Punjab-Haryana High Court
Baij Nath Garg vs The Chief Administrator, Haryana Urban ... on 23 January, 1995
Equivalent citations: (1995)110PLR261
ORDER V.K. Jhanji, J.
1. In this petition under Article 226/227 of the Constitution of India, petitioner is seeking a writ in the nature of Certiorari for quashing Annexure P-9 whereby the respondents have deducted sum of Rs. 70,336/out of total sum of Rs. 1,02,300/- deposited by the petitioner pursuant to the auction of site in dispute.
2. In brief, the facts are that respondent-Haryana Urban Development Authority (in short the HUDA) vide advertisement published in the Tribune offered commercial site of shop-cum-flat (sites), booth (Sites) and service booth (sites) on free-hold basis in Urban Estate No. 2 i.e. Sector 7, Urban Estate, Ambala, by way of auction to be held on 22.1.1990 in the office of Estate Officer, HUDA. Petitioner who gave a bid of Rs. 1,86,600/- was held to be the highest bidder for plot site No. 102, Sector 7, Ambala City, measuring 72.87 Sq. mts. Petitioner, at the time of auction, deposited Rs. 18,600/- being 10 per cent of the total bid money. Thereafter, allotment letter dated 21.2.1990 was issued in favour of the petitioner. In due course, petitioner paid a sum of Rs. 1,02,300/- towards instalments. Petitioner vide his application dated 19.8.1993 surrendered the site and requested the respondents for refund of the consideration money paid by him to HUDA. Respondent-HUDA vide its memo dated 18.11.1993 (Annexure P-9), issued through the Estate Officer, HUDA, Ambala, sent a cheque for Rs. 31964/- as refund amount on account of surrender of the Site, out of total amount of Rs. 1,02,300/- paid by the petitioner. In this petition, action of the respondents in deducting Rs. 70,336/- out of total amount of Rs. 1,02,300/- is being challenged on the ground that H.U.D.A. has not developed the place where booth-site in question is situated and the possession of site was not offered to the petitioner despite the petitioner having deposited an amount of Rs. 1,02,300/-. It has also been stated that no notice/show-cause notice was given to the petitioner before deducting the amount.
3. Written statement has been filed on behalf of H.U.D.A., wherein it has been stated that according to clause-23 of the allotment letter, petitioner was at liberty to take possession of the site by visiting the office of Estate Officer on any working day and the amount has been deducted as per Commercial Plot Policy dated 12.2.1985. The respondents have also attached Annexure R-l, showing the calculations made while deducting the amount.
4. Having heard the learned counsel at some length, I am of the view that the writ petition deserves to succeed. Under Clause 5 of the allotment letter, on payment of 25 per cent or the amount, the remaining 75 per cent could be paid either in lumpsum without any interest within 60 days from the date of issue of allotment letter or in 10 half-yearly instalments. The first instalment was to start after the expiry of six months/one year of the date of issue of allotment letter, to be recovered together with interest on the balance price at 10 per cent interest on the remaining amount. The interest, however, was to accrue from the date of offer of possession. Clause-6 provided that possession of the site could be offered on completion of development works in the area. Learned counsel for the petitioner rightly submitted that the petitioner was liable to pay interest only if H.U.D.A. had offered the site after completing the development works in the area. In Civil Writ Petition No. 7260 of 1989 decided by this Court on 7.4.1994. (Reported as Ambala Urban Estate Welfare Society Ambala City v. Haryana Urban Development Authority, (1994-3) 108 P.L.R. 630 - Editor) relating to this very sector, i.e. Sector 7, Urban Estate, Ambala, it has been held that "after taking all the facts into consideration, it appears clearly that the respondent Authority has not provided the amenities contemplated under the Act. In particular, it has failed to provide the basic amenities like; (i) Drainage; (ii) Sewerage; (iii) Adequate potable water; and (iv) Parks. All these have resulted in pollution of environment. It must, therefore, provide all these amenities within one year from the date of the receipt of this order so that the 'right to life' as guaranteed under the Constitution does not become illusory". It is, thus, clear that as on 7.4.1994 when decision was rendered in C.W.P. No. 7260 of 9189, the respondents had not developed the sector in question. On the record of the case too, the respondents have failed to bring any material to show that the site in dispute had been developed before the petitioner had decided to surrender the plot. In absence of any such material, it has to be held that as provided under the allotment letter, the respondents were not in a position to offer possession of the site because the same could be offered only on completion of development works. I find no merit in the contention of counsel for the respondents that under Clause-23 of the allotment letter wherein it has been specifically mentioned that "you can take the possession of site by visiting this office on any working day", it was obligatory on the part of the petitioner to take possession and he having failed to do so, cannot make any grievance in this regard. This clause, in my view, is totally superfluous and meaningless because the possession of the site could be made available to the petitioner only on completion of development works. In this view of the matter, the respondents were not justified in deducting the amount in terms of the policy as that could be made applicable to the petitioner only if the possession of the site had been offered to the petitioner after the same had been developed. A Division Bench of this Court in C.W.P. No. 2206 of 1994, where the plot had been surrendered, had directed for refund of entire amount after deduction 10 percent of the said amount. Although that order was passed on the agreement of counsel for the parties, but I am of the view that the same can also be applied to the case of the petitioner.
5. Consequently, this writ petition is allowed and Annexure P-9 whereby sum of Rs. 70,336/- has been deducted, is quashed. Respondents are directed to refund the amount after deducting 10 percent from the total bid money, within a period of one month from the date of receipt of this order, failing which the respondents shall pay interest at the rate of 12 percent per annum from the date of this order till the payment is made. The cheque of a sum of Rs. 31964/- which was sent to the petitioner, if encashed, shall be adjusted towards the amount which the respondents shall refund to the petitioner after deducting 10 per cent from it.