Punjab-Haryana High Court
Printers Engineering Company vs State Of Haryana And Ors. on 24 May, 1999
Equivalent citations: (2000)126PLR205
Author: Mehtab Singh Gill
Bench: Mehtab Singh Gill
JUDGMENT G.S. Singhvi, J.
1. The facts brought on the record of this petition which has been filed for quashing the order dated 6.11.1998 passed by the Commissioner and Secretary to Government of Haryana, Town and Country Planning Department, Authority (hereinafter described as 'HUDA') connive with the plot holders for causing loss to the very public authority which they pretend to serve.
2. Although, for the reasons best known to it, the petitioner has not placed on record copy of the letter of allotment and, therefore, we are not in a position to know as to when the plot in question was allotted and what are the terms and conditions of allotment but a careful reading of the record shows that industrial plot No. 26, Sector 25, Faridabad was originally allotted (jointly) to Smt. Lilawati, Subhash Chand Kohli and Chander Mohan. Later on, the same was transferred to the petitioner subject to the condition that the construction will be started within six months and completed within next 15 months.
3. Proceedings under Section 17 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the 1977 Act') were initiated against the petitioner due to non-construction of building within the stipulated time. Notices dated 25.8.1989, 30.11.1989 and 23.3.1990 were issued to the petitioner under Section 17(3) and 17(4) of the 1977 Act but it failed to erect the building in accordance with the letter of allotment and Haryana Urban Development Authority (Erection of Buildings) Regulations, 1979. Consequently, the Estate Officer passed order Annexure P-2 dated 9.7.1990 for resumption of the site and forfeiture of Rs. 6,210/- out of the amount deposited by the petitioner. The appeal preferred by the petitioner under Section 17(5) of the 1977 Act was dismissed by the Administrator, HUDA, Faridabad (exercising the powers of the Chief Administrator, HUDA) on 17.9.1990. The relevant portion of the appellate order is reproduced below:
"The appellant states that due to his financial condition, he could not begin the construction work. Now his financial condition has improved. Therefore, the plot may be restored and time be granted for construction.
Representative of HUDA states that the plot was transferred in the name of the appellant on 8.10.1986 , on the condition that he shall start construction work on the plot within six months and shall complete it within fifteen months. The appellant has violated conditions of transfer. Not only that in a period of four years, he has shown no interest in making any construction on the plot, therefore, the appeal may be dismissed.
I have heard both the parties and have perused the record. The plot is with the appellant for the last four years and till now he has made no construction on the plot, on the other hand the construction should have been completed within fifteen months. Not only this the appellant has taken no definite steps for making the construction. The appellant has not brought any proof from which it can be made out that he is interested in raising construction and starting a factory. Nor has he initiated any proceedings with any bank or a financial institution for raising a loan. The negotiations which he says are presently being undertaken with Haryana Financial Corporation should have been done immediately after the transfer of plot. Non-action on part of the appellant for four years indicates that he was not interested in construction of a factory but had retained the plot only with profit motive, this is not only in contravention of conditions of transfer but is also against the policy of Haryana Government.
Keeping in view the above mentioned facts, while dismissing the appeal under consideration, the order of Estate Officer, dated 9.7.1990, vide which the plot was resumed and Rs. 6,210/- from the deposited amount be forfeited is upheld.
Pronounced Sd/- Administrator,
17.9.1990. HUDA, Faridabad. "
4. The petitioner challenged the order of resumption as well as the appellate order by filing C.W.P. No. 15788 of 1990 M/s The Printers Engineers Co. Limited v. State of Haryana and Ors., which was also dismissed on 20.3.1991 by Division Bench of this Court. The relevant portion of the High Court's order is reproduced below:
"In terms of the order of allotment of September 13,1985, Annexure P/1, the petitioner was required to complete construction on the plot within 15 months thereof, that is, by December 31,1987. This period was subsequently extended under the revised policy adopted by the Haryana Urban Development Authority, Faridabad till March 2, 1990, but despite that, to date, the construction has not yet been completed. Indeed, the impugned order of the Chief Administrator, annexure P-6, shows that no solid steps had been taken either for the construction work or for the starting of the factory nor indeed had the petitioner produced any material to show that he was interested in installing any factory after constructing a building thereon.
