Punjab-Haryana High Court
M/S Hitkari Welfare Society vs State Of Haryana And Others on 14 May, 2019
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.5904 of 2019 (O&M) [1]
CWP No.7778 of 2019 (O&M)
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CWP No.5904 of 2019 (O&M)
Date of decision:May 14, 2019
M/s Hitkari Welfare Society ...Petitioner
Versus
State of Haryana and others ...Respondents
(2) CWP No.7778 of 2019 (O&M)
Date of decision:May 14, 2019
Triveni Faridabad Allottees Association ...Petitioner
Versus
State of Haryana and others ...Respondents
Coram: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Sanjay Kaushal, Senior Advocate, with
Mr. Saranjit Singh, Advocate, for the petitioner
in CWP No.5904 of 2019.
Mr. Puneet Bali, Senior Advocate, with
Mr. Prateek Gupta, Advocate, for the petitioners
in CWP No.7778 of 2019.
Mr. Sandeep Moudgil, Addl. A.G., Haryana.
Mr. Akshay Bhan, Senior Advocate, with
Mr. Abhishek Sanghi, Advocate, for respondents no.2 and 3.
Mr. Anand Chhibber, Senior Advocate, with
Mr. Amit Jhanji, Advocate, for respondents no.4 and 5.
****
Rakesh Kumar Jain, J. (ORAL)
This order shall dispose of two petitions bearing CWP No.5904 of 2019 (hereinafter referred to as the "first petition") and CWP No.7778 of 2018 (hereinafter referred to as the "second petition") because the prayers made by the petitioner(s) and the issues involved in both the cases are almost identical inasmuch as in both the petitions, the challenge has been laid to the order 1 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [2] CWP No.7778 of 2019 (O&M) ***** passed by the Director, Town & Country Planning, Haryana (DTCP) on 25.09.2018, by which he has permitted respondent no.3 to migrate the licence No.138 of 2008 from a Group Housing Project to a Residential Plotted Colony. However, for the sake of convenience, the facts are being extracted from CWP No.5904 of 2019.
This petition is filed by a Society, which is allegedly registered under the Haryana Registration and Regulation of Societies Act, 2012, through its Secretary Sh. Narotam Chand Gautam, who has allegedly been authorized by the Society by way of a resolution dated 08.09.2017 passed by the Board of Governors of the society, to file the present petition.
Shorn of unnecessary details, the facts given in the petition are that respondent no.2 (DTCP) had issued a Letter of Intent (LoI) in favour of M/s Triveni Ferrous Infrastructure Pvt. Ltd. (TFIPL), M/s. Ferrous Infrastructure Pvt. Ltd., M/s. Ferrous Alloys Forgings Pvt. Ltd. and Mr. Sumit Mittal (respondent no.4 herein) for developing a Group Housing Colony on land measuring 11.706 acres falling in the revenue estates of village Riwazpur and village Bhupani in residential Sector 89, Faridabad. Subsequent to the issuance of the LoI, a Licence No.138 of 2008 dated 02.07.2008, which was valid upto 01.07.2010, was issued by the DTCP in their favour. Subsequent thereto, respondents no.4 and 5, who are Directors of the TFIPL, submitted letter dated 17.07.2008 to the DTCP in order to seek transfer of Licence No.138 of 2008 in favour of their sister concern, i.e. M/s Triveni Infrastructure Development Co. Ltd. (TIDCO). While the aforesaid request was pending consideration before the DTCP, the TIDCO, on the basis of some agreement executed in the year 2007 between it and the licencees, had launched a Group Housing Project under 2 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [3] CWP No.7778 of 2019 (O&M) ***** the name and style of Triveni Signature-II in Sector 89, Faridabad and advertised 878 flats for allotment to the members of the public, out of which as many as 425 flats were allotted and money in respect thereof was received by the TIDCO. It is averred that though the application dated 17.07.2008 of the TFIPLwas not allowed but the department of DTCP issued a letter to the Licencee to deposit an amount of `178.21 lacs on account of External Development Charges (EDC) against Licence No.138 of 2008, whereas a request was reiterated on behalf of the TFIPL on 10.01.2009 for seeking transfer of Licence No.138 of 2008 in favour of TIDCO.
