Punjab-Haryana High Court
Vijay Kumar vs State Of Haryana & Others on 12 March, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No. 20554 of 2010 -1-
IN THE PUNJAB AND HARYANA HIGH
COURT AT CHANDIGARH
CWP No. 20554 of 2010
Date of Decision: 12.03.2012
Vijay Kumar
......... Petitioner
Versus
State of Haryana & others
............ Respondents
*****
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN
RAINA
Present : Mr. Puneet Bali , Advocate,
(in CWP No. 20554 of 2010)
Mr. Ranjit Singh, Advocate,
(in CWP Nos. 21659, 21700, 21705 of 2010)
Mr. G.S. Bhatti, Advocate,
(in CWP No. 15174 and 16784 of 2011)
Mr. Ivneet Singh Pabla, Advocate,
(in CWP No. 20566 of 2011)
for the petitioner.
Mr. Narender Hooda, Addl. A.G., Haryana.
Mr. Sanjay Chauhan, Advocate,
for respondent No.3
(in CWP Nos. 20554 and 21659 of 2010, 15174, 16784
and 20566 of 2011)
****
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
RAJIV NARAIN RAINA, J.
1. This bunch of seven connected writ petitions* are being disposed of by a common order. The facts are taken from the lead case CWP No.20554 of 2010.
2. Municipal Council, Thanesar (hereinafter referred to as "Council") District Kurukshetra decided to rent out shops, showrooms and Duplex in its newly constructed Palika Shopping Complex through public auction. The auction was held on 1.10.2006. Clause 10 of the CWP No. 20554 of 2010 -2- terms & conditions specified that possession of the shop, showroom, duplex will be delivered by the Municipal Council, Thanesar within three months to the tenant /successful bidder. In the event of delay due to any reason, interest amount of 11 months and interest on the non-refundable security will be given by the Municipal Council and this amount will be adjusted in the rent. The petitioner participated in the auction proceedings and made a successful bid for Shop No. 101. The shop was allotted to him. The petitioner deposited a non-refundable security of Rs. 8.00 lacs with the Council at the fall of the hammer. On 13.10.2006 the petitioner deposited the 11 months advance rent @ Rs. 5500/- per month, total amounting to Rs. 60,500/- and allotment letter was issued on 1.12.2006. There was failure on the part of the council to complete the construction of the shops within the period specified in the auction notice. It is pleaded that a second auction was conducted on 21.12.2006 for remaining shops. In the 2nd auction as well an assurance was given that possession would be handed over to the successful bidders within 3 months. This fact goes to show that the construction was incomplete. It is pleaded that the shopping complex is still lying vacant and a visit to the site would demonstrate the pitiable conditions prevailing on the spot inasmuch as construction material is dumped at the site. Bathrooms are incomplete and lying in unusable condition. There is no provision for drinking water. The fire fighting system is not in place. The lifts are yet to be installed. Due to its incompleteness physical possession of the shop was never handed over to the petitioner.
3. The petitioner received a letter dated 24.7.2008 in which it was stated that the shop was completely ready and the rent had started accruing from 1.12.2006 itself and in the month of October, 2007, the CWP No. 20554 of 2010 -3- advance rent of Rs. 60,500/- deposited by the petitioner stood exhausted and from November, 2007 till July, 2008 and outstanding rent of Rs. 49,500/- remained to be paid by the petitioner, besides interest and penalty. This letter has been impugned in this petition. It is pleaded that the recital in the letter (P-7) was contrary to condition No. 10 of the auction notice as well as the allotment letter dated 1.10.2006. In the allotment letter dated 1.10.2006 there is no recital that the possession has been delivered to the petitioner. Obviously the shops were not ready for delivery to the successful bidders. Besides no rent note/lease agreement was executed between the parties nor sought to be executed. In absence of rent note normally rent would not continue accruing. There was no document evidencing offer of possession of the shop in the Kacha Gher, Shopping Complex, Thanesar (Palika Bazar Complex) The petitioner's request for redressal of his grievance appears to have led the Executive Officer of the Council to write to its Rent Clerk, mentioning that oral complaints have been received from persons who had taken the shops on rent and a report was sought regarding the circumstances due to which possession could not be delivered. This letter is dated 10.11.2008 (P-
9). Instead of redressing his grievance, the petitioner received another impugned letter raising demand of Rs. 88,765/- towards rent and interest and penalty upto the month of December, 2008. A warning was issued that in case amount is not deposited within 7 days and no agreement is executed with the Council, proceedings under the Haryana Public Premises Act would be initiated against the petitioner for getting the shop vacated. Recovery proceedings under the Land Revenue Act was also threatened. In order to show that the construction at the site was not complete the petitioner has specifically CWP No. 20554 of 2010 -4- pleaded that various tenders were called for completion of the project on 27.4.2007, 18.9.2007, 9.5.2008, 9.6.2008 and 23.1.2009. The Municipal Council was not justified in putting shops to public auction on rent; not delivering possession; not providing basic amenities or completing the civil construction and then demanding rent for non-use of the shop. The threat of proceedings under the Public Premises Act was itself an empty threat since physical possession of the shops / complex remained with the Council. These facts have not been traversed by the Council.
