Punjab-Haryana High Court
Messers Akash Ganga And Another vs State Of Haryana And Others on 27 September, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.5983 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
C.W.P. No.5983 of 2013
Date of Decision: 27.09.2013
Messers Akash Ganga and another ....Petitioners
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Ms. Sangeeta Dhanda, Advocate,
for the petitioners.
Mr. Siddharth Batra, Advocate,
for respondent Nos.2 to 4.
MAHAVIR S. CHAUHAN, J.
S.C.O. Site Nos.1-P and 2, Jail Land Area, Gurgaon, were allotted to the petitioners for a consideration of Rs.12,05,000/- and Rs.10,31,000/-, respectively, vide letter of allotment dated 12.03.1990 (Annexure P-1 Colly.), as the petitioners were highest bidders in an open auction held for the purpose. They deposited 10% of the sale price of the sites in question, i.e., 1,20,500/- and Rs.1,03,100/-, respectively, on the fall of the hammer and 15% of the price of the sites in question, i.e., Rs.1,80,750/- and Rs.1,54,650/-,respectively, within 30 days of the date of allotment. Remaining 75% amount was payable, without interest, in one lump sum within 60 days from the date of allotment or with interest @ 10% per annum, in eight half yearly instalments, the 1st Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -2- instalment becoming due after the expiry of six months of the date of issuance of letter of allotment.
Clause 6 of the letter of allotment, which is relevant for disposal of the instant writ petition was to the following effect:-
"6. The possession of the site will be offered to you on completion of the development works in the area."
Possession of the allotted sites in question was not delivered to the petitioners in spite of representations dated 20.07.1993 (Annexure P-2), 12.08.1995 (Annexure P-3), 24.08.1997 (Annexure P-4) and 16.06.1999 (Annexure P-5) made by the petitioners.
While the petitioners were hopefully waiting for a communication from the respondents offering possession of the sites in question to them, they suffered a shock in the form of memoranda dated 05.10.2001 (Annexure P-6 Colly.), thereby directing the petitioners to deposit Rs.43,61,591/- and Rs.37,31,789/-, plus an equal amount on account of penalty, within 15 days. The petitioners were yet to recover from the shock, when they received notices dated 07.11.2001 (Annexure P-7 Colly.) calling upon them to show cause as to why an order of resumption of the sites in question and forfeiture of whole or any part of the money, if any deposited in respect thereof, be not made. To challenge the notices dated 07.11.2001 (Annexure P-7 Colly.), petitioners filed C.W.P. No.19557 of 2001 titled as 'Messers Akash Ganga and another Vs. The Haryana Urban Development Authority and another', which came to be dismissed, vide order dated 14.12.2001 (Annexure P-8), as premature by giving Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -3- liberty to the petitioners to file an appeal.
Accordingly petitioners preferred an appeal under Section 17(5) of the Haryana Urban Development Authority Act, 1977, (hereinafter referred to as 'the 1977 Act'). While appeal of the petitioners was still pending, the respondents, vide order dated 18.01.2002, resumed the sites in question and issued a public notice dated 09.03.2002 for putting the sites in question again to auction. Compelled by the situation, petitioners again approached this Court by way of C.W.P. No.4419 of 2002 titled as 'M/s Akash Ganga and another Vs. The Haryana Urban Development Authority and another', wherein, vide order dated 14.03.2002, the respondents were restrained from selling the sites in question till appeal filed by the petitioners was disposed of.