Since there were allegedly some defaults committed by the TIDCO in honouring the commitments made to the allottees of its projects including but not limited to Triveni Signature-II in Sector 89, Faridabad and other Group Housing Projects of TIDCO in respect of the land falling in Licence Nos.34 to 36 of 2007 in Sector 89, Faridabad and Licence Nos.37-39 of 2007 in respect of the land falling in Sector 78, Faridabad, a complaint was made by one Ravi Sachdeva, on the basis of which FIR No.234 dated 24.12.2008 was registered against TIDCO and its Directors under Sections 406/420/120-B IPC at the Economic Offences Wing, New Delhi. Subsequent to the registration of aforesaid FIR, an application for anticipatory bail was filed by one B.N. Gupta along with Sumit Mittal and Madhur Mittal (respondents no.4 and 5 herein) before the Delhi High Court. In the said bail application, as per index supplied to the Court, Sr. No.5 dealt with Annexure-A (colly), i.e. copy of details of the land purchased by the Company for its project at Krishna Vatika Mathura Vrindaban, Sector-78, Faridabad for Group Housing, village Mehrauli Ghaziabad, Sector-78, Faridabad for integrated township, land at Dharuhera 3 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [4] CWP No.7778 of 2019 (O&M) ***** Rewari, land at village at Madhya Kalan, Rewari and Commercial land at Sector-89, Faridabad, which runs from page nos.43 to 74. In the said bail application, Sr. No.6 deals with Annexure-B, i.e. copy of valuation of properties by the leading agency of M/s Knight Frank India Pvt. Ltd., which runs from page nos.75 to 86. It is alleged that though the bail was granted but it was lateron cancelled on 17.10.2012. It is further averred that around the same time, a Company Petition No.39 of 2009 titled as "Dinesh Mittal and others vs. M/s Triveni Infrastructure Development Co. Ltd." was filed before the Delhi High Court by some of the allottees of TIDCO alleging that the latter company is financially insolvent and unable to pay its legal debts and liabilities. It is also averred that respondents no.4 and 5, after institution of Company Petition No.39 of 2009, executed an agreement dated 03.06.2009 between TIDCO, solely owned by them, and M/s Garden Villas & Flats Pvt. Ltd., whereby TIDCO had duly transferred all rights of construction, sale and development of the entire FSI, i.e. 8,92,196 Sq. Ft. on 11.706 acres of the Licenced area for a total sale consideration of `53,53,17,600/-.
However, this assertion is denied in the reply filed by respondents no.4 and 5 stating therein that there is no question of entering into an agreement with TIDCO as the TIDCO itself was not an owner of the Licence.
It is further averred that the sister concern of TFIPL, i.e. M/s Triveni Media Limited availed a loan facility from the Punjab National Bank, Preet Vihar, Delhi and in order to secure the same, it had mortgaged the land measuring 8.25 acres owned by TFIPL and respondent no.4, which form part and parcel of the total licenced area covered under Licence No.138 of 2008. Since the said loan amount could not be paid, while acting under the 4 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [5] CWP No.7778 of 2019 (O&M) ***** SARFAESI Act, 2002, the Punjab National Bank sold the aforesaid 8.25 acres of land by way of e-auction for an amount of `17.80 Crores, which was purchased by respondent no.3, i.e. M/s Fidato Buildcon Pvt. Ltd. It is also alleged that the remaining part of the land measuring 11.706 acres, after having purchased 8.25 acres, was also purchased by M/s Fidato Buildcon Pvt. Ltd. from the Licencees. Thereafter, DTCP, vide its letter dated 20.8.2015, permitted the licencees to transfer ownership of the licenced land in favour of respondent no.3 in whose favour the aforesaid licence had been proposed to be transferred. The said Licence was ultimately transferred on 18.03.2016 and, thereafter, respondent no.3 applied for migration of Licence No.138 of 2008 from the Group Housing Project to the affordable plotted housing colony under the Deen Dayal Jan Awas Yojna, which was allowed vide the impugned order dated 25.09.2018 while issuing Licence No.66 of 2018 in favour of respondent no.3.
