Punjab-Haryana High Court
Haryana Urban Development Authority & ... vs Smt.Sunita on 23 March, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.4528 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4528 of 2011(O &M)
Date of decision:23.03.2012
Haryana Urban Development Authority & another ...Appellants
Versus
Smt.Sunita ......Respondent
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr.A.K.Kansal, Advocate, for the appellants.
*****
G.S.SANDHAWALIA J.
CM No.13157-C of 2011 Application under Section 5 of the Limitation Act for condonation of delay of 30 days in filing the appeal is allowed in view of the averments made in the application which are duly supported by an affidavit of Yash Garg, IAS, Estate Officer, HUDA, Bhiwani. CM No.13158-C of 2011 Application under Section 151 CPC for condonation of delay of 440 days in re-filing the appeal is allowed in view of the averments made in the application which are duly supported by an affidavit of Yash Garg, IAS, Estate Officer, HUDA, Bhiwani.
RSA No.4528 of 2011
1. The present appeal has been filed by the defendants who are aggrieved against the concurrent findings of the Courts below whereby the suit for declaration with permanent and mandatory injunction filed by the plaintiff has been decreed.
2. The plaintiff, Smt.Sunita filed a suit for declaration to the effect that the order of resumption passed by the Estate Officer, HUDA, Bhiwani RSA No.4528 of 2011 2 and dispatched to the plaintiff vide endorsement No.1468 dated 03.03.2004 wherein the defendants had resumed the plot No.116 measuring 209.10 Sq.meters situated at Mandi Township, Bhiwani was wrong, illegal, baseless, unreasonable and wholly devoid of the principles of natural justice and for the consequential relief from re-auctioning or re-alloting the plot to the prejudice of the plaintiff and to make a valid offer to the plaintiff in respect of the said plot for construction of a residential house after effecting and certifying complete development work and to credit the interest on all the deposited amount made by the plaintiff in lieu of the price of the plot from the date of deposit till the valid offer of possession. The case of the plaintiff was that by virtue of re-allotment letter dated 29.08.1996 and after making full payment of price, the plaintiff was entitled to a valid offer of possession of the residential plot at Mandi Township, Bhiwani so that it was possible for her to construct the house. It was alleged that letter dated 17.11.1997 for completing the construction of the plot was issued without caring for the ground realities regarding non-completion of development work and non-issuance of a valid offer of possession and without the boundaries being demarcated and basic facilities like road, streetlights, proper sewerage systems, water facility etc. being provided and the fees and penalties in lieu of non-construction on the plot in question was totally wrong, illegal and nonest. The basic principles of natural justice had been violated as the plaintiff had visited the office of the defendants several times but was never replied satisfactorily and was issued show cause notice dated 10.06.2003 under Section 17(3) of the HUDA Act, 1977 to make up the deficiency on papers in the file of the plot in question and the said notice was replied by representation dated 07.07.2003 through her counsel but the RSA No.4528 of 2011 3 same was not replied to and the illegal order of resumption was passed on 03.03.2004 and accordingly, the suit was filed on 18.03.2004.
3. Written statement was filed by the defendants in which it was pleaded that plot No.116 was originally allotted to Sh.Prithvi Singh who after getting permission, transferred it to one Dhara Chand and the possession of the plot was offered to Dhara Chand on 01.07.1994. The said person applied for re-transfer in favour of the plaintiff, viz., Smt.Sunita and accordingly, re-allotment memo No.2297 dated 29.08.1996 was issued and the plaintiff was advised to complete construction of the plot before 31.12.1997. Show cause notice was served upon the plaintiff on 14.01.2003 to deposit a sum of ` 82,376/- and then notice for hearing was issued under Section 17(2) of the HUDA Act, 1977 but the plaintiff failed to appear. So penalty of ` 8237/- was imposed and the plaintiff was informed vide communication dated 20.05.2003 to deposit ` 82,376/- plus ` 8237/- as penalty within 30 days. The plaintiff was awarded opportunity of personal hearing under Section 17(4) of the HUDA Act, 1977 and the same was replied vide reply dated 11.07.2003. The plaintiff having failed to deposit the dues and disobeyed the conditions of the allotment/re-allotment letter, and that the plaintiff had never appeared in the office of the defendants despite repeated notices nor paid the fees and penalties in lieu of non- construction on the plot in question, the action taken against her was held to be justified. On the basis of the said pleadings, the following issues were framed:
1. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP
2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP RSA No.4528 of 2011 4
3. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
4. Whether the plaintiff has no cause of action to file the present suit? OPD
5. Whether the suit of the plaintiff is not maintainable in the present form? OPD
6. Relief.
4. After taking into consideration the evidence on the record, the trial Court came to the conclusion that the plaintiff had already paid the entire instalments due to the defendants at the time of re-allotment and the plaintiff was not liable to pay the demanded amount on account of non-
completion of the construction on the plot in dispute and the order of resumption was not a valid order. The trial Court, accordingly, taking into consideration the letter of offer of possession which was made to the predecessor-in-interest in the year 1994, took into consideration Exhibit P-9 dated 30.06.1997 which had been issued by the Chief Town Planner, HUDA, Panchkula who had approved the zoning plan and demarcation plan of the residential area of the Mandi Township, Bhiwani. Vide the said letter, the Chief Town Planner, HUDA circulated the approval which had been granted by the Chief Administrator, HUDA and directed that the copies of the approved plan be circulated to all the concerned officers. Accordingly, a finding was recorded that once the demarcation plan and the zoning plan itself had not been approved till 30.06.1997, how HUDA could issue letter of possession to the predecessor-in-interest of the plaintiff on 01.07.1994, Exhibit D3. It was also noticed that Vijender Singh, Clerk who had appeared as DW1 was directed to bring the complete record on 05.06.2006 and thereafter, he had appeared on 05.12.2006 for further cross- examination and had not brought the record on the said date and therefore, RSA No.4528 of 2011 5 the defendants had with-held the best evidence and did not produce the relevant records to prove the fact that the development work had been carried out in the year 1994 and that possession could not be offered to Dhara Chand and accordingly, an adverse inference was drawn against the defendants. On the basis of these findings recorded, the trial Court proceeded with the opinion that the possession of the plot was never validly offered since the development work was not completed, and therefore, the plaintiff was not in a position to raise construction and the order dated 03.03.2004 whereby resumption was ordered, was without proper hearing and the demand of ` 82,376/- on account of dues and an amount of ` 8237/- on account of penalty was wrongly imposed and the plaintiff was not liable to pay the same. Accordingly, the resumption order was set aside and the defendants were held liable to make a valid offer of possession. The relief of interest was declined to the plaintiff and it was held that she was entitled to maintain the suit having a cause of action and direction was thereafter given to execute the conveyance deed as per law vide judgment and decree dated 25.10.2006. The defendants filed an appeal before the lower appellate Court which was dismissed on 18.03.2010 by the Addl.District Judge, Bhiwani and resultantly, the present regular second appeal has been filed.
