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CASE NO.:

Appeal (civil) 6840 of 2001

Writ Petition (civil) 256 of 1998

PETITIONER:

HARSH DHINGRA

Vs.

RESPONDENT:

STATE OF HARYANA & ORS.

DATE OF JUDGMENT: 28/09/2001

BENCH:

S. Rajendra Babu, Doraiswamy Raju & K.G. Balakrishnan

JUDGMENT:

[WITH C.A. No. ..6841.../2001 (@ SLP (C) No. 11193/1998), C.A. No. 6842/2001 (@ SLP (C) No.

4762/1998), C.A. Nos.

6843-44/2001 (@ SLP (C) No. 12767-12768/1998), C.A. No. 6845/2001 (@

SLP (C) No.12770 /1998), C.A. No. 6846/2001 (@ SLP (C) No.928/2000), C.A.

No. 6847/2001 (@ SLP (C) No. 1482/2000), C.A. No. 6848/2001 (@ SLP (C)

No. 7128/2000), C.A. No. 6849/2001 (@ SLP (C) No. 7120/ 2000), C.A. No.

6850/2001 (@ SLP (C) No. 7122/2000), C.A. No. 6851/2001 (@ SLP (C) No.

7123/2000), C.A. No. 6852/2001 (@ SLP (C) No. 7117/2000), C.A. No.

6853/2001 (@ SLP (C) No. 7125/2000), C.A. No. 6854/2001 (@ SLP (C) No.

7126/2000), C.A. No. 6855/2001 (@ SLP (C) No. 7119/2000), C.A. No.

6856/2001 (@ SLP (C) No. 7121/2000), C.A. No. 6857/2001 (@ SLP (C) No.

7124/2000), C.A. No. 6858/2001 (@ SLP (C) No. 16857/1999), C.A. No.

6859/2001 (@ SLP (C) No. 19344/1999), C.A. No. 6860/2001 (@ SLP (C)

No. 7127/2000), C.A. No. 6861/2001 (@ SLP (C) No. 7026 /2000), C.A. No.

6862/2001 (@ SLP (C) No. 7030/2000), C.A. No. 6863/2001 (@ SLP (C) No.

12982/1998), C.A. No. 6864/2001 (@ SLP (C) No. 7031/2000), C.A. No.

6865/2001 (@ SLP (C) No. 7013/2000), C.A. No. 6866/2001 (@ SLP (C) No.

7016/2000), C.A. No. 6867/2001 (@ SLP (C) No. 7029/2000), C.A. No.

6868/2001 (@ SLP (C) No. 7018/2000), C.A. No. 6869/2001 (@ SLP (C) No.

7020/2000), C.A. No. 6870/2001 (@ SLP (C) No. 7025/2000), C.A. No.

6871/ 2001 (@ SLP (C) No. 7024/2000), C.A. No. 6872/2001 (@ SLP (C)

No. 7021/2000), C.A. No. 6873/2001 (@ SLP (C) No. 7008/2000), C.A. No.

6874/2001 (@ SLP (C) No. 7019/2000), C.A. No. 6875/2001 (@ SLP (C) No.

7023/2000), C.A. No. 6876/2001 (@ SLP (C) No. 7015/2000), C.A. No.

6877/2001 (@ SLP (C) No. 7027/2000), C.A. No. 6878/2001 (@ SLP (C)

No. 7118/2000), C.A. No. 6879/2001 (@ SLP (C) No. 7116/2000), C.A. No.

6880/2001 (@ SLP (C) No. 7115/2000), C.A. No. 6881/2001 (@ SLP (C) No.

20722/2000), C.A. No. 6882/2001 (@ SLP (C) No. 1979/2001), C.A. No.

6891/ 2001 (@ SLP (C) No. 17246/2001 CC 5241), C.A. No. 6883/2001 (@

SLP (C) No. 12455/2000), C.A. No. 6884/2001 (@ SLP (C) No. 12456/26800),

C.A. No. 6885/2001 (@ SLP (C) No. 12461 /2000), C.A. No. 6886/2001 (@

SLP (C) No. 12463/2000), C.A. No. 6887/2001 (@ SLP (C) No. 7767/2000),

C.A. No. 6888/2001 (@ SLP (C) No. 7900/2000), C.A. No. 6889/2001 (@

SLP (C) No. 4571/2001), C.A. No. 6890/2001 (@ SLP (C) No. 3445/2001]