The present petition is, thus, directed against the said migration which has been ordered on 25.09.2018 and in regard thereto, it would be relevant to refer to the prayer made in the petition, which is reproduced as under:-
"i) Issue a writ, order or direction especially a writ in the nature of mandamus for declaring the order dated 25.09.2018 (Annexure P-35) passed by the Respondent No.2 whereby the Respondent No.3 has been permitted to migrate from a Group Housing Project to a Residential Plotted Colony despite third party rights in the Licenced land having been created vide an Agreement dated 08.09.2016 (Annexure P/31) executed between the Petitioner and the Respondent No.3 and inspite of the Licenced land having been attached by the Hon'ble Delhi High Court vide its order dated 28.02.2018 (Annexure P/39) passed in CP No.39 of 2009, as not only being inherently contemptuous but also grossly violative of the
5 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [6] CWP No.7778 of 2019 (O&M) ***** Policies dated 08.02.2016 (Annexure P/32) and 18.02.2016 (Annexure P/33) issued by the Respondent No.1"
At the time of preliminary hearing on 05.03.2019, the Court had passed the following order:-
"Inter alia contends that in winding up proceedings before the Delhi high Court the disputed property measuring 11.706 acres has been attached and the issue is being looked into by the official liquidator as well. Despite this respondent no.2 has passed an order permitting migration of the project from Group Housing to a residential plotted colony, seriously jeopardizing the interest of the petitioner as also the stake holders who have already invested in the project, acquiring interest in the project in its unaltered form.
Notice of motion for 22.07.2019.
Mr. Amit Jhanji, Advocate who is present in Court accepts notice on behalf of respondent no.4 and prays for some time.
Let notice be issued to the remaining respondents for the date fixed.
In the meantime, operation of the impugned order shall remain stayed."
Thereafter, on 18.03.2019, this Court had passed the following order:-
"The prayer made in the application is for withdrawal of the writ petition as the matter has been settled between the petitioner and respondent no.3.
Mr. Jhanji does not dispute this fact but states that wrong assertion has been made before the Court regading the attachment of the disputed property in winding up proceedings before the Delhi Hihg Court. If that is so, then we are prima facie of the opinion that the court process has been misused for an ulterior pu8rpose and that too on the basis of a wrong statement. We have a reason to say so because it has been stated by Mr. Bali that an application has been moved on behalf of the original Licencee which
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In view of the above, adjourned to 28.03.2019 to enable Mr. Bali to get his application listed which has already been filed."
Pursuant thereto, an application bearing CM No.4824 of 2019 under Order 1 Rule 10 has been filed by M/s Triveni Faridabad Allottees Association (petitioner in the second petition). Another application bearing CM No.3929 of 2019 was filed by the petitioner for placing on record an agreement dated 08.09.2016 executed between the petitioner and respondent no.3.
During the course of hearing of this petition, a dispute was raked up on behalf of respondents no.3 to 5 in regard to the stay order having been obtained by the petitioner by misrepresenting the facts. Pursuant thereto, this Court had passed an order on 09.04.2019, which is reproduced as under:-
CM-4304-2019 in/and CWP-5904-2019 This application is filed by the petitioner for seeking permission to withdraw the writ petition bearing CWP No. 5904 of 2019.
In the present CWP No. 5904 of 2019, the petitioner has prayed for the issuance of a writ in the nature of mandamus for declaring the order dated 25.09.2018 passed by respondent No. 2- The department of Town and Country Planning, Haryana, by which respondent No. 3 i.e. M/s Fidato Builcon Pvt. Ltd., New Delhi has been permitted to migrate from the Group Housing Project to the Residential Plotted Colony in the Licenced land having been created vide agreement dated 08.09.2016 as illegal because the Licenced land has been attached by the Hon'ble Delhi High Court vide its order dated 28.02.2018 passed in CP No. 39 of 2009 and also is in gross violation of policies dated 08.02.2016 and 18.02.2016.
