Rajesh Kumar And Ors vs State Of Haryana And Ors
2024 Latest Caselaw 10475 P&H

Punjab-Haryana High Court

Rajesh Kumar And Ors vs State Of Haryana And Ors on 1 July, 2024

Author: Arun Palli

Bench: Arun Palli

                                     Neutral Citation No:=2024:PHHC:080868-DB




             IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

                                                CWP-32827-2018
                                                Reserved on: 07.05.2024
                                                Pronounced on: 01.07.2024


Rajesh Kumar and Others
                                                                   ....Petitioners

                                  Versus

State of Haryana and Others
                                                                  ....Respondents

CORAM: HON'BLE MR. JUSTICE ARUN PALLI
       HON'BLE MR. JUSTICE VIKRAM AGGARWAL

Present:     Mr. Ashish Chaudhary, Advocate, for the petitioners.

             Mr. Deepak Bhardwaj, DAG, Haryana.

             Mr. Arvind Seth, Advocate for respondents No.2 to 4.

             ****

VIKRAM AGGARWAL, J.

1. Petitioners are the legal representatives of Late Mr. Hukum Chand,

who was an Ex-Serviceman, having superannuated from the Indian Army in 1990.

They assail the orders dated 04.04.2018 (Annexure P-15) and 05.09.2018

(Annexure P-18) vide which the claim of the petitioners for the issuance of letter

of allotment of plot No.285-P, Sector 18 (DEF), Rewari (hereinafter referred to as

the 'disputed plot') was rejected.

2. The Haryana Urban Development Authority (now Haryana Shehri

Vikas Pradhikaran) (for short 'HUDA') issued an advertisement for allotment of

residential plots in Defence Sector 18 in District Rewari (Annexure P-1). The

booking was to commence on 01.02.2010 and was to close on 31.03.2010. Mr.

Hukum Chand, father of the petitioners, submitted an application for the allotment

of an 8 Marla plot. While filling up the form, he inadvertently filled up the sub-

category as 'PAFOR' (Paramilitary Force) instead of 'SEEXS' (Serving/Ex-

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servicemen) despite the fact that the main category was 'DEPER' only i.e.

Defence Personnel.

3. Mr. Hukum Chand remained successful in the draw of lots after

which he received a letter dated 22.11.2010 mentioning that he had been allotted

plot No.285-P but had not submitted some documents and that whereas he had

applied in the category of 'PAFOR', he had submitted documents with regard to

defence service (Annexure P-4). The online status of the plot also showed that the

plot had been allotted to Mr. Hukum Chand (Annexure P-5). An affidavit was

submitted by him stating that he had retired as a Naib Subedar from the Indian

Army and that he had no plot/house in any Sector of HUDA (Annexure P-6).

Despite running from pillar to post, the allotment letter was not issued to Mr.

Hukum Chand.

4. Ultimately, Mr. Hukum Chand unfortunately expired on 02.08.2016

after which the petitioners started pursuing the matter with the respondents and

submitted a representation dated 05.06.2017 (Annexure P-12). As on 01.02.2018,

the online status showed that the plot stood allotted to Mr. Hukum Chand

(Annexure P-13).

5. Ultimately, the petitioners preferred CWP-26269-2017 which was

disposed of on 17.11.2017 (Annexure P-14) with a direction to the respondents to

decide the representation moved by the petitioners. The representation was

decided on 04.04.2018 (Annexure P-15) and the claim of the petitioners was

rejected.

6. Aggrieved by the said order, CWP-17195-2018 was filed which was

disposed of on 17.07.2018 (Annexure P-16) giving liberty to the petitioners to file

an appeal against the order dated 04.04.2018. An appeal was preferred which

came to be dismissed on 05.09.2018 (Annexure P-18), leading to the filing of the

instant writ petition.

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7. The basic ground raised in the writ petition is that after the plot

having been allotted to Mr. Hukum Chand, the respondents could not have back

tracked and could not have refused to issue the letter of allotment which was a

mere formality.

