Punjab-Haryana High Court
Sanjay Arora vs State Of Haryana on 13 November, 2000
Author: K.S. Garewal
Bench: K.S. Garewal
JUDGMENT Jawahar Lal Gupta, J.
1. Prior to March 8, 2000, a person who had been allotted a plot by the Haryana Urban Development Authority was entitled to have it transferred to any other person by paying the transfer fee and getting the requisite permission. On March 8, 2000, the Chief Administrator stopped this. It was provided that the allottee shall have to first get a Conveyance Deed executed in his own favour and then sell it to another person. Thus, the registration charges were required to be paid more than once.
2. We have a bunch of eleven petitions. In all these cases the basic issue is - Does the letter of March 8, 2000 even apply to cases in which permission for transfer of the plot had been given prior to the date of the issue thereof. The second question that arises is -Have the respondents acted illegally in cancelling the permission for transfer or the actual 're- transfer' of the plot without the grant of any opportunity to the persons concerned ?
3. Learned counsel for the parties have referred to the facts in C.W.P. No. 7163 of 2000. These may be briefly noticed.
4. The dispute in this case relates to plot No. 1860, Sector 9, Kamal. It was initially allotted to Mr. Sham Lal Sehgal. With the permission of the Haryana Urban Development Authority it was transferred in the name of Mr. Salinder Kumar and his wife Smt. Nirmla Devi. On June 29, 1999 the petitioner entered into an agreement with Mr. and Mr. Satinder Kumar for the purchase of this plot. Vide application dated January 28, 2000 he sought the permission for the transfer of the plot in his name. It has been stated by the counsel that the requisite transfer fee had been paid. The permission was accorded vide order dated March 1,2000. A copy of this communication has been produced as An-nexure P-4 with the writ petition. In pursuance to this permission the petitioner claims to have filed the requisite documents as asked for.
5. On March 8, 2000 the Chief Administrator of the respondent authority issued a transfer policy in respect of the residential and commercial plots. In partial modification of the existing policy, the following provision was made :-
"The matter has been re-viewed. It has been decided that henceforth, transfer of residential/commercial plots wherein either full payment has already been made or laid down Schedule of payment of instalments is over, whichever is earlier shall be allowed only through execution of conveyance deed/sale deed. However, in other cases wherein full payment of the plot has not so far been made and Schedule of payment of instalments is not yet over, a maximum four transfers shall be allowed before final payment."
The obvious implication of the above policy is that the allottee (the intending seller) who has paid the fully money has to get a conveyance deed in his own name and then execute a Sale Deed in favour of the intending purchaser. As against this, a defaulter or a person who has not paid the full price can transfer and re-transfer the plot upto four times. Prima facie, the letter discloses no rationale for such a differential treatment.
6. After the issue of the decision dated March 8, 2000 the Estate Officer, HUDA, issued another letter direct-ing that the papers be submitted "as per revised policy so that the action to transfer the plot may be taken". The implication is that the original permission granted vide letter dated March 1, 2000 shall not be effective.
7. The petitioners have a two-fold grievance. Firstly, it is mentioned that the letter of March 8, 2000 cannot apply to cases where permission for transfer had been granted prior to the issue of the said letter. Secondly, it is claimed that the permission granted by the competent authority could not have been withdrawn without the grant of an opportunity to show cause. On these premises, the petitioners pray that the orders dated May 3, 2000 and March 8, 2000, copies of which are at Annexures P-10 and P-11, be quashed.
8. A written statement has been filed on behalf of the respondents by the Estate Officer, Kamal. It has been inter-alia averred that after the issue of letter dated March 8, 2000, another memorandum dated March 9, 2000 was circulated. It was clarified in preliminary objection Para 2 that "in cases where transfer permission has been granted by HUDA but the process of final transfer has not been completed till 7th March 2000.....:Such cases would be covered by the new transfer policy and plots would only be transferred through execution of Conveyance Deed/Sale Deed only". It has been further averred that "the competent authority can always change, modify or alter the existing policy according to the need of circumstances and imperatives of material considerations". The respondents maintain that the revised policy is uniformly applicable to all the allottees and that the petitioners have no cause for grievance. On these premises, the respondents maintain that the action taken by them is in conformity with law and that the writ petition should be dismissed.
9. Counsel for the parties have been heard. On behalf of the petitioners it has been contended that the revised policy instructions issued vide letter dated March 8, 2000 cannot have any retrospective effect. Thus, these cannot be applied to the cases where permission for transfer had been granted prior to March 8, 2000. On behalf of the respondents it has been argued that the necessary formalities having not been completed prior to March 8, 2000, the transfer of plots shall be governed by the revised policy and not by the original decision.
10. Thus, the two questions as noticed above. Regarding 1:
Can the letter of March 8, 2000 be applied retrospectively ?
