Punjab-Haryana High Court
Sh. Rakesh Kumar And Another vs Haryana Urban Development Authority on 31 July, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
CWP No.13201 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.13201 of 2012
Date of Decision: 31.07.2012
Sh. Rakesh Kumar and another ..... Petitioners
Versus
Haryana Urban Development Authority
and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Vinod Gupta, Advocate,
for the petitioners.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The petitioners made the fundamental mistake of entering into an agreement to sell with one Dharamvir Singh original allottee of plot No.98, Sector -19 Part, Sirsa. This agreement to sell is said to be dated 05.03.2010. The allotment in favour of Dharamvir Singh of the 14 Marla plot materialized when letter of allotment dated 25.09.2008 was issued to him. He deposited 15% of the amount of the plot in question. The petitioners claim that they deposited transfer fee pursuant to an application moved by Dharamvir Singh before the Haryana Urban Development Authority (HUDA). On 16.03.2010 the plot in question was transferred in the name of the petitioners and re-allotment letter was issued in their name. The petitioners claimed that they were paying the installments. Possession of the plot was delivered by HUDA on 25.01.2011. On 01.04.2011 the petitioners received a letter from HUDA dated 24.03.2011 asking them to CWP No.13201 of 2012 -2- appear and explain as to why the plot in question should not be cancelled. HUDA meanwhile had discovered that Dharamvir Singh had been allotted four plots under the reserved category and was facing criminal proceedings on lodging an FIR against him. The petitioner states that he appeared before the authority on 01.04.2011 and took the defence that he was a bona fide purchaser for valuable consideration and no fault can be found with him. He contended that protection should be offered to him on account of transfer of the plot to his name after due verification and checking by HUDA. However, the allotment of the plot has been cancelled by HUDA.
Aggrieved by the cancellation order, the petitioners filed an appeal on 10.01.2012 which has been dismissed on 30.05.2012 on the ground that Administrator, HUDA, Hisar is not competent to review the order of his superior i.e. Chief Administrator, HUDA, Panchkula. It cannot be disputed that Dharamvir Singh practiced fraud on HUDA by procuring four allotments in his name contrary to law and HUDA regulations. The consequences of fraud indeed would result in cancellation of allotments. Dharamvir Singh was recipient of allotments in Gurgaon, Sirsa, Panchkula and Fatehabad under reservation of certain plots from paramilitary quota. The present plot was also allotted under the paramilitary quota.
We have heard Mr. Vinod Gupta, learned counsel appearing for the petitioners at some length. In the face of the settled principle that fraud vitiates everything, it is not possible for us to come in the aid of the petitioners as a bona fide purchaser for valuable consideration and without notice since the source of allotment is intrinsically bad. It may be that the Police has found the matter of allotment of more than one plot in the name CWP No.13201 of 2012 -3- of Dharamvir Singh, Assistant Commandant under reserve category as one of civil nature but with that we are hardly concerned. The petitioners would have their remedies against Dharamvir Singh in the manner they choose or are advised but it is not possible for us to restore ownership in favour of the petitioners by setting aside the legal and valid orders of the administrative authorities under Section 17 of the HUDA Act. The vendor suffered from latent disability to transfer the plot by having practiced fraud, deceit and misrepresentation in procuring such allotment from HUDA which was subsequently discovered and rescinded. In Smt. Niranjan Kaur and others vs. The Financial Commissioner Revenue & Secretary to Government, Punjab and others, AIR 2011 Punjab And Haryana 1, the Full Bench of this Court considered such an issue regarding a transferee's entitlement to protection of Section 41 of the Transfer of Property Act in the background of cancellation of an invalid allotment made under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and held that the 1954 Act is a Special Act and Section 41 of the Transfer of Property Act though not applicable within the territorial jurisdiction of this Court but its underlying principles would apply which are in consonance with equity, justice and good conscience would remain subservient to the special law and, therefore, Section 19 of the special Act which confers power on the Managing Officer or Managing Corporation to vary or cancel lease or allotment of any property acquired under the Act if such lease or allotment suffers from legal disabilities and flaws mentioned therein would operate. Since the cancellation was in accordance with the provisions of the special statute, it was held by the Full Bench of this Court that it would override the CWP No.13201 of 2012 -4- provisions of Section 41 of the Transfer of Property Act. In the present case, the transfer was procured by Dharamvir Singh by fraud and misrepresentation. If the basic transfer was fraudulently obtained, we do not see how Dharamvir Singh could pass good title to the petitioners in the absence of conscious knowledge on the part of the HUDA at the time when it permitted transfer under mistake of fact. If it is taken that the vendee had a right to contest as subsequent purchaser without notice and valuable consideration then, we have heard him on merits as well and are of the considered view that the petitioner cannot reap and retain unlawful benefits of an illegal allotment in the hands of the vendor/allottee. We would say this more emphatically because the transfer and allotment to the original purchaser/allottee was not of land from the open market but from reserved quota at concessional rates. The plot was public property prior to allotment and HUDA its custodian and any laxity shown to the petitioner would result in public fraud and deprivation of valuable land to a genuine member of the paramilitary forces for whom the reservation was earmarked.
In view of the above, the transfer of the plot in favour of the petitioner cannot be sustained as conferring any valid title. The cancellation order is therefore upheld. Needless to say that the petition would suffer dismissal. However, the petitioner would be at liberty to seek his private law remedies, if advised, against Dharamvir Singh as are warranted by law.
(HEMANT GUPTA) (RAJIV NARAIN RAINA)
JUDGE JUDGE
31.07.2012
manju