8. The writ petition has been opposed by the respondents. In the written

statement filed by respondents No.2 to 4, it has been averred that Mr. Hukum

Chand had applied under the wrong sub-category, as a result of which, though he

had been successful in the draw of lots, the letter of allotment was not ultimately

issued to him and in fact, the allotment stood cancelled. It has also been stated that

no right had accrued to the petitioners merely because Mr. Hukum Chand had

remained successful in the draw of lots. Further the petitioners, being legal

representatives of Mr. Hukum Chand, would have no right to pursue the allotment

of a plot only on the basis of Mr. Hukum Chand having been successful in the

draw of lots.

9. Learned counsel for the parties were duly heard.

10. It was submitted by learned counsel representing the petitioners that a

small inadvertent error made by Mr. Hukum Chand should have been ignored by

the respondents especially since it was only an error and there was no attempt to

conceal anything. Learned counsel submitted that having retired from the Indian

Army from a very low rank and being of old age, there is nothing unnatural in

such like error having been committed by Mr. Hukum Chand. It was submitted by

learned counsel that till today, the online status of the plot shows it to be allotted

to Mr. Hukum Chand and that no loss would be suffered by the respondents if the

said plot is directed to be allotted to the petitioners.

11. On the other hand, learned counsel representing the respondents

submitted that firstly, no right had accrued to Mr. Hukum Chand just on account

of his having remained successful in the draw of lots and secondly even the

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petitioners would have no right to pursue the claim in the capacity of legal

representatives. Reference was made to the judgments relied upon in the

impugned orders as also upon the judgment dated 27.02.2015 rendered by a Co-

ordinate Bench in the case of 'Jagbir Singh Dhanda Vs. Estate Officer, HUDA

and Another' (CWP-9185-2013) decided on 27.02.2015.

12. We have given our thoughtful consideration to the entire issue.

13. The brochure is on record as Annexure P-1 which states allotment of

plots would be through draw of lots. Plots of 1 Kanal, 14 Marla, 10 Marla, 8

Marla, 6 Marla and 4 Marla were to be allotted to Defence Personnel (Serving/Ex-

servicemen), Paramilitary Forces Personnel and War Widows/Disabled Soldiers

(WWDIS). The main reservation category for Defence Personnel i.e. Serving and

Ex-servicemen was 'DEPER' and even for the Paramilitary Forces, the

reservation category name was the same i.e. 'DEPER'. However, the reservation

sub-category name for Serving/Ex-servicemen was 'SEEXS' whereas for

Paramilitary Forces like CRPF, BSF, ITBP, RPF, GSF and CFEF, it was

'PAFOR'. It is an admitted position that though Late Mr. Hukum Chand filled in

the main reservation category as 'DEPER', he filled up the sub-reservation

category as 'PAFOR' instead of 'SEEXS'. It is also an admitted position that he

remained successful in the draw of lots. However, once it came to the notice of the

respondents that the sub-category had been wrongly filled by Mr. Hukum Chand,

a decision was taken not to issue letter of allotment to him. Initially, order dated

04.04.2018 was passed, which was followed by subsequent order dated

05.09.2018. It is now to be seen whether these orders, which are under challenge

in the instant writ petition, are legally sustainable or not. To decide the said issue,

primarily two questions would arise for consideration before us i.e.:-

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(i) Whether any right would accrue to Late Mr. Hukum Chand on his

having been successful in the draw of lots and would the respondents be bound to

issue a letter of allotment once he had remained successful in the draw of lots.

(ii) Whether, after his death, the petitioners would be entitled to pursue

his claim.

14. After considering the matter from all angles, we find that the answer

to both the aforesaid questions is in the negative.

15. It is by now well settled that merely because an applicant remains

successful in the draw of lots, it would not clothe him with any right whatsoever

for the issuance of a letter of allotment. Reliance in this regard can be placed upon

a judgment of a Co-ordinate Bench of this Court in the case of 'Haryana Urban

Development Authority Vs. Raj Dhulhari', 1998 AIR (P&H) 283 wherein it was

held that a successful applicant in a draw of lots does not get an absolute and

indefeasible right to be allotted land which can be enforced in a Court of law. In

this case, the jurisdiction of the consumer fora had been invoked after which the

matter reached this Court. While setting aside the findings of the Consumer fora,

the Co-ordinate Bench took a view that the right of consideration available to an

