Punjab-Haryana High Court
Shri Kamal Anand vs Huda And Another on 4 February, 2013
Author: Amol Rattan Singh
Bench: Satish Kumar Mittal, Amol Rattan Singh
CWP Nos.3284 of 2009 and 3677 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.3284 of 2009
Date of decision: 04.02.2013
Shri Kamal Anand
... Petitioner
Versus
HUDA and another
... Respondents
CWP No.3677 of 2012
Date of decision: 04.02.2013
Smt.Monika Anand
... Petitioner
Versus
HUDA and another
... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present : Mr.Kunal Dawar, Advocate
for the petitioner.
Mr.Raman Gaur, Advocate &
Shri Sidharth Batra, Advocate
for HUDA in (CWP No.3677 of 2012)
Mr.Manish Bansal, Advocate
for HUDA in (CWP No.3284 of 2009)
Amol Rattan Singh, J.
1. Both these writ petitions, i.e. CWP No.3677 of 2012 and CWP No.3284 of 2009 involving a common question of law and with almost identical facts, are being disposed of together.
2. At the time when notice was issued in CWP No.3677 of 2012, the earlier petition (CWP No.3284 of 2009) which had been admitted to regular hearing vide order dated 24.8.2011, was also ordered to be posted CWP Nos.3284 of 2009 and 3677 of 2012 -2- for hearing along with this petition, on 13.3.2012.
3. In both these petitions, we are informed, and as is obvious from the addresses of the petitioners in each case, (given in the array of parties), the petitioners are husband and wife, who have challenged the resumption orders passed by the Estate Officer, Faridabad and the orders of the appellate authority, dismissing the appeals against such orders. By these orders, commercial Kiosk No.300 Sector 7, Faridabad, was ordered to be resumed (in CWP No.3284 of 2009) on 19.9.2001 by the Estate Officer and commercial Kiosk No.301, Sector 7, Faridabad, was also ordered to be so resumed by the same authority on 20.2.2001 (which is subject matter of CWP No.3677 of 2012).
4. The facts, being similar, are being extracted from the earlier writ petition No.3284 of 2009, and run as described in the following paragraphs.
5. Kiosk No.300 measuring 6' 9'' X 12' was allotted to the petitioner Shri Kamal Anand, in the Sector 7, Market, Faridabad vide letter dated 4.10.1991. The cost of the said kiosk was Rs.97000/- and at the time of allotment, the petitioner paid 25% of the total price, after which, possession was handed over to him on 11.11.1991 and possession certificate was also issued on the said date.
6. The balance amount, i.e. Rs.72,750/- was to be paid either in lump sum, without interest, within a period of 60 days from the date of issuance of the allotment letter or in 10 half yearly installments, due every six months thereafter. The said installments would be payable with interest on the balance price, at the rate of 10%.
7. As per the petitioner, being an old man, he appointed one Shri CWP Nos.3284 of 2009 and 3677 of 2012 -3- Viney Kumar, also resident of Faridabad, to hold his General Power of Attorney on 20.3.1996 and to take steps to safeguard the interest of the petitioner with regard to the kiosk. By the deed executed, appointing Shri Viney Kumar as his general attorney, the petitioner empowered him to exercise all rights with regard to the said kiosk including the powers to sell and transfer through gift deed and to receive the transferred amount by bank draft/cheque and to get the same encashed. He was also entitled to receive the rent and to dispossess any one from the property.
Vide letter dated 6.9.1996, the petitioner informed the Estate Officer, HUDA, Faridabad that all further correspondence should be made with his GPA holder (attorney).
8. As per the petitioner, the GPA holder failed to perform his duties and never informed him with regard to any development or any failure to deposit the installments. The said GPA holder is stated to have died in April 2003.
9. Meanwhile, the respondents are stated to have issued 06 notices to the petitioner right from the year 1993 at his address, i.e. F-63, Moti Nagar, New Delhi. Copies of these notices issued under Section 17 of the Haryana Urban Development Authority Act, 1977 (in short the 'Act'), between 1993 to 1996, asking him to show cause as to why proceedings under the Act should not be initiated against him for non-payment of dues (installments) towards the price of the kiosk, are also annexed with the written statement.
