Punjab-Haryana High Court
Vandana Bhdhiraja vs State Of Haryana And Others on 17 December, 2014
Bench: Hemant Gupta, Hari Pal Verma
Civil Writ Petition NO. 25067 of 2013(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition NO. 25067 of 2013(O&M)
Decided On : December 17, 2014
Vandana Budhiraja
..........Petitioner
VERSUS
State of Haryana and others
........Respondents
CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether reporters of local newspaper may be allowed to see
judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT:- Mr. Shyam Kumar Sharma, Advocate for the petitioner.
Mr. P.K. Jangra, Addl. A.G. Haryana.
Mr. Arvind Seth, Advocate for HUDA.
*****
HARI PAL VERMA, J. (ORAL)
Challenge in the present writ petition is to the order dated 11.03.2002 (Annexure P-4), whereby the Residential Plot No. 776-P, Sector-39, Gurgaon, allotted to the petitioner by the Haryana Urban Development Authority, has been ordered to be resumed along with forfeiture of 10% of the cost of the plot allotted. Petitioner has also challenged the order dated 02.06.2005 (Annexure P-7) and order dated 08.11.2011(Annexure P-19), whereby the appeal against the order of resumption dated 11.03.2002 and the revision petition against the order passed in appeal dated 02.06.2005 have also been dismissed, vide order dated 08.11.2011.
ANJAL GUPTA 2014.12.24 12:50 I attest to the accuracy and authenticity of this document high court chandigarh Civil Writ Petition NO. 25067 of 2013(O&M) 2
Briefly stated the facts of the case are that Plot No. 776-P, Sector- 39, Gurgaon, measuring 220 square meters was re-allotted in favour of the petitioner vide letter dated 20.11.1996. The total price of the plot was `3,34,412/- and 25% of the cost was deposited by the original allottee. On the application for transfer dated 18.11.1996 made by the original allottee-Smt. Reeta Joshi, the plot-in-question was re-allotted in the name of the petitioner vide letter dated 20.11.1996. The petitioner deposited an amount of ` 1,75,000/- vide Draft No. 008541, dated 14.10.1999 and in this manner as on 14.10.1999, an amount of `3,07,870/- were deposited by the original allottee/petitioner with HUDA as against the total cost of ` 3,35,412/- and only the balance amount of ` 26,542/- was outstanding.
Vide letter dated 11.03.2002 (Annexure P-4), respondent No.3 ordered resumption of plot on the ground of non-deposit of installment, for which a show cause notice under Section 17(3) of Haryana Urban Development Authority Act, 1977 (hereinafter referred as "the Act") was served upon the petitioner vide memo dated 15.07.2001. Another notice dated 01.06.2001, under Section 17(4) of the Act, was also issued to the petitioner.
Against the order dated 11.03.2002(Annexure P-4), the petitioner preferred the statutory appeal, taking various grounds including that no notice was served upon the petitioner, as her correct address is 560-B, Katra Asharfi, Chandni Chowk, Delhi, while the Allotment Letter bears address as 566-B, Katra Asharfi, Chandni Chowk, Delhi(which went unnoticed). In the affidavit submitted by the petitioner, the given address was mentioned as 566-B, Katra Asharfi, Chandni Chowk, Delhi, whereas the correct address was 560-B, Katra Asharfi, Chandni Chowk, Delhi. However, on the request made by the original allottee, vide letter dated 18.11.1996 (Annexure P-1) for transfer of plot, the address was mentioned as 560-B, Katra Asharfi, Chandni Chowk, Delhi. Since Allotment Letter was bearing address as 566-B, Katra Asharfi, Chandni Chowk, Delhi, therefore, the resumption order was sent at 566-B, Katra Asharfi, Chandni ANJAL GUPTA 2014.12.24 12:50 I attest to the accuracy and authenticity of this document high court chandigarh Civil Writ Petition NO. 25067 of 2013(O&M) 3 Chowk, Delhi address. In this manner, the resumption order was never received by the petitioner. However, the petitioner brought on record the change of address vide request dated 25.02.2005 (Annexure P-6) which was duly received by the office of the respondents. The appeal filed against the order dated 11.03.2002 was dismissed by respondent No.2, vide order dated 02.06.2005 (Annexure P-7) on the ground that the petitioner did not deposit the outstanding amount in due time. The appeal was also dismissed on the ground of limitation as well.
Aggrieved against the order dated 02.06.2005 passed in appeal, petitioner filed revision petition as provided under Section 17(8) of the Act, but even the said revision petition was dismissed by respondent No.1, vide order dated 08.11.2011(Annexure P-19).
It is in the aforesaid circumstances, the petitioner has filed the present writ petition challenging the order of resumption as well as the orders passed in appeal and revision petition.
