Punjab-Haryana High Court
Huda vs Niranjan Singh on 30 October, 2014
Author: Hari Pal Verma
Bench: Hari Pal Verma
RSA No.1266 of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1266 of 2001
Date of Decision:-30.10.2014
Haryana Urban Development Authority, Panchkula
...Appellant
Versus
Niranjan Singh
...Respondent
CORAM: HON'BLE MR. JUSTICE HARI PAL VERMA
Present:- Mr. K.L. Suneja, Advocate
for the appellant.
Mr. Sandeep Punchhi, Advocate
for the respondent.
HARI PAL VERMA J.(Oral)
The Haryana Urban Development Authority (hereinafter called 'HUDA'), Panchkula has filed the present appeal against the judgment and decree dated 19.10.2000 passed by the Additional District Judge, Sirsa, whereby the appeal against the judgment and decree dated 6.4.1995 passed by the Sub Judge 1st Class, Sirsa decreeing the suit of the plaintiff was dismissed.
It is the case of the plaintiff that he purchased a plot/booth No.158 situated at old bus stand Sirsa in an open auction held on 27.3.1988 for a total consideration of Rs.1,36,000/-. As per the terms and conditions of the auction, he paid 10% of the total purchase money i.e. VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -2- Rs.13,600/- as earnest money at the time of auction site itself. He was further required to pay an extra amount equal to 15% of the purchase money within 30 days from the date of communication of allotment letter to him. It is the case of the plaintiff that he never received the allotment letter from the defendant-appellant and as such the remaining amount equal to 15% of the purchase money was not deposited. Vide order dated 30.11.1988 the appellant HUDA cancelled the allotment without affording an opportunity of being heard. The statutory appeal filed before the Chief Ministrator, HUDA, Hisar, was also dismissed vide order dated 07.5.1991. Accordingly, the plaintiff filed a suit for declaration challenging the order dated 30.11.1988 cancelling allotment of the plot to the plaintiff on various grounds including violation of principle of natural justice and without jurisdiction. The order dated 7.5.1991, whereby, the appeal was dismissed by the Chief Administrator, HUDA was also made subject matter of challenge in the civil suit. The plaintiff has pleaded that he is entitled for allotment of the plot as he was always ready and willing to deposit the remaining amount of 15%, but the defendants have not acceeded to his request and rather threatened to re-auctioned the plot/booth in question. Hence, the suit for declaration was filed.
On notice having been issued to defendant HUDA, written statement was filed pleading therein that the allotment letter was sent to the plaintiff through registered post on the address given by him at the time of auction vide memo No.10332 dated 12.5.1988 but the registered letter it was returned back with the remarks "bidder is out of station and not known when he will come back". It was alleged that the plaintiff VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -3- intentionaly did not receive the copy of allotment letter. The UPC letter memo No.12862 dated 2.6.1988 requiring the plaintiff to deposit 15% amount was never received back by defendant HUDA. Even if the registered letter or UPC is not received by the plaintiff, he should have contacted the Estate Officers, but the plaintiff has not done so. Thus, cancellation of the plot has been justified by the defendant HUDA.
On the respective pleading of the parties, the learned trial Court formulated the following issues :-
"1. Whether the order dated 30.11.1988 and 7.5.1991 passed by the defendants are illegal, wrong, against law and facts, null and void, against the principles of natural justice and liable to be set-aside as alleged ? OPP
2. If issue No.1 is proved whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP
3. Whether plaintiff has no locus-standi and cause of action to file the present suit ? OPD
4. Whether the civil Court has no jurisdiction to try the present suit in view of Section 50 of the HUDA Act? OPD
5. Whether plaintiff is estopped to file the present suit by his own act and conduct? OPD
6. Relief"
Having considered that the witnesses and the documents adduced therein, the trial Court decreed the suit and a decree dated 6.4.1995 was passed for declaration to the effect that the plaintiff is allottee of plot No.158 situated at old bus stand, Sirsa and the order dated 30.11.1988 cancelling the allotment of plot/booth by defendant No.1- HUDA and the order dated 7.5.1991 passed by defendant No.2 i.e. The VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -4- Chief Administrator, HUDA rejecting the appeal were held to be wrong against the law, without jurisdiction and against the principles of natural justice.
