Punjab-Haryana High Court
Greater Mohali Area Development ... vs State Of Punjab And Others on 12 February, 2013
Author: Surya Kant
Bench: Surya Kant
CWP No. 14926 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 14926 of 2012
Date of decision: 12.2.2013
Greater Mohali Area Development Authority
..... Petitioner
Versus
State of Punjab and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P. NAGRATH
PRESENT: Mr. R.S. Khosla and Mr. Balwinder Singh, Advocates
for the petitioner.
Ms. Munisha Gandhi, Addl. A.G. Punjab.
Mr. D.S. Brar, Advocate for respondent No. 3.
SURYA KANT, J. (ORAL)
The Greater Mohali Area Development Authority (in short 'GMADA') impugns the orders dated 21.4.2011 and 14.2.2012 (Annexures P-19 and P-22, respectively) passed by the Appellate and Revisional Authorities, in exercise of their powers under the Punjab Regional and Town Planning and Development Act, 1995 (for brevity 'the Act of 1995') whereby the order dated 6.1.1994 (Annexure P-8) CWP No. 14926 of 2012 -2- cancelling the allotment of HIG House No. 204, Sector-71, S.A.S. Nagar, Mohali has been set aside and the allotment has been restored in favour of one Harjit Singh who statedly holds General Power of Attorney (hereinafter referred to as 'GPA') of respondent No. 3. The Revisional Authority has issued a further direction to the Estate Officer, GMADA to hand over "conveyance deed papers after execution to the above named GPA within 15 days of receipt of its order, failing which any loss suffered by the GPA will be the sole responsibility of GMADA".
2. The facts of the case are quite shocking. The above-stated Higher Income Group, House No. 204, was allotted to respondent No. 3 (Varinder Jeet Singh) under the Partial Self Financing Scheme by the erstwhile Punjab Housing Development Board, vide allotment letter No. 18224 dated 9.10.1990 (Annexure P-1) against the tentative price of ` 3,38,800/-. Respondent No. 3 deposited a sum of ` 1,15,000/- before the issuance of allotment letter, followed by another payment of ` 57,144/- whereupon possession of the house was handed over to him on 8.11.1990.
3. The balance 50% of the allotment price was required to be deposited by the 3rd respondent in 156 monthly installments of ` 2364/- as recited in condition No. 7 of the allotment letter dated 9.10.1990 (Annexure P-1).
4. Respondent No. 3 admittedly failed to deposit at least 30 installments up to September, 1993 and consequently allotment was cancelled vide order dated 6.1.1994 (Annexure P-8) after serving show- CWP No. 14926 of 2012 -3- cause notice dated 2.9.1993 (Annexure P-7). It appears that respondent No. 3 had handed over possession of the subject house to one Harjit Singh, who continued to retain the possession despite cancellation of allotment, apparently in connivance and collusion with the Authorities of the Punjab Housing Development Board and/or its successors.
5. The sudden turn of events took place when respondent No. 3 executed a General Power of Attorney in respect of house in dispute in favour of Harjit Singh on 29.10.2010 i.e. after more than 16 years of the cancellation of the allotment. The GPA holder then sought information from GMADA, the successor of PUDA, about the outstanding dues and on finding this information, deposited such dues on 2.11.2010. Soon thereafter he filed an appeal on 29.12.2010 (Annexure P-18) purportedly under Section 45 (5) of the Act of 1995, namely, the Statute which was non-existent at the time when the allotment was made or cancelled. In this appeal the GPA (Harjit Singh) challenged the order of cancellation of allotment dated 6.1.1994 (Annexure P-8). It may be noticed here that under Section 45 (5) of the 1995 Act, an appeal against the order of Estate Officer can be preferred to the Chief Administrator, GMADA, "within a period of 30 days of the date of communication to him of such orders" though the proviso thereto enables the Chief Administrator, to entertain an appeal even after expiry of the said period of 30 days "if he satisfied that the appellant was prevented by sufficient cause from filing appeal in time".
