Punjab-Haryana High Court
Parveen Kumar vs Haryana Urban Development Authority on 3 December, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.21639 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
C.W.P. No.21639 of 2010 (O&M)
Date of Decision: 03.12.2013
Parveen Kumar ....Petitioner
Versus
Haryana Urban Development Authority, Panchkula and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Sanjeev Sharma, Senior Advocate,
Ms. Bhavna Joshi, Advocate,
for the petitioner.
Mr. Ajay Nara, Advocate,
for respondent Nos.1 and 2.
MAHAVIR S. CHAUHAN, J.
His failure to pay installments of purchase price of commercial plot No. 93, Sector 09, Panchkula (for convenience referred to as 'the booth site') in terms of letter of allotment, visited the petitioner with resumption of the booth site and forfeiture of 10% of the consideration money plus other dues payable till the date of resumption, and having failed in appeal and revision, he is before this Court by way of the instant Civil Writ Petition under Articles 226/227 of the Constitution of India, with a prayer that a writ of Certiorari quashing order of resumption, dated 26.04.2001 (P7), order dated 27.06.2002 (P8) dismissing his appeal, and order dated 11.02.2011 (P23) dismissing the revision petition brought by him; and a writ of Mandamus directing restoration Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -2- of allotment of the booth site to him, be issued.
Put as concisely as one may, facts necessary for disposal of the controversy are that in an open auction held on 31.05.1988, the petitioner being the highest bidder at Rs.3,72,000/-, and having deposited an amount of Rs.37,200/- (being 10% of the bid money) at the fall of the hammer, the booth site was allotted to him vide letter of allotment dated 15.06.1988 (P2), which, inter alia, provided that the petitioner would deposit an amount of Rs.55,800/- within 30 days of its issue, to complete payment of 25% of the bid money (clause 04), would deposit the remainder, i.e. Rs.2,79,000/-, at his option, either in one lump sum, without interest, within 60 days of its issue, or with interest @ 10% per annum, in ten half yearly equated installments (clause 05), could take possession of the booth site immediately on making up the deficiency in payment of 25% of the bid money (clause 06), his failure to pay the installments on due date(s) would entitle the Estate Officer to take action for imposition of penalty and resumption of the booth site (clause 08), and he would have to complete construction over the booth site within two years of the date of offer of possession, after having the plans approved from the competent authority in accordance with the extant regulations (clause 16).
Petitioner deposited the requisite amount of Rs.55,800/- on 14.07.1988 and thereby completed payment of 25% of the bid money but did not deposit the remainder either in one lump sum or by way of installments as per schedule of payment given in the letter of allotment and agreed to by him.
In spite of service of notice dated 19.04.1991 under Section 17(1) Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -3- of the Haryana Urban Development Authority Act, 1977 (for short, the Act), dated 04.11.1991 & 20.02.1992 under Section 17(2), dated 18.06.1992 under Section 17(3), and dated 01.12.1992, 15.04.1993, 31.08.1995, 10.07.1997 & 28.11.2000 under Section 17(4) of the Act, the petitioner did not deposit the due installments but constructed the booth without getting the plan approved, and occupied it without getting an occupation certificate issued. He also filed civil suit No. 19 of 2001 to seek a decree of declaration that the proceedings initiated by the Estate Officer under Section 17 of the Act were illegal; and for permanent injunction to restrain Haryana Urban development Authority (for short, HUDA) from resuming the booth site. In the civil suit, Court of Civil Judge (Senior Division) Panchkula, vide order dated 27.01.2001 (P6) directed the parties to maintain "status quo" qua possession of the booth site, "except in due course of law", but did not issue a direction restraining continuance of resumption proceedings.
The proceedings initiated vide above-referred to notices ultimately resulted into resumption of the booth site and forfeiture of the 10% of the consideration money plus other dues payable by the petitioner till the date of resumption, vide order dated 26.04.2001 (P7).
To assail order of resumption, petitioner preferred an appeal in terms of Section 17(5) of the Act but it did not find favour with the appellate authority and was dismissed vide order dated 27.06.2002 (P8).
Petitioner did not avail himself of the remedy of revision available to him under Section 17(8) of the Act and, instead, vide his petition dated Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -4- 12.08.2002 (P9) invoked the provisions of Section 30(2) of the Act to seek reversal of the order of resumption as affirmed by the appellate authority and also continued pursuing the civil suit simultaneously, wherein, vide order dated 23.11.2005 (P12), the respondents were "restrained from resuming and dispossessing" the petitioner from the booth site provided he deposited "all the installments along with 10% interest within one month." Petitioner's afore- stated civil suit was, ultimately, decreed by the civil Court vide judgment and decree dated 04.02.2008. He succeeded in appeal but in regular second appeal (RSA No. 2317 of 2009, The Estate Officer and another versus Parveen Kumar), this Court, vide judgment and decree dated 17.09.2009 (P18), dismissed petitioner's suit holding that in the facts and circumstances of the case civil Court did not have jurisdiction to interfere with the order of resumption.