As per the reply filed by the respondents, the petitioner even responded to one of the notices dated 4.1.1994, and appeared in the office of the Estate Officer, HUDA, on 31.1.1994 and sought time for deposit of the CWP Nos.3284 of 2009 and 3677 of 2012 -4- amount. Such time was granted and extended upto 25.3.1994. One of the notices issued, was addressed to the GPA holder, at his address, on 16.10.1996. The resumption order was, thereafter, passed on 19.2.2001.
10. This resumption order has been impugned in the present petition, as already stated, along with the subsequent order in appeal. Though six notices are stated to have issued in the reply, the resumption order mentioned notices dated 19.1.1993, 1.12.1993, 4.1.1994, 16.10.1996, and 13.6.2001.
11. Reverting back to the contentions of the petitioner; after the death of the original attorney holding the GPA, Shri Viney Kumar, in April, 2003, the case set up by the petitioner, in the petition, is that he did not know about any of the notices and approached the authorities on 20.4.2007 after he, allegedly, came to know that the conveyance deed has not been executed and even a resumption order had been passed on 19.9.2001. As per petitioner's version, he thereafter cancelled the GPA executed in favour of Viney Kumar (even though the said Vinay Kumar is already stated to have died) and then executed a Special Power of Attorney on 26.4.2007 in favour of Smt. Priya Nanda, wife of the deceased GPA holder, Shri Viney Kumar, empowering her to file an appeal against the alleged ex- parte resumption order and to appoint a counsel on her behalf. It may be noted here that the present petition has also been filed through the said Special Power of Attorney holder.
12. The said Smt.Priya Nanda filed an appeal as petitioner's special attorney, before the Administrator, HUDA, Faridabad, which was dismissed being time barred, as well as on merits. It is stated in the said order dated 7.8.2007/29.8.2007, that despite notices having been issued to the petitioner CWP Nos.3284 of 2009 and 3677 of 2012 -5- GPA holder, on the address given, with regard to the non-payment of the installments, the same were still not paid. Though the order speaks of the issue of non-development of the area, the same is obviously not a reason for non-payment of installments because in the petition, it is admitted in paragraph No.9, that the kiosk has been let out and rent is being received.
13. Shri Manish Bansal, counsel for the respondents has submitted that all the notices, as also copy of the resumption order, were sent to the petitioner through Regd. Post and as such, contention of Shri Dawar, learned counsel for the petitioner, to the effect that no notice was received by the petitioners, is obviously incorrect, because none of them were received back undelivered and, moreover, they were posted to the address of the petitioner as available with the respondents in their office. In fact, the petitioner, even appeared before the 2nd respondent on 31.1.1994 in response to one notice. Respondents have admitted in their reply that they have received the letter dated 6.9.1996 informing them that all future correspondence should be carried out with Shri Vinay Kumar (GPA holder of the petitioner). Consequently, as noticed earlier, one of the notices, dated 16.10.1996 was addressed to the petitioner through his GPA Shri Vinay Kumar at the address of the GPA, i.e. 1518, Sector 7E, Faridabad. This fact has been stated in the petition also. However, obviously, this did not elucidate any response with regard to the payment of installments.
None of the factual statements made in the reply have been controverted.
14. Learned counsel for the petitioner has strenuously argued that he has since paid the balance amount along with interest (even though writ petition simply states that he is willing to pay the entire amount along with CWP Nos.3284 of 2009 and 3677 of 2012 -6- interest and penalty). Shri Dabar has made a plea, citing the age of the petitioner, to state that a lenient view may be taken.
15. After hearing learned counsel for the parties, we are unable to accept the pleas and prayers made in the writ petition, for various reasons.
16. Firstly, it is impossible to believe that a person, who has appointed an attorney, would not bother to look after the property or even to find out about it for a period of 10 years, especially when he knew that notices for non-payment had been issued and had even visited the office of the respondents in 1994 in response to one of the notices. The impression gathered is that, as a matter of fact, the appointment of an attorney, holding all powers including powers to alienate the property, was simply a facade and, as a matter of fact, the GPA holder was actually a vendee. Secondly, even if such presumption is not attached to the above facts, we cannot over- look the fact that even the appeal was filed in 2007, six years after the order of resumption, and that too without the installments having been deposited for 16 long years after allotment was made. The factum of payment or offer of payment of Rs.3 lacs odd, at this stage, would obviously amount to simply an attempt at grabbing the property, the market price of which has obviously accelerated far, far beyond the said amount.