6. The Appellate Authority is said to have heard the original CWP No. 14926 of 2012 -4- allottee, namely, respondent No. 3, who was working as a Pilot in some Airlines and most of the time allegedly remained outside the country. Respondent No. 3 is said to have taken a plea that he had appointed his father as Special Power of Attorney for giving the house on rent but after the death of his father he appointed the GPA (Harjit Singh) authorizing him to even execute an 'agreement to sell' etc. It was deliberately concealed or overlooked by the Appellate Authority that father of respondent No. 3 had passed away way back on 6.5.2004 and not in the year 2010 when the General Power of Attorney dated 29.10.2010 was executed. The Appellate Authority did not call for any explanation for the inordinate delay spanning to over 16 years in filing the appeal and after taking notice of the fact that the outstanding dues have been cleared on 3rd and 4th February, 2011, set aside the cancellation order dated 6.1.1994 (Annexure P-8) and restored the allotment "in favour of the original allottee".
7. As the appellate order was ex facie a friendly match between the GPA and GMADA, the matter would have gone unnoticed but for a written complaint dated 16.5.2011 (Annexure P-20) received through an Advocate pointing out that the GPA (Harjit Singh) had already entered into an 'agreement to sell' dated 29.11.2010 with the complainants for the sale of house in dispute for a hefty sale consideration of ` 75,05,000/- out of which ` 5,00,000/- had already been received by him in cash as earnest monthly. The complaint alleged that the GPA was trying to wriggle out of the agreement to sell hence no NOC (No Objection Certificate) be CWP No. 14926 of 2012 -5- issued in his favor. GMADA feeling aggrieved by the order dated 21.4.2011 (Annexure P-19) passed by the Appellate Authority then preferred a revision petition before the State Government under Section 45 (8) of the Act of 1995.
8. The Revisional Authority though took notice of the fact that the appeal was filed almost after 17 years yet taking shelter behind the events like deposit of outstanding dues by the GPA and relying upon Section 44 (2) of the Act of 1995 which enables the statutory authorities to recover the outstanding dues as arrears of land revenue, it came to the conclusion that the allotment could not have been cancelled merely because the installments were not paid. The Revisional Authority further held that since the possession of the house is with the respondent/GPA from the last 22 years, it will be a miscarriage of justice if he is denied allotment at this stage. The Revisional Authority further observed that when there was no stay of the operation of the impugned order, why the Estate Officer has not executed the Conveyance Deed and that "it appears to be mala fide on the part of the Estate Officer to retain the stamp papers simply to harass and causing financial loss to the GPA for the reasons best known to him".
9. So much was the sympathy shown by the Revisional Authority with the GPA that it completely forgot the 'original allottee' and came to the following further conclusion:-
"----- The GPA deserves all sympathy from this forum because he is a retired government employee and CWP No. 14926 of 2012 -6- remained admitted in the hospital with numerous medical problem documents placed on record more so he had paid the entire price of the house with interest and penalty as calculated by the Estate Officer, GMADA in his own way without raising any objection. On the other hand the counsel for the petitioner has not placed any judgment/law in support of his arguments. While dismissing the Revision Petition, I also direct the Estate Officer, GMADA to hand over Conveyance Deed papers after execution to the GPA within 15 days of the receipt of this order, failing which, any loss suffered by the GPA will be sole responsibility of the GMADA. There will no order as to costs."
10. Still aggrieved, GMADA has preferred this writ petition.
11. When this matter came up for preliminary hearing on August 6, 2012, we pass the following order:-
"We suo-moto implead State of Punjab through its Chief Secretary as a party-respondent No. 1-A. Registry is directed to carry out necessary correction in the memo of parties.
Having been confronted with various orders passed by the Additional Chief Administrator/Chief Administrator, GMADA in purported exercise of their CWP No. 14926 of 2012 -7- quasi-judicial powers under The Punjab Regional and Town Planning and Development Act, 1995 which are subject-matter of several court cases and also on perusal of the orders of the Revisional Authority passed in most of the cases, prima-facie it appears that valuable public properties are being re- allotted/restored at large scale by passing whimsical and arbitrary orders apparently for the reasons other than judicious or bonafide. In the case in had itself, the Additional Chief Administrator, GMADA, has set- aside the order of cancellation of allotment after about 17 years and restored the property in favour of holder of a General Power of Attorney to whom the subject flat is claimed to have been 'sold' by the original allottee in the year 2010 though the allotment stands cancelled way back in the year 1994. It further appears to us that these orders are being passed under misconception as if no disciplinary action can be initiated for an action taken while exercising quasi- judicial powers. Such a wrong notion is contrary to the law settled by the Hon'ble Supreme Court. We, therefore, call upon the Chief Secretary to the Government of Punjab as to why (i) the details of all such properties which have been restored after a long CWP No. 14926 of 2012 -8- spell be not got prepared; (ii) the justification and validity of restoration of allotment in each case be not enquired into by a high level Enquiring Committee of judicial background, and (iii) if an element of extraneous or alien considerations is found involved, why suitable action/prosecution be not directed/initiated against the guilty officers?
