Punjab-Haryana High Court
Sulakshna Vohra And Another vs Haryana Urban Development Authority ... on 25 July, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
CWP No.1494 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
C.W.P. No.1494 of 2013
Date of Decision: 25.07.2013
Sulakshna Vohra and another ..... Petitioners
Versus
Haryana Urban Development Authority and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. S.S.Salar, Advocate,
for the petitioners.
Mr. D.V.Sharma, Senior Advocate,
with Ms. Shivani Sharma, Advocate,
for respondent Nos.1 and 2.
Mr. Sudhir Paruthi, Advocate,
for respondent No.3.
*****
MAHAVIR S. CHAUHAN, J.
Having been successful in an open auction, Booth No.3, Sector-8, Panchkula (hereinafter referred to as 'the disputed booth') was allotted in favour of Smt. Shanti Devi (hereinafter referred to as 'the original allottee') on free hold basis, for a consideration of Rs.3,31,000/- vide letter of allotment dated 22.02.1989 (Annexure P-1). She paid amount of Rs.33,100/- on 22.02.1989 and Rs.49,650/- on 14.03.1989 or to say Rs.82,750/-, being 25% of the total cost of the booth, which, as per terms of allotment, was to be paid within 30 days from the date of allotment i.e. on or before 22.03.1989. Remaining amount of Rs.2,48,250/- of cost of the booth was payable in ten equal half yearly instalments, and as per schedule of payment, the first instalment falling due after the expiry of six months from the date of issue of allotment Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -2- letter. Interest @ 10% p.a. was payable on the balance amount.
The original allottee executed general power of attorney in favour of M.R.Vohra (through whom petitioners are before this Court) on 25.04.1990 and applied for transfer of the booth in the name of the petitioners.
Installments of balance amount could not be paid as per schedule of payment, which led to resumption of the disputed booth vide order dated 22.11.1992. An appeal, brought to challenge order of resumption dated 22.11.1992, was allowed and order of resumption was set aside vide order dated 15.10.1996. Still, instalments of balance amount of cost of the booth could not be paid regularly and it resulted into eviction proceedings being initiated on 21.09.2000. The first petitioner preferred an appeal against the order dated 21.09.2000 which was accepted vide order dated 03.04.2001 (Annexure P-2) in the following terms:-
"Keeping in view the above arguments and facts of the case, the GPA Sh. M.R.Vohra has submitted an undertaking through his son Sh. S.K.Vohra to the effect that he undertakes to deposit due amount in six monthly installments as per latest policy of HUDA. Therefore, I set aside the eviction order and resumption order with the directions that the amount deposited after the resumption of booth will be adjusted against the account of booth No.3, Sector-8, Panchkula and appellant will deposit all the balance amount in equal six installments and each installments will be paid after every month. The first installment will be paid within one month from the date of intimation of outstanding dues as per latest HUDA policy made by Estate Officer, HUDA, Panchkula of six installments as per this order. If the appellant fails to comply with above orders then the order of resumption Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -3- passed by Estate Officer, HUDA, Panchkula will come into force without any notice to the appellant and Collector can evict the appellant as well as other occupants after following the procedure under Section 18 of the HUDA Act, 1977. This appeal is decided accordingly.
Announced in the open court on 3.4.2001."
The Haryana Urban Development Authority (for short 'the HUDA') neither assailed correctness of the order dated 03.04.2001 before any forum, nor communicated to the petitioners what was the amount outstanding and payable by them in terms of that order. The petitioners, however, paid of their own an amount of Rs.2,48,250/- and another sum of Rs.68,269/- on 30.11.2000, thus bringing the total amount paid by them to the tune of Rs.3,99,269/- as on 30.11.2000.