AND

[With W.P.(C) Nos.267/98, 324/98, 364/98, 423/98, 419/98, 422/98,

420/98, 421/98, 205/2000, 266/2000, 204/2000,230/2000, 267/2000,

220/2000, 247/2000, 261/2000, 231/2000, 221/2000, 219/2000,

275/2000, 227/2000, 240/2000, 241/2000, 245/2000, 269/2000,

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260/2000, 263/2000, 270/2000, 212/2000, 210/2000, 234/2000,

273/2000, 214/2000, 254/2000, 256/2000, 271/2000, 228/2000,

229/2000, 255/2000, 224/2000, 239/2000, 237/2000, 232/2000,

481/98, 236/2000, 252/2000, 492/98, 225/2000, 238/2000, 268/2000,

249/2000, 250/2000, 216/2000, 209/2000, 264/2000, 208/2000,

265/2000, 211/2000, 257/2000, 207/2000, 235/2000, 222/2000,

217/2000, 233/2000, 246/2000, 258/2000, 262/2000, 251/2000,

259/2000, 215/2000, 213/2000, 223/2000, 244/2000, 243/2000,

272/2000, 242/2000, 200/2000, 277/2000, 486/2000, 484/2000,

485/2000, 652/2000, 649/2000, 641/2000, 642/2000, 640/2000,

635/2000, 636/2000, 637/2000, 638/2000, 639/2000, 643/2000,

644/2000, 645/2000, 646/2000, 647/2000, 648/2000, 650/2000,

633/2000, 634/2000, 651/2000, 62/2001, 61/2001, 63/2001, W.P.(C)

No. D13125/2001, D13126/2001, D13127/2001, D13128/2001,

D1407/2001, D1483/2001, D1484/2001, D17472/2000, D13238,

D13544/2001, D20885/2000, D20999/2000, D2103/2001,

D21363/2000, D21364/2000, D21365/2000, D2432/2001,

D253/2001, 3442/2001, D4459/2001, D6384/2001, 6388/2001,

D6391/2001, D9219/2001, 457/2000, 458/2000, 459/2000, 460/2000,

461/2000, 462/2000, 463/2000, D13434/2001, D13435/2001,

D13543/2001, D13838/2001, D13930/2001, D14842/2001,

D15311/2001, D15312/2001, D15315/2001, D15314/2001,

D13518/2001, D13839/2001, D15313/2001, D13415/2001,

D15700/2001, D15548/2001, D15554/2001, D15782/2001,

D13864/2001 & D15139/2001]

J U D G M E N T

RAJENDRA BABU, J. :

C.A. No. ..6840 .../2001 [@ SLP (C)

No. 10542/1998], C.A. No. 6841/2001 (@ SLP (C) No. 11193/1998), C.A. No.

6842/2001 (@ SLP (C) No. 4762/1998), C.A. Nos. 6843-44/2001 (@ SLP (C) No.

12767-12768/1998), C.A. No. 6845/2001 (@ SLP (C) No.12770 /1998), C.A.

No. 6846/2001 (@ SLP (C) No.928/2000), C.A. No. 6847/2001 (@ SLP (C) No.

1482/2000), C.A. No. 6848/2001 (@ SLP (C) No. 7128/2000), C.A. No.

6849/2001 (@ SLP (C) No. 7120/ 2000), C.A. No. 6850/2001 (@ SLP (C) No.

7122/2000), C.A. No. 6851/2001 (@ SLP (C) No. 7123/2000), C.A. No.

6852/2001 (@ SLP (C) No. 7117/2000), C.A. No. 6853/2001 (@ SLP (C) No.

7125/2000), C.A. No. 6854/2001 (@ SLP (C) No. 7126/2000), C.A. No.

6855/2001 (@ SLP (C) No. 7119/2000), C.A. No. 6856/2001 (@ SLP (C) No.

7121/2000), C.A. No. 6857/2001 (@ SLP (C) No. 7124/2000), C.A. No.

6858/2001 (@ SLP (C) No. 16857/1999), C.A. No. 6859/2001 (@ SLP (C) No.

19344/1999), C.A. No. 6860/2001 (@ SLP (C) No. 7127/2000), C.A. No.

6861/2001 (@ SLP (C) No. 7026 /2000), C.A. No. 6862/2001 (@ SLP (C) No.

7030/2000), C.A. No. 6863/2001 (@ SLP (C) No. 12982/1998), C.A. No.

6864/2001 (@ SLP (C) No. 7031/2000), C.A. No. 6865/2001 (@ SLP (C) No.

7013/2000), C.A. No. 6866/2001 (@ SLP (C) No. 7016/2000), C.A. No.

