Punjab-Haryana High Court
Haryana Urban Development Authority vs State Of Haryana And Others on 12 August, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
CWP No.21586 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARAYANA AT
CHANDIGARH
CWP No.21586 of 2011
Date of decision:12.08.2013
Haryana Urban Development Authority
... Petitioner
Versus
State of Haryana and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present: Mr.D.V.Sharma, Advocate with
Ms.Shivani Sharma, Advocate
for the petitioner.
Mr.Inderesh Goel, Addl.AG, Haryana
for respondent No.1.
Smt.Prem Lata, respondent No.2 in person.
Mr.Sanjeev Sharma, Advocate
for respondent No.3.
Mr.J.K.Chauhan, Advocate
for respondent No.4.
Mahavir S.Chauhan, J.
In an open auction held on 12.07.1990, respondents No.2 to 4 and Amar Nath (since deceased and being represented by respondents No.2 to 4) (hereinafter referred to as, 'the allottees'), were the highest bidders in respect of Shop-Cum-Office (SCO) site No.8, Sector 10, Panchkula (for short, the disputed site), by giving bid of Rs.41,60,000/- only. The allottees deposited an amount of Rs.4,16,000/- only as 10% of the price of the disputed site and were issued a letter of allotment dated 21.11.1990 (Annexure P/2). It was Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [2] clearly stipulated in condition No.(6) of the terms and conditions of the auction sale (Annexure P/1) and clause No.(4) of the letter of allotment (Annexure P/2) that the allottees would deposit 15% of the price of the dispute site, i.e., Rs.6,24,000/- within 30 days of the date of allotment (or say on or before 21.12.1990) and that in the event of failure of the allottees to deposit 15% of the price of the disputed site within the stipulated time, the 10% amount already deposited by them would stand forfeited in favour of Haryana Urban Development Authority (hereinafter referred to as 'the petitioner') and the allottees would have no claim to the building/site. Remaining 75% amount, i.e., Rs.31,20,000/- could be paid in one instalment in lump sum, without interest, within 60 days from the date of issue of the letter of allotment or in eight half yearly installments, together with interest @ 10% per annum on the balance amount.
Even though description and all other necessary details, in respect of the disputed site were disclosed to the allottees at the time of the auction and the allottees had given a bid after having understood the same, but vide their letter dated 14.12.1990 (Annexure P/3), the allottees raised question, whether the site had commercial openings in its front and rear and requested the petitioner that if the situation was otherwise then the bid money be refunded to them. The allottees, however, did not deposit the requisite 15% of the price of the disputed site, within the stipulated time. Therefore, vide memorandum dated 07.01.1991 (Annexure P/4) allotment of the disputed site in favour of the allottees was cancelled Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [3] and the 10% amount of the bid money (Rs.4,16,000/-) was forfeited in favour of the petitioner as per Regulation 6(2) of Haryana Urban Development Authority (Disposal of Land and Buildings) Regulations, 1978 (for short the 'Regulations').
On an appeal against order dated 07.01.1991, the appellate authority, vide order dated 18.09.1991 (Annexure P/5), set aside the order dated 07.01.1991 and ordered restoration of the disputed site subject to the allottees depositing "the amount of 15% of the auction money, i.e., Rs. 6,24,000/- within 60 days" from the date of the order and the petitioner was directed to re-schedule the payment of balance amount of sale price of the disputed site. This was done even though prayer in the appeal was, only for refund of the bid money and not for restoration of the disputed site.
In compliance of order of the appellate authority, the petitioner rescheduled the payment and conveyed it to the allottees, vide memorandum dated 09.10.1991 (Annexure P/6). On the other hand, the allottees, in stead of complying with the order dated 18.09.1991 (Annexure P/5), filed a revision petition before the revisional authority renewing their prayer for refund of the forfeited amount along with interest @ 18% per annum. The Revisional Authority, vide order dated 25.11.1991 (Annexure P/7) held that there was no illegality in the order dated 18.09.1991 (Annexure P/5) but, in view of a request made by the allottees, granted them time to deposit the amount of Rs. 6,24,000/- on or before 02.01.1991 with a clear stipulation that in case the amount of Rs. 6,24,000/- was not paid Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [4] within the extended time, "10% amount already deposited with HUDA will stand forfeited and allotment of SCO site will stand cancelled".