The HUDA did not do anything even thereafter and the inaction of the official respondents prompted the petitioners file a civil suit on 02.11.2001 which was decreed by permanent Lok Adalat, Panchkula, vide award dated 11.02.2002 (Annexure P-3) declaring that plaintiffs (in the civil suit), the petitioners herein, had become owners and in possession of the disputed booth. It may be added here that Estate Officer, HUDA, Panchkula (respondent No.2 herein) was defendant No.2 in the aforesaid civil suit and was represented by an advocate (Shri R.S.Badhran, Advocate) when the suit was decreed in view of a compromise arrived between the original allottee and the petitioners. However, on behalf of the Estate Officer neither any objection was raised with regard to the award being passed on the basis of the compromise nor a claim/counter claim was set up to say that the petitioners were in arrears as regards original cost of the disputed booth. Rather, when the petitioners approached the official respondents for transfer of the Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -4- disputed booth in their name, the respondent Nos.1 and 2 (for short as 'official respondents') asked them to first get the award registered, which was got registered on 21.02.2002. The petitioners made a written request dated 09.04.2002 (Annexure P-4) for transfer of the disputed booth in their name.
On receipt of request of the petitioners for transfer of the booth, in question, in their name, respondent No.2 wrote a letter dated 26.06.2002 (Annexure P-5) stating therein that during pendency of appeal before the Administrator, petitioners had deposited an amount of Rs.3,16,519/- and that a civil suit filed by the petitioners was withdrawn by them, in view of order of eviction and resumption by the Administrator having set aside vide order dated 03.04.2001. While disclosing that the matter was earlier put up before the Headquarters (say the Chief Administrator) with legal opinion that it was a fit case for filing a revision petition but nothing was heard in the matter, the Estate Officer (respondent No.2) concluded by saying:-
"In the given circumstances, I am of the view that it is not a fit case for filing Revision Petition before CTCP and first the Booth may be transferred in view of the above mentioned Court's Award, so that outstanding amount may be demanded from them as per latest HUDA policy as per orders of the Administrator, HUDA, Panchkula passed in this case. Since the parties are ready to deposit the outstanding amount as per HUDA policy, therefore, it will be in the interest of HUDA that parties may be asked to deposit the outstanding amount as per orders of the Administrator, HUDA, Panchkula passed in the appeal and in compliance of the Award mentioned above. Therefore, it is requested that appropriate decision may be taken in the matter regarding filing of Revision Petition, so that the further action may be taken in the matter Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -5- by this office."
Still nothing was heard by the petitioners from the official respondents as regards the amount outstanding and payable by them, if any, in terms of order dated 03.04.2001 (Annexure P2). In spite of silence of the above official respondents in the matter, the petitioners still deposited, in addition to the amount of Rs.3,99,269/- already deposited by them, the following amounts on following dates:-
Date of Deposit Amount Deposited
31.05.2005 1,00,000.00
31.05.2005 1,00,000.00
17.06.2005 50,000.00
17.06.2005 50,000.00
12.07.2012 5,94,375.00
12.07.2012 5,94,375.00
17.07.2012 672.00
It may be pointed out here that two deposits of Rs.5,94,375/- each were deposited by the petitioners as per oral disclosure by the official respondents that this amount was outstanding against them when the petitioners moved an application for transfer of the disputed booth in the name of petitioner No.1 and had sent intimation (Annexure P7) to the respondent No.2 on 12.07.2012. In spite of this, permission to transfer the booth in question was not accorded by the official respondents. Various representations made by them were not withstanding.
The circumstances enlisted here-in-above compelled the petitioners to invoke extraordinary writ jurisdiction of this Court by way of the instant writ petition under Articles 226 and 227 of the Constitution of India.