17. Next, as regards the conduct of the GPA holder, it has been stated in para 7 of the reply, and remains uncontroverted, that on 20.9.1996, he made a request for extension of time for payment of installments. Nothing has been said whether such extension was granted or not, however, definitely the resumption order was passed about 5 years thereafter, on 19.9.2001, when still no payment was made. Obviously, he too was fully aware of the issuance of notices.
CWP Nos.3284 of 2009 and 3677 of 2012 -7-
18. Further, as stated earlier, the kiosk had been let out and rent was being received. Even so, the installments towards the purchase price were still not being paid, either by the petitioner, or his attorney, holding all powers in respect of the property.
19. In such a situation, we find it extremely difficult to accept the contentions made in the petition, and as pleaded in court.
20. In the second case (CWP No.3677 of 2012), the kiosk was auctioned at a price of Rs.1,00,500/-. The other terms and conditions are the same as in the case in which facts have been narrated above. The GPA holder, instead of Shri Viney Kumar, was one Shri Satish Kumar, resident of House No.1465 sector 7, Faridabad, and the same was registered on the same day as in the other case, i.e. 20.3.1996, in the office of Sub Registrar, Ballabhgarh, District Faridabad. The other facts are the same and even the attorney appointed with special powers (SPA holder), on 26.4.2007, is the same as in the other case (the husband of the petitioner in the present case), i.e. Smt. Priya Nanda wife of Viney Kumar). The date of registration of this deed (SPA vesting special powers), is also the same as in the other case, i.e. 26.4.2007.
21. In reply to this petition, the respondents have taken the same stand but have not annexed any of the notices issued to the petitioner or her GPA. The resumption order dated 20.2.2001 refers to notice dated 26.6.1996 and 7.11.2000, issued under Section 17 of the Act, before passing of the resumption order under Section 17(4) of the Act, on 20.2.2001. Thereafter, eviction order was also passed on 30.6.2001 but was obviously not executed.
22. Further, it has been stated in the reply filed by the respondents CWP Nos.3284 of 2009 and 3677 of 2012 -8- and remained un-controverted that the GPA holder of Smt.Monika Anand, Satish Kumar, was well aware of the issuance of show cause notice upon the allottee, as Rs.15,000/- was deposited by him on 24.10.1996. The factum of this deposit has been stated by the petitioner also in her writ petition.
Thus, it is not possible to believe that the petitioner or her GPA were unaware of the issuance of the notices under Section 17 of the HUDA Act, 1977.
23. Eventually, learned counsel for the petitioners made an offer for payment of the prevalent market price, which was put to the learned counsel for the respondents, who has negated the same in view of the fact that there is stated to be no policy of the Haryana Urban Estate Development Authority to allow such a step. Further, rationale given by the learned counsel for the respondents is that, on resumption, the property would be put to auction to the highest bidder and as such, determination of market price without any firm bid, was not possible and, therefore, not acceptable.
24. We have seen that the order of resumption has been passed exercising statutory powers under Section 17(4) of the Haryana Urban Estate Development Authority Act, 1977 and, as such, we are not inclined to interfere in this regard, in the light of the circumstances enumerated above.
Section 17 of the HUDA Act, 1977, is reproduced herein below:-
"17.Resumption and forfeiture for breach of conditions of transfer.- (1) Where any transferee make default in the payment of any consideration money, or any instalment, on account of the sale of any land or building, or both, under Section 15, the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why a penalty which shall be equal to ten percent of the amount due from the transferee, be not imposed upon him.CWP Nos.3284 of 2009 and 3677 of 2012 -9-
(2) After considering the cause, if any, shown by the transferee and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded in writing, make an order imposing the penalty and direct that the amount of money due along with the penalty shall be paid by the transferee within such period as may be specified in the order. (3) If the transferee fails to pay the amount due together with the penalty in accordance with the order made under Sub-section 92), or commits a breach of any other condition of sale, the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building, or both, as the case may be and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the land or building, or both should be made. (4) After considering the cause, if any, shown by the transferee in pursuance of a notice under sub-section (3) and any evidence that he may produce in support of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer, may for reasons to be recorded in writing, make an order resuming the land or building or both, as the case may be, and directing the forfeiture as provided in sub-section (3) of the whole or any part of the money paid in respect of such sale.