The allottees deposited 15% of the price of the disputed site amounting to Rs.6,24,000/- on 31.12.1991 and 02.01.1992, as per directions of the appellate authority, but did not pay the remaining outstanding installments. In the situation, a notice under Section 17 (1) of the Haryana Urban Development Authority Act, 1977 (for short as 'the Act') was issued calling upon the allottees to show cause within 30 days as to why a penalty of Rs.57428/- be not imposed upon them for default in payment of instalments and 18% interest shall be charged after the due date i.e. expiry of 30 days. The allottees replied to the notice vide their reply dated 29.06.1992, and thereby, once again demanded refund of the amount of Rs.10,40,000/- deposited by them as earnest money. However, the petitioner, vide memorandum dated 20.07.1992, informed the allottees that the amount deposited by them could not be refunded and, if so desired by them, they could apply to the competent authority for surrender of the disputed site and for the refund of the deposited amount after deducting surrendered value.
The allottees still did not deposit the amount of outstanding installments which led to issuance of another notice dated 20.07.1992 to them under Section 17(2) of the Act, for affording them a personal hearing. The allottees did not appear despite service of notice. Therefore, vide another notice under Section 17(3) of the Act, the allottees were called upon to show Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [5] cause why an order of resumption of the site/building and forfeiture of part/or whole of the money, deposited be not passed.
The allottees did not deposit the amount outstanding against them but submitted the building plan. However, the petitioner, vide memorandum dated 30.11.1992 (Annexure P/8), informed the allottees that building plan submitted by them could not be approved until they deposit the outstanding amount of Rs.10,72,045/-. Still nothing was paid by the allottees.
The petitioner, then, issued yet another notice, dated 04.12.1992, calling upon the allottees to appear for personal hearing, besides informing them that the amount outstanding against them had swelled into Rs.11,28,612.56. Instead of replying to the notice dated 04.12.1992, the allottees approached the Chief Minister, Haryana, vide their representation, dated 15.12.1992 (Annexure P/9), complaining against non-sanctioning of the building plan and non-refund of the earnest money. The petitioner, vide notice dated 30.12.1993 (Annexure P/10), once again asked the allottees to appear for personal hearing on 13.01.1993 and also informed them that the amount outstanding against them had risen to Rs.11,96,744/-. The allottees, however, did neither deposit the outstanding amount nor did they appear for personal hearing, however, served a legal notice upon the petitioner which was duly replied to vide Annexure P/11. Another notice under Section 17(4) of the Act dated 10.12.1993 (Annexure P/12) was issued by the petitioner to the allottees calling them for personal hearing and to Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [6] inform them that an amount of Rs.24,96,512/- was outstanding against them as on said day Still, the allottees did not pay the outstanding amount. In the circumstances, allotment of the disputed site was cancelled and the amount of Rs.4,16,000/-, being 10% of the total sale price of the site, was forfeited, vide order dated 23.12.1993 (Annexure P/13) The allottees, on one hand, asked for the refund of the amount deposited by them, vide their letter dated 27.12.1993 and, on the other, filed an appeal against the order dated 23.12.1993. The appeal, however, was dismissed vide order dated 08.11.1994 (Annexure P/14) wherein it was observed that the allottees had not only violated the terms and conditions of the letter of allotment but had also failed to deposit the outstanding installments notwithstanding grant of maximum time and reasonable opportunity to show cause and to defend themselves. The appellate authority also noted that the allottees were wanted refund of money so deposited by them.
To challenge order dated 08.11.1994 (Annexure P/14) allottees filed a revision petition on 02.12.1994, with the following prayer:-
"It is, therefore, respectfully prayed that the revision petition may kindly be accepted and the order dated 8.11.1994 and that of 23.12.1993 passed by the Chief Administrator and Estate Officer respectively be set aside and the 10% of the earnest money amounting to Rs.4,16,000/- may kindly be ordered to be refunded to the petitioner Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [7] along with interest @ 10% p.a."
In the revision petition filed by the allottees though no prayer for restoration of the disputed site was made but it came to be disposed of, vide order dated 20.06.1995 (Annexure P/15), in the following terms:-
"I have heard the arguments from the both the sides and I have also gone through the record of the case. In view of the facts and circumstances explained above, and keeping in view the prayer made by the appellants, taking a lenient view, I hold that the appellants shall deposit 50% of the outstanding amount, inclusive of interest and penal interest within 60 days from the date of communication of this order and remaining outstanding amount shall have to be deposited by the appellants in three half yearly instalments along with up-to-date interest and penal interest to be paid as per HUDA Act/ Regulations and instructions issued in this regard from time to time. Hence, I accept this revision petition to this extent and order for restoration of S.C.O. No.8, Sector 10, Panchkula to the appellants with the condition as held above. In the event of default at any stage, the order of E.O., HUDA, Panchkula dated 23.12.1993 shall remain in force. I order accordingly."
