Punjab-Haryana High Court
G.M. Worsted Spinning Mills (P) Ltd. vs Haryana Urban Development Authority ... on 27 August, 1993
Equivalent citations: (1994)106PLR268
JUDGMENT Jawahar Lal Gupta, J.
1. An industrial plot measuring 15 acres was resumed by the Estate Officer, HUDA, Gurgaon vide order dated February 23, 1982. The appeal filed by the appellant was dismissed on May 31, 1982. A suit challenging these orders having been dismissed and the appeal having met the same fate, the appellant has come in this second appeal to this Court. A few facts may be noticed.
2. On April 6, 1976, the appellant, which is a Limited Company incorporated under the Indian Companies Act applied for an industrial plot to the Haryana Urban Development Authority, Gurgaon (hereinafter referred to as the 'HUDA'). This application is on record as Ex. DA. Vide order dated August 26,1976 (Ex. P.2), the plot was allotted to the appellant. Its possession was handed over to the appellant on September 15, 1976. The terms and conditions of allotment were later on conveyed vide a letter dated September 15, 1976. Vide letter dated June 8, 1976 (Ex. P.6.), the Estate Officer HUDA, Gurgaon informed the appellant that the boundaries of the plot had been altered. Thereafter vide letter dated July 2, 1980, (a copy of which is Ex. DW1/2), the appellant sought the permission of the respondent-Authority for the transfer of the plot to M/s Digamber Paper Mills (now Respondent No. 3). While this matter was pending, on November 12, 1980, a notice Ex. D.6 was issued by the Estate Officer informing the appellant that it had committed a breach of the conditions of sale as the construction on the plot had not been completed by September, 1978. Consequently, the appellant was "called upon to show cause within a period of thirty days as to why an order of resumption of the site and/or building and forfeiture of whole or any part of the money, if any paid in respect thereof, should not be made." The petitioner submitted its reply vide letter dated December 20,1980 (Ex. P.9). It was inter-alia stated that "there is no clause in your allotment latter No. 3025 dated 26.8.1976 vide which we were required to complete the construction by 9/78 as stated in your notice under reply." Accordingly, it was prayed that the notice should be withdrawn. Certain correspondence ensued. It is not necessary to make any reference thereto. On May 15, 1981 another notice (a copy of which is on record at p. 309) was issued to the appellant calling upon it to show cause as to why the plot be not resumed on account of the non-payment of the money due. This was followed by a notice dated June 19,1981, under Section 17(3) of the Act. The next day, on June 20,1981, the plot was ordered to be resumed and the amount of Rs. 1.75 lacs which had already been paid by the appellant was ordered to be forfeited. On appeal, the Chief Administrator, HUDA, passed an order dated October 26, 1981 (P.8) setting aside the order of resumption. This was followed by a letter dated Nov. 26, 1981, a copy of which is on record at p. 313, by which the appellant was called upon to appear before the Estate Officer for personal hearing in regard to the notice dated November 12,1980 (Ex.D.6). The appellant actually appeared and submitted an application dated December 17,1981 requesting for the grant of "about two months time for submission of plans..." This request was accepted by the Estate Officer, respondent No. 2, and the following order was passed:-
"Mr. Kapur appeared before me and assured that he will get the plan approved within two months and start the construction soon thereafter. He has also shown quotation for machinery etc. He is given two months time to submit the plan etc. and start the construction.
Sd/-22.12."
3. On the same day, the appellant deposited an amount of Rs. 1.00 lac towards the cost of the plot. This was followed by another deposit of Rs. 1.25 lacs in full and final settlement of the cost of the plot on February 17, 1982 (Ex. P.8). Then, less than a week thereafter, on February 23,1982, the Estate Officer passed the order resuming the plot. The appellant filed an appeal which was dismissed by the Chief Administrator, HUDA vide order dated May 31,1982. This led to the filing of a suit on June 7,1982, out of which the present second appeal has arisen.
4. On June 8, 1982, the Estate Officer allotted the plot to Digamber Paper Mills. On June 16, 1982 (vide Ex. P.5) the appellant's application for transfer of the plot was disallowed. Accordingly the plaint was amended and Digamber Paper Mills was impleaded as defendant No. 3.