Feeling aggrieved by the judgment and decree dated 6.4.1995 passed by the learned Sub Judge 1st Class, Sirsa, the appellant- HUDA preferred an appeal before the lower Appellate Court. However, the said appeal was also dismissed vide judgment dated 19.10.2000. Hence, the appellant-HUDA preferred the present appeal.
Still aggrieved, the defendant/appellant has preferred the present appeal and submitted that following substantial questions of law arises in this appeal for consideration of this Court :-
"1. Whether, as per the facts and circumstances proved on record of the instant case, once the allotment letter dated 12.05.1988 (Ex.DW1/A) was sent to the plaintiff by Registered Post on the correct address as given by the plaintiff at the time of auction held on 27.03.1988, the said allotment letter is to be deemed to have been duly served on the plaintiff in view of the provisions of Section 42(1)(d)(ii) of the Haryana Urban Development Authority Act, 1977 as held by the Hon'ble Apex Court in a case reported in AIR- 1989-SC-630 ?
2. Whether returning the allotment letter in question by the postal authorities with the remarks, "Bidder is out of station and not known when he would come back"
recorded by the postman can be attributed only to the addressee's own conduct as held in the authority reported in 1998(3) RCR (Criminal)-533?
3. Whether, in the facts and circumstances proved on record of the instant case, it was unbelievable that VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -5- the plaintiff will make no enquiry about the allotment letter for four long years ?
4. Whether in view of the provisions of Section 50 of the Haryana Urban Development Authority Act, 1977 the jurisdiction of Civil Court was barred as the allottee had, after dismissal of the appeal filed by him by the competent authority under the Act ibid, the remedy of filing the writ petition in the Hon'ble High Court/Hon'ble Supreme Court of India ?
5. Whether not discussing at all appellate order dated 7.5.1991 passed by defendant No.2 while dismissing the appeal filed by the plaintiff before him by both the courts below (i.e. Ld. Trial Court as well as the Ld. Appellate Court), except the Ld. Trial Court simply saying that order dated 7.5.1991 passed by defendant No.2 is illegal, wrong, against law and facts, null and void, against principles of natural justice, rendered the findings on Issue No.1 perverse for this reason also?
6. Whether in view of the facts and circumstances proved on record of the instant case, the plaintiff was estopped from filing the instant suit due to his own act and conduct for not depositing the amount equal to 15% of the sale consideration within the prescribed period of 30 days from issuance of the allotment letter Ex.DW-1/A?"
I have heard learned counsel for the parties at a great length and has perused the records.
Learned counsel for the appellant has argued that no doubt the plaintiff-respondent had participated in an open auction as held on 27.3.1988 and was successful in auction and got booth No.158 situated at old bus stand, Sirsa. It is also admitted that he deposited 10% money at VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -6- the spot at the time of auction. However, it is further submitted that he was required to pay 15% of the purchase money within 30 days after the receipt of allotment letter. The allotment letter dated 12.5.1988 was issued to the plaintiff vide registered letter dated 12.5.1988 but he did not deposit the requisite amount of 15% of the purchase money. Learned counsel has argued that the service of notice is regulated by Section 42 of the Haryana Urban Development Authority Act, 1977, which laid down the procedure of service of notice. However, the relevant section is reproduced as under :-
"42. Service of notice etc.:- (1) All notices, all orders and other documents required by this Act or any rule or regulation made thereunder to be served upon any person shall, save as otherwise provided in this Act or such rule or regulation, be deemed to be duly served -
(a) Whether the person to be served is a company, if the document is addressed to the Secretary of the said company, at its registered office or at its principal office or place of business and is either --
(i) sent by registered post ;
(ii) delivered at the registered office or at the principal office or place of business of the said company;
(b) where the person to be served is a partnership firm, if the document is addressed to the said partnership firm, at its principal place of business, identifying it by the name or style under which its business is carried on and is either --
(i) sent by registered post ; or
(ii) delivered at the said place of business ;
(c) where the person to be served is a public body, or a corporation or society or other body, if the document is VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -7- addressed to the Secretary, treasurer or other head of office of that Body, Corporationor Society, at its principal office and is either --
(i) sent by registered post ; or
(ii) delivered at the said office ;
(d) in any other case, if the document is addressed to the
person to be served and -
(i) is given or tendered to him; or
(ii) is sent by registered post to the person; or
(iii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within an urban area or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building to which it relates. (2) Any document which is required or authorised to be served on the owner or occupier of any land or building may be addressed "the owner or the occupier", as the case may be, of that land or building (naming that land or building) without further name or description, and shall be deemed to be duly served -
(a) if the document so addressed is sent to the delivered in accordance with clause (b) of sub- section (1) ; or
(b) if the document so addressed, or a copy thereof so addressed, is delivered to any person on the land or building or where there is no person on the land or building to whom it can be delivered is affixed to some conspicuous part of the land or building.