In compliance of the order dated 20.06.1995 (Annexure P/15), the petitioner vide memorandum dated 27.07.1995, conveyed to the allottees that they were required to pay 50% of the outstanding amount with respect to the site, i.e., Rs.38,17,161/- on or before 22.09.1995 and the remaining amount in three half yearly instalments Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [8] as per schedule given below:-
Installments Due date vide Principal ( in Interest (in Total (in which deposited Rupees) Rupees) Rupees) First 22.03.1996 12,72,387/- 3,43,545/- 16,15,392/- Second 22.09.1996 12,72,387/- 2,29,030/- 15,01,417/- Third 22.03.1997 12,72,387/- 1,14,515/- 13,86,902/-
It was also conveyed to the allottees vide aforesaid memorandum dated 27.07.1995 that in the event of their failure to deposit the amount in the afore-stated terms order dated 23.12.1993 of the Estate Officer, would come into force.
However, the allottees did not comply with directions contained in memo dated 27.07.1996. and instead, they approached this Court by way of Civil Writ Petition No.14179 of 1995 which came to be dismissed vide order dated 22.08.1996 with the following observations:-
"The petitioner, it appears, has already been leniently dealt by setting aside the order. The schedule of payment, which has been done by the concerned authority vide Annexure P-25 is just and reasonable. No interference in the writ jurisdiction is called for. Dismissed in limine."
The allottees did not comply with order dated 20.06.1995 (Annexure P/15) even after dismissal of the writ petition and accordingly, vide memorandum dated 16.01.1997 (Annexure P/17), petitioner informed the allottees that order of resumption dated 23.12.1993 had come into force and the site stood resumed. Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [9]
The allottees then filed an application for review of order dated 22.08.1996, passed in CWP No.14179 of 1995, which too was dismissed, vide order dated 04.04.1997.
Through, against memorandum dated 16.01.1997 (Annexure P/17), no appeal could be filed as by this memorandum only it was conveyed to the allottees that in view of non-compliance of order dated 20.06.1995 (Annexure P/15) the order of resumption passed on 23.12.1993 stood revived, still the allottees filed an appeal against this order and on dismissal of the appeal, vide order dated 30.09.1997, they preferred a revision petition also which came to be disposed of vide order dated 24.12.1998 (Annexure P/19) in the following terms.
"I have heard both the parties, and gone through the record of the case. Technically speaking no case is made out in favour of the petitioners. However, to demonstrate their seriousness, the petitioners have tendered Rs.15,00,000/- out of the outstanding dues and have filed an affidavit to deposit the remaining outstanding dues, as calculated by the office of the E.O., Panchkula, within the stipulated period. In view of this, it would be appropriate if one more chance is given to the petitioners for depositing outstanding dues along with interest @ 18% p.a. and restoring the site in question. However, it is observed that the petitioners are not liable to pay extension fee, as calculated by the E.O., because the allottees were unable to construct the site in question as it remained under resumption practically from the Kumar Sudhir S date of its allotment. Moreover, the allottees were 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [10] unable to construct this site in the absence of approval of building plans. Calculations of outstanding dues made by the E.O. are admitted by the petitioners, hence, they are liable to pay the same in the time schedule given in their affidavit and statement. The affidavit and the statement of the petitioners are read part and parcel of this judgment. It is made clear that the allottees are eligible to start construction on the site after deposit of another Rs.10,00,000/- from the outstanding dues and they will have to complete the construction within two years from January, 1999."
It may be pointed out here that the allottees had filed an affidavit dated 22.12.1998 before the revisional authority which it was made a part of the order dated 24.12.1998 passed by the revisional authority. The affidavit reads to the following effect:-
"1. That if S.C.O. Site No.8, Sector 10, Panchkula is restored to us, we undertake to deposit the entire outstanding dues, Rs.1,07,68,657/- in the following manner:-
(i) We are depositing Rs.15,00,000/- by way of drafts (as per list attached) today i.e. 22.12.1998.
(ii) We shall deposit Rs.10,00,000/- within three months i.e. on or before 15.04.1999.