5. The appellant challenged the orders passed by defendants Nos. 1 and 2 for the resumption of the plot as being illegal, arbitrary, unconstitutional without jurisdiction and against the principles of natural justice, equity and fair-play. It was inter-alia averred that in the terms and conditions of allotment, it was nowhere provided that the plot could be resumed for failure to complete the construction within a specified time. It is further averred that under the provisions of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as the 'Act') as also the provisions of Punjab Urban Estates Act, 1964, there was no power or authority to resume the plot except for non-payment consideration and for violation of terms and conditions of allotment. Since the terms and conditions had not been violated by the appellant, the order of resumption could not have been passed. Further, with reference to the rules, it was pointed out that Rule 14 was not mandatory and under Section 55 of the Act, an alternative was available which could have been resorted to. It was also claimed that the order was without jurisdiction. It had been passed in a biased manner and was not in conformity with the provisions of Section 17 of the Act. On these averments it was prayed that a decree for permanent injunction restraining the defendants from resuming the plot and forfeiting the consideration money and for reallotting the said plot to another person be passed.
6. The suit was contested by the defendants. In the written statement filed on behalf of defendants Nos. 1 and 2., it was inter-alia averred that Rule 14 of the Punjab Urban Estates (Sale of sites) Rule, 1965 relates to the time within which the requisite construction has to be completed. The allotment letter was issued to the plaintiff-appellant on August 26,1976. In accordance with the provisions of Rule 14 It was required to complete the construction within three years, viz. upto August 26, 1979. It was averred by way of preliminary objection that the Civil Court had no jurisdiction to entertain the suit in view of the provisions of Section 50(2) of the Act. Even if the period of three years was counted from the date of handing over of the possession of the plot, the construction should have been completed by September 7, 1979. The plaintiff-appellant had failed to do so. The order of resumption was legal and valid. It was also averred that the suit was barred by limitation. On merits, it was pointed out that the plaintiff-appellant had violated the provisions of Rule 14 and accordingly the order of resumption and forfeiture of consideration money to the extent of 10% as passed by the appropriate authority was legal and valid. To a similar effect was the written statement filed on behalf of defendant-respondent No. 3.
7. On the pleadings of the parties, the learned trial Court framed the following issues:-
1) Whether the orders dated 23.2.1982 and 31.5.82 passed respectively by defendant No. 1 and 2 are illegal, void, unconstitutional, arbitrary and without jurisdiction, as alleged in para 5 of the plaint ? OPP.
2) Whether the plaintiff is entitled to the relief of injunction as prayed for ? OPP.
3) Whether the jurisdiction of the civil court is barred Under Section 50(1) & (2) of the HUDA ACT 1977 ? OPD.
4) Whether the plaintiff is estopped by its act, conduct and acquiescence from filing the suit ? OPD.
5) Whether the suit is bad for non-joinder and mis-joinder of the parties. If so, to what effect ? OPD.
6) Whether the suit is not valued properly for the purposes of court fee and jurisdiction ? OPD.
7) Whether the suit barred by limitation ? OPD.
8) Whether the suit, is not maintainable in the present form? OPD.
9) Relief.
8. The learned trial Court recorded a finding against the plaintiff-appellant on Issue Nos. 1 to 4. The remaining issues were found against the respondents. As a result the suit was dismissed. The learned lower Appellate Court has also taken the view that in the letter of allotment "there was no stipulation that the appellants would complete the construction within any apecified period. The allotment was made to the appellants on their application (Ex. D.8) wherein Clause 6 provided that they would confirm (to) and abide by the terms and conditions contained in the rules made under the Punjab Urban Estate (Development and Regulation) Act, 1964. In any case, Rule 14 requiring completion of building within a specified period is mandatory and it empowers the competent authority to resume the plot for its violation." On these premises, the Court held that the action was valid. It also found that the appellants have taken no steps for completing the construction and as such it was "a clear case in which there was no intention to build and to say therefore, that lesser sanctions should have been first resorted to is neither here nor there." Accordingly the, appeal was dismissed.