In the counter submitted by the official respondents it has been admitted that out of the total sale consideration of the disputed Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -6- booth an amount of Rs.33,100/- being 10% of the amount of consideration was deposited as bid money, another amount of Rs.49,650/-, which includes Rs.44,000/- as 15% of the consideration amount, was deposited within six months and possession of the booth was delivered on 14.03.1989. It is added that on 17.07.1990 transfer of ownership of the booth, in question, in favour of the petitioners was allowed subject to payment of Rs.82,330/- as outstanding against the said booth, but on account of non-payment of these dues, the booth was resumed and eviction of the petitioners was ordered. However, the orders of resumption and eviction were set aside illegally by the Administrator, HUDA, vide order dated 03.04.2001 (Annexure P2) and against that order, the Estate Officer (respondent No.2) has filed a petition under Section 30 of the Haryana Urban Development Authority Act, 1977, which is still pending. It is also stated by the official respondents that the amounts, deposited by the petitioner after passing of resumption order and found as refundable, have been returned to the petitioners vide cheque No.46588 dated 11.01.2013, sent at the address of the petitioners, vide letter dated 29.01.2013.
We have heard learned counsel for the parties, and have examined the record.
It has remained undisputed that the booth, in question, was allotted to one Shanti Devi and was subsequently transferred in the name of the petitioners on 17.07.1990, of course subject to payment of outstanding dues amounting to Rs.82,330/- but on account of failure of the petitioners to clear the outstanding dues, the booth was resumed and eviction, of the petitioners therefrom, was ordered. It has also remained undisputed that Administrator, HUDA, Panchkula, vide his order dated Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -7- 03.04.2001, had set aside the orders of resumption and eviction, restored the booth to the petitioners provided the petitioners deposit the entire outstanding amount as calculated after adjusting the amount(s) already paid by them, after resumption of the booth, in ten equated monthly installments, first installment being payable "within one month from the date of intimation of outstanding dues as per latest HUDA policy made by the Estate Officer, HUDA, Panchkula." The official respondents, including respondent No.2, Estate Officer, Panchkula, have not intimated to the petitioners as to what was due from them in terms of order dated 03.04.2001. At least, during the course of hearing no document was referred to whereby such an intimation appear to have been given to the petitioners. It needs to be added here, even at the cost of repetition, that in spite of failure of the official respondents to intimate the petitioners as to what was outstanding against them, the petitioners, in their earnestness, have been depositing various amounts with the official respondents, as detailed below:-
Date of Deposit Amount Deposited (in
rupees)
1 Bid money 33,100.00
2 Within six months of 49,650.00
allotment
3 30.11.2000 2,48,250.00
4 30.11.2000 68,269.00
5 31.05.2005 1,00,000.00
6 31.05.2005 1,00,000.00
7 17.06.2005 50,000.00
8 17.06.2005 50,000.00
9 12.07.2012 5,94,375.00
10 12.07.2012 5,94,375.00
11 17.07.2012 672.00
Total 18,88,691.00
Virender Singh Adhikari
2013.08.02 10:14
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No.1494 of 2013 -8-
It is quite surprising that the aforestated amount has been paid by the petitioners to the respondents even though the total sale consideration, they were required to pay, was Rs.3,31,000/- only plus interest and transfer fee etc. The payments of Rs.3,16,519/- made by the petitioners on 30.11.2000, are during the pendency of their appeal before Administrator, HUDA, Panchkula, while the payments made on and after 31.05.2005 are after passing of the order dated 03.04.2001. The official respondents though have not denied the deposit of these amounts in their bank account but learned Senior Counsel appearing on their behalf has been at pains to stress that these amounts were deposited by the petitioners direct in the bank account of the official respondents without their knowledge and consent and, as such, these amounts cannot be said to have been officially paid to the official respondents. Learned Senior Counsel attempts to derive support to this contention from a Division Bench judgment of this Court rendered in Smt. Kasturi Devi Versus The State of Haryana and others, CWP No.10171 of 2011, decided on 28.03.2012 wherein it has been held that "unilateral deposit without any permission after resumption of the plot is unauthorized and cannot confer any equitable right in favour of the allottee". The official respondents, in our considered opinion, cannot derive any benefit from the cited judgment for the simple reason that the amount of Rs.3,16,519/- was deposited by the petitioners during the pendency of their appeal before the Administrator to which respondent No.2 was a party. Deposit of this amount is admitted by the 2nd respondent in his communication dated 26.06.2002 (Annexure P5). The fact of deposit of Rs.2,00,000/- on 31.05.2005 and Rs.1,00,000/- on 17.06.2005 as stated in paragraph (12) of the writ petition has not been denied by the official Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -9- respondents while deposit of Rs.11,88,750/- on 12.07.2012 was intimated by the petitioners to the 2nd respondent vide intimation letter dated 12.07.2012 (Annexure P-7). It is very unfortunate that the official respondents in paragraph (15) of their reply have denied receipt of intimation dated 12.07.2012 (Annexure P-7) but while perusing the original official record maintained by the Estate Officer, HUDA, Panchkula, respondent No.2, we have noticed that this communication is very much available in the file No.B-3/8 (Court Case) at page 318 and it has been received in the office of respondent No.2 vide diary No.10454 dated 12.07.2012 and was dealt with, at page 81, of the file containing noting part. Copies of both these documents are retained by us on record.