6867/2001 (@ SLP (C) No. 7029/2000), C.A. No. 6868/2001 (@ SLP (C) No.

7018/2000), C.A. No. 6869/2001 (@ SLP (C) No. 7020/2000), C.A. No.

6870/2001 (@ SLP (C) No. 7025/2000), C.A. No. 6871/ 2001 (@ SLP (C) No.

7024/2000), C.A. No. 6872/2001 (@ SLP (C) No. 7021/2000), C.A. No.

6873/2001 (@ SLP (C) No. 7008/2000), C.A. No. 6874/2001 (@ SLP (C) No.

7019/2000), C.A. No. 6875/2001 (@ SLP (C) No. 7023/2000), C.A. No.

6876/2001 (@ SLP (C) No. 7015/2000), C.A. No. 6877/2001 (@ SLP (C) No.

7027/2000), C.A. No. 6878/2001 (@ SLP (C) No. 7118/2000), C.A. No.

6879/2001 (@ SLP (C) No. 7116/2000), C.A. No. 6880/2001 (@ SLP (C) No.

7115/2000), C.A. No. 6881/2001 (@ SLP (C) No. 20722/2000), C.A. No.

6882/2001 (@ SLP (C) No. 1979/2001), C.A. No. 6891/ 2001 (@ SLP (C) No.

17246/2001 CC 5241), C.A. No. 6883/2001 (@ SLP (C) No. 12455/2000), C.A.

No. 6884/2001 (@ SLP (C) No. 12456/26800), C.A. No. 6885/2001 (@ SLP (C)

No. 12461 /2000), C.A. No. 6886/2001 (@ SLP (C) No. 12463/2000), C.A. No.

6887/2001 (@ SLP (C) No. 7767/2000), C.A. No. 6888/2001 (@ SLP (C) No.

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7900/2000), C.A. No. 6889/2001 (@ SLP (C) No. 4571/2001), C.A. No.

6890/2001 (@ SLP (C) No. 3445/2001]

Leave granted in all SLPs.

These appeals are directed against an order made on 21st March,

1997 in a batch of cases wherein the scope of Section 30 of the Haryana

Urban Development Authority Act, 1988 came up for consideration. The

High Court of Punjab & Haryana held that the Government can make

reservation of plots while making development of the urban estates but

that power is not limited. However, the argument that the absolute

power could vest in the Chief Minister in allotment of plots according to

his discretion and choice and such discretion is immune from judicial

scrutiny is rejected and the High Court stated that the distinguished and

needy people in all walks of life can be granted land only on the basis of

some guidelines and indicated that the Government of Haryana may

frame appropriate policy for allotment of plots to specified class of

persons and notify such policy and allotment under such policy should

be made by inviting applications through public notice from all those

who belong to a particular class. However, in respect of certain

allotments that had already been made the High Court indicated that

certain class of persons such as those who are bona fide purchasers who

had constructed houses and other buildings, original allottees who had

constructed buildings after permission from HUDA, members of the

armed forces, police personnel who fought against terrorism, civilians

who were affected by the terrorists activities and allottees of plots to

whom small extends have been granted and the High Court gave certain

directions in that regard. This decision is reported in Anil Sabharwal vs.

State of Haryana & Ors., 1987 (2) PLR 7.

On an earlier occasion, a Division Bench of the High Court of

Punjab & Haryana in S.R. Dass vs. State of Haryana, 1988 PLJ 123,

examined an identical question and formulated certain principles on

which such allotments could be made with certain conditions and that

order was made on 20th January, 1988. For nearly a decade, the

decisions were taken by the Government of Haryana in terms of the

decision in S.R.Dasss case referred to above. An argument was

submitted before the High Court that in view of this particular feature of

this case that the matter had been earlier judicially considered and

certain guidelines were given to the Government in the matter of making

discretionary allotment to an extent of 5 per cent and that new principles

have been set out in Anil Sabharwals case and, therefore, the

submission was made before the High Court that the decision should be

made effective prospectively. The High Court, however, found no good

reason to hold the allotments made by respondent No. 3 in the case

under the discretionary quota should be remained undisturbed. The

High Court also stated that the doctrine of prospective overruling cannot

be applied because such power can be invoked only by this Court and

not by the High Court.