Administrator, HUDA, vide order dated 14.06.2002, dismissed the petitioners' appeal. The order passed by the appellate authority was challenged by the petitioners in a revision petition before the Financial Commissioner and Secretary to Government of Haryana, Department of Town and Country Planning, Chandigarh, which came to be disposed of vide order dated 02.10.2004 (Annexure P-11) in the following terms:-
"I have heard both the parties and gone through the record of the case. It is an admitted fact that the petitioner has already deposited 25% price of the sites alongwith some more amount. Rest of the dues could not be deposited by him as the same were not calculated as per terms and conditions of the allotment letter. Before taking a final view in the case, it was deemed necessary to call a report from the Estate Officer to find out the date when the structures at sites were removed and development works Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -4- completed in the area so that it may be ascertained when the sites were ready for offer of possession. Vide Memo. No.14123 dated 30.7.2004 it has been informed by the Estate Officer that as far as services are concerned these have already been completed. However, The Bazari shops are still existing in the area due to which possession cannot be given. From the report, it is clear that the possession of the sites could not have been offered so far.
Hence I feel the case needs a detailed examination. The Administrator has only mentioned in his order about non-payment of dues without taking into account the reality on the ground. Consequently I set aside the resumption order passed by the Estate Officer and confirmed by the Administrator and remand the case to Administrator, HUDA, Gurgaon to find out the date when the sites will be ready for possession and to calculate possession interest accordingly. The petitioner in the meantime is directed to clear all the dues within two months excluding possession interest. Only thereafter his case could be examined on merit. The parties are directed to appear before Administrator, HUDA, Gurgaon, on 20.10.2004 for further hearing in the case."
In compliance of order dated 02.10.2004 (Annexure P-11), the petitioners deposited the entire balance amount, i.e., Rs.9,03,750/- and Rs.7,73,250/- vide receipts Nos.31287 and 31288 dated 24.12.2004, respectively. In spite of this, encroachments existing on the sites in question were not removed and possession was not delivered to the petitioners. Faced with the situation, petitioners again approached this Court by way of C.W.P. No.19005 of 2004 titled as 'M/s Akash Ganga and another Vs. The Haryana Urban Development Authority and others' seeking a direction to the respondents that possession of the sites in question be delivered to them. The Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -5- said civil writ petition was disposed of by this Court directing respondent No.4 to dispose of representation of the petitioners within four months. The order, however, was modified vide order dated 30.03.2007 (Annexure P-13) directing respondent No.3 to dispose of the representation of the petitioners. Even after expiry of four months, no steps were taken by the respondents to deliver possession of the sites in question to the petitioner, which led the petitioners to file a contempt petition, being C.O.C.P No.1636 of 2007. However, instead of delivering possession of the sites in question, the respondents, vide order dated 04.01.2008 (Annexure P-14), demanded an amount of Rs.84,74,807/- upto 19.02.2008 from the petitioners. Thereafter, vide memorandum dated 17.01.2008 (Annexure P-15), respondent No.4 asked the petitioners to visit his office to take possession of the sites in question. However, thereafter, vide copy of order dated 08.06.2007 (Annexure P-16), decision on the representation of the petitioners, in terms of order dated 30.03.2007 passed by this Court in C.W.P. No.19005 of 2004 was conveyed to the petitioners, which was to the following effect:-
"Keeping in view all the facts, circumstances and taking a realistic approach in the interest of justice and fair play the imposition of possession interest, extension fee etc. is not sustainable till the offer of possession, and accordingly the same is hereby waived off. The Estate Officer is directed that Teh. Bazari shops if any still existing at site may be got shifted and occupants may be asked to shift in the alternative already constructed shops on the site allotted by HUDA within one month to avoid further financial loss of HUDA. The outstanding amount Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -6- be intimated accordingly to the appellant within 7 days and the same shall be deposited with the next one month failing which the Estate Officer shall proceed further as per terms and conditions of allotment letter and HUDA policy."
Vide memorandum dated 18.01.2008 (Annexure P-17), respondent No.4 again conveyed to the petitioners that an amount of Rs.39,86,657/- regarding SCO No.1-P and Rs.34,10,234/- regarding SCO No.2 was outstanding against them. In the meantime, responding to letter dated 17.01.2008 (Annexure P-15), petitioners wrote letters dated 07.02.2008 (Annexure P-18 Colly.) to respondent Nos.3 and 4 to hand over vacant possession of the sites in question to them without asking for any further amount because there was no delay on the part of the petitioners in depositing the money due from them. The 4th respondent, vide memorandum dated 25.02.2008 (Annexure P-19), asked the petitioners to clear the outstanding amount and vide memoranda dated 11.03.2008 (Annexure P-20 Colly.), he clarified that possession of the sites in question would be given only after dues were cleared by the petitioners.
