reasons which have been described as follows :
(a) A large chunk of land under acquisition was involved in litigation initiated by the land owners whose land was sought to be acquired. Those land owners had obtained stay of dispossession from the court. The exact boundaries of the area under litigation were not known at the time of preparation of the tentative plan. While carrying out the physical measurements and preparing the Block Dimension Plan in accordance with the actual boundaries of the area under writ shown as such in both the plans, it became necessary to relocate as many as three major blocks on both sides containing 43 plots and 28 plots which were bordering the area under litigation. A comparison of the tentative and final plan would show that some of the blocks containing large number of plots are to be removed from the original plan and carved out on the basis of the actual boundaries.
(b) Another reason necessitating the readjustment of blocks of plots was that in the original layout plan the area of Govt. agriculture farm was shown to be less on the basis of readjustment of its boundaries as consented by Director, Agriculture Haryana (as stated above) in the year 1985. Assuming that the readjusted boundaries would be acceptable to the Directorate of Agriculture, the tentative plan was prepared and the plots were carved out. Later on, when put to the Directorate of Agriculture, it declined to accept the readjustment resulting in the decrease in the area and for shouting out the differences a number of meetings were held between the officers of the Agriculture Department and those of the HUDA and the Directorate of Town & Country Planning. The matter had been pursued vigorously with the Directorate of Agriculture. A selfcontained letter containing all the facts and circumstances dated 22.9.1988 is annexed at Annexure A2 emphasizing the necessity to persuade the Department of Agriculture to accord its concurrence to the readjusted boundaries. Finally, the matter of readjustment was finalised in the meeting held on 4.10.1988 between all the concerned officers under the Chairmanship of Director of Agriculture, wherein the Director of Agriculture insisted that the reorganisation of the boundaries of agriculture farm should be made ensuring that the total area of the farm is not decreased at all. A copy of the minutes of the meeting dated 4.10.88 is at Annexure A3. On the basis of the said decision, a revised plan of the agriculture farm had to be prepared by granting additional area on the eastern side which necessitated relocation of a large number of plots inasmuch as 30 plots had to be deleted while 7 plots became available. It may be stated here that though the area of agriculture shown in the tentative plan and final plan is different but in the final plan the area of agriculture farm is the same which was in existence earlier. On the basis of the decision taken in the meeting held on 4.10.88, the revised sketch plan of agriculture farm reorganising the boundaries thereof keeping in view of the principle that the total area of the agriculture farm does not decrease was prepared on 6.10.88, a copy of which is at Annexure A4."
It has further been pleaded in the written statement that on account of revision in the layout plan, the authorities have followed a rational criteria so as to prevent any hardship to any allottee. Some of the salient features of the same have been described as under :
(1) That every effort has been made to ensure that a preferential plot or a corner plot is not removed unless the entire block is necessitated to be deleted.
(2) Subject to the availability in the newly carved out plots every effort has been made to replace a preferential plot by a preferential plot. For instance, plot Nos. 472P and 474P have been replaced with plot Nos. 587 AP and 587 UP.
(3) The respondents have tried to ensure that the plots facing open space are allotted the plots which face the open space.
(4) Plots falling on the ''B'' road have been, subject to the availability accommodated on the ''B'' road. For instance, plot Nos. 1331 to 1340 were on the ''B'' road and they have been given plots on the ''B'' road having measurement of 18 metres.
(5) While shifting the block from layout plan to meet the actual measurements, it has been kept in mind that the required deletion is carried out in the serialwise order. Supposing there is a block of 18 plots of 10 marlas size (as in the case of petitioner) having the width of 9.5 metres. The total block requires the width of 85.5 metres (9.5+9). On the spot, it was found while preparing the block dimension plan by carrying out actual measurements that the area available was only 57 metres wide, and thus can accommodate only 6 strips of 2 plots each i.e. 12 plots. Now 6 plots were to be deleted. After leaving 4 preferential plots 14 plots were available for deletion. From the plots facing open space serialwise deletion was carried out in the increasing order. For instance plot Nos. 1442, 1443 and 1444 had to be deleted. Thus three strips comprising 6 plots had to be deleted as instead of 18 plots originally envisaged having 9 strips, only 12 plots were available to be carved out having 6 strips."