The matter was carried in appeal to this Court. This Court by an

order made on 7.5.1997 dismissed the same subject to certain

observations. Thereafter, the High Court took steps by directing issue of

a public notice in regard to certain aspects of the case pursuant to the

observations made by this Court. At that stage, the HUDA filed S.L.P.(C)

No.11238 of 1997 and this Court, by an order made on 7.7.97, gave

certain clarifications and stated that in addition it is also expedient that

any remaining allotments of the kind which have been cancelled by the

High Court should also be treated alike. Thereafter in C.A.No. 8637 of

1997 [HUDA & Anr. vs. Anil Sabharwal & Ors.], this Court made an

order on 5.12.1997 to the following effect:

Leave granted limited to the question indicated in our order dated

7.7.1997.

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The grievance of the appellants is that our order dated 7.5.97 in

Sanjay Jain vs. Anil Sabharwal & Ors. [SLP(C) ../97 (CC.4325

/97] has been misconstrued to mean that the legality of allotment

of plots made under the discretionary quota even prior to

31.10.1989 has been directed by that order to be reopened and

examined. It is submitted that such a misinterpretation results

from a misconstruction of certain words in that order, namely:

We are constrained to observe that the accountability of the

authorities who are responsible for making these arbitrary

allotments which have been rightly cancelled by the High

Court needs to be examined after their identity is fixed in

an appropriate proceeding. In addition, it is also expedient

that any remaining allotments of the kind which have been

cancelled by the High Court should also be treated alike.

This exercise has not been performed by the High Court in

the present case. It is, therefore, expedient that as a follow

up action, the High Court should proceed to complete the

exercise.

It is sufficient for us clarify that by the above order dated 7.5.97

this Court upheld cancellation of the allotments out of the

discretionary quota made after 31.10.89 and it was further said

that any remaining allotments of the same kind should be treated

alike to complete the exercise. In other words, our order dated

7.5.97 contained the direction to treat all allotments out of the

discretionary quota made after 31.10.89 without any exception, in

order to examine the accountability of the concerned authorities

as also to avoid any discrimination between allottees subsequent

to 31.10.1989. That order was, therefore, concerned entirely with

the allotment made after 31.10.89 and did not refer to any

allotment prior to that date. We consider it necessary to say so to

avoid any possible misinterpretation by this Courts order dated

7.5.97.

We may, however, add that the only question for examination by

this Court in Sanjay Jain vs. Anil Sabharwals case being all the

allotments made subsequent to 31.10.89, our order is also not to

be construed as inhibiting any separate/independent action in

respect of allotments for any other period including period prior to

31.10.89. This appeal is disposed of with this clarification.

[emphasis supplied]

The question for consideration now is in what manner

discrimination between the allottees subsequent to 31.10.89 can be

avoided. In relation to classification made by the High Court, the

grievances are made before us that the same does not take note of cases

of (i) bona fide purchasers, who did not have sufficient funds with them

to start the construction and who have not acquired these plots without

any profit motive; (ii) allottees to whom possession was not handed over

in time for them to commence construction who stand on the same

footing as those in respect of whom exception is made, who have made

construction on the plots in question; (iii) members of armed forces and

Indian Administrative Officers who are also involved in an operation like

Blue Star, the allotments could not be cancelled and the matters will

have to be examined in the light of the same principles as had been done

with reference to those who were in the armed forces and fighting for the

defence of the country; (iv) certain other classes still who are disabled

either on account of serious ill health or such as blindness. These

instances are taken by way of sample by us to indicate that the

classification made by the High Court in respect of whom exception is

made will have to be reclassified or sub-classified or further

classifications will have to be made. That would be carving out too many

exceptions involving a very lengthy and treacherous exercise to be

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sucked in a quagmire from which to extricate oneself will be well nigh

impossible.

Further when the decision of the High Court in S.R. Dasss case

[supra] had held the field for nearly a decade and the Government, the

HUDA and the parties to whom the allotments have been made have

acted upon and adjusted their affairs in terms of the said decision to

disturb that state of affairs on the basis that now certain other rigorous

principles are declared to be applied in Anil Sabharwals case would be

setting the rules of the game after the game is over, by which several

parties have altered their position to their disadvantage. Therefore, we

think that in the larger public interest and to avoid the discrimination

which this Court had noticed in the order dated 5.12.1997 the decision

of the High Court in Anil Sabharwals case should be made effective from

a prospective date and in this case from the date on which interim order

had been passed on 23.4.1996. Therefore, it would be appropriate to fix

that date as the date from which the judgment of the High Court would

become effective. If this course is adopted, various anomalies pointed

out in respect of different parties referred to above and other instances to

which we have not adverted to will be ironed out and the creases

smoothened so that discrimination is avoided.

