Punjab-Haryana High Court
Dharamvir Khunger vs Haryana Urban Development Authority ... on 7 March, 2012
Bench: Hemant Gupta, A.N. Jindal
Civil Writ Petition No. 14538 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.14538 of 2010
Date of decision:- 07.03.2012
Dharamvir Khunger
....Petitioner
Vs.
Haryana Urban Development Authority and another
....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Govind Goel, Advocate,
and Mr. Sourabh Goel, Advocate,
for the petitioner.
Mr. Manish Bansal, Advocate,
for the respondents.
HEMANT GUPTA, J. (Oral)
The challenge in the present writ petition is to the order dated 09.01.2004, whereby an appeal/representation filed by the petitioner was dismissed.
The petitioner applied for allotment of an Industrial Plot on 15.03.1995 along with earnest money of Rs.9350/-. The petitioner received a communication on 12.03.1996 (Annexure P-1) that he has been selected for allotment of Industrial Plot in Sector 59, Faridabad and that draw for allotment of plot will be held on 20.03.1996. The petitioner was also informed that the cost of land has been increased and that enhanced compensation payable shall be Rs.491.25 per square yard. In pursuance of the said communication, the petitioner Civil Writ Petition No. 14538 of 2010 2 participated in the draw of lots on 20.03.1996 and also paid a sum of Rs.30,705/- by way of demand draft, which was acknowledged vide receipt no. 61652 dated 20.03.1996. It is, thereafter, the provisional letter of allotment was issued on 23.04.1996. There was no acknowledgment of the amount of Rs.30,705/- in the said letter, but the petitioner was called upon to pay a sum of Rs.14025/-. The said amount was payable within 35 days of the issuance of letter of allotment. The petitioner was also called upon to complete other formalities.
The petitioner was informed on 30.04.1996 vide Annexure P-3, that a sum of Rs.1,29,257.70 is recoverable from the petitioner on account of enhanced compensation at the rate of 491.25 per Sq. yard. In the calculation sheet given in the foot of the said demand letter, the petitioner has been given credit of Rs.30,705/- and the balance amount claimed was Rs.98,552.70. It was communicated therein that if the amount is not deposited within 35 days, the same will be recoverable along with interest at the rate of 15% and also action under Section 17 of the Haryana Urban Development Authority Act, 1977 can be initiated against the petitioner.
The petitioner had send another demand draft of Rs.14025/- on 14.08.1996 as demanded in the provisional letter of allotment though sum of over Rs.30000/- was with the respondents. It was on 02.12.1996 vide Annexure P-4, the provisional letter of allotment was withdrawn for the reason that the petitioner has not deposited a sum of Rs.14,025/- and 10% of the amount deposited by the petitioner was forfeited and demand draft of Rs.14025/- returned. Civil Writ Petition No. 14538 of 2010 3
The petitioner submitted representation to the Administrator, which was declined on 24.06.1997 vide order Annexure P-6, but in revision the learned Financial Commissioner exercising the powers of the State Government, restored the plot. It was observed as under:-
"The plot is restored to the petitioner with the condition that he will fulfill the formalities of P.L.A. within two months from the receipt of the order and start production within eight months from the date of approval of building plan. He will deposit all the dues as per HUDA policy with the Estate Officer within two months so conveyed to him by the Estate Officer. The Estate Officer will convey the outstanding dues within 15 days from the receipt of this order. In case of his failure to adhere to the above time schedule to pay the arrears in time, the plot will automatically stand resumed without any further notice to him."
In pursuance of the said order, the petitioner was called upon to deposit a sum of Rs.2,31,374/- as installment dues and Rs.3,03,124/- as interest and penalties, total amounting to Rs.5,34,498/-. It is at that stage, the petitioner submitted another representation dated 31.05.2002 (Annexure P-9) that the interest for the period, the matter was pending before the Financial Commissioner should not be charged. Such representation has been declined on 09.01.2004, the order in challenge in the present writ petition. It was found that the petitioner has failed to deposit the amount communicated, therefore, no interference is called for.