4. That instead of carrying out its duty of making the complex functional and marketable the Council carried out its threat by initiating proceedings under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (for short, the 'Act') against the petitioner. That matter came up before the S.D.O. (Civil), Thanesar on 28.4.2010 but because of some alleged personal difficulty the petitioner could not attend the proceedings on 28.4.2010 and the matter was heard on merits in absence of the petitioner and order reserved. The order was pronounced on 18.7.2010 and the petitioner was ordered to be evicted and was further ordered to deposit an amount of Rs. 2,72,967/- as arrears of rent, interest along with penalty within one month from the date of the order. The petitioner has filed an application for setting aside the ex parte order, which remains pending before the 4th respondent S.D.O. (Civil), Thanesar.
5. That another major event was running parallel to the case of the petitioner. Some similarly situated allottees to whom identical notices were issued by the Council, as in the case of the petitioner, approached this Court by filing CWP No. 13548 of 2008. This Court by order dated 1.8.2008 issued notice to the Municipal Council, Thanesar CWP No. 20554 of 2010 -5- and the operation of the letter impugned dated 9.7.2008 (Annexure P- 6 ) was stayed. It was recorded in the order that the "photographs show that the building is not fit for occupation". Several other similar writ petitions were also filed being CWP Nos. 1015 to 1018, 1020 & 1061 of 2009 and CWP No. 13548 of 2008. The bunch of writ petitions came up for hearing before this Court on 30.1.2009. A Local Commissioner was appointed to ascertain whether the premises have been made ready for delivery to auction purchasers or not. The Local Commissioner visited the premises on 7.2.2009 and submitted report against the Council. The report is placed at Annexure P-14 and shows the sorry state of affairs obtaining at site. On 8.7.2010 this Court passed an order in the aforesaid bunch of writ petitions, in which the learned counsel for the Municipal Council, Thanesar made a statement that there is no document on record from which it can be deciphered that the possession was handed over and taken over by the successful allottees. When the matter came up for hearing on 14.7.2010, this Court referred the dispute to Arbitration to Hon'ble Mr. Justice K.C. Gupta (Retired) to be the sole Arbitrator. The Arbitration award was made on 14.10.2010. The operative part of the award read as follows:-
"20. Therefore, in view of the above discussion, it is held that the petitioners had not willfully and intentionally come forward to execute the agreements, but they did not execute the agreements as possession has not been delivered to them. The Municipal Council, could not deliver possession as the shops were not ready for possession, and the execution of the agreement was dependent upon the deliver of the possession. There is no evidence in the file that at the relevant time when the allotment letter was issued and offer was made that an agreement be executed, the shops were built up to the extent that CWP No. 20554 of 2010 -6- possession could be offered to them. In fact, in the letters which were addressed to the petitioners for execution of the agreement, there is no mention about the deliver of the possession. Thus, all the issues are decided in the favour of the petitioners and against the respondents.
21. In view of the above findings, award is passed in favour of the petitioners against the respondents with costs of Rs. 10,000/- (Rupees Ten thousand only) and the Municipal Council, Thanesar is directed to complete the work in all the respects of the Shopping Complex, situated in Kacha Gher, Thanesar, within one month, if already completed, a notice be issued to the petitioners to take possession of the respective shops and also to execute the agreement within a week. Municipal Council, is further directed to give interest on the advance rent as well as non-refundable security, at the rate of interest offered by nationalized Bank. i.e. 7% per annum, till physical possession is handed over to the petitioners/ allottees. Petitioners are further awarded damages by way of 12% interest on non-refundable security till delivery of possession as they have suffered mentally as well as loss of business due to delay in completion of work of the shops and handing over their possession. Requisite stamp papers be filed within week."
6. It is not in dispute that this award is under challenge in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 before the District Court, Kurukshetra.
7. One thing is certain from the perusal of the award that the Council has not been able to complete the construction of the shopping complex in time in order to make it functional with basic amenities. Another glaring fact pleaded is information received by a 3rd party under the Right to Information Act, 2005 regarding the shopping complex itself. There is an admission of the office of the Executive Engineer, Public Health Engineering Division, Kurukshetra that no CWP No. 20554 of 2010 -7- sewerage or water connection has been released by the Department to the Kacha Gher Shopping complex, Ground floor for general public. That letter is appended as Annexure P-18. Besides, no electricity connection has been issued to shops No. 101 to 106 and 109 to 132 after 18.10.2006. Still further there is an admission on the part of the State Public Information Officer-cum-Executive Officer, Municipal Council, Thanesar under RTI Act that completion certificate of the building is not available in the office. It appears to be established on the record that there is no evidence or letter showing delivery of possession to the petitioner till date.
8. I have heard Mr. Puneet Bali, learned counsel for the petitioner, Mr. Narender Hooda, Addl. A.G., Haryana and Mr. Sanjay Chauhan, learned counsel for the Municipal Council at length.