Besides, the aforesaid prayer, the petitioner has also made a prayer for the issuance of a writ in the nature or mandamus for seeking a direction for an investigation by an independent agency into the affairs of respondent No. 2 as well as the officials of Punjab
7 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [8] CWP No.7778 of 2019 (O&M) ***** National Bank who have allegedly connived with respondents No. 3 and 5 not only to buy 8.25 acres of land in Sector 89, Faridabad out of the total Licenced land measuring 11.706 acres vide licence No. 138 of 2008 at a throw away price but also the manner in which the land attached in the Court proceedings has been permitted to be migrated from the Group Housing Scheme to the Plotted Residential Colony. The petitioner has made further prayer for issuance of a writ in the nature of mandamus for restraining the respondent No. 3 from creating third party rights subsequent to the grant of licence No. 66 of 2018 dated 25.09.2018.
Learned senior counsel for the various parties have explained that M/s. Triveni Ferrous Infrastructure Pvt. Ltd., M/s Ferrous Infrastructure Pvt. Ltd., M/s Ferrous Alloys Forgings Pvt. Ltd and Sumit Mittal (respondent No. 4) had the licence No. 138 of 2008 for the purposes of developing a Group Housing Society, Sector 89, Faridabad. All the four companies had allegedly entered into an agreement with M/s. Triveni Infrastructure Development Co. Ltd (TIDCO). The land measuring 8.25 acres which was under
licence No. 138 of 2008 was sold in a public auction by the Punjab National Bank in terms of provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (for short 'the SARFAESI Act') and was purchased by respondent No. 3 who also allegedly purchased 3.45 acres of land independently from the other two licencees referred to above. Thereafter, licence No. 138 of 2008 was transferred to respondent No. 3 on 18.03.2016. Then, respondent No. 3 moved an application to the concerned authority for the purpose of migration from Group Housing Project to Plotted Residential Colony which was allowed on 25.09.2018 and licence No. 66 of 20187 dated 25.09.2018 was issued. It is also pertinent to mention that on 08.09.2016, an agreement was entered into between the petitioner on the land measuring 2.30 acres of the entire land of 11.703 acres of land for the purpose of construction of Group Housing Project.
Since, there was a migration from the Group Housing Project to the Plotted Residential Colony, therefore, the present petition is filed and at the time of preliminary hearing following order was passed on 05.03.2019:-
"Inter alia contends that in winding up proceedings 8 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [9] CWP No.7778 of 2019 (O&M) ***** before the Delhi High Court the disputed property measuring 11.706 acres has been attached and the issue is being looked into by the official liquidator as well. Despite this respondent no.2 has passed an order permitting migration of the project from Group Housing to a residential plotted colony seriously jeopardizing the interest of the petitioner as also the stake holders who have already invested in the project, acquiring interest in the project in its unaltered form.
Notice of motion for 22.7.2019.
Mr. Amit Jhanji, Advocate who is present in Court accepts notice on behalf of respondent no.4 and prays for some time.
Let notice be issued to the remaining respondents for the date fixed.
In the meantime, operation of the impugned order shall remain stayed."
On the subsequent date i.e. 18.3.2019 following order was passed:-
"The prayer made in the application is for withdrawal of the writ petition as the matter has been settled between the petitioner and respondent No.3.
Mr. Jhanji does not dispute this fact but states that wrong assertion has been made before the Court regarding the attachment of the disputed property in winding up proceedings before the Delhi High Court. If that is so, then we are prima facie of the opinion that the court process has been misused for an ulterior purpose and that too on the basis of a wrong statement. We have a reason to say so because it has been stated by Mr. Bali that an application has been moved on behalf of the original Licencee which would expose the entire fraud.
In view of the above, adjourned to 28.03.2019 to enable Mr. Bali to get his application listed which has already been filed."
In pursuance thereto, application under Order 1 Rule 10 of the CPC bearing No. CM-4824-CWP-2019 is also filed.