11. Admittedly the Haryana Urban Development Authority is charged with the duty to undertake urban development in the State of Haryana. In order to achieve this objective the Legislature had enacted the Haryana Urban Development Authority Act, 1977. The Act authorises the authority to dispose of land. A specific provision has been made in Section 15 in this behalf. The authority is competent to "sell, lease, or otherwise transfer whether by auction, allotment or otherwise, any land or building belonging to it on such terms and conditions as it may, by regulations, provide". The specific provisions exists in Section 15(3) of the Act. Still further the authority has framed Regulations in accordance with the provision of Section 54. In Regulation 15 it has been provided that the transferee or lessee shall not transfer his right in the land/building except with the previous permission of the Estate Officer. The Estate Officer while granting such permission may impose such conditions, as may be decided by the Chief Administrator, from time to time". By virtue of this provision the transferee is entitled to transfer his right in the land or building with the previous permission of the Estate Officer subject to the condition that may be laid down by the Chief Administrator from time to time.
12. In the cases before us, it is the admitted position that the permission as contemplated under Regulation 15 had been granted. It is also not disputed that the requisite amount of transfer fee had also been deposited by the petitioners in all these cases along with the application for the permission for transfer. Still further, the only condition imposed by the authority was that certain documents like Affidavits and Indemnity Bond had to be filed within 60 days. It has not been suggested by the respondents that the petitioners had failed to comply with the requirement of filing of the documents in strict conformity with the letter by which permission was granted. It is, thus, clear that so far as the petitioners are concerned they had done all that was expected of them and that the respondent authority had to only make a formal entry regarding the change of owner in its records. This would have been followed by the issue of a letter of allotment in favour of the person to whom the original allottee had agreed to transfer the plot/property.
13. The letter issued on March 8, 2000 by the respondent authority even if deemed to be in exercise of the statutory power under Regulation 15, has not been made retrospective in operation. Still further, nothing has been pointed out from the Act to show that the Authority has any jurisdiction to issue orders, which may adversely affect the rights of the parties, with retrospective effect. In the absence of a specific provision and power the Authority is not entitled to take measures or pass orders which may retrospectively after (alter ?) the criterion and affect the rights of the allottee. Thus, in our, view the order issued by the Chief Administrator on March 8, 2000 can have only prospective effect. If that be so, the policy instructions issued by the Chief Administrator can govern transfers for which no permission had been granted prior to the issue of the said decision. In all other cases the matter would be governed by the policy as it existed on or before March 7, 2000.
14. In all the eleven cases before the Bench it is the admitted position that the respondent authority had granted permission prior to March 8, 2000. In our view the permission having been granted, the respondent authority could not have applied the decision dated March 8, 2000 to the cases of the petitioners and asked them to have the conveyance deed executed.
15. Resultantly, the action of the authority in insisting upon the execution of Conveyance Deed in favour of the allottee and then the Sale Deed in favour of the transferee cannot be sustained. In view of this conclusion, we are not examining the issue of the validity of the instructions dated March 8, 2000 on the touch stone of Article 14.
16. In view of the above, the first question is answered in favour of the petitioners. It is held that the revised policy shall have only prospective effect.
Regarding 2: Is the action violative of the principles of Natural Justice?
17. It has been contended on behalf of the petitioners that the authority could not have cancelled the permission granted prior to March 8,2000 without affording an opportunity to the persons likely to be adversely affected. In the circumstances of these cases the contention is unexceptionable. The grant of permission conferred a right on the allottee to seek transfer of the plot without the execution of a formal Conveyance Deed in his favour. The cancellation of permission carries with it was burden of paying extra charges, It has civil consequences. In view of the Rule laid down in State of Orissa v. Dr. (Miss) Binapani Dei and others, AIR 1967 SC 1269 even an administrative order has to conform to the rules of natural justice. In these cases, it is the admitted position that no opportunity whatsoever was granted to any of the petitioners. Thus, the cases in which the permission has been withdrawn or re-allotment has been cancelled, the action additionally suffers from the vice of violation of the principles of natural justice.
Resultantly, even the second question is answered in favour of the petitioners.
18. On behalf of the petitioners it has been pointed out that the aulhority charges extension fee for delay in completing the constructions. In the present bunch of cases the petitioners have not been able to even undertake construction as the building plans submitted by a person are not entertained till the plot is actually transferred in his name. Since the transfer was withheld on account of the action of the authority, the petitioners cannot be blamed for the delay. Thus, no extension fee can be charged for failure to construct. On this basis the petitioners prey for a direction to the authority that it snail not charge "non-construction fee" for the period during which the malter has been delayed on account of its action in not allowing the transfer. Mr. Mo-bunta submits that the petitioners may file a representation in this behalf and that it shall be considered by the authority.
19. It is not disputed that on account of the impugned action, the petitioners were not entitled to even submit a building plan much less than start construction. In this siluation, they cannot be blamed for the failure to complete the construction. As a result, we are of the view that it would be harsh to burden ihe petitioners with the "non-construction fee" for the period during which they were prevented by the action of Ihe Authority in starting the construction.
20. Taking the totality of circumstances into consideration, we are of the view that the Authority should re-allot the plots in favour of the petitioners. They should be granted one month's time from the date of re- allotment for the submission of the building plans. However, no extension/non-construction tee should be levied for the period from the date of the grant of permission till the date of re-allotment in favour of the petitioners. We direct accordingly.
No other point has been raised.
In view of the above, the writ petitions are allowed in the above terms. In the circumstances of these cases, we leave the parties to bear their own costs.
21. Petitions allowed.