The only contention raised by the counsel for the petitioner was that the show-cause notice regarding resumption has been issued on September 25, 1989, whereas time for completion of the construction had admittedly been extended upto March 2, 1990. This, by itself, cannot avail the petitioner as even to date the construction has not been completed. This writ petition is accordingly hereby dismissed.
Sd/- N.K. Sodhi, Judge.
March 20,1991 Sd/- N.K. Kapoor, Judge."
5. Though the above extracted order passed by the High Court dismissing the writ petition became final because the same was not challenged by filing petition for Special Leave to Appeal in the Supreme Court, after more than 5 years, the petitioner succeeded in persuading the Administrator, HUDA, Faridabad to entertain and accept the second appeal filed by it against the order dated 9.7.1990 passed by the Estate Officer. For reasons, which are not far to seek; the appellate authority restored the plot to the petitioner subject to the condition that the allottee shall deposit the extension fee and other dues within 60 days. The relevant portion of the second appellate order, a copy of which has been placed on record as Annexure P-9, reads as under:
"I have heard both the parties and gone through the records, carefully. In one of the case of Punjab and Haryana High Court in C.W.P. No. 2130 of 1982 and C.W.P. No. 3370 of 1988, it was held that the power of resumption is a weapon of last resort and should be used with great caution and circumspection. Even according to the new policy devised by HUDA time for construction can be extended subject to payment of prescribed fees and order of resumption of plot not being justified, was set aside. The plot of the appellant was resumed by the Haryana Urban Development Authority as the allottee-appellant had failed to construct the same within the extended period though he had deposited the entire price.
As per report of field staff it is constructed one and is also a running unit, and working a number of employees. In view of the above I hereby order that the above plot in question is restored to the appellant firm with the condition that the appellant firm will deposit the upto date extension fees and other dues, if any, within 60 days from the date of issue of this order.
Sd/- Administrator, HUDA, Faridabad. 14.5.1998."
6. Unfortunately for the petitioner and fortunately for the HUDA, the revision petition filed by the Estate Officer has been accepted by the Commissioner and Secretary to Government of Haryana, Town and Country Planning Department, Chandigarh, who while setting aside the order Annexure P-6 passed by the Administrator, observed as under:
"Feeling aggrieved by the order of the Administrator, the appellant filed C.W.P. No. 15788 of 1990, in the Hon'ble High Court for quashing the resumption order passed by the Estate officer and the Administrator. Vide order dated 20.3.1991 the Hon'ble High Court dismissed the writ petition., Not withstand the above development, the appellant filed a fresh appeal before the Administrator on 6.5.1996 to set aside the resumption order passed by the Estate Officer on 9.7.1990. The plot was restored by the Administrator after taking into consideration the report of field staff to the effect that the plot is a constructed one and a unit is running with a number of employees working therein. Directions were also given by the Administrator to deposit the upto-date extension fee and other dues if any within 60 days from the date of issue of the order. The plot was restored by the Administrator vide order dated 14.5.1998.
Estate Officer, HUDA, Faridabad has filed the present revision petition incorporating all the facts mentioned above. It was pointed out in the petition that the Administrator has never considered the relevant facts of the case and has passed the impugned order illegally. Hence, it was prayed that the order of the Administrator be set aside. It was pleaded that the Administrator had no jurisdiction to entertain the second appeal, when the earlier appeal before the Administrator was dismissed on 17.9.1990. The second appeal could not have been entertained when the matter had already been decided by the Hon'ble Court on 20.3.1991.
Shri A.K. Jain, learned counsel for the M/s Printers Engineering Company argued that the appellant has filed appeal under Section 17(7) of HUDA Act, before the Administrator on 6.5.1996 and the Administrator was duly empowered to hear and decide the same. He pointed out that the order passed by the Hon'ble High Court was passed in limine and it was not a speaking order, he admitted that there was a condition in the transfer letter regarding completing construction within a given time. However, he asserted that in violation of the condition, only security amount of Rs. 5,000/- could have been forfeited. He pointed out that a factory is running on the plot and 28 employees are working there to manufacture printing machines. He also pointed out that the under-singed has no jurisdiction to entertain revision petition as the same is not maintainable under the provisions of the HUDA Act.