It is equally disgusting that the official respondents used the money of the petitioners for years together and now they come out with a plea that the money deposited in their bank account by the petitioners is inconsequential. Such an effort deserves deprecation. Therefore, the official respondents are deemed to have accepted various payments made by the petitioners as per details given here-in-before and, as such, are estopped from taking a turn around and saying that the payments were invalid.
From the above-stated facts, if flows that the petitioners have fully complied with the conditions put on them by order dated 03.04.2001 (Annexure P-2).
It is argued on behalf of the official respondents that order dated 03.04.2001 (Annexure P-2) is without jurisdiction and, thus, is nonest. According to their counsel, this order is neither binding upon the official respondents nor does it need challenge, but still they have filed a revision petition to challenge this order before the competent authority. Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -10-
This contention of the official respondents is also not acceptable.
Circumstances appearing on record indicate that the official respondents did not raise the question of jurisdiction before the authority that passed the order dated 03.04.2001. The respondents, having not submitted to the jurisdiction of the authority concerned, are now barred from making the submission that the order was without jurisdiction and not binding upon them. It has already been noticed that the official respondents have been accepting various deposits made by the petitioners, in pursuance of the order dated 03.04.2001 (Annexure P-2).
Rather, a perusal of communication dated 26.06.2002 (Annexure P-5) sent by the Estate Officer, HUDA, Panchkula, to the Chief Administrator, HUDA, Panchkula, would reveal that Estate Officer was one with the order dated 03.04.2001 (Annexure P-2) and recommended to the Chief Administrator as under:-
"In the given circumstances, I am of the view that it is not a fit case for filing Revision Petition before CTCP and first the Booth may be transferred in view of the above mentioned Court's Award, so that outstanding amount may be demanded from them as per latest HUDA policy as per orders of the Administrator, HUDA, Panchkula passed in this case. Since the parties are ready to deposit the outstanding amount as per HUDA policy, therefore, it will be in the interest of HUDA that parties may be asked to deposit the outstanding amount as per orders of the Administrator, HUDA, Panchkula passed in the appeal and in compliance of the Award mentioned above. Therefore, it is requested that appropriate decision may be taken in the matter regarding filing of Revision Petition, so that the further action may be taken in the matter by this office."Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -11-
During examination of the file No.B-3/8 (Court-Case) of the office of the Estate Officer, HUDA, Panchkula, we have come across an endorsement of the Estate Officer, HUDA, Panchkula, at page 77 of the noting part file, to the following effect:-
"In my opinion there is no need to file R.P. (read revision petition) at this belated stage.
Sd/-
4.7.12"
After recording (in Annexure P-5) that it is advisable to file a revision petition against the order dated 03.04.2001 and then opined that there is no need to file revision petition at this belated stage, the 2nd respondent further states that the revision petition has now been filed against the aforesaid order after expiry of more than 12 years of passing of the same. Reasons for this somersault being enacted by the 2nd respondent time and again is not understandable.