applicant can mature into a right to be allotted a plot only if land is available for

allotment, the draw is held and the applicant is successful. It was held that even

after being successful in the draw of lots, the applicant does not get an absolute

and indefeasible right to be allotted land which can be enforced in a Court of law

and that the right, if any, can be claimed by the applicant only if allotment is

physically made by the Competent Authority in accordance with law. Further in

the case of Greater 'Mohali Area Development Authority and Others Vs. Manju

Jain and Others', (2010) 9 SCC 157 the Supreme Court of India also held that the

mere draw of lots does not confer any right to allotment and that it is only a mode,

method or process to identify the allottee and is not an allotment by itself. It was

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held that mere identification or selection of the allottee does not clothe the person

selected with a legal right to allotment. A similar view was taken in the case of

'Ashok Kumar Vs. State of Punjab' (CWP-8110-2012) decided on 05.09.2012.

16. Reverting to the facts, it has duly been mentioned in the order dated

04.04.2018 that even a committee had been constituted vide order dated

29.06.2012 to consider the facts of each case. The said committee, after examining

the original applications, sent its recommendations and as regards Mr. Hukum

Chand, it was recommended that he had wrongly mentioned the sub-category code

as Paramilitary Forces and was, therefore, not eligible as per the terms and

conditions of the brochure. It, therefore, recommended that the allotment be

cancelled. It is also an admitted position that no letter of allotment had been issued

to Mr. Hukum Chand. If one considers the factual matrix as has been noticed in

the preceding paragraphs and the law on the subject, there remains no doubt that

merely because Mr. Hukum Chand had remained successful in the draw of lots, he

was not clothed with any right for allotment of a plot.

17. Coming to the second issue i.e. whether the petitioners can claim

allotment being legatees of their father, the same has been conclusively answered

by a Co-ordinate Bench in the case of Jagbir Singh Dhanda (supra):-

"The argument of the petitioner is that right of allotment of a plot is a right in property, therefore, it is a heritable right. We do not find any merit in the said argument. The rights which are heritable are specified in Section 306 of the Indian Succession Act 1925. It reads as under:-

"306. Demands and rights of action of, or against deceased survive to and against executor or administrator.--All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the

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relief sought could not be enjoyed or granting it would be nugatory."

In view of the aforesaid provisions the "right to prosecute or defend any action" would arise only if there is concluded contract which has come into existence during the lifetime of a person. No such right fructified during the lifetime of the father of the petitioner. Prior to concluded contract, it was a personal right to apply as a candidate belonging to reserved category. A legal heir will be entitled to benefit of reservation only if he also satisfies the conditions of eligibility as a reserved category candidate. It was a personal right which died with the father of the petitioner. The petitioner as a legal heir of his father cannot claim the benefit of reservation of plots meant for advocates, in the absence of a contract or a right to plot."

Since there was no concluded contract in the present case also, the petitioners, in

the considered opinion of this Court, would not get any right to seek allotment of a

plot for which an application had been moved by Mr. Hukum Chand and who had

remained successful in the draw of lots. Though, in the case of Jagbir Singh

Dhanda (supra), the applicant had expired before the draw of lots but that too

would not make a difference since the question would remain the same; there

being no concluded contract in that case as also in the present case.

18. Considering the fact that the online status of the disputed plot still

shows the same as having been allotted to Mr. Hukum Chand, we, for once, were

inclined to direct that the respondents consider allotting the plot to the petitioners

especially since a Co-ordinate Bench had also expressed a similar concern while

disposing of CWP-17195-2018 (Annexure P-16). However, since the respondents

were not willing to make any allotment in view of the decision taken by the

authorities, we are also dissuaded to interfere in view of the factual position as

also the position of law as has been noticed in the preceding paragraphs.

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For the reasons aforementioned, we do not find any merit in the

instant writ petition and the same is accordingly dismissed.

(ARUN PALLI)                                         (VIKRAM AGGARWAL)
   JUDGE                                                   JUDGE

Reserved on: 07.05.2024
Pronounced on: 01.07.2024
Prince Chawla
                 Whether speaking/reasoned :               Yes/No.
                   Whether reportable :                    Yes/No.




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