5. Various submissions have been made with a view to raise a substantial question of law which would warrant interference by this Court. The trump card of the counsel for the appellant was that the suit was barred under Section 50 of the Haryana Urban Development Act, 1977 read with Section 9 Code of Civil Procedure and that there was a specific arbitration clause in the letter of allotment. The said submission regarding the bar of RSA No.4528 of 2011 6 jurisdiction is not sustainable in view of the fact that the authorities have to follow the procedure which is laid down under the Act and in the present case, they have failed to do so and the relief has been rightly granted by the Courts below which could only have been granted by the civil Court after recording evidence and not by the authorities who had, rather than following the procedure prescribed, violated the same brazenly. The specific case of the plaintiff in paragraph No.3 as per the record of the case which was summoned was that there was no valid offer of possession after completion of the development work and passing of the zoning plan and the notice dated 17.11.1997 (Exhibit P8) whereby the allottee was directed to complete the construction of the plot before 31.12.1997 failing which, the plot would be resumed, was without jurisdiction considering the fact that the boundaries had not been demarcated and the basic structures like streetlights, roads, sewerage etc. were not in place. In the reply to the said paragraph, there is no specific denial regarding whether the zoning and demarcation plan have been passed. Paragraph No.3 of the plaint and written statement reads as under:
Paragraph No.3 of the plaint:
"3. That after receiving full payment of price of the plot in question the defendants were duty bound to give a valid offer of possession after completing the development work in the area of M.T.Bhiwani in accordance with terms and conditions of the allotment letter issued by them. But until today no valid offer of possession is given by the defendants to the plaintiff after completing the development work in the area of M.T.Bhiwani thereby frustrating the plan of the plaintiff to construct a house of her dreams. It is worth mention here that the defendants instead of fulfilling their part of contract and compliance of all the conditions precedent contained in the allotment letter, illegally and in a hasty manner issued a RSA No.4528 of 2011 7 letter memo No.3655 dated 17.11.1997 for completing the construction of the plot in question just for the purpose of 'Eye-Wash' on their part without caring for the ground realities such as non completion of work and the passing of Zoning/Demarcation plan etc. in the area of M.T.Bhiwani. It is not understandable for a reasonable man of ordinary prudence as to how a person can start construction of a plot in respect of which boundaries are not demarcated and the basic infrastructural facilities like roads, street lights, proper sewerage system, water facility etc. are not provided and more so no possession is given in respect of the plot in question. But the defendants as a part of their illegal designs issued false memo demanding therein the fees and penalties in lieu of non-construction of the plot in question which action is totally wrong, illegal and virtually nonest and null and void on the part of the defendants and are liable to be recalled immediately as being imposed without giving any effective opportunity of hearing to the plaintiff in her matter, hence the defendants bypassed the basic principles of natural justice while deciding upon the cause of the plaintiff."
Written statement:-
"3. That para No.3 of the plaint is based on absolutely false facts, in fact the plaintiff failed to deposit the dues, nor she appear in the office despite repeated notices, nor paid the fees and penalties in lieu of non-construction of the plot in question, the action taken against the plaintiff is genuine and under due procedure of law, detailed reply has already been given in preliminary objections."
Once the defendants did not deny the said pleadings specifically, there is an implied admission on their part that the boundaries had not been demarcated and the basic infrastructure had not been provided. It was for them to produce the record to show that the zoning plan had been approved and in the absence of the zoning plan not being produced, an adverse inference has to be drawn against the defendants. Hon'ble Apex Court Gopal, Krishnaji RSA No.4528 of 2011 8 Ketkar Vs. Mahomed Haji Latif & others AIR 1968 SC 1413 has held that even if the burden of proof does not lie on a party, the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue and that it was not a sound practice for those desiring to rely upon a certain state of affairs to withhold from the court the best evidence which was in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
6. Once the plaintiff has been able to prove from the letter dated 30.06.1997, Exhibit P9 that it was for the first time that the plan was circulated by the Chief Town Planner, HUDA, Panchkula, and therefore, the stand of the respondents that the predecessor-in-interest, way-back in 1994, had taken possession, was without any basis. The defendants have not proved on record that on what basis the amount of ` 82,376/- was demanded along with penalty of ` 8237/- as asked vide letter dated 10.06.2003, Exhibit P5 once the whole amount of instalments stood paid at the time of re-allotment. The plaintiff, vide notice dated 07.07.2003, Exhibit P6, served through her counsel, had specifically mentioned that the demand of the said amount itself was un-reasonable and not justified. In the said legal notice, the fact of lack of demarcation has also been averred and it was specifically mentioned that the plaintiff had not been given possession of the plot, and therefore, construction work could not be carried out till 2003. Accordingly, demand was made to provide possession through a valid offer of possession and to re-call the notice dated 10.06.2003 (Exhibit P5) wherein the said demand was illegally made. Request was also made to give opportunity of personal hearing to the allottee, but the defendants, RSA No.4528 of 2011 9 instead of complying with the said legal notice, 8 months later, passed the resumption order dated 03.03.2004 and a perusal of the same talks about the date on which the allottee had failed to appear which has been crossed-out. Thus, it is clear that the Estate Officer, HUDA, Bhiwani has not been following the procedure prescribed while passing the extreme order of resumption and did not even bother that the principles of natural justice have to be complied with.