As regards the submission that the order dated 03.04.2001 is not binding upon the official respondents and no benefit can be derived, it needs to be stated that after having accepted huge amount of money from the petitioners, in compliance of the aforestated order, and after having allowed, a period of more than 12 years, to elapse after passing of the order dated 03.04.2001, it would result into grave injustice and would be inequitable, if the official respondents are allowed to raise such a contention at this belated stage and after having accepted the huge money from the petitioners.
It has also been sought to be contended that the order dated 03.04.2001 being without jurisdiction is nonest and, thus, inconsequential, however, even the official respondents having submitted Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -12- to the jurisdiction of the authorities passing such order, cannot be heard now to raise this contention and even otherwise, the order dated 03.04.2001, even if assumed to be without jurisdiction and is, therefore, invalid, as argued by Senior Counsel, has to remain apportioned until it is set aside or reserved by the competent authority, in accordance with law. As of now, this order is not found to be upset or reversed by any competent authority.
Towards the end, learned Senior Counsel representing the official respondents has relied upon Suresh Chand Vs. The State of Haryana and others, CWP No.19503 of 2010, decided on 10.01.2013; Anil Godara Vs. State of Haryana and others, CWP No.10061 of 2013, decided on 10.05.2013, Shri Kamal Anand Vs. HUDA and another, CWP No.3284 of 2009, decided on 04.02.2013 and Smt. Kasturi Devi Vs. The State of Haryana and others (supra), to contend that booth of the petitioners having been resumed on account of non-payment of amount of consideration, the order of resumption cannot be upset. Even this contention raised on behalf of the official respondents is found to be meritless and the judgments cited on their behalf are of no benefit to the plea raised on their behalf because in the cases, as envisaged from the facts of the cited judgments, no payment whatsoever was made by the allottees after payment of 25% of the amount of consideration and it was in those situations that it was held that order of resumption cannot be upset. However, facts and circumstances of the case in hand as aforestated, are different, from the facts and circumstances of those cases relied upon, because the petitioners herein have deposited Rs.18,88,691/- as against the total sale consideration of booth in question being Rs.3,30,000/- only. The amount, Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -13- so deposited, by the petitioners has been put in use by the official respondents for more than 10 years or so and no objection is shown to be raised at any stage against such deposits or any attempt, was made to return the amount uptil 2012. Therefore, the instant case cannot be thrown away only because an order of resumption was passed against the petitioners for non-payment of installments of the balance amount within time.
It has also come on record that the petitioners have raised construction as per building plan approved by the official respondents without any objection having been raised by the official respondent to construct the booth.
From the facts and circumstances as discussed in the foregoing paragraphs of this order, it is manifest that the official respondents have been growing hot and cold in the same breath in so far as, on the one hand, they have been accepting the deposits of various amounts from the petitioners in compliance of order dated 03.04.2001 (Annexure P-2) and, on the other hand, are trying to project that this order is without jurisdiction and not binding upon them. Similarly at times, they say that the order need not be challenged being nonest, at times they project that the order was not complied with and petitioners be asked to deposit the balance amount in compliance thereof and still at some places the official respondents say that it is not advisable to file revision petition at this belated stage but still claim to have filed a revision petition. Such an attitude of the official respondents runs contrary to the concept of welfare State whereunder the instrumentalities of the State, like the HUDA, are supposed to work for the benefit and advantage of the people but, as against this concept, as is evident from the facts and Virender Singh Adhikari 2013.08.02 10:14 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.1494 of 2013 -14- circumstances of this case, the HUDA seems to have adopted a different posture and has reduced itself to a money making and profit earning agency of the State. Such a tendency needs to be depricated and interests of the hapless citizens, like the petitioners herein, have to be protected from the highhandedness of the authority like the HUDA. In the consequence, we accept the writ petition, direct the official respondents to issue completion certificate to the petitioners and allow transfer of the booth, in question, in favour of petitioner Nos.1 and 2, in terms of the request (Annexure P-7) made by the petitioners before them. However, we refrain ourselves from passing any order as to costs.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
25.07.2013
adhikari
Virender Singh Adhikari
2013.08.02 10:14
I attest to the accuracy and
integrity of this document
High Court Chandigarh