The petitioner invoked the jurisdiction of the District Consumer Redressal Forum under Section 12 of the Consumer Protection Act, 1986. Learned District Forum allowed the petition on 04.02.2005. In pursuance of the said decision, a regular letter of Civil Writ Petition No. 14538 of 2010 4 allotment, conveyance deed as well as the possession of the plot was handed to the petitioner. But appeal against the said order was accepted by the State Consumer Commission vide order dated 28.04.2010 for the reason that the petitioner could not invoke the jurisdiction under the Consumer Protection Act, 1986, as the petitioner has availed departmental remedies. At this stage, the petitioner invoked the writ jurisdiction of this Court.
In the written statement, it is asserted that the petitioner failed to comply with the terms and condition as 15% of the tentative price was not paid within time and that a sum of Rs.5,34,498/-, as the amount due was not paid.
Learned counsel for the petitioner has vehemently argued that Annexure P-1 was a communication informing that the petitioner will be liable to pay enhanced compensation, but in the provisional letter of allotment issued on 23.04.1996 (Annexure P-2), the petitioner was called upon to pay a sum of Rs.14,025/- only. The petitioner has, in fact, deposited more than that amount vide demand draft dated 20.03.1996. Therefore, the petitioner having deposited more than 25% of the tentative price, the allotment could not be cancelled for the reason that the petitioner has not deposited 15% of the tentative price. It is argued that the Hon'ble Supreme Court in Roochira Ceramics Vs. H.U.D.A., (2002) 9 SCC 599, has held that HUDA can charge only 10% rate of interest. Therefore, charging of interest at the rate of 18% p.a., apparent from the calculations appended with Annexure P-8, is unjustified. The respondents could not claim the said amount of interest. Therefore, the representation of the petitioner for waiver of the Civil Writ Petition No. 14538 of 2010 5 interest was in terms of the orders passed by the Financial Commissioner, as the interest could be claimed only in terms of the policies of the HUDA.
On the other hand, learned counsel for the respondents has pointed out that amount of Rs.30,705/- was deposited by the petitioner towards enhanced compensation, which is apparent from the fact that benefit of such amount has been given to the petitioner in communication (Annexure P-3). Since the petitioner has not deposited the amount of Rs.14025/- within 35 days, the provisional letter of allotment has been rightly withdrawn.
We have heard learned counsel for the parties and found that the action of the respondents in withdrawing provisional letter of allotment is unjustified. Annexure P-1 communicates that the petitioner shall be liable to pay enhanced compensation, but such amount was not specified in the provisional letter of allotment. The said communication was only an intimation. The letter of allotment followed only on 23.04.1996. In the letter of allotment (Annexure P-
2), no demand was raised claiming enhanced compensation. The petitioner has already deposited a sum of Rs.30,705/- i.e. much more than the amount of Rs.14,025/- on 20.3.1996 within permissible period. Since the amount more than Rs.14025/- was deposited before 23.04.1996, a concluded contract has come into existence and such concluded contract could not be avoided for non payment.
The amount of enhanced compensation was communicated on 30.04.1996. Therefore, the withdrawal of provisional letter of allotment is unjustified. For non deposit of such amount, the same Civil Writ Petition No. 14538 of 2010 6 could be recovered along with interest and also action under Section 17 of the Haryana Urban Development Authority Act, 1977 could be initiated against the petitioner but the letter of allotment could not be withdrawn. Thus, the action of the respondents is not justified.
Still further, the petitioner has been issued regular letter of allotment, conveyance deed as well as possession delivered, though in pursuance of the order of the District Forum. Learned counsel for the petitioner further states that the entire principal amount i.e. Rs.1,81,703/- stands paid vide Annexure P-17. Learned counsel for the petitioner further states that the amount of interest and any other dues shall be paid to the respondents within one month of such amount being communicated to the petitioner.
In view of the said fact, we allow the present writ petition and set aside the order withdrawing letter of allotment. The amount of interest and other dues payable by the petitioner shall be conveyed to the petitioner within 30 days. On such communication, the petitioner shall deposit the amount, so communicated, without any delay and demur within 30 days. On doing so, the allotment of plot shall stand restored and regularized.
Writ petition is disposed of accordingly.
(HEMANT GUPTA)
JUDGE
(A.N. JINDAL)
March 7, 2012 JUDGE
ajp/vimal