7. The lower appellate Court has noticed that Mark 'B', 'C', 'D' & 'E' show that construction work of streetlights, roads, sewerage etc. were not completed. In fact, a perusal of Mark 'B' which is dated 08.06.1998 goes on to show that the Sr.Town Planner of the office of Chief Administrator, HUDA, Panchkula had written that the charging of interest of sold residential plots of Mandi Township, Bhiwani may not be done from the allottees till the approval of the zoning and demarcation plan which was on 24.06.1997. The letter reads as under:
"Sub: Application regarding handing over possession and possession and waiving of interest of sold residential plots in Mandi township, Bhiwani. Reference: Your office memo No.879 dated 4.2.98 and No.3.1100 dated 28.2.98 on the subject cited above.
The matter regarding charging of interest of sold residential plots in mandi township, Bhiwani, has been examined in detail and the following decisions have been taken:-
i) Since the zoning/demarcation plan of the residential area of mandi township, Bhiwani was approved on 24.6.97 and development works are not complete as per report received from your office, the possession interest may not be charged from the allottee of residential plots of mandi township Bhiwani till the approval of the RSA No.4528 of 2011 10 zoning/demarcatoin plan/completion of the development works.
ii) Interest at the rate of 10% per annum may be charged on delayed paying in respect of those allotted of residential plots of mandi township Bhiwani, who have not paid the instalments in time.
You are requested to take further action in the matter accordingly and follow up action taken in the matter may be intimated to this office at the earliest."
8. Thus, keeping in view the facts and circumstances, it can be safely said that the procedure followed under the Haryana Urban Development Act, 1977 was never adhered to by the authorities themselves, and therefore, the Civil Court had jurisdiction and the bar under Section 50 of the Act, as contended by the counsel for the appellants would not arise. A Full Bench of this Court in State of Haryana & others Vs. Vinod Kumar 1986 PLJ 161 has held that where the authorities do not follow the prescribed procedure under the Act, then the civil Court would have jurisdiction, and therefore, the submission made by the counsel for the appellant that there was a bar under the Haryana Urban Development Act, 1977 would not hold weight. Relevant portion of the judgment reads as under:
"6. Even if for the sake of arguments it may be accepted that the impugned order is only voidable and will be binding on the respondents unless it is got declared void or set aside can it be said that the only remedy open to them is to approach the authorities under the Punjab Act and the remedy of a regular suit would be barred by the provisions of section 25 of the Punjab Act. The law has been well-established in this regard and was enunciated by the Privy Council in Secretary of State v. Mask & Co., AIR 1940 P.C. 105, thus:
" ......It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such RSA No.4528 of 2011 11 exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
xx xx xx"
The said rule was reiterated by the Supreme Court in Katikara Chintamani Dora and others v. Guatreddi Annamanaidu, AIR 1974 SC 1069, in the following words: "There is an express bar to the jurisdiction of the Civil Court to adjudicate upon the question whether 'any inam village' is an 'inam estate' or not, and to the extent of the question stated in Section 9(1), Madras Act 26 of 1948, the jurisdiction of the Settlement Officer and of the Tribunal are exclusive. But this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive."
9. A Division Bench of this Court in Ram Piari Vs. Haryana Urban Development Authority 1998 (3) PLR 241 has held that as per the conditions of allotment letter, HUDA was under a legal obligation to offer possession of the auctioned plot to the allottee after completion of development works in the area and once the development work had not been done, the respondents were not entitled to recover interest on the balance sale price and were not entitled to resume the plot. In the present case, the respondents have resumed the plot illegally by making a demand for extension fees on account of non-construction when they were not in a position to offer possession.
10. The second submission regarding the arbitration clause is only RSA No.4528 of 2011 12 to be discussed and rejected as neither it was specifically agitated before the Courts below nor any application was filed that the matter should be referred to arbitration. The said issue, now, cannot be raised in a regular second appeal.
11. Accordingly, the present regular second appeal is dismissed in the absence of any substantial question of law arising for consideration of this Court and the judgments passed by the Courts below are up-held.
23.03.2012 (G.S.SANDHAWALIA) sailesh JUDGE