9. In this appeal, Mr. P.P. Malhotra, learned counsel for the appellants has raised a two-fold contention. It has been contended that the action of the defendant-respondent Nos. 1 and 2 was wholly contrary to the provisions of Section 17 of the Act inasmuch as the appellant was not afforded any opportunity to show cause against the impugned action. It has been further contended that resumption of a plot is a weapon of last resort. But in the present case, the authorities have passed it arbitrarily without resorting to the altenative sanctions which were available under Section 55 of the Act. Learned counsel has placed reliance on certain decisions to which a reference shall be made presently.
10. The appeal has not been contested on behalf of respondents Nos. 1 and 2. However, Mr. Jagan Nath Kaushal has appeared on behalf of respondent No. 3 and contended that the suit was wholly barred by the provisions of Section 50 of the Act; the appellant had disentitled itself to any relief by its own conduct and that the order passed by the authority was in complete conformity with the provisions of Section 17 of the Act. Learned counsel further points out that in pursuance to the allotment of the plot to respondent No. 3, about Rs. 2.00 lacs have been spent on construction besides the amount paid to HUDA. According to the learned counsel, respondent No. 3 is a bonafide purchaser and since rights of the third party have intervened, a decree for possession in favour of the appellant should not be passed.
11. It is apt to notice a few provisions of the Act. Section 15 inter-alia contemplates that the HUDA can dispose of "any land acquired by it or transferred to it by the State Government without undertaking or carrying out any development thereon" or any land" after undertaking or carrying out such development as it thinks fit, to such persons in such manner and subject to such terms and conditions as it considers expedient for securing development," Section 16 contemplates the imposition of penality when there is a default in payment of any rent or any other amount due under the Act. Section 17 provides for resumption and forfeiture of money for breach of conditions of sale. Section 17(3) reads as under:-
"(3) If the transferee fails to pay the Amount due together with the penalty in accordance with the order made under sub-section (2) or commits a breach of any other condition of sale, the Estate Officer may, by notice in writing call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building, or both, as the case may be and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the land or building or both, should not be made."
12. A perusal of the above provision shows that when any transferee makes default in payment of any consideration money or any instalment or "any other condition of sale", the Estate Officer can after affording him an opportunity to show cause order for forfeiture of the whole or any part of the money "which in no case shall exceed ten per cent of the total amount of the consideration including interest etc." and also order resumption of the plot or building. Further a specific provision for the grant of personal hearing before the passing of such an order has been made. Aggrieved party has a right to file an appeal before the Chief Administrator.
13. Have the provisions of Section 17 been complied with in the present case ? The sequence of events is that the plot was allotted to the appellant on August 26,1976. Its boundaries were demarcated or finalised on June 8, 1978. On November 12, 1980, a show cause notice was given to the appellant in terms of Section 17(3). On December 20,1980, the appellant had submitted its reply. It was inter-alia pointed out that the appellant had not committed any breach of any condition of sale. On May 15, 1981, i.e. after a lapse of about 5 months a notice was given to the appellant calling upon it to show cause as to why the plot be not resumed on account of non-payment of the amount due. It was actually resumed on June 20,1981, but on acceptance of the Appeal, it was restored to the appellant on October 26, 1981. Thereafter, on December 22,1981 the appellant was given two months time to submit the plan and start construction. Finding that he had failed to do so, the order dated February 23, 1982 was passed ordering the resumption of the plot. A perusal of this order, which is at page 317 of the record, shows that it had been passed on two counts. It was inter-alia observed that "according to the terms and conditions of the allotment you were required to complete the building within 3 years on the said plot, but you failed to do so..." It was further observed that "you assured the undersigned that you will get the plan approved in two months and start the construction soon thereafter, but you failed to get the plans of your factory building approved within the stipulated time i.e. 2 months and start the construction. I consider this non-construction as wilful on your part." On account of these reasons, the order under Section 17(4) of the Act was passed ordering the resumption of the plot and directing the forfeiture of an amount of Rs. 30,996.80 ps. out of Rs. 3.00 lacs paid by the appellant.