After repeated rounds of litigation before this Court and a series of representations, the petitioners ultimately got possession of the sites in question on 08.09.2009 and have approached this Court by way of the instant civil writ petition under Articles 226/227 of the Constitution of India for issuance of writ of mandamus directing the respondents to pay interest to the petitioners on the amount deposited by them @ 9% per annum from the date(s) of deposit of the amounts till the date of delivery of possession of the sites in question, in terms Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -7- of policy dated 25.01.2007 (Annexure P-21).
A counter has been filed on behalf of the respondents, wherein the factual matrix, as reflected in the civil writ petition, has not been disputed but it has been added that policy dated 25.01.2007 (Annexure P-21) is applicable only to allotments made after issuance of the policy and, as such, case of the petitioners is not covered under the said policy and, therefore, they are not entitled to any interest.
We have heard learned counsel for the parties and have perused the record.
While it is argued on behalf of the petitioners that in spite of deposit of the entire sale price of the sites in question, possession thereof was not delivered to the petitioners till 08.09.2009 and thereby the petitioners were deprived by user of the money so deposited by them as also of user of the sites in question as possession of the same was not delivered to them, the learned counsel for the respondents contends that interest is payable only in those cases wherein allotments are made on or after 25.01.2007, the date on which policy dated 25.01.2007 came into existence, and allotments in favour of the petitioners being prior to coming into force of that policy, the petitioners are not entitled to any interest.
The contention put up on behalf of the petitioners that in spite of deposit of the entire sale price of the sites in question by them on various dates commencing from 12.03.1990 onwards, possession of the sites in question was not delivered to them till 08.09.2009, has remained uncontroverted. That being Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -8- so, submissions put up on behalf of the petitioners that on one hand they have been denied user of the various deposits made by them from time to time and on the other that of the sites in question as they could not raise construction and commence their business for want of delivery of possession, is found to be meritorious and the plea raised on behalf of the respondents that interest is payable only in respect of allotments made after 25.01.2007 has not impressed us. In fact, even in the absence of a policy for payment of interest in cases where possession of the allotted sites is not delivered to the allottees for reasons attributable to the Haryana Urban Development Authority, the allottees are entitled to get interest because on one hand such allottees are deprived of user of the money deposited by them and that of the sites allotted to them and on the other the Haryana Urban Development Authority uses the money of the allottees and also retains the possession of the allotted sites with it. In fact, in our opinion, the policy dated 25.01.2007 allowing interest on the amount of instalment paid till possession of the allotted site is delivered, is the outcome of realization by the Haryana Urban Development Authority of the unadvantageous situation to which an allottee is put on account of non-delivery of possession of the allotted site even after making payment of the amount(s) due. We see no reason to deny interest to the petitioners from the date(s) on which the amounts were deposited by them till the delivery of possession of the allotted sites, on 08.09.2009. In any case, learned counsel representing the respondents has not been able to persuade us to take a different view nor has he been able to show any law to the contrary.
Virender Singh Adhikari 2013.10.09 11:04 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.5983 of 2013 -9-
In the consequence, the writ petition is allowed and respondents are directed to calculate interest @ 9% per annum on the amounts deposited by the petitioner, from 12.03.1990 onwards till the date of delivery of possession i.e. 08.09.2009, and to pay the same to the petitioners within a period of three months from the date of receipt of a certified copy of this order. Petitioners are also entitled to the costs, which are quantified at Rs.10,000/-.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
27.09.2013
adhikari
Virender Singh Adhikari
2013.10.09 11:04
I attest to the accuracy and
integrity of this document
High Court Chandigarh