(iii) We will deposit remaining due amount in 6 (six ) four-monthly installment starting from 15.08.1999 till 15.08.2001.
2. That we undertake the deposit the entire due amount within the stipulated period as mentioned above."Kumar Sudhir S
The petitioner, vide memorandum dated 05.02.1999 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [11] (Annexure P/20), conveyed to the allottees the revised schedule of payment in terms of the order dated 24.12.1998 (Annexure P/19) and also informed them that they were required to complete the construction over the disputed site within 2 years from 01.01.2001.
The allottees deposited an amount of Rs.10,00,000/- on 15.04.1999 so as to start construction on the site but did not deposit the due instalments.
Vide memorandum dated 09.06.1999, the petitioner reminded the allottees that they had to deposit the due instalments in terms of order of the revisional authority.
The allottees then wrote a letter dated 16.07.1999 (Annexure P/21) asking the petitioner to give details of the amount of Rs.1,07,68,000/- (which they had undertaken to pay vide affidavit dated 22.12.1998) and insisted that interest should be claimed from the date of approval of the building plan and not from the date of possession. However, vide letter dated 26.07.1999 (Annexure P/22) petitioner asked the allottees to deposit the instalments as agreed by them and as ordered by the revisional authority on the basis of their undertaking. The allottees did not comply and, as such, a notice under section 17(1) of the Act was issued calling upon them why a penalty of Rs.1,84,132/- be not imposed upon them. They were also informed that as on 30.11.1999 an amount of Rs.19,35,760/- was outstanding against them.
In response to the above-stated notice, the allottees vide their reply dated 26.11.1999 (Annexure P/23) asked the petitioner to Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [12] keep the notice in abeyance stating that they had filed an application for review of order of the revisional authority.
The petitioner then served upon the allottees another notice dated 21.12.1999 under Section 17(2) of the Act, asking them to appear for personal hearing. This notice was followed by another show cause notice dated 31.01.2000 under Section 17(3) of the Act. In the meantime, the application for review of order of the revisional authority came to be dismissed vide order dated 28.02.2000. The allottees, instead of paying the outstanding amount, challenged the notice by filing an application under Section 17(7) of the Act which was dismissed vide order dated 21.12.2000 (Annexure P/24). The appellate authority in its order dated 21.12.2000 has observed as under:-
"I have gone through the record carefully, it is clear from the record that the petitioners have failed to comply with the concessional order of worthy C.T.C.P. dated 24.12.1998 as they had not paid the instalments and occupied the building without obtaining occupation certificate. Thus the appellants are in un-authorised occupation of building and they are becoming rich at the cost of public money as they had not paid the instalments after obtaining concessional order on their undertaking. Moreover, the Estate Officer, HUDA, Panchkula has issued only show cause notice under Section 17(3) of Haryana Urban Development Authority Act, 1977 and the detailed facts and documents on which they want to rely, can be produced before the Estate Officer, HUDA, Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [13] Panchkula. Also petitioners are absent despite the fact one of the petitioners has noted date of hearing for 21.12.2000 on 12.12.2000, but none has put his appearance on 21.12.2000. In view of above, I find no merit in the present application and illegality in show cause notice issued by Estate Officer under Section 17(3) of Haryana Urban Development AuthorityAct vide memo No.9092 dated 22.10.1999. Hence, the present application is not maintainable and the same is rejected on merit. The Estate Officer, HUDA, Panchkula is directed to proceed against the petitioners in accordance with law for having possession of SCO illegally occupied by the petitioners."
In the meantime, vide notice dated 29.03.2000 (Annexure P/25) issued under Section 17(4) of the Act, allottees were called for personal hearing.
Ultimately, vide order dated 22.03.2001 (Annexure P/27), Estate Officer, HUDA, Panchkula, resumed the site by passing the following order:-
"Therefore, under the circumstances explained above, I have no option except to resume the site of SCO No.8, Sector 10, Panchkula and building constructed thereon under Section 17(4) of HUDA Act and accordingly, I Dharam Pal Singh, HCS, Estate Officer, HUDA, Panchkula, hereby resume the site of SCO No.8, Sector 10 and building constructed thereon with immediate effect and furtehr order to forfeit 10% of the consideration money of the site plus other dues payable upto date of resumption i.e. Rs.1410485/- out of the Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [14] deposited amount against this SCO. Remaining amount of Rs.1505515/- will be refunded separately."