I have heard both the parties and gone through the record of the case. The Hon'ble High Court order dated 20.3.1991 in the case has assumed finality since no party has gone into appeal against the order. The plea of the allottee/transferee has been well considered by the Hon'ble High Court and thereafter the writ petition was dismissed. Earlier also, Administrator Faridabad vide order dated 17.9.1990 had dismissed the appeal of the party on the ground of non-construction of the factory building at site. The plea that only fine could have been imposed in such condition as per the terms and conditions of the transfer letter pales into in-significance in view of the categoric finding of the Hon'ble High Court. In the given circumstances the present order of the Administrator dated 14.5.1998 is without jurisdiction. Hence, the same is set aside. The plot stands resumed and HUDA may take necessary action for taking possession of the same.
Announced on 6.11.1998.
Sd/- Bhasker Chatterjee, Commissioner & Secretary to Govt of Haryana, Town and Country Planning Department, Chandigarh."
7. Shri I.K. Mehta, Senior counsel appearing for the petitioner fairly conceded that the order dated 20.3.1991 passed by this Court in CWP No. 15788 of 1990 has become final because it was not challenged by the petitioner in the Supreme Court. Notwithstanding this, he made strenuous efforts to persuade us to nullify the order passed by the revisional authority by arguing that the petitioner has spent substantial money in raising the construction and running the factory. Shri Mehta stated that even though the resumption order passed by the Estate officer had become final with the dismissal of the appeal and the writ petition filed by the petitioner, possession of the plot remained with it and factory building was constructed in accordance with the sanctioned building plan. He invited our attention to Annexure P-7 to show that the petitioner had been paying house tax in respect of the plot in question and argued that in the peculiar facts of the case, the order dated 14.5.1998 passed by the Administrator should be restored. Shri Mehta further argued that the order passed on the second appeal filed by the petitioner should be treated as one made in accordance with the policy framed by the Government for allotment, transfer and resumption of industrial plots. Shri Mehta placed reliance on the clause relating to extension of time fixed for erection of the building contained in the policy decision circulated by the respondent HUDA vide letter Annexure P-5 dated 11.11.1991 of the Chief Administrator and submitted that the benefit of this policy should be given to the petitioner. He cited the decision of this Court in M/s. G.M. Worsted Spinning Mills (P) Ltd., Faridabad v. Haryana Urban Development Authority and Ors., (1994-1) P.L.R. 268 in support of his submission that the order passed' by the Administrator setting aside the resumption ordered by the Estate Officer may be restored. In the end, he made strenuous efforts to convince us to ignore the patently illegal order passed by the appellate authority and the actions of the concerned authorities of the HUDA to sanction the building plan in respect of a resumed plot by submitting that the petitioner may be given the liberty to run the factory by paying extra price for the plot.
8. In our opinion, none of the submissions made by the learned counsel merits acceptance and we do not find any valid ground to interfere with the order passed by the revisional authority. Indeed, it is not the petitioner's case that the State Government does not have the jurisdiction to interfere with the order passed by the appellate authority. Therefore, the impugned order cannot be nullified at least on the ground of lack of jurisdiction. We are further of the view that the reasons assigned in the impugned order are neither extraneous or irrelevant and the conclusion recorded by the Commissioner that the Administrator did not have the jurisdiction to entertain the second appeal filed by the petitioner does not suffer from any legal error. Learned counsel for the petitioner has also not been able to point out any apparent error in the findings recorded by the revisional authority.- Therefore, we do not find any cogent reason to nullify the impugned order simply because the petitioner has succeeded in securing a favourable order from the appellate authority.
9. The parameters and the limitations within which certiorari jurisdiction of this Court can be exercised have been laid down by the Apex Court in Syed Yakoob v. K.S. Radhakrishnan, A.I.R. 1964 Supreme Court 477. Some of the observations made in that decision, which have direct bearing on the issue relating to the legality of the order Annexure P-10 are extracted below:
"A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals: these are cases where orders are passed by inferior Courts or tribunals without jurisdiction, or if in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that the finding of fact reached by the inferior Court or Tribunal as result of appreciation of evidence cannot be reopened or questioned in writ proceedings."