After decision of RSA No. 2317 of 2009 the Estate Officer issued notice dated 03.11.2009 asking the petitioner to vacate the booth site and in view of his failure to comply, directed him to vacate the booth site within 24 hours, vide order dated 11.11.2010 (P20) which prompted the petitioner to move an application in the pending revision petition for stay of operation of order dated 11.11.2010 whereupon his revision petition was heard and dismissed by the revisional authority vide order dated 11.02.2011 (P23).
Petitioner claims that the respondents cannot charge interest beyond 10% per annum and the notices issued by the respondents, therefore, are illegal and the order of resumption passed by ignoring the restraint order Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -5- passed by the civil Court is also illegal and that the petitioner has already deposited an amount of Rs.11,29,050/- towards purchase price of the booth site.
In the written response, filed by the respondents, it has been stated that the petitioner did not pay the installments due in terms of letter of allotment and till the date of resumption of the booth site he had only paid an amount of Rs.20,000/- beyond the 25% of the purchase price deposited by him; he had raised construction without getting the plans approved, had occupied the booth without obtaining occupation certificate; had transferred the booth site in favour of Naresh Sharma without permission of the Estate Officer; the amount(s), if any, were deposited by him after resumption of the booth site, of his own, without there being any demand from the respondents; and the issue regarding interest has been raised only to divert attention of the Court from the real issue, i.e. non-payment of due installments.
We have heard learned counsel for the parties and have also examined the record.
With the aid of Jasbir Kaur versus U.T., Chandigarh, 1992(2) RCR 255 (SC), Teri Oats Estates (P) Ltd. versus U.T., Chandigarh and others, 2004(1) RCR(Civil) 540 (SC), Haryana Urban Development Authority and another versus Om Parkash Sharma, RSA No.3204 of 2009, decided on 04.09.2009, Haryana Urban Development Authority and others versus Rajesh Kumar and others, LPA No.262 of 2012, decided on 21.02.2012, Anil Kumar versus Union Territory, Chandigarh and others, Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -6- 2006(2) RCR(Civil) 212, Ajit Singh versus Union of India, 2001(3) RCR (Civil) 691, and Ram Kishan Gulati versus State of Haryana, 2000(1) RCR (Civil) 261, learned senior counsel representing the petitioner argued that the respondents cannot ask for and charge interest on the amount of due installments beyond 10% per annum whereas petitioner is being charged interest @18% per annum even on interest component of 10% per annum which is included in the amount of installments, and resumption ought to be resorted to as a last resort but the respondents have resumed the booth site without even deciding petitioner's claim as regards rate of interest, that too in spite of an order of ad interim injunction passed by the Civil Court. The learned senior counsel also stressed that the petitioner has deposited an amount of Rs.11,29,050/- even though total purchase price of the booth site was Rs.3,72,000/- only. Therefore, according to the learned senior counsel order of resumption cannot be allowed to sustain and is liable to be quashed and the booth site restored to the petitioner.
Per Contra, on behalf of the respondents it has been argued that the petitioner, who unauthorizedly constructed the booth on the booth site in the year 1993, occupied it without obtaining occupation certificate, transferred the booth so constructed in favour of Naresh Sharma without permission of the respondents and in contravention of the terms and conditions of allotment and has been earning profit from the same, has chosen not to pay the due installments as per schedule of payment given in the letter of allotment and has been devising different ways to postpone payment of the due installments to the Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -7- extent possible. According to the learned counsel, the petitioner has been thriving at the cost of public exchequer and has even abused the process of the court to his advantage and, as such, is not entitled to any relief and the judgments cited on behalf of the petitioner are of no help to his case. Learned counsel has pointed out that interest @ 10% per annum on the balance amount of purchase price is opted by the petitioner himself by not paying the balance price in one lump sum within 60 days of the date of issue of letter of allotment and he has then rendered himself liable to pay interest @ 18% per annum by defaulting in payment of the agreed installments.
No other or further point has been urged on either side.