Mr. A.K. Chopra, the learned counsel for the petitioner contends that the decision of the authorities for changing the layout plan necessitating shifting of plot of the petitioner from prime location to a remote unimportant place is arbitrary as well as discriminatory. The same, thus, offends Article 14 of the Constitution of India. It has further been argued by Mr. A.K. Chopra, that neither the Haryana Urban Development Authority Act, 1977 nor the rules framed thereunder nor for that manner even the terms and conditions of allotment letter Annexure P1 vest the authorities constituted under the HUDA to change the location of the plot after the same has been allotted to a citizen and, therefore, the letter conveying change of site of the plot earlier allotted to the petitioner deserves to be quashed. On the other hand, Mr. Govind Goyal, learned counsel appearing for the HUDA has sought to defend the action of the respondentauthorities on the ground that no arbitrariness or discrimination is involved in the matter and the site of the plot allotted to the petitioner had necessarily to be changed on account of circumstances which were absolutely beyond the control of the authorities. It is further maintained by him that the petitioner was told in no uncertain terms that the area, size of the plot and the location is tentative and that being so, it was permissible for the authorities to change the location even if there was no such specific power vested in the authorities under the Act of 1977 or the rules framed thereunder. It is further maintained by the learned counsel that in any case the matter involved, at the most, a breach of contract and, therefore, the proper remedy for the petitioner was to vindicate his stand before the Civil Court.
After hearing the learned counsel for the parties, the judgment was reserved. Considering the peculiar facts and circumstances of this case, the pleadings of the parties, the arguments raised in the case time and again, I have come to the conclusion that even though the manner in which the authorities of the respondent moved about in inviting the applications for allotment of plots is required to be condemned yet in moving about the site of allotment and, thus, in shifting the petitioner and others who had to be disturbed because of the fact that the place where they were given plots belonged to Agriculture Department and not in readvertising all the plots may be bordering on capricious exercise of discretion but the same cannot be termed to be one crossing the border, thus, attracting the provisions of Article 14 of the Constitution of India. It is true that there was absolutely no justification to invite the applications without first definitely locating the area and ear marking the land meant and kept for allotment but on the contrary the authorities moved to invite the applications without first definitely ear marking such land being not definite of the land that it could possibly allot as also being conscious of the fact that deliberations with Agriculture Department had not culminated in any definite and enforceable agreement, there was absolutely no justification for the authorities to invite the applications and to play with the fate of aspirants of plots with a view to make homestead but it is not this action which has been called in question in the present writ petition and, therefore, nothing more requires to be said on this point.
The only other question that needs consideration is as to whether in the circumstances the authorities found themselves, it was incumbent upon them to ask the successful allottees to have another draw of lots amongst themselves or to shift only those who were allotted land which did not belong to the authorities. No doubt, the better course would have been to have draw of lots amongst those who were successful as per the nature of plots and the preference of plots allotted to them. In other words, the authorities would have done well to have a separate draw of lots amongst those who applied for 10 marlas and separate draw of lots for 14 marlas and so on. From amongst those who were successful in getting preferential plots on respective areas, there could be draw of lots amongst themselves. This course though open to the authorities was not adopted and instead in its discretion, the authorities thought it better to shift the allottees of only those plots which came to be located in the area not belonging to the HUDA. The question, however, is not as to which of the two courses was better but the same is as to whether the second course adopted was such that may be successfully called in question on the basis of provisions contained in Article 14 of the Constitution of India. In other words, can it be said that the discretion so exercised is capricious and has resulted into arbitrariness. As mentioned earlier, after considering and reconsidering the matter, I have come to the conclusion that it may border on capriciousness but it does not cross that border. Nothing has been pointed out that may show any mala fide on the part of the authorities nor any breach of statutory provisions has been brought to my notice.
Before I part with this judgment, I would like to observe that it shall be open to the petitioner to either get rid of the contract by pleading impossibility of the performance of the contract as originally arrived at and, thus, not being bound by the decision unilaterally changing the site or to seek damages by showing the loss that he may have sustained from the Civil Court. The petitions are, however, dismissed leaving the parties to bear their own costs.