(3) Where a document is served on a partnership
firm in accordance with this section, the
document shall be deemed to be served on each
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RSA No.1266 of 2001 -8-
partner.
(4) For the purpose of enabling any document to be served on the owner of any property, the Secretary may, by notice in writing, require the occupier, if any, of the property to state the name and address of the owner thereof.
(5) Where the person on whom a document is to be served is a minor, the service upon his guardian or any adult member of his family shall be deemed to be service upon the minor.
Explanation - A servant is not a member of the family within the meaning of this section."
Learned counsel for the appellant HUDA argued that the plaintiff was sent a registered letter dated 12.5.1988 and in this manner the requirement as provided under Section 42(1)(d)(ii) of the Act are sufficiently complied with. Thus, notice sent to the plaintiff deemed to have been served and HUDA has complied the requirement of Section 42 (1)(d)(ii) of the Act.
In support of the above contention, learned counsel for the appellant relies upon judgments i.e. M/s Madan and Co., vs. Wazir Jaivir Chand AIR 1989 Supreme Court 630, Pawan Kumar vs. Shakuntala 1998(3) RCR (Criminal) 533 and Smt. Aruna Luthra vs. State of Haryana and others PLJ 1986 486.
I have perused the cited judgments and find that these judgments have no applicability in the facts and circumstances of the case. In the case M/s Madan and Co. (supra) the case relates to Jammu & Kashmir and Shop Rent Control Act, where the landlord has issued notice to the tenant as the tenant was avoiding such notice. Moreover, in VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -9- that case the tenant and his servant both were out of station and even there was no servant to collect the dak. But in this case, the servant was in regular touch with the post man and, therefore, the judgment has no applicability in the facts of the present case. Similarly, the judgment of Pawan Kumar's case (supra) relates to Section 138(B) of Negotiable Instruments Act i.e. Dishonour of a cheque. In that case, the endorsement by the postal authority was referred as "not found", whereas in the case in hand no such report has been made by the postal authorities and the postal authority has clearly observed that "bidder is out of station and not known when he will come back". Therefore, the judgment of Pawan Kumar's case is not applicable in the present facts.
Learned counsel has further referred Aruna Luthra's case (supra), which relates to Regulation 5 of the Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978, where the petitioner was required to convey his acceptenace of allotment within 30 days, failing which the allotment was liable to be automatically cancelled. But here no such intimation has been received by the plaintiff, therefore, the judgment of Aruna Luthra's case (supra) has no applicability in the case in hand.
Moreover, on the hand hand, the counsel for the respondent- plaintiff has referred to the case of Mohinder Singh vs. State of Haryana 1983 PLJ 134 to substantiate his case that when there is no evidence of actual delivery of notice to the petitioner, the cancellation was held to be bad. The presumption is rebuttable when an affidavit is sworn into that effect. In the said case the Court has held as under :- VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -10-
"As already pointed out, the stand of the respondent is that the notices were sent to the petitioner through registered post. It is also admitted that there is no evidence of actual delivery of those notices to the petitioner. The respondent authorities depend on the presumption that since the notices were sent through registered post, those must be deemed to have reached the petitioner. The presumption undoubtedly is a rebuttable presumption and it, to my mind, stands rebutted the moment the petitioner has sworn an affidavit that the notices addressed to him never reached him. (See. M/s Escorts Ltd. v. Industrial Tribunal and others-Civil Writ No.5653 of 1981 decided on August 30, 1982). In the absence of any evidence that factually the notices sent to the petitionere had reached him, the respondent- authorities were bound to resort to the mode of substituted service prescribed in clause (iii) above. This never having been done, it cannot possibly be held that there was any effective service on the petitioner."