On notice having been issued to the respondents, they have put in appearance and filed their written statements. They have pleaded that the petitioner has failed to deposit the amount due and, thus the plot-in-question was resumed after issuing all the legal/demand notices to the petitioner as provided under Section 17 of the Act and since the notices sent on the given address were never received back, it is presumed that notices have been received by the petitioner.
We have heard learned counsel for the parties.
Undoubtedly, while submitting the affidavit, the petitioner has mentioned her residential address as 566-B, Katra Asharfi, Chandni Chowk, Delhi, whereas her correct address was 560-B, Katra Asharfi, Chandni Chowk, Delhi, and, therefore, notices were sent on the given address i.e. 566-B, Katra Asharfi, Chandni Chowk, Delhi, but we cannot ignore that fact that the petitioner had no intention to avoid such notices and it was a sheer mistake that as ANJAL GUPTA 2014.12.24 12:50 I attest to the accuracy and authenticity of this document high court chandigarh Civil Writ Petition NO. 25067 of 2013(O&M) 4 instead of 560-B, the petitioner has mentioned her residential address as 566-B, Katra Asharfi, Chandni Chowk, Delhi. Even the original allottee while submitting required papers/documents(Annexure P-1) has given the address of the petitioner as 560-B, Katra Asharfi, Chandni Chowk, Delhi, Moreover, as pleaded by the petitioner, an amount of `3,07,870/- as against ` 3,35,412/- was already deposited, when scheduled payment was very much in operation and in this manner the petitioner has cleared most of the outstanding amount. Therefore, the resumption of plot on account of non-deposit of outstanding amount, which is admittedly small amount, is disproportionate. The default cannot be termed as willful. Thus, the failure to deposit of installment amount was due to communication gap, as correct address of the petitioner was 560-B, Katra Asharfi, Chandni Chowk, Delhi, whereas Allotment Letter was issued at 566-B, Katra Asharfi, Chandni Chowk, Delhi and communication, if any, were sent on the address, which was a different address. It is contended that the petitioner has cleared the outstanding due and further undertakes that if still any amount is outstanding against the petitioner, she undertakes to clear it.
Having considered the case in its totality, we feel that the order of resumption of plot is too harsh and should be passed as a last resort. We find support from the judgement of Hon'ble the Supreme Court in Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh and others (2004) 2 SCC 130, wherein the Hon'ble Court has held that the order of resumption should be passed as a last resort and the Court has observed as under:
"42. The respondents were entitled to pay interest on the unpaid amount @ 7% p.a. which in the event of non-payment was to be paid at a penal rate of 12% and subsequently enhanced to 15 per cent and then to 24 per cent as well the amount of penalty to be levied thereupon. The entire amount was recoverable through the process of law. In a situation of this nature, having regard to the rival claims made by the parties, if the default is not absolute willful or a dishonest one but occasioned due to situation which may be beyond one's control, the statutory right of the respondent in ANJAL GUPTA 2014.12.24 12:50 I attest to the accuracy and authenticity of this document high court chandigarh Civil Writ Petition NO. 25067 of 2013(O&M) 5 resuming the land may not be appropriate, if the entire dues stand discharged.
43. In terms of the provisions of the Act, the respondents are entitled to, (1) resumption of the land, (2) resumption of the building and (3) forfeiture of the entire amount paid or deposited. Having regard to the extreme hardship which may be faced by the parties, the same shall not ordinarily be resorted to
44. The situation, thus, in our opinion, warrants application of the doctrine of proportionality.
45. The said doctrine originated as far back as in 19th century in Russia and later adopted by Germany, France and other European countries as has been noticed by this Court in Om Kumar v. Union of India, [2001] 2 SCC 386.
46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve."
xx xx xx xx
57. 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. 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(1) can be ANJAL GUPTA 2014.12.24 12:50 taken recourse to."I attest to the accuracy and authenticity of this document high court chandigarh Civil Writ Petition NO. 25067 of 2013(O&M) 6
Thus, we find that simply for delayed payment which is quite nominal the resumption should not be resorted to, more particularly when the respondents have right to claim penal interest over delayed payment. The fact that the petitioner has made substantial payment for the plot-in-question, is not disputed by the respondents.
In view thereof, we allow the present writ petition and set aside the order of resumption, provided the petitioner, deposits the entire outstanding amount, as calculated by the respondents. Accordingly, the respondents shall communicate, the total outstanding amount due to be paid by the petitioner within one month from today and on receipt of such communication regarding outstanding amount, petitioner shall deposit the outstanding amount within one month thereafter.
With above observation, the writ petition is allowed.
(HEMANT GUPTA) (HARI PAL VERMA)
JUDGE JUDGE
December 17, 2014,
Anjal
ANJAL GUPTA
2014.12.24 12:50
I attest to the accuracy and
authenticity of this document
high court chandigarh