14. After noticing the contention of the learned counsel for the parties, the appellate Authority observed that the conditions laid down in the Punjab Urban Estate Rules, 1965 are applicable to the appellant and that he having failed to complete the construction by September 7, 1979, the orders of the Estate Officer resuming the plot and ordering the forfeiture of Rs. 30,966.80 ps. were valid and were accordingly confirmed.
15. A perusal ,of the sequence of events shows that the boundaries of the plot were demarcated only on June 8,1978. It is no doubt correct that the possession of the plot had been initially handed over on September 15, 1976, vide Ex.P.3, but still, unless the boundaries are fully demarcated, it would never be possible for any person to start construction. About 2-1/2 years thereafter, the plaintiff was called upon to show cause as to why the plot be not resumed. In this notice, it was observed that the appellant was required to complete the construction by September, 1978 and since he had failed to do so, he had "committed a breach of the said condition of sale." There was no reference to the provisions of Rule 14 or any other rule in the notice. The appellant had submitted the reply on December 20, 198L On May 15, 1981 another notice was issued to the appellant calling upon it to show cause as to why the plot be not resumed on account of failure to deposit the amount of money due. This was followed by a notice dated June 19,1981, under Section 17(3) of the Act. On the next day, the plot was ordered to be resumed. Vide order dated October 26,1981, the Chief Administrator accepted the Appeal and set aside the order dated June 20, 1981. Vide letter dated Nov. 26, 1981, the appellant was called upon to appear for personal hearing. An application having been made for the grant of about two months for submission of plans, the Estate Officer passed an order granting the requisite time. In the background of this factual position, learned counsel for the appellant contends, and I think rightly that the Estate Officer having extended the time, the notice dated Nov. 12,1980 should be deemed to have lapsed. In any case, the counsel submits, and it appears rightly, that after having passed the order on Dec. 22, 1981, by which the appellant was granted two months time to! submit the plan and start construction, it was entitled to presume that the authority was not taking any action in pursuance to the original notice.
16. There was another circumstance which could have led the appellant to entertain such a belief. A notice had been given to the appellant on May 15, 1981 on a printed proforma. This printed proforma reads as under:-
"Sir/Madam, * Whereas you have failed to pay the amount of Rs. 204781/- due together with the penalty of Rs. 20478/- in accordance with the order dated 26.3.91 made under sub-section (2) of Section 17 of the said Act.
OR * Whereas you were allotted Residential plot No. ________ Sector No._____at_______vide this office letter No.________dated _____According to the terms and conditions of allotment, you were required to complete the construction upon the site years of within the extended period which expired on________but you have failed to do so. You have thus committed a breach of the said condition of sale.
Now in exercise of the powers vested in me by Section 17(3) of the Act, your are hereby called upon to show cause within a period of thirty days as to why an order of resumption of the said and/or building and forfeiture of whole or any part of the money, if any paid in respect thereof, should not be made. You may, if you so wish, also produce any evidence in support of your case."
17. A perusal of this printed proforma shows that two situations have been contemplated, whereunder an order of resumption was sought to be passed. It is either on account of failure to pay the amount of money due alongwith the penalty thereon or the failure to raise the construction. So far as the notice regarding failure to raise construction is concerned, it was specifically crossed out. The ground having been specifically crossed out, the appellant could reasonably presume that the authority is not wanting to proceed further in pursuance to the notice dated November 12,1980. In any case, even if it is assumed that such a belief was unfounded, it is clear that by the order dated December 22, 1981 the appellant was granted two months time for submission of plan and starting construction. It was, thus, implicit that no further action regarding resumption of the plot was contemplated in pursuance to the notice dated November 12, 1980. Still further, even if it is assumed that the authority was entitled to proceed further in pursuance to the notice dated November 12, 1980, I think it was not only desirable, but essential that the appellant should have been called upon to show cause as to why the plot be not resumed as he had failed to submit the plans and start construction in pursuance to the order dated December 22,1981. If such an opportunity had been afforded, the appellant could have explained his position disclosing the circumstances under which the plans could not be submitted and the construction could not be started. The failure to give notice deprived the appellant of an opportunity to put forth its view-point and explain the circumstances which led to its failure to do the needful. It resulted in material miscarriage of justice.