(5) Any person aggrieved by an order of the Estate Officer under Section 16 or under this section may, within a period of thirty days of the date of communication to him of such order, prefer an appeal to the Chief Administrator in such form and manner, as may be prescribed:
Provided that the Chief Administrator may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (6) The Chief Administrator may, after hearing the appeal, confirm , vary or reverse the order appealed from and may pass such order as he deems fit.
(7) The Chief Administrator may, either on his own motion or on an application received in this behalf, at any time within a period of six months from the date of the order, call for the record of any proceedings in which the Estate Officer has passed an order for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order in relation thereto as he think fit:
Provided that the Chief Administrator shall not pass an order under this section prejudicial to any person without CWP Nos.3284 of 2009 and 3677 of 2012 -10- giving him a reasonable opportunity of being heard. (8) Any person aggrieved by an order of Chief Administrator under sub-section (6) may within a period of ninety days of the date of the communication to him of such order, prefer a revision petition to the Secretary to Government Haryana, Town and Country Planning Department, in such form and manner as may be prescribed:
Provided that the Secretary to Government Haryana, Town and Country Planning Department, may entertain the revision petition after expiry of the said period of ninety days, if he is satisfied that the petitioner was prevented by sufficient cause from filing the revision petition in time.
(9) The Secretary to Government, Haryana, Town and Country Planning Department, may, after hearing the revision, confirm, vary or reverse the order appealed from and may pass order as he deems fit:
Provided that the Secretary to Government, Haryana, Town and Country Planning Department, shall not pass an order under this section without hearing the parties."
Thus, notices were duly issued under Section 17 (1), (2) and (3) of the Act, before the resumption order was passed.
25. Learned counsel for the petitioner has relied upon the judgment of this Court in Ajay Singh Kinha Vs. State of Haryana and others, 2009 (1) RCR (Civil) 959, in which the claim for retention of property on payment of current market price was accepted. Further, reliance was placed upon a judgment of the Hon'ble Supreme Court of India, in the case of M.D., H.S.I.D.C. and others Vs. M/s Hari Om Enterprises and another, JT 2008(8) SC 184, whereby the petitioner in that case had been permitted to deposit the current price of the residential plot, along with interest and penalty, and the resumption order was set aside on those terms. In the case before their Lordships of the Supreme Court, the petitioner-corporation (Haryana State Industrial Development Corporation) had challenged the setting aside of the order of resumption passed by this Court. Their Lordships held as under :-
CWP Nos.3284 of 2009 and 3677 of 2012 -11-
"In all these cases, it is difficult to uphold the order of the High Court. But a general offer was made by the learned Additional Solicitor General that those who intend to obtain re-allotment of plot may do so on payment of price as per the current rate as on the date of the order of the High Court.
Before us, several allottees had categorically made a statement that they are ready and willing to pay the prevailing price as fixed by the appellant-Corporation. Keeping in view the facts and circumstances of this case, we are of the opinion that in that event, respondents offer the prevailing price as on the date of judgment of the High Court, the plot in question, shall stand -re-allotted and should be subject to the same terms and conditions. Such re-allotment may be made even in cases where we have found the order of the High Court to be unsustainable."
26. Thus, in that case, offer of re-allotment of the plot in question, was made by the State Corporation itself and as such, the Apex Court, had granted the benefit to the allottees whose plots had been resumed. Obviously, the order was made in exercise of the powers vested in the Supreme Court by Article 142 of the Constitution, to do complete justice between parties.
27. In the present case, no such offer has been made by the Haryana Urban Development Authority -respondents and, as a matter of fact, the same has been categorically rejected by them.