We have heard learned counsel for the parties who have informed this Court that deliberate wrong averments have been 9 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [ 10 ] CWP No.7778 of 2019 (O&M) ***** made by the petitioner that the licenced land was attached by the Hon'ble Delhi High Court vide its order dated 28.02.2018, passed in CP No. 39 of 2009, which has been noticed that at the time of issuance of notice of motion by this Court and granted injunction in their favour. This fact was further highlighted on the adjourned date i.e. 18.03.2019 that the petitioner has played some kind of fraud with the Court and permission was granted to the intervener to file an appropriate application in this regard.
Be that as it may, before we decide the application filed by the petitioner for withdrawal of the petition, we would definitely require an explanation as to whether the averments made in the writ petition, much less, contained in the prayer clause that the licenced land was attached by the Hon'ble Delhi High Court vide its order dated 28.02.2018 passed in CP No. 39 of 2009 is correct or not?
Learned senior counsel appearing on behalf of the applicant- petitioner prays for an adjournment file an appropriate affidavit of the petitioner to explain the aforesaid query of this Court.
Let the needful be done on or before the next date of hearing.
Adjourned to 24.04.2019.
To be shown in the urgent list."
Apropos, the petitioner has filed an affidavit dated 23.04.2019, in which he has made the following averments:-
"1. I say that the deponent is 10th passed from a Hindi Medium School and is not well versed and conversant with the English Language especially the Court Language. The deponent has signed, verified and instituted the present Writ petition for an on behalf of the Petitioner Society.
2. I say that the petitioner Society entered into an agreement dated 08.09.2016 with Respondent No.3 for assignment of Joint Development and Marketing rights of approximately 2.5 acres of land out of the total Licenced land of 11.706 situated in Sector-89, Faridabad owned by Respondent No.3. Disputes arose between the Petitioner Society and Respondent No.3 for performance of the aforesaid agreement, culminating into legal proceedings.
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3. I say that due to several disputes arose between the Petitioner Society and Respondent no.3 i.e. FIDATO Buildcon Pvt. Ltd., Petitioner society lodged criminal case FIR No.220 of 2018 at P.S:Bhupani, Faridabad and also filed a Civil Writ Petition No.5904 of 2019 before this Hon'ble Court.
4. I say that Respondents on 12.03.2019 shared with the petitioner Society, minutes recorded at the site (Annexure R-3/6). Copy of the same is enclosed with this affidavit. The said Minutes made it explicit that 11.70 acres of land, part of which was assigned to the petitioner society for development and marketing do not belong to TIDCO (Company in Liqn.). The ownership of the said land exclusively vests with Respondent No.3 having been purchased in a public auction. Thus, subsequent to the filing of the writ petition, it was transpired that the Licence No.138/2008 was never subject matter of the liquidation proceedings in the Hon'ble Delhi High Court and was never attached by the Hon'ble Delhi High Court vide order dated 28.02.2018.
5. I say that the petitioner society to put quietus to the all the disputes entered into a lawful Settlement Agreement with Respondent No.3 dated 13.03.2019 whereby the petitioner society has agreed to acquire rights in independent smaller plots on the same parcel of land in lieu of the amounts paid by the society to Respondent No.3. The society did not receive any monetary consideration/amounts from Respondent No.3 under the Settlement Agreement.
6. I say that the petitioner society has applied for withdrawal of the Writ Petition by filing application bearing CM No.4304 of 2019 as per the settlement. The advocate-on-record declined to make such application and granted No Objection Certificate on receipt of amounts over and above the fee already paid.
7. I say that there are no deliberate and intentionally any averments made in the petition to mislead or misrepresent this Hon'ble Court.
8. I say that the assertions made in the Writ Petition with regard to the Licence land attached by order dated 28.02.2018 were wrong for the reasons enumerated above and was made under mistaken bonafide belief and on the basis of legal advice received and in good faith and in no manner with knowledge of any falsity, 11 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [ 12 ] CWP No.7778 of 2019 (O&M) ***** recklessly for wrongful use of legal proceedings.