After passing of order dated 22.03.2001 (Annexure P/27), the allottees of their own deposited, an amount of Rs.12,44,000/- and challenged the order dated 22.03.2001 by way of an appeal which was dismissed vide order dated 05.06.2001, (and the order of dismissal of appeal was conveyed to the allottees vide endorsement dated 18.06.2001, Annexure P/28), while observing as under:-
"Further, the appellants have failed to comply with the order dated 24.12.1998 and the counsel for the appellants failed to point out any illegality in the order passed by the Estate Officer, HUDA, Panchkula dated 22.03.2001, which is in accordance with the Section 17 of the Haryana Urban Development Authority Act, 1977. The development works have already been completed in respect of SCO in question, which is clear from the facts that appellants have constructed the building and occupied the same without obtaining completion certificate and running business in said building without making payment as per undertaking given by them for getting the SCO restored from the Commissioner & Secretary. Thus, the appellants are becoming rich at the cost of public money as held by Hon'ble High Court in CWP No.12810 of 1996 against which SLP No.24949 of 1996 filed in Hon'ble Supreme Court has been dismissed and thereafter review petition filed in Hon'ble High Court was also dismissed. In view of above discussion, I find no merit in the Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [15] present appeal and the same is dismissed. The Estate Officer, HUDA, Panchkula is further directed to initiate legal proceedings for eviction of appellants from the resumed SCO as per provisions of Haryana Urban Development Authority Act, 1977."
This time the allottees did not prefer a revision petition against order of the appellate authority, they, instead chose to file a civil suit (no.310 of 07.07.2001) to challenge the order of the Estate Officer, HUDA, dated 22.03.2001 (Annexure P/27) and the appellate order dated 05.06.2001 (Annexure P/28). The civil suit, however, was dismissed vide judgment and decree dated 13.08.2009 (Annexure P/29). An appeal (No.43 of 2009) brought by the allottees against the judgment and decree dated 13.08.2009 was also dismissed vide judgment and decree dated 15.01.2011 (Annexure P/30) passed by Additional District Judge, Panchkula.
The allottees then invoked the provisions of Section 17(8) of the Act to challenge the order of resumption dated 22.03.2001 of the Estate Officer (Annexure P/27) and the order of the appellate authority, dated 05.06.2001 (Annexure P/28) by way of a revision petition filed on 10.02.2001, i.e., after ten years of the passing of the order dated 22.03.2001 and a little less than ten years of the passing of the order dated 05.06.2001. The revision petition was also accompanied by an application under Section 14(1) of the Limitation Act, 1963, for condonation of delay.
The Financial Commissioner & Principal Secretary to Government of Haryana, Department of Town and Country Planning Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [16] (the revisional authority), without calling for the reply of the petitioner to the application for condonation of delay and without condoning the delay in filing of the revision petition, passed the following order on 01.03.2011 (Annexure P/32):-
"Mr.Kaushik stated that earlier during RTI they were conveyed a different amount while presently they are being conveyed a different amount. He has already come with drafts of Rs.1,12,85,000/- (Rs.One crore twelve lacs eighty five thousand only) drawn upon various backs in favour of Estate Officer, HUDA, Panchkula. This amount be taken on record and deposited in the Estate Office. On offering of this amount the resumption is stayed.
The exact information regarding outstanding dues be worked out and conveyed to the petitioners which are to be deposited by them before the next date of hearing. The case to come up on 22.03.2011 at 9.00 AM."
The above-stated revisional authority then disposed of the revision petition vide order dated 01.06.2011 (Annexure P/33) in the following terms:-
"The order passed by Financial Commissioner & Principal Secretary, Town & Country Planning Department on 24.12.98 was gone through. It was observed that the payment of 15.00 lacs and 10.00 have been paid in time in pursuance of that order. The construction was undertaken and the request for occupation certificate was made in 1999 itself in the order dated 24.12.1998 a period of two years was given for construction which was complied with by the petitioner. Hence, the extension fees is not Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [17] to be charged from the petitioner. The rest of the dues having been paid, the plot is restored in favour of the allottee."
To seek quashing of orders dated 01.03.2011 and 01.06.2011 (Annexures P/32 & P/33), the petitioner has brought the instant writ petition under Articles 226 and 227 of the Constitution of India.