28. Further, Shri Sidharth Batra learned counsel appearing for the respondents (in CWP No.3677 of 2012) has referred to a judgment of a Division Bench of this Court, decided on 24.4.2012, in the case of Manish Aggarwal Vs. Financial Commissioner and Principal Secretary to Govt. of Haryana and others, (CWP No.4471 of 2011, annexed as Annexure R-1 with the written statement filed in the said case), wherein the resumption order was upheld. He also cites a judgment of the Hon'ble Supreme Court in CWP Nos.3284 of 2009 and 3677 of 2012 -12- the case of Municipal Corporation Chandigarh and others Vs. Vipin Kumar Jain, (SLP No.12968 of 2006, decided on 20.9.2007), wherein their Lordships distinguished the judgment of the Supreme Court itself in the case of Teri Oat Estates (P) Ltd. Vs. U.T.Chandigarh and others, 2004(2) SCC 30, quoting from para 57 of that very judgment (Teri Oat case)as follows:-
"We may, however, hasten to add that we do not intend to lay down a law that the statutory right conferring the right of the respondent should never be resorted to. We have merely laid down the principle giving some illustrations where it may not be used. There cannot be any doubt whatsoever that if the intention of the allottee is dishonest or with an ill motive and if the allottee does not make any payment in terms of the allotment or the statute with a dishonest view or any dishonest motive, then Section 8-A can be taken recourse to."
In this very case (Municipal Corporation Chandigarh and others Vs. Viney Kumar Jain) it was further held by the Supreme Court as under:-
"Auction is a price-discovery mechanism which falls in the contractual realm. In the present case, we are concerned with commercial sites. Auction is basically an exercise in raising revenues for the Government. When the price is not paid within time it results in loss of revenue to the State. Time is the essence of the contract in matters concerning auction. Property prices rise by the day.
In the present case there was no illegality in the holding of auction. Despite repeated notices issued to the respondent calling upon him to make payment, respondent failed to pay within the stipulated period. Despite repeated indulgence being shown to the respondent by the competent authorities payments were not made. Property prices increase by the day and if within stipulated period contractual obligations are not fulfilled then in that event the State suffers losses which cannot be compensated in terms of interest or penalty after four years. Ultimately auction is an exercise for detecting or discovering the price prevalent in the particular area in a particular year and if time overruns are to be allowed on flimsy excuses for not paying the money in time then the entire exercise would fail.
We are therefore, of the view that the High Court CWP Nos.3284 of 2009 and 3677 of 2012 -13- should not have interfered in the process in which the Corporation was fully justified and entitled to forfeit 10% of the amount and to invite fresh offers on new terms and conditions.
It has been submitted on behalf of the respondent that during the aforesaid period he had to undergo bypass operation and financial difficulties and therefore, delay in depositing be condoned. In our view ample opportunities were given to the respondent to make payment and therefore there was no question of condoning the delay. It is important to bear in mind that when the respondent offers to pay interest and principal after years it amounts to pegging of the price which cannot be allowed."
In our view, the above dictum would apply squarely to the present case too.
29. We are also not oblivious to the fact that the petitioners are only allottees of small commercial kiosks and as such, may deserve some sympathy. However, the circumstances enumerated above, all point to the fact that even the GPA holder, was, in fact, obviously a vendee of the original allottees and thus had powers to alienate the property in any manner as he deemed fit and to receive and encash payments. No relationship between the petitioners and their attorney, who held general/special powers with regard to the said property, has been pointed out to us or to suggest that they were immediate family of the petitioners, and as such, were entrusted with the task of looking after the property. It is, thus, obvious that allowing this belated attempt to retain the property would amount to giving premium to persons, who hold the property auctioned by a public body, without paying the price for it for 20 years and more, and then, when the property is sought to be resumed legally and correctly, a last ditch effort is made to save the property after having enjoyed the fruits thereof, (with minimum payment) for a long period of time.
CWP Nos.3284 of 2009 and 3677 of 2012 -14-
30. Hence, we are not inclined to impose acceptance of market price on the respondents, especially in view of the fact that the respondents have not agreed to re-allocate the kiosk at the current market price, unlike in the case of Hari Om Entreprises (supra), cited by the learned counsel for the petitioner.
31. In view of the above, we would not interfere with the order of resumption and, as such, the impugned orders in both petitions, resuming the Kiosks, and the orders dismissing the appeals are upheld and the writ petitions are hereby dismissed.
32. No order as to costs.
( AMOL RATTAN SINGH )
JUDGE
04.02.2013 (SATISH KUMAR MITTAL)
sd JUDGE