Contention of the learned senior counsel appearing for the appellant that the petitioner cannot be charged interest @ 18% per annum is wholly misplaced and misconceived. It shall stand repetition to refer here to Condition No.05 of the letter of allotment (P2) which gave an option to the petitioner either to deposit the balance amount of purchase price of the booth site, i.e. Rs.2,79,000/- in one lump sum, without interest, within 60 days of the date of issue of letter of allotment, or with interest @ 10% per annum, in ten half yearly equated installments. Petitioner, in his wisdom, opted for the second option, i.e. payment of balance amount of purchase price of the booth site with interest @ 10% per annum, in ten half yearly equated installments. It is not in dispute that as per policy of HUDA in vogue at the time of allotment in favour of the petitioner, he was liable to pay interest @ 18% per annum on the defaulted installments and the allotment was subject to provisions of the Act Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -8- and rules/regulations/policy instructions issued under the Act. In fact, claim of interest @ 18% per annum is an opportunity provided to an allottee to avoid resumption of plot on payment of such amount. Therefore, the said claim cannot be said to be unjustified. Support for this view may be derived from Secretary, Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 Supreme Court Cases 684, wherein it has been held as under:-
"13. It is no doubt true that when the defaulted installment in entirety is subject to interest, the `interest'; component of the defaulted installment is also subjected to interest. To that limited extent, there may be charging of interest upon interest. Charging of such interest, on the interest part of the installment, on default in payment of the installment, at a reasonable rate from the date of default, cannot be termed as charging of compound interest in regard to the entire dues. It is only a provision to ensure that the dues (installments) are paid promptly and to avoid misuse of the concession given by permitting payment in installments. But for such a provision, lessees/allottees who have already been given possession will be tempted to delay payments, thereby leading to continuous defaults. A statutory development authority, working on no-profit-no-loss basis, can ill afford to permit such continuous defaults by the lessees/allottees which will paralyse their very functioning, thereby affecting future developmental activities for the benefit of other members of the general public."
In fact, circumstances appearing on record would indicate that controversy regarding rate on interest has been raised by the petitioner to camouflage his intention not to pay the due installment and continue enjoying Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -9- possession of the booth constructed on the booth site. The booth site was allotted to him on 15.06.1988. He took possession of the booth site immediately on its allotment; raised construction thereon without even getting the plan approved and occupied the booth so constructed in the year 1993. Last installment towards balance purchase price (after adjusting 25% paid by him) was payable on or before 15.06.1993. Order of resumption was passed on 26.04.2001. Till that day the petitioner had deposited only an amount of Rs. 20,000/- (on 04.05.1993).Controversy regarding rate of interest was raised for the first time in Civil Suit No.19 of 2001 which was filed on 22.01.2001. In fact Estate Officer, HUDA, was waiting for petitioner's response to the various notices issued to him when the suit was filed presumably to pre-empt passing of order of resumption, which was the only alternative available to HUDA in the situation for which the petitioner alone was responsible. Needless to say, Section 50 of the Act bars jurisdiction of the Civil Court and it has ultimately been so held by this Court vide judgment dated 17.09.2009 passed in RSA No. 2317 of 2009, The Estate Officer and another versus Parveen Kumar, arising from the civil suit filed by the petitioner.
Intention of the petitioner to enjoy possession of the booth site and booth constructed thereon without payment of purchase price is further evident from the fact that during the pendency of above-stated civil suit he filed an application for ad interim injunction to restrain HUDA from resuming the booth site whereupon vide order dated 23.11.2005 (P12), the respondents were "restrained from resuming and dispossessing" the petitioner from the booth site Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -10- provided he deposited "all the installments along with 10% interest within one month ." But the petitioner did not deposit the installments and interest in terms of the afore-stated order of the Civil Court.