In the counter filed by respondent No.2, the sequence of events, as narrated, hereinbefore has not been denied but it has been added that the allottees never intended to get the deposited amount refunded and such a request was made by them in the alternative, otherwise they have been running from pillar to post to get the building plan sanctioned. It is also stated by 2nd respondent that order of resumption was passed by the petitioner without affording to the allottees an opportunity of personal hearing and demand of interest @ 18% p.a. was quite illegal and unreasonable. The counter also states that the order dated 24.12.1998 was never challenged by the petitioner and order dated 23.12.1993 could not be revived after it had been set aside by the revisional authority . It is also stated by the second respondent that the petitioner has been inventing excuses one after the other, to resume the site in question, allotted to the allottees in view of escalation of the prices of the property whereas the allottees have deposited much more than what they were required to deposit towards price of the disputed site.
In the written reply submitted by respondent No.3, the line of defence akin to the one adopted by second respondent has been Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [18] put forth in addition to bringing to the fore some disputes inter se the allottees which are not relevant for disposal of the instant writ petition.
We have heard learned counsel for the parties and respondent No.2 in person besides examining the record in depth.
It has been argued on behalf of the petitioner that the allottees have, throughout, been insisting that the bid money amounting to Rs.4,16,000/- i.e. 10% of the price of the site, in question, be refunded to them or say they have never been interested in allotment and possession of the site. Further, according to the learned Senior Counsel, representing the petitioner, the resumption of the disputed site ordered vide order dated 23.12.1993 was not challenged and, instead, only refund of the amount was claimed by the allottees by filing an appeal against that order. After dismissal of the appeal, vide order dated 08.11.1994, the allottees once again renewed their prayer for refund of the bid money, i.e., 10% of the sale price, deposited at the time of auction, however, they did not challenge the order of resumption and order of dismissal of their appeal. Still, the revisional authority restored the allotment, subject to fulfillment of certain conditions and this court, vide order dated 22.08.1996 passed in CWP No.14179 of 1995, upheld that order, but still conditions set out in the appellate order were not complied with and, thus, order of resumption passed on 23.12.1993 stood revived and became operational.
As regards orders dated 01.03.2011 and 01.06.2011, it is Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [19] argued on behalf of the petitioner that these orders have been passed by the revisional authority in flagrant violation of the law of limitation and principles of natural justice insofar as the revision petition could not be entertained after a delay of ten years and that too without first, disposing of the application for condonation of delay. The learned senior counsel has also argued that the revisional authority while passing these orders, did not take note of the fact that the allottees did not comply with the undertaking No.3 given by them in the form of an affidavit dated 22.12.1998 filed before the revisional authority on 24.12.1998 and which formed part of the order of the revisional authority.
Learned senior counsel for the petitioner has also relied upon "Chaman Lal Singhal Vs. Haryana Urban Development Authority and others, 2009 (2) RCR (Civil) 355 to contend that in a case of the ilk of the present one principles of natural justice would not be applicable.
Per contra, on behalf of the allottees impugned orders are defended by saying that they never intended to get the deposited amount refunded and a request for refund was made by them only when they failed to get the building plan sanctioned. It is also argued that order of resumption was passed by the petitioner without affording to the allottees an opportunity of personal hearing and demand of interest @ 18% p.a. was quite illegal and unreasonable. Further, according to the allottees, order dated 24.12.1998 was never challenged by the petitioner and order dated 23.12.1993 could not be Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [20] revived after it had been set aside by the revisional authority more so when the allottees have deposited much more than what they were required to deposit towards price of the disputed site. It is also argued that the allottees having been pursuing a wrong remedy before the civil Court, in good faith, delay in filing of the revision petition has been rightly ignored by the revisional authority and the petitioner having accepted the entire outstanding amount is estopped from making a challenge to the order of the revisional authority.
No other and further point has been urged on either side. After going through the record and on hearing the rival contentions, we are of the opinion that the present case is a classic example of abuse of process of law by a clever litigant and complicity of the public authorities.