18. Section 17 basically embodies a principle of natural justice. It lays down a mandatory rule of fair play. It provides that before you take the extreme action of depriving a person of his property, you must afford him a due and a reasonable opportunity. The grant of opportunity is not confined to mere submission of a written reply, but even a personal hearing has been provided for. The provisions of Section 17 have not been complied with by the Authority inasmuch as no notice was given to the appellant to show cause against the resumption of the plot after February 21,1982 when the period of two months allowed to it for submission of plans and to start the construction had expired.
19. Mr. Kaushal appearing for respondent No. 3 vehemently contends that the original show cause notice had not lapsed; that the appellant had given an assurance which he had failed to comply with and that it is only after the expiry of two months that the authority had proceeded to pass the impugned order. In this situation, the learned counsel contends that no prejudice can be said to have been caused to the appellant.
20. Having heard learned counsel, I am unable to sustain the plea. A perusal of the order dated February 23, 1982 passed by the Estate Officer shows that it has not been passed only on account of the failure of the appellant to raise the construction within three years, but even the fact that it had been given two months time and that it had failed to get the plans approved within the stipulated time or to start construction has been taken into consideration. Still further this failure has been actually described as wilful. The appellant was never informed either in the original show cause notice or by any subsequent communication that his failure to submit the plans or to start construction was 'wilful'. The authority could not have taken this circumstance into consideration without affording an opportunity to show cause in that behalf to the appellant. Still further, the prejudice to the appellant is apparent. Its failure to submit plans has been taken to be 'wilful' and it has in fact been deprived of a valuable property measuring 15 acres which should be worth several lacs. The serious consequences that followed the impugned order warranted the grant of a full opportunity which has not been afforded to the appellant.
21. Nor can the dismissal of appeal by the appellate authority cure the initial defect in the proceedings. The order of resumption having been passed in violation of the mandatory provisions pi sub-section 3 of Section 17, the mere dismissal of appeal by the appellate authority or the confirmation of an illegal order cannot cure the initial defect. The order being in violation of the mandatory provisions of the statute, was wholly beyond the provisions of Section 17 of the Act. The Estate Officer could have passed the order only after complying with the provisions of Clause (3). He having failed to do so, the order was wholly illegal and its confirmation by higher authority does not make any difference whatsoever to the original action.
22. Still further, Mr. Malhotra points out that the Authority has acted arbitrarily. He refers to a specific case of Smt. Kamal Chopra, she had been allotted a plot on February 9, 1973. On June 21, 1983 i.e. after the lapse of more than 10 years, the Estate Officer, Sonepat had passed an order directing her to start construction of the house within two months. In the order it was specifically observed that "you have to submit map (plan) by 16.7.1983 and you have to start construction by 16.8.1983 failing which, the plot would be resumed." On her failure to do so the plot was ordered to be resumed. The appellate authority had confirmed the order. She approached the High Court in CWP NO. 85 of 1985. (Shrimati Kamal Chopra v. State of Haryana decided on 31st October, 1985 -Editor). The Division Bench of this Court accepted the writ petition and inter-alia held as under-
"On giving our thoughtful consideration to the entire matter, as earlier observed, we find that on the contention raised before us by the learned counsel for the petitioner, this petition deserves to be allowed. A bare perusal of the resumption order, (annexure p.8) goes to show that it is based on the non-compliance of the notices issued to the petitioner in April, 1981 and December 1982. Admittedly, no notice was issued to the petitioner after the non-compliance of the terms as given in Annexure P.6. The plea of the petitioner is that she was never given any possession of the plot in dispute and hence she could not raise construction. Be that as it may, the fact remains that the order of resumption could not be passed without affording an opportunity to the petitioner to explain as to why she had not complied with the terms as given in Annexure p.6. The notices issued in April, 1981 and December, 1982, which had ceased to have any effect, could not legally be made the basis for resumption.