Notice of motion for 14.8.2012.
Meanwhile, keeping in view the larger public interest, we stay operation of orders dated 21.4.2011 and 14.2.2012 (Annexures P-19 and P-22, respectively)."
12 Pursuant thereto, State of Punjab has filed its reply-affidavit claiming that there exists an internal mechanism within the statutory authorities to examine the orders passed by the Appellate/Revisional Authorities and wherever it is found that there is no application of judicial mind, such orders are challenged by the Authorities. The evasive stand taken by the State Government acquires enormous importance for the reason that an Under Secretary in the Department of Housing and Urban Development was entrusted with the revisional powers exercisable by the State Government under Section 45(8) of the Act of 1995. The said Under Secretary has retired from service on 31.3.2012 on superannuation. We take judicial notice of not one but a series of orders passed by the said officer, prima-facie, for extraneous and unmeritted CWP No. 14926 of 2012 -9- considerations. The manner in which the State Government sat as a silent spectator and allowed him to superannuate scot free even when he had single handedly caused loss to the State Exchequer or the public authority, may be running into crores of rupees.
13. The facts of the instant case are glaring example of the prima-facie grievous misconduct committed by an officer while exercising his quasi judicial powers. The tone and tenor of the order passed by the Revisional Authority leaves no room to doubt that he was colluding with the GPA and the singular object of the order is to protect an individual's interest far from dispassionate consideration of the revision petition which was required to be decided strictly in accordance with law.
14. This is indeed not in dispute that the cancellation order dated 6.1.1994, was never challenged by the original allottee till 29.12.2010. It is also not in dispute that the original allottee defaulted continuously in payment of the installments and thus, there existed a valid ground, as per the agreed terms and conditions of the allotment to cancel the allotment. There is no finding by the Appellate or Revisional Authority that the show-cause notice dated 2.9.1993 (Annexure P-7), was not served upon the original allottee or his Special Power of Attorney, namely, his father. Thus, the order of cancellation was passed in accordance with the principles of natural justice and for a just cause. Such an order could be interfered by the Appellate Authority, had it been challenged within some reasonable period on deposit of the due amount along with penal interest CWP No. 14926 of 2012 -10- or penalty etc.
15. After 16 years when the real estate value in the urban estate of SAS Nagar, Mohali has seen a steep hike and must have multiplied manifolds, the execution of General Power of Attorney on 29.10.2010 in respect of a property when the executor was no longer its allottee, acceptance of dues from GPA and entertainment or acceptance of his appeal are a chain of events to satisfy the conscious of this Court that there was some unfair deal to cause huge loss to the petitioner-Authority. There existed no legal or equitable grounds to entertain the appeal or set aside the cancellation order after 17 years.
16. For the reasons afore-stated, the appellate order dated 21.4.2011 (Annexure P-19) and revisional order dated 14.2.2012 (Annexure P-22) are hereby quashed. The cancellation order dated 6.1.1994 (Annexure P-8) is restored with cost of ` 50,000/- to be recoverable from GPA (Harjit Singh) which the petitioner-Authority shall be entitled to deduct from the amount deposited by him while making the refund of the amount which he has deposited soon before filing of the appeal.
17. We further direct the petitioner-Authority to proceed with the eviction notice, if any, already served and carry out those proceedings in accordance with law as early as possible but not later than four months from the date of receipt of certified copy of this order.
18. We also direct the Chief Secretary to Government of Punjab to consider the desirability of examining all such cases, especially those CWP No. 14926 of 2012 -11- which have been identified as per the reply-affidavit filed in this Court. Since the retirement on superannuation of the Under Secretary would not condone the mis-conduct, if any, committed by him while exercising his powers as Revisional Authority, the Competent Authority shall take an appropriate action in accordance with law.
19. We further direct the State Government that henceforth no officer below the rank of Chief Administrator of Statuory Authorities whose orders are challenged in the revision petition, shall be nominated as the Revisional Authority.
( SURYA KANT )
JUDGE
February 12, 2013 ( R.P. NAGRATH )
rishu JUDGE