9. The deponent with folded hands offers unconditional and unequivocal apology to this Hon'ble Court as the deponent had no intent to make such an assertion and prays that a sympathetic view be taken considering his limitations as regards understanding the legal language and also since no irreparable loss is caused to any of the respondents.
10. I say that the contents of this affidavit have been drawn at the instructions of the deponent. The contents of the affidavit have been explained to the deponent in vernacular language i.e. in Hindi by Shri Hardwari Lal."
Counsel appearing on behalf of the petitioner has admitted its fault in the context of making a wrong statement at the time of issuance of notice of motion and submitted that due to a bona fide mistake, it was averred that the property in dispute has already been attached by the Delhi High Court in the Company Petition. However, it is not denied by the petitioner that the property in dispute is not attached. The petitioner has, thus, also filed an application bearing CM No.4304 of 2019 for withdrawal of the present petition and has thrown himself to the mercy of this Court alleging that he is 68 years of age and is not well conversant with the English language and that the mistake is not deliberate.
However, on the other hand, counsel for respondents no.3 to 5 have submitted that because of the stay having been obtained by the petitioner by making a misrepresentation before this Court, the project of respondent no.3 has been unnecessarily delayed as the stay was granted by this Court on 05.03.2019 and, thereafter, practically two months have passed. In support of their contentions, learned counsel for the respondents have relied upon the following judgments:-
1. Rita Markandey vs. Surjit Singh Arora, (1996) 6 12 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [ 13 ] CWP No.7778 of 2019 (O&M) ***** Supreme Court Cases 14;
2. Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack De Sequeira (dead) through Lrs., (2012) 5 Supreme Court Cases 370;
3. Ramrameshwari Devi and others vs. Nirmala Devi and others, (2011) 8 Supreme Court Cases 249;
4. Rahul Mittal vs. State of Punjab and others, 2012 SCC OnLine P&H 17836;
5. Rao Roop Chand Memorial College of Education vs. The National Council for Teachers Education and another, 2013 SCC OnLine P&H 126428.
Counsel for the respondents have submitted that the petitioner, much-less the person who has been authorized by the petitioner to file the present petition, deserves to be dealt with strictly in accordance with the Contempt of Courts Act, 1971 because obtaining a stay order by making wrong assertions is an act of overreaching the Court especially when the order of injunction has been passed in their favour thereafter. It is also additionally submitted that in any case, in such circumstances, the Court can always impose heavy costs/fine upon the petitioner so that such like persons may not dare to file petitions based upon falsehood as not only the writ petition has been verified in so many words but also an affidavit has also been filed by the petitioner in support of the averments made in the writ petition.
However, in rebuttal, learned counsel for the petitioner has again submitted that this Court, while passing any order, may take into consideration the age of the petitioner and also the fact that the petition is being withdrawn after realizing that a mistake has been committed.
We have heard counsel for both the parties and examined the available record with their able assistance.
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CWP No.7778 of 2019 (O&M)
*****
Keeping in view the averments made in para no.9 of the affidavit filed by the petitioner but taking into consideration the fact that filing false affidavits in the Court has become so rampant that it is practically difficult to decide the lis between the parties on the basis of the averments made in the writ petitions, we are of the considered opinion that instead of issuing proceedings against the petitioner, namely, Mr. Narotam Chand Gutam, under the provisions of the Contempt of Courts Act for committing contempt of the Court, we would impose costs upon the petitioner, i.e. the Society, of `10 lacs, out of which `5 lacs shall be paid to respondent no.3 and remaining amount of `5 lacs shall be deposited with the High Court Legal Services Authority of this Court.
With these observations, the first petition is hereby allowed to be withdrawn and as a result thereof, the interim order dated 05.03.2019 shall stand vacated.
Insofar as the second petition is concerned, this is again filed at the instance of an association and although the prayer made in this petition is somewhat similar to the prayer made in the first petition but at the outset, counsel for the respondents have pointed out that the petitioner has not approached this Court after exhausting its remedy provided under the statute. In this regard, counsel for the respondents have referred to para no.6 of the petition stating that "no appeal/revision lies against the arbitrary and illegal action of the respondents, as such the Petitioner has been left with no other alternative except to invoke the extraordinary writ jurisdiction of this Hon'ble Court".