Mr. C.P. Sepra, learned counsel for the added respondent, submits that the plot in dispute has now been allotted to his client and that on that ground alone, the petition maybe dismissed.
It is not disputed that after the allotment, the possession of the plot in dispute has not been given to respondent No. 4. Even otherwise, if the resumption order is bad, then the same has to be struck down irrespective of the fact that later on the plot has been allotted to someone else.
In the view we have taken on the first contention of the learned counsel for the petitioner, it is not necessary to deal with any other contention.
For the reasons recorded, we allow that petition and quash the impugned resumption order dated 5th September, 1983 (Annexure P-8) as well as the appellate order dated 12th March, 1984 (Annexure P.10). In the circumstances of the case, we make no order as to costs."
23. In the circumstances, which are not really different from those of the present case, the Division Bench had taken the view that the notices issued prior to June 21, 1983 when the order, Annexure P.6, was passed by which two months time to submit plans and start construction was granted, the order of resumption could not be passed without affording an opportunity to the petitioner to explain as to why she had failed to submit plans and start the construction. It was further held that the notices issued in April 1981 and December, 1982 prior to the issuance of order dated June 21,1983 (Annexure P.6) had ceased to have any effect and could not legally be made the basis of an order of resumption. Situation in the present case is identical. It must therefore, follow that the notice dated November 12,1980 had ceased to have any effect after the order dated Dec. 22,1981.
24. The order of the Estate Officer suffered from another infirmity also. A perusal of the order shows that the reply submitted by the appellant to the show cause notice has not been considered at all. The notice dated November 12, 1980 had been issued on the hypothesis that the appellant had failed to comply with the conditions of sale. In reply, it was pointed out that there was no condition of sale according to which the appellant may have been required to complete the construction by Sept. 1978. A copy of the condition of sale is on record as Ex.P4. A perusal thereof shows that various conditions have been laid down, but it was nowhere stipulated that the construction had to be completed by a particular date or within a specified time. The failure to do so does not appear to be in violation of the Act. A perusal of the provisions of Section 15 shows that HUDA is entitled to dispose of any land after under taking or carrying out such development thereon or "without undertaking or carrying out any development thereon." It is further provided that such disposal may be made "to such persons, in such manner and subject to such terms and conditions as it considers expedient for securing development." In a case where the land is sold after it is fully developed, the authority may lay down a condition that the construction has to be completed by a particular date or within a specified time. However, in case where the development has not been carried out, the authority may feel that it may not be possible for the allottee to even start construction much less than complete it within a period of three years and as such no condition may be imposed. In spite of being fully aware of Rule 14, the authority did stipulate in the conditions of allotment, so Tar as the present appellant is concerned, that the construction had to be completed within three years. Still further, the demarcation of the site was completed only on June 8, 1978 and yet a notice was given to the appellant calling upon it to show cause (on November 12, 1980) as to why the plot be not resumed as it had failed to complete the construction by September, 1978. It is in pursuance to this notice that the impugned order has been passed. Even in this notice it was nowhere mentioned that the appellant had violated Rule 14 of the Act. If such a notice had been given and violation of Rule 14 had been alleged, it could have possibly been pointed out that the land was not developed and as such it was impossible for anyone to start construction much less than complete it. The only notice given to the appellant was that he had not complied with the conditions of sale. There being no provisions in the terms and conditions of sale that the Construction had to be completed by a particular date and no violation of Rule 14 having been alleged in the show cause notice, the authority acted unfairly in taking the view that the appellant had to complete the construction within three years and it having failed to do so, the plot had to be resumed. Further, it had failed to consider the explanation given by the appellant. No reason was stated for rejecting it. As such I am of the view that even the notice given to the appellant on November 12,1980 did not afford a fair and a reasonable opportunity as contemplated under Section 17. The proceedings that ensued cannot thus be sustained.