9. Mr. Narender Hooda, learned Addl. A.G., Haryana has raised an objection that the petitioner has suffered an order under the Haryana Public Premises Act and an appeal under Section 9 of the Act is provided. There is an alternative remedy and, therefore, the writ petition should be dismissed.
10. Mr. Hooda further contends that the petitioner actually occupied the premises. There is, however, no proof of this statement. However, if this is so, established on facts then the Council would have a right to mesne profits @ agreed rent against the petitioner and to seek a judicial finding from a competent court or authority.
11. Mr. Hooda has also raised an objection that the petitioner has filed an application for setting aside the ex parte proceedings before the SDM (Civil), Thanesar and, therefore, this Court should not intervene at this stage.
12. On facts Mr. Hooda submits that the petitioners in the CWP No. 20554 of 2010 -8- bunch of writ petitions are in actual possession of the shops/ showrooms. The Arbitrator, however, in his award has found that possession was not given. These disputes are left to be decided under Section 34 proceedings arising out of the award.
13. Mr. Puneet Bali, learned counsel for the petitioner forcefully contends that the order passed by the SDM (Civil) Thanesar under the Act is patently illegal, without jurisdiction and palpably absurd. The fabric of the Act is built on possession which has become unauthorized. If there is no delivery of possession the Act does not apply. In such circumstances there is no bar on the writ Court to interfere under Articles 226 & 227 of the Constitution of India to keep the authority subordinate to it within the bounds of its jurisdiction.
14. Mr. Bali relies on a judgment of the Supreme Court in the case of Narinder Mohan Arya v. United India Insurance Company Ltd.; 2006(4) SCC 713, in which the Supreme Court has quoted its celebrated judgment delivered in the case of State of U.P. v. Mohd. Nooh, AIR 1958 SC 86; Para 27 of which can be quoted with profit :-
"27. xx xx xx xx xx On the authorities referred to above it appears to us that there may conceivably be cases- and the instant case is in point- where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision and indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the CWP No. 20554 of 2010 -9- proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more i the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occusionally come to our notice."
15. I agree with Mr. Bali that his client should not be left to fend for himself in appeal in a proceeding which is ex facie unlawful. In fact I may not have any hesitation in quashing those proceedings in their entirety. I do so accordingly.
16. Next argument of Mr. Narender Hooda is that the petitioner was not a party in the bunch of writ petitions in 2008 & 2009. He was also not before the learned Arbitrator and cannot have the benefit of the award in favour of the allottees who had approached this Court. The Arbitrator was appointed on the directions of this Court, therefore, the present petition deserves to be dismissed not only on availability of alternative remedy but also on account of the fact that the petitioner was not party to the arbitration proceedings. I am not impressed by CWP No. 20554 of 2010 -10- this argument. The petitioner has not committed any wrong. The fault lies entirely with the Municipal Council, Thanesar. The Council ought to treat similarly situated persons similarly, even de hors the arbitration proceedings. That would be just and equitable. Instead of providing basic amenities and making the market functional the Council has exhibited complete irresponsibility in discharge of its duties. In the totality of the circumstances this Court is of opinion that the following directions are required to be issued :
i). The petitioner would have the benefit of the same directions as those contained in the arbitration award.
ii). The allotment to the petitioner would remain subject to proceedings under Section 34 of the Arbitration and Conciliation Act, 1995 and its outcome.
iii). The petitioner would have a right to be heard in Section 34 proceedings as intervener and would claim only such rights as not beyond rights claimed by the respondent allottees in the proceedings before the District Judge/Addl. District Judge, Kurushetra.
iv). The claim of the petitioner would be restricted to only such rights as were claimed by the petitioners in CWP No. 13548 of 2008 titled Virender Kumar v. State of Haryana & others and connected matters.
v). The petitioner would make an intervener application in Section 34 proceedings together with the copy of this order. The learned District Judge/Addl. District Judge would allow that application and permit the petitioner to participate in those proceedings.CWP No. 20554 of 2010 -11-
vi). The impugned letters/ notices (Annexures P-7 & P-10) would stand quashed.
17. The writ petitions are allowed in the above terms mutatis mutandis.
18. The matter stands disposed of with the above observations and directions.
19. Nothing said in this order would be taken as an expression on the merits of the case in the proceedings under Section 34 pending before the Court at Kurukshetra, which will be decided independently preferably within four months from today since no evidence is required to be led before it and only arguments are to be heard on materials already on record of the learned Arbitrator.
20. A copy of this order be placed on the file of each connected case.
12.03.2012 (RAJIV NARAIN RAINA) 'sp' JUDGE * S. No. Case No. Title 1 21659 of Piyush Gupta v. State of Haryana & 2010 others 2 21700 of Ajay Chaudhary v. State of Haryana 2010 & others 3 21705 of Rajesh v. State of Haryana & others 2010 4 15174 of Sunil Goyal v. State of Haryana & 2011 others 5 16784 of Minakshi Gupta v. State of Haryana 2011 & others 6 20566 of Kamal v. State of Haryana & others 2011 12.03.2012 (RAJIV NARAIN RAINA) 'sp' JUDGE CWP No. 20554 of 2010 -12-