It is needless to mention that the present writ petition was ordered to be heard with the first petition and even the interim order was passed by this 14 of 17 ::: Downloaded on - 09-06-2019 01:34:50 ::: CWP No.5904 of 2019 (O&M) [ 15 ] CWP No.7778 of 2019 (O&M) ***** Court while relying upon the interim order passed in the first petition. In respect of the availability of alternate remedy, learned counsel for the respondents have referred to the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as the "Act"), in which Section 19 provides for appeals against the order of the Director or any officer appointed by the Government. Section 19 of the Act is reproduced as under
for the ready reference:-
"Any person aggrieved by any order of the Director or any officer appointed by the Government, by notification in the Official Gazette, to exercise and perform all or any of the powers and functions of the Director may, within a period of thirty days of the date of communication of the order to him, prefer an appeal to the Secretary to Government, Haryana, Town and Country Planning Department, in such form and manner as may be prescribed :
Provided that the appeal may be entertained 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"
Although Mr. Bali, learned counsel appearing on behalf of the petitioner, has argued vehemently that respondent no.3 have played some kind of fraud in purchasing the disputed land on throwaway prices but Mr. Bhan has submitted that the property in question has been purchased in e-auction, which has been conducted by the bank after taking over the property under the SARFAESI Act, 2012 and even the said auction has been never challenged.
Be that as it may, it is a well settled law that in such a situation where a party has the remedy under the statute, it cannot be allowed to invoke the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, which is an extraordinary remedy in case the remedy under the ordinary law is not available to him.
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*****
Learned counsel for the petitioner has submitted that this Court can always entertain the writ petition de hors the remedy of appeal but for that matter, the petitioner has to come to the Court candidly by stating that though the remedy of appeal or revision is available but it may not be efficacious but no such averments have been made in para no.6 of the petitioner rather the fact of availability of the remedy of appeal has been concealed despite the fact that the petitioner is an association of educated people and may have looked into the Act before filing the present petition.
Faced with all these circumstances, at the end, learned counsel for the petitioner, after having instructions from the petitioner, prays for withdrawal of the present petition in order to avail the remedy of appeal or revision under Section 19 of the Act and has submitted that the Court may direct the Appellate Authority to decide the application for stay as early as possible.
In this regard, learned counsel for the respondents have submitted that the appeal by itself would not be maintainable until and unless an application under Section 5 of the Limitation Act, 1963 is filed along with the appeal because there is a limitation prescribed to challenge the order of the Director before the State Government.
Be that as it may, once the petitioner has prayed for withdrawal of the present petition in order to avail the remedy of appeal or revision, we do not intend to pass any other order but to accept the request of the petitioner for withdrawal of the petition.
In view thereof, the second petition is allowed to be withdrawn and in case any appeal is filed along with the delay/stay application(s), the Appellate Authority may consider the same in accordance with law.
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CWP No.7778 of 2019 (O&M)
*****
After we had delivered the judgment in open Court, in the post lunch session, Mr. Gaurav Chopra, Advocate, through whom the first petition was filed, has put in appearance and submitted that the averments made in para no.6 of the affidavit of Narotam Chand Gautam dated 23.04.2019 are not correct. It is submitted that he had never declined to file the application nor had asked for the amount over and above the fee from the respondent.
At this stage, Mr. Sanjay Kaushal, Senior Advocate has appeared on behalf of the petitioner and submitted that he has the instructions to state that the averments of para no.6 of the affidavit dated 23.04.2019 may be expunged.
We order accordingly.
The averments made in para no.6 of the affidavit of Narotam Chand Gautam dated 23.04.2019 are hereby expunged.
(Rakesh Kumar Jain)
Judge
May 14, 2019 (Harnaresh Singh Gill)
vinod* Judge
Whether speaking / reasoned : Yes/No
Whether reportable : Yes/No
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