25. It is well to remember that an order of resumption can be passed only after strict compliance and in complete confirmity with the prescribed procedure. It is an order which carries very serious consequences. Therefore, the provisions of the statute have to be complied with in letter and spirit. It is in extreme action which should be taken rarely. The prescribed procedure under the statute which is to protect the rights of the citizen should be strictly complied with. The authority having failed to do so, its action, notwithstanding the confirmation of the order by the appellate authority, cannot be sustained. The original order having been passed in violation of the mandatory provisions of the Act, its mere confirmation by the appellate authority cannot validate the proceedings. Accordingly, it is held that the impugned orders had been passed in violation of the provisions of the statute and cannot be sustained. The findings of the Court below on this issue is accordingly reversed.
26. Mr. Kaushal contends that Section 50(2) excludes the jurisdiction of a civil Court. The suit filed by the appellant was wholly incompetent and, therefore, no relief can be given to the appellant. Section 50 provides as under:-
"50. Finality of orders and bar of jurisdiction of Civil courts.
(1) Save as otherwise expressly provided in the Act, every order passed or direction issued by the State Government or order passed or notice issued by the Authority or its officer under this act shall be final and shall not be questioned in any suit or other legal proceedings.
(2) No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter the cognizance of which can be taken and disposed of by any authority empowered by this Act or the rules or regulation made thereunder."
27. A perusal of the above provision would show that the Legislature has attached finality to the order passed under the Act. It is only in respect of an order which may have been passed in accordance with the provisions of the Act that the jurisdiction of the Civil Court has been excluded. In view of the finding that the order was not in conformity with the provisions of the Act, and that it had been passed in violation of Section 17(3), the objection raised on behalf of the respondent that the jurisdiction of the Civil Court is excluded cannot be sustained. The show cause notice and the order passed on the basis thereof were in violation of Section 17. The impugned orders had not been passed in accordance with the provisions of the Act. No finality is attached thereto. The jurisdiction of the Civil Court is thus not excluded.
28. It was then contended that the Court below has found as a fact that the appellant had disentitled itself to the grant of any relief by its own conduct. In view of this finding, it was contended that even now no relief deserves to be given to the appellant. The learned trial court while dealing with issue No. 4 has noticed that the appellant never intended to construct a building on the plot or to start a factory. This inference has been drawn from the fact that since the very beginning, the appellant was actively taking steps to transfer/sell the plot to Respondent No. 3. It also made a reference to the agreement to sell dated June 24, 1980 (Ex. D.3 W2/1) by which the appellant had agreed to sell the plot to Respondent No. 3. In view, of this, it was held that the appellant stopped from filing the suit. This finding has been confirmed by the learned lower Appellate Court.
29. Having heard learned counsel for the parties, I am unable to accept this contention. It is no doubt correct that in the year 1980, an agreement had been executed. Under the policy of the Haryana Urban Development Authority, transfer was permissible. Accordingly, vide letter dated July 2, 1980 (Ex.DWl/2) a request had been made to HUDA for the change of the name and for permission to transfer the plot to Respondent No. 3. However, no order was passed on this application till March, 1981, when the Chief Administrator wrote to the Estate Officer, Gurgaon advising him to "get the balance dues deposited from the original allottee i.e. G.M. Worsted Spinning Mills. In case of default, necessary proceedings be initiated. It is further requested that two plots of 10 acres and 5 acres plot and the proposal be sent to this office." In this letter the subject mentioned was transfer of plot No. 22. Therefore vide letter dated April 4, 1981, the Estate Officer was informed that "It has been decided not to bifercate the plot at present in view of D.I's report. You are, however, requested to insist upon the original allottee i.e. M/S G.M. Worsted and Spinning Mills to deposit the amount due from them. A suitable proposal for the transfer of this plot to M/s Shree Digamber Paper Mills (P) Ltd. at the rate prevailing in the month of December, 1980 i.e. Rs. (.35 per squ. yard,) after giving the credit of the amount already deposited upto date by the original allottee may be set to this office for further consideration." Thereafter till the passing of the order of resumption, no communication was sent to the appellant permitting the transfer. On his own part the appellant had deposited Rs. 2.25 lacs towards the cost of the plot and also taken appropriate action with regard to the proceedings for resumption. This deposit was accepted by the Respondent-authority. The appellant had written no letter repeating its request for the transfer of the plot. In fact, it was almost four months after the passing of the order of resumption and even after the dismissal of the appellant's appeal that a communication dated June 16, 1982 (Ex. P.5) was issued observing that the request for transfer has not been accepted. If the appellant had made a request for the transfer of the plot in July 1980, it could not disentitle him to challenge the order of resumption passed in February, 1982. In my view, the Courts were in error in holding that the appellant was estopped from challenging the impugned orders. Its rights were vitally affected and it had done nothing vis-a- vis the HUDA which could have estopped against the orders of resumption. Accordingly, the finding on issue no. 4 recorded by the Courts below is reversed.