The object of Section 42 deals with the service of notice to the allottee about any notice, order or other document and in case the registered letter sent to a person is received back undelivered, provision of Section 42(1)(d)(iii) will automatically come in operation. In the present case though the notice was sent through registered post to the allottee but it was never delivered and was returned back to the sender with the remarks "bidder is out of station and not known when he will come back". Once such report has come to the notice of the appellant HUDA, the authority was required to invoke the procedure as laid down in Section 42 VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -11- (1)(d)(iii) and such notice should have been affixed on some conspicuous part of his last known place of residence or business. By not adhering to this provision, the HUDA has failed to comply the requirement of Section 42(1)(d)(iii). Thus, I held that no proper notice was sent to the allottee.
Learned counsel for the appellant has further argued that the Civil Court has no jurisdiction to entertain the suit and he relies upon Section 50 of the Act, which reads 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."
The Civil Court has framed specific issue on the point of jurisdiction and has held that the order dated 30.11.1988 cancelling allotment of plot and order dated 7.5.1991 dismissing the appeal by the Chief Administrator, HUDA are against the principle of natural justice, the Civil Court has got jurisdiction to try the suit. Learned counsel for the respondent-plaintiff has cited a case G.M. Worsted Spinning Mills (P) Mills vs. Haryana Urban Development Authority 1994(1) RRR 498 and has argued that in case the Authority under the Act has passed an order in violation of the provision of the Act, the Civil Court has the jurisdiction to VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -12- set aside the illegal orders notwithstanding the exclusion of its jurisdiction. He has invited my attention towards para 23, which is reproduced as under :-
"23. 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 Court.
(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. 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.VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -13-
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."
Since the order of cancellation has been passed in violation of provision of the Act, the Civil Court has the jurisdiction to entertain and decide the issue. Therefore, the plea of the appellant that the Civil Court jurisdiction is barred is wholly misconceived and cannot sustained in the eyes of law.
As regards the service of notice on the plaintiff regarding cancellation of the plot, this Court finds support from Section 42 of the Act, wherein all notices, all orders and other documents are required to be served, if sent by the registered post to the person. But in the case in hand the registered letter has not reached to the person and on the given date the postal authority has reported that he is out of station and, therefore, it was incumbent upon the appellant to have recourse to Section 42(1)(d)(iii), wherein it is provided that if such person cannot found, such notice must be affixed on some conspicuous part of his last known place of business. But by not doing so, the appellant HUDA has not adhered to the provisions of Section 42(1)(d)(iii) of the Act. Mere dispatch of a registered letter is not sufficient compliance of Section 42 of the Act, as on a particular day the addressee may not be available on the given address. Therefore, efforts should have been made by the Authority to serve the addressee in a reasonable manner. The plea of appellant- HUDA that the plaintiff-respondent was sent notice by UPC letter dated 2.6.1988, is also not acceptable as no such receipt has been exhibited on the record. Moreover, dispatch of letter merely establishes dispatch of a VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -14- letter, whereas its acceptance/delivery is yet to be established. Thus, Section 42 is a complete mechanism of service of notices, letters, orders etc. and authority was required to follow it in true spirits. The appellant HUDA cannot deprive the plaintiff/respondent from a legitimate right which has accrued to him on account of his successful participation in the auction of plot.
In view of my above findings that the registered letter dated 12.5.1988 was not delivered to the addressee and the appellant-HUDA has not resorted to the provision of Section 42(1)(d)(iii) of the Act, no fault can be pointed out in the impugned judgment and decree passed by the Courts below. It would not be out of place to mention here that vide order dated April 08, 2005 this Hon'ble Court has observed that during the pendency of the appeal plot has already been handed over against the prices to the opposite party and no stay was granted. Only the construction was made subject to final result of the appeal. In this manner, the plot in question has already been given in possession to the respondent-plaintiff and equity thus also favours the respondent-plaintiff.
No substantial question of law arises for adjudication in the present appeal.
For the foregoing reason, I find that the present appeal fails, as the appellant HUDA has not adopted the mechanism as provided under Section 42 of the Act. The cancellation of plot was not as per the provisions of HUDA Act and no opportunity of hearing was afforded to the plaintiff/respondent before cancellation of plot in question.
Thus, the impugned judgments passed by the lower Courts VIJAY ASIJA 2014.11.05 13:52 I attest to the accuracy and integrity of this document RSA No.1266 of 2001 -15- below do not warrant any interference. The appeal filed by the appellant is, hereby, dismissed being without any merit.
No order as to costs.
October 30, 2014 ( HARI PAL VERMA )
Vijay Asija JUDGE
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