It has come on record that the allottees deposited an amount of Rs.41,16,000/- only, as 10% of the auction money at the fall of the hammer and did not further deposit 15% of the auction money to make it 25% (i.e., the earnest money) and also defaulted in payment of half yearly installments as regards the balance 75% of the bid amount. It is also evident that the allottees repeatedly urged for refund of the bid money, i.e., 10% amount deposited by them at the time of the auction and were not interested in allotment and possession of the plot. Even, when order dated 07.01.1991 cancelling the allotment and forfeiting 10% of the auction money was passed, the allottees filed an appeal and made a prayer therein for refund of 10% bid money deposited by them and did not seek for Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [21] setting aside of order of the cancellation and restoration of the site in question in their favour. Still, the Appellate Authority, vide order dated 18.09.1991, restored the allotment in favour of the allottees, of course, with the condition that they would deposit 15% of the auction money i.e. Rs.6,24,000/- within 60 days from the date of passing of that order. The allottees did not feel satisfied with this order and challenged it by way of a revision petition, once again praying for refund of the bid money. Even though the allottees did not ask for restoration of the plot but the Revisional Authority, while upholding the order passed by the Appellate Authority, granted further time to the allottees to deposit 15% of the auction money on or before 02.01.1991. The allottees did not comply with that order also and, instead, made representation one after the other on frivolous grounds just to gain time. Ultimately, vide order dated 23.12.1993, the site was once again resumed. An appeal filed by the allottees to challenge this order was dismissed on 08.11.1994. However, once again, revision petition preferred by them came to be allowed vide order dated 20.06.1995 and allotment of the site, in question, was restored in favour of the allottees with the condition that they would deposit 50% of the outstanding amount including interest and penal interest within 60 days from the date of communication of that order and remaining amount in three half yearly installments along with up- to-date interest and penal interest. The allottees did not pay anything even in view of the aforesaid order and approached this Court by way of CWP No.14179 of 1995. However, the said writ petition came to Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [22] be dismissed vide order dated 22.08.1996 and it was observed that the allottees were dealt with leniently by the Revisional Authority by setting aside the order of resumption, however, the schedule of payment given by the Estate Officer was held to be just and reasonable. Even this failed to satisfy the allottees and when they were asked to deposit the outstanding amount, they once again approached this Court to seek review of the aforesaid order. Even their application for review was dismissed on 04.041997. This should have been the end of the matter and no further proceedings needed to be initiated by the allottees and entertained by the authorities. However, the allottees did not relent and approached the revisional authority once again, that too in spite of the fact that no revision could be preferred and maintained after dismissal of the civil writ petition by this Court as referred to above. Still, the revisional authority, vide order dated 24.12.1998, on one hand concluded that no case was made out in favour of the allottees but, on the other, allowed, to the allottees, an opportunity to deposit the outstanding amount along with interest at the rate of 18% per annum and restored the allotment in their favour. This, however, was done as the allottees had tendered an amount of 15 lacs besides filing an affidavit thereby undertaking to deposit the remaining outstanding amount, as calculated by the Estate Officer, within the extended period. The allottees deposited Rs.10 lacs on 15.04.1999 so as to enable them to raise construction over the disputed site but did not comply with condition No.3 of the affidavit filed by them before the revisional Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [23] authority. This undertaking was to the following effect:-
"We will deposit the remaining due amount in six four-monthly installments starting from 15.08.1999 till 15.08.2001".
In addition to the affidavit, the allottees had also made a joint statement reiterating the contents of the affidavit and acknowledging their liability to pay an amount of Rs. 1,07,68,657/-.
As a consequence of non-deposit of the aforestated amount, Estate Officer issued to the allottees a notice dated 22.10.1999 and then started another round of litigation as the allottees made an application before the Administrator, HUDA under Section 17(7) of the Act but that application came to be rejected, vide order dated 21.12.2000. As the allottees did not deposit the outstanding amount, in terms of order dated 24.12.1998, despite their own written undertaking given before the revisional authority in the shape of an affidavit, order dated 22.03.2001 (Annexure P-27) came to be passed thereby ordering resumption of the site in question. This order was taken in appeal and on dismissal of the appeal, vide order dated 05.06.2001 (Annexure P-28), the allottees devised a novel method to avoid the payments of outstanding amount. They filed Civil Suit No.310 of 07.07.2001. The said suit was dismissed vide judgment and decree dated 13.08.2009 and appeal brought against this judgment and decree came to be dismissed vide judgment and decree dated 15.01.2011 passed by Additional Sessions Judge, Panchkula. The allottees then approached the Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [24] revisional authority under Section 17(8) of the Act after more than 10 years of passing of the order dated 05.06.2001. Along with the revision petition, an application under Section 14(1) of the Indian Limitation Act, 1963, was also filed for condonation of delay in filing of the revision petition. The revisional authority, i.e., Financial Commissioner & Principal Secretary to Government of Haryana, Department of Town and Country Planning exhibited un-precedented and undeserved magnanimity towards the allottees and scant respect for the settled canons of jurisprudence and rules of natural justice, in so far as without issuing notice of the application for condonation of delay to the petitioner and without passing an order on the said application, vide order dated 01.03.2011, accepted demand drafts worth Rs.1,12,85,000/-, from the allottees and ordered deposit of these drafts in the account of the Estate Officer, without the consent of the Estate Officer, stayed the order of resumption and directed the petitioner to work out exact information regarding outstanding dues and convey it to the allottees and, at the same time directed the allottees to deposit the same before the next date of hearing. On the adjourned date, i.e., 01.06.2011, the aforesaid revisional authority passed the impugned order restoring the allotment in favour of the allottees.