30. The above part of this order was dictated immediately after the arguments had been heard on November 1992. However, when the question of relief arose, the parties were at variance. They prayed for adjournment to address arguments regarding the relief which could be granted in the circumstances of the case. At a later stage, possibility of a compromise either by the bifurcation of the plot in dispute or allotment of an alternative plot was also suggested. Case was initially adjourned to November 25, 1992 but later on several adjournments were necessitated by one or the other reason.
31. Mr. Malhotra on behalf of the petitioner has contended that since the orders dated February 23,1982 and May 31,1982 were passed in violation of Section 17 and the principles of natural justice, the appellant is entitled to the possession of the plot in dispute. Relying on Section 52 of the Transfer of Property Act, he has contended that any transfer of the plot during the pendency of the suit is of no consequence. On the other hand, Mr. Kaushal appearing for Respondent No. 3 submits that the order of allotment in favour of the respondent had not even been challenged in spite of the fact that the plaint had been amended after the passing of that order. Consequently, the allotment made in favour of respondent No. 3 cannot be annulled: He further submits that the appellant has disentitled itself to the grant of such a relief by its own conduct and in view of the provisions of the Specific Relief Act, the injunction for handing over possession cannot be granted in favour of the appellant.
32. Mr. Vashisht, who is present today on behalf of Respondent Nos 1 and 2 stated that the 'authority' would comply with any order that may be passed.
33. After hearing learned counsel for the parties I find that the plaintiff-appellant had instituted the suit on June 7, 1982. Vide order dated June 8, 1982 the plot was allotted to Respondent No. 3. The amended plaint was filed on August 26, 1982. No relief for a declaration that order of allotment passed by the HUDA in favour of Respondent No. 3 being illegal was claimed even in the amended plaint. In such a situation, it would not be just and fair to order that Respondent No. 3 be dispossessed and that the possession of the plot be handed over to the appellant. At the same time, one cannot lose sight of the fact that the order of resumption was passed without granting due and reasonable opportunity to the appellant and the order of allotment of plot in favour of respondent no. 3 was passed during the pendency of the suit. Taking the totality of circumstances into consideration, it appears to be just and fair to direct the HUDA to either allot a plot of the same size viz. 15 acres in the Industrial Estate, phase I, Dharuhera to the appellant in lieu of the plot which was illegally resumed and then allotted to Respondent No. 3. In the alternative, as has been agreed to by the learned counsel for both the parties on instructions from their respective clients who are present in Court, the HUDA should permit, the existing plot to be bifurcated into two equal plots so that each of the parties can set up an independent industry in its share of the plot. However, in case HUDA is not prepared to allow the bifurcation it will be incumbent upon it to allot a plot measuring 15 acres in the Industrial Estate Dharuhera within 3 months from the date of, the receipt of a copy of this order. Mr. Vashisht, learned counsel for the HUDA concedes that the appellant had paid full price of the plot in dispute. Consequently the plot shall now be allotted without any demand for any further payment from the appellant. This would be subject to the condition that if the price of the plot has risen on account of award of the Land Acquisition Court, and other plot-holders in this area have been called upon to pay enhanced price than to that extent, even the appellant shall be liable to pay the difference between the original and enhanced price. It is also clarified that if a plot of 15 acres is available in Industrial Area Phase I, the plot shall be allotted to the appellant in that area. In case a plot is not available in phase I, then the plot shall be allotted in some other phase.
34. The suit is decreed in the above terms. In the circumstances of the case, there will be no order as to costs.