Prospective declaration of law is a device innovated by this Court to

avoid reopening of settled issues and to prevent multiplicity of

proceedings. It is also a device adopted to avoid uncertainty and

avoidable litigation. By the very object of prospective declaration of law it

is deemed that all actions taken contrary to the declaration of law, prior

to the date of the declaration are validated. This is done in larger public

interest. Therefore, the subordinate forums which are bound to apply

law declared by this Court are also duty bound to apply such dictum to

cases which would arise in future. Since it is indisputable that a court

can overrule a decision there is no valid reason why it should not be

restricted to the future and not to the past. Prospective overruling is not

only a part of constitutional policy but also an extended facet of stare

decisis and not judicial legislation. These principles are enunciated by

this Court in Baburam vs. C.C. Jacob & Ors., 1999 (3) SCC 362, and

Ashok Kumar Gupta & Anr. vs. State of U.P. & Ors., 1997 (5) SCC 201.

These appeals, therefore, stand allowed to the extent indicated

above and declaring that the judgment of the High Court in Anil

Sabharwal vs. State of Haryana & Ors. [supra] shall be effective from

23.4.1996. In the event in any of the cases any allotment has been

cancelled, the same shall be brought in conformity with the order made

by us whether those allottees are parties in these proceedings or not.

The declaration made by us will have a general application. It is also

made clear that allotment orders made prior to 23.4.1996 can be

cancelled if they are not made in conformity with the decision in

S.R.Dass vs State of Haryana [supra], after following due procedure.

The appeals are allowed accordingly modifying the order made by

the High Court in the manner stated above.

W.P.(C) Nos. 256/98, 267/98, 324/98, 364/98, 423/98, 419/98,

422/98, 420/98, 421/98, 205/2000, 266/2000, 204/2000,230/2000,

267/2000, 220/2000, 247/2000, 261/2000, 231/2000, 221/2000,

219/2000, 275/2000, 227/2000, 240/2000, 241/2000, 245/2000,

269/2000, 260/2000, 263/2000, 270/2000, 212/2000, 210/2000,

234/2000, 273/2000, 214/2000, 254/2000, 256/2000, 271/2000,

228/2000, 229/2000, 255/2000, 224/2000, 239/2000, 237/2000,

232/2000, 481/98, 236/2000, 252/2000, 492/98, 225/2000,

238/2000, 268/2000, 249/2000, 250/2000, 216/2000, 209/2000,

264/2000, 208/2000, 265/2000, 211/2000, 257/2000, 207/2000,

235/2000, 222/2000, 217/2000, 233/2000, 246/2000, 258/2000,

262/2000, 251/2000, 259/2000, 215/2000, 213/2000, 223/2000,

244/2000, 243/2000, 272/2000, 242/2000, 200/2000, 277/2000,

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486/2000, 484/2000, 485/2000, 652/2000, 649/2000, 641/2000,

642/2000, 640/2000, 635/2000, 636/2000, 637/2000, 638/2000,

639/2000, 643/2000, 644/2000, 645/2000, 646/2000, 647/2000,

648/2000, 650/2000, 633/2000, 634/2000, 651/2000, 62/2001,

61/2001, 63/2001, W.P.(C) No. D13125/2001, D13126/2001,

D13127/2001, D13128/2001, D1407/2001, D1483/2001, D1484/2001,

D17472/2000, D13238, D13544/2001, D20885/2000, D20999/2000,

D2103/2001, D21363/2000, D21364/2000, D21365/2000,

D2432/2001, D253/2001, 3442/2001, D4459/2001, D6384/2001,

6388/2001, D6391/2001, D9219/2001, 457/2000, 458/2000,

459/2000, 460/2000, 461/2000, 462/2000, 463/2000, D13434/2001,

D13435/2001, D13543/2001, D13838/2001, D13930/2001,

D14842/2001, D15311/2001, D15312/2001, D15315/2001,

D15314/2001, D13518/2001, D13839/2001, D15313/2001,

D13415/2001, D15700/2001, D15548/2001, D15554/2001,

D15782/2001, D13864/2001 & D15139/2001

In the light of the order made by us in the above appeals, these

writ petitions have become unnecessary as the authorities concerned are

bound to bring their orders of cancellation of the allotments made or

notices issued to them for cancellation of the allotments in conformity

with the order made in the above appeals which we have disposed of just

now. Therefore, these writ petitions have become unnecessary and shall

stand disposed of accordingly. No costs.

...J.

[ S. RAJENDRA BABU ]

.....J.

[ DORAISWAMY RAJU ]

....J.

[ K.G. BALAKRISHNAN ]

SEPTEMBER 28, 2001.