While passing orders dated 01.03.2011 and 01.06.2011, the revisonal authority exhibited inexplicable haste and, in its anxiety to oblige the allottees did not even bother to notice that the revision petition was barred by limitation and could not be entertained until Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [25] the application for condonation of delay was decided. In fact, until application for condonation was accepted, there was no revision petition which could be disposed of by the revisional authority. This view finds support from a judgment of Hon'ble Supreme Court of India in the case of "Gagandeep Pratishthan Pvt. Ltd. Vs. M/s Mechano", 2002 (3) RCR (Civil) 204.
Not only this, the revisional authority also turned a blind eye to the fact that order dated 24.12.1998 was passed by the appellate authority on the basis of an affidavit furnished by the allottees wherein they had undertaken to comply with three conditions, including the one (condition No.3) that they would clear the entire outstanding amount and this condition was not fulfilled by them. The failure of the allottees to comply with this condition rendered the order dated 24.12.1998 inoperative and order of resumption stood automatically revived.
Nonetheless, the revisional authority passed the impugned order as if it was distributing a largesse and while doing so, it thought it unnecessary and wasteful to notice the contentions raised for and against acceptance of the revision petition and to deal with such contentions. It also did not deem it necessary to give reasons in support of the conclusions arrived at. The order cannot be but termed as cryptic. We strongly deprecate the manner in which the revisional authority has dealt with the matter.
The contention that the allottees had been litigating before a wrong forum in good faith cannot be countenanced. The Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [26] allottees had been approaching the revisional authority time and again right from the day the auction was finalised in their favour and that being so, it is unfathomable that they were not aware of the forum of revision being available to them. In view of the circumstances appearing on record, filing a civil suit instead of a revision petition against order dated 05.06.2001, was a clever move by the allottees aimed at buying time.
Not only the allottees have shown scant respect for the law of the land but even the revisional authority has been no less flagrant as regards the observance of the procedure laid down by law. We are constrained to observe that an officer of the rank of a Financial Commissioner dealing with quasi judicial affairs, is expected to show utmost respect for the procedure of law and it is not expected to brush aside even the minimum requirements of law.
It has also been contended that before passing the order of resumption, the allottees have not been afforded an opportunity of hearing. This contention has amazed us because it has come on record that the petitioner has been issuing notices one after the other to the allottees thereby showing unnecessary and uncalled for indulgence towards the allottees right from the day one and still the allottees can raise a grievance that they have not been afforded an opportunity of hearing by the authorities concerned. If the circumstances appearing on record are not sufficient to satisfy the requirement of grant of opportunity of hearing, then there cannot be a case where such requirement can be said to have been satisfied. Kumar Sudhir S 2013.08.23 10:16 I attest to the accuracy and integrity of this document chandigarh CWP No.21586 of 2011 [27]
Be that as it may, the allottees having failed to deposit 15% of the auction money within the stipulated period, they were not entitled to any opportunity of hearing and even provisions of Section 17 of the Act were not applicable to the case in hand as has been held by the Supreme Court in case "Chaman Lal Singhal Vs. Haryana Urban Development Authority and others (supra).
In view of what has been stated and discussed above, orders dated 01.03.2011 and 01.06.2011 (Annexures P/32 and P/33) cannot be allowed to sustain. In the consequence, the impugned orders dated 01.03.2011 and 01.06.2011 (Annexures P/32 and P/33 respectively) are set aside, and the writ petition is allowed with costs which are assessed as Rs.10,000/-, to be deposited with Haryana Legal Services Authority.
(SATISH KUMAR MITTAL) (MAHAVIR S.CHAUAN)
JUDGE JUDGE
12.08.2013
sd
Kumar Sudhir S
2013.08.23 10:16
I attest to the accuracy and
integrity of this document
chandigarh