10. If the impugned order is scrutinized in the light of the guiding principles laid down by the Supreme Court , we do not have the slightest hesitation in approving the view taken by the revisional authority that the Administrator did not have the power and jurisdiction to entertain the appeal filed by the petitioner after 6 years of the passing of the order of resumption, which was confirmed by the appellate authority and against which the writ petition filed by the petitioner was dismissed by the High Court. We are rather surprised with the dare devil attitude exhibited by the officer who not only entertained the second appeal filed by the petitioner after 6 years of the passing of the order of resumption but accepted the same deliberately ignoring the following starring features of the case:
(i) that the order of resumption passed by the Estate Officer on 9.7.1990 had merged in the appellate order passed by the Administrator and there did not exist any order against which the petitioner could file appeal under Section 17(5) of the 1977 Act;
(ii) that the High Court had dismissed the petitioner's writ petition on 20.3.1991 after giving notice and opportunity of hearing to the parties; and
(iii) that the appeal filed by the petitioner in the year 1996 was hopelessly time barred.
11. On the basis of above discussion, we hold that the order dated 14.5.1998 passed by the Administrator, HUDA, Faridabad was without jurisdiction and the revisional authority rightly nullified the same.
12. We are also not inclined to accept the submission of Shri Mehta that this Court should ignore the void order passed by the appellate authority and the patently illegal actions taken by the other authorities allowing the petitioner to erect the building. In our considered view, the steps taken by the petitioner to raise construction by securing sanction of the building plan in connivance with the officials of the HUDA cannot be made basis for exercising jurisdiction under Article 226 of the Constitution of India to nullify the order passed by the revisional authority and thereby confer legitimacy to the illegal actions of the petitioner.
13. The submission of the learned counsel that the sanction of building plan of the petitioner by the competent authority of the HUDA and the action of the Faridabad Complex Administration to charge house tax should be treated as implied condonation of the default of the petitioner in raising the construction cannot be accepted because the petitioner has not placed on the record any document to show that the competent authority had taken a conscious decision to sanction the building plan submitted by the petitioner's representative knowing that the plot in question stood resumed on 9.7.1990 and the appeal as well as the writ petition filed by the petitioner has been dismissed. The receipts (Annexures P-7 and P-8) produced by the petitioner to support its assertion regarding the payment of house tax appears to be the part of uncanny attempt made by the petitioner to pollute the administration because learned counsel could not explain to us as to how house tax can be levied on industrial plot. In any case, were unable to agree with him that the illegal sanction of the building plan or the payment of house tax by the petitioner should ensure to its advantage and justify an order by this Court which would amount to an indirect review of the order dated 20.3.1991 passed in C.W.P. No. 15788 of 1990.
14. The policy instructions (Annexures P-5 and P-6) issued by the. Government and the respondent-HUDA for extension of the time limit for construction of the building on which reliance has been placed by Shri Mehta do not, in any manner, support the case of the petitioner. A bare reading of Annexure P-5 shows that one of the policy decisions taken by the HUDA relates to allotment of resumed plot on the recommendations of the single window service/single window agency. The extension clause incorporated in Annexure P-5 deals only with the plots which have not been resumed. The order Annexure P-6 issued by the Government deals with de-resumption of the plots on the recommendations of the single window service. The petitioner is not shown to have applied for de-resumption of the plot in terms of the policy decision taken by the HUDA and the instructions issued by the Government. No document had been placed on the record of the writ petition to show that its case was recommended by the competent authority constituting single window agency. Therefore, we do not find any justification to apply the policy decision contained in Annexures P-5 and P-6 to the case of the petitioner for restoring the patently illegal order passed by the Administrator, HUDA, Faridabad.
15. For the reasons mentioned above, the writ petition is dismissed. The petitioner shall deposit cost of Rs. 5000/- with the Legal Aid Board, Haryana because, in our considered view, the present one is a clear case of an attempted mis-use of the process of the Court.
16. The Registry is directed to send a photostat copy of this order along with a copy of the writ petition to the Chief Secretary, Haryana, who may place it before the Chief Minister, Haryana so that he may be able to know as to how the officers of the HUDA have, for apparently extraneous reasons, passed orders favouring the petitioner. We hope that the learned Chief Minister will take appropriate action so that other officers are discouraged to pass orders which are detrimental to public interest.