Further, the appellate authority has observed in order dated 27.06.2002 (P8) that the petitioner sought adjournment on 28.05.2002 to deposit the outstanding dues within one month but on the adjourned date representative of the petitioner stated that the petitioner (appellant in the appeal) was not ready to pay the outstanding amount. It was in these circumstances that the appellate authority dismissed the appeal by observing as under:
"Keeping in view arguments of both the parties and facts of the case, it is admitted case of both the parties that the installments has not been paid as per schedule given in the allotment letter and the schedule of payment of installments has expired on 15. 06. 1993. Only plea of the representative of the appellant is that 10% interest may be charged on the delayed payment of installments and not penal interest @ 18% as per policy of HUDA may be charged. The appellant has obtained adjournment for payment of outstanding dues within one month on 28.05.2002, but today the representative of the appellant is not ready to make the payment of outstanding dues as per his undertaking given on 28.05.2002. Therefore, it is clear that the appellant is not serious to make payment of outstanding dues to HUDA, whereas as per his own averment in appeal that he is successfully running business in this booth. From the above it is evident that appellant is becoming rich at the cost of public money without making payment of outstanding dues. Hence, I find no merit in the present appeal and the same is rejected."Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -11-
Observations made by the revisional authority while dismissing the revision petition also indicate that the petitioner did not earnestly intend to clear the outstanding dues. Observations of the revisional authority are to the following effect:
"I have heard both the sides and have also gone through the record and judgment of the Administrator, HUDA, Panchkula. It is a fact that the booth site was purchased by Mr. Parveen Kumar in an open auction for Rs. 3,72,000/-. He paid 25% of the total amount and the allotment letter was issued to him. He was to comply with the conditions of the allotment letter which mentioned that he was to pay installments as per schedule. He was aware of the condition that in case he does not follow the terms of the allotment, the action could be taken against him under Section 17 of HUDA Act. He transferred the plot on the basis of GPA in 1988 itself but this fact was never brought to the notice of the Estate Officer. Neither allottee nor GPA paid till 1991 when the first notice was issued by the Estate Office for non- payment. GPA only paid Rs. 20, 000/- in 1992 which was much less than even the interest amount calculated in 1992. As regards the possession, the possession was offered to him almost on the date when he asked for the same. It is admitted by the allottee through his GPA that no payment has been made except Rs. 20, 000/- till 2001 and the amount of dues as per HUDA record was more that Rs. 16.00 lacs. It is also established that the allottee (GPA) received the notices as the money in 1992 deposited subsequently to the notices. It is also clear from the order of the Administrator that the allottee was given a chance to deposit the outstanding dues in given time as per the undertaking but he failed to deposit the same on the next date of hearing. It is also not disputed that the allottee raised construction at the site Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -12- without getting the building plan approved. He was running commercial activities there unauthorisedly since 1993. The allottee as well as the GPA failed to pay price of the booth site till the resumption order is passed by the Estate Officer. It is also admitted fact that whatsoever was deposited by the GPA that was deposited on the direction of the Civil Court and the same was returned by the Estate Officer which was not accepted by GPA."
It will not be out of place to point out here that the petitioner has not even whispered to controvert finding recorded by the revisional authority to the effect that he transferred the plot on the basis of GPA in 1988 itself. This amounts to admission of the petitioner that he has transferred the booth site in favour of Naresh Sharma without payment of outstanding dues and without permission of the competent authority. There, perhaps, cannot be a better example of a citizen's abhorrence of law.
The case under adjudication, undeniably, relates to commercial property sold by way of open auction. Auction is basically an exercise in raising revenues for the Government and it goes without saying that non- payment of price by the auction-purchaser visits the public exchequer with loss of revenue and very purpose of holding an auction to fetch maximum price, is forfeited. We may also remind ourselves that while dealing with resumption of a residential site consideration, perhaps, may be that it is needed by the allottee to provide a shelter to the family but it is not so as regards a commercial property, for, it is used by the allottee to earn profits. The present petitioner (or say the transferee), as hereinbefore noticed, constructed the booth in the year 1993 and is earning profits therefrom by running commercial activities since Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -13- then but has paid nothing towards the outstanding installments. The situation makes necessary a reference to a judgment dated 20.09.2007 of the Hon'ble Supreme Court of India in Municiapl Corporation, Chandigarh Versus Vipin Kumar Jain, Special Leave to Appeal (Civil) No.12968 of 2006, wherein the auction purchaser of a commercial site had defaulted in payment of second and third installments which led to resumption of the site. After dismissal of his appeal the allottee approached this Court and deposited Rs.10 lacs. Still an amount of Rs.15 lacs was outstanding against him. He then withdrew the writ petition to avail remedy of revision. The revisional authority allowed one month's time to him to clear the outstanding dues. Instead of doing so he again approached this Court and was allowed two months' time to pay the entire outstanding amount. The matter reached the Hon'ble Apex Court and was disposed of by observing:-
"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 Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -14- 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 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."
The Hon'ble Supreme Court also referred to an earlier decision in the case of Teri Oats Estates (P) Ltd. vs. U.T.Chandigarh & Ors. reported in 2004 (2) SCC 130 in which Sinha J, speaking on behalf of the Division Bench had observed vide para 57 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."
This Court when confronted with a similar situation in CWP No.19503 of 2010, Suresh Chand versus The State of Haryana and others, decided on 10.01.2013, rejected prayer of the petitioner therein for restoration of the resumed site by observing as under:
Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -15-
"Merely because on the contention of the petitioner that he is now ready to make payment of the entire outstanding amount with penalty and interest, the order of resumption cannot be set aside. If in the facts and circumstances of the case the said contention is accepted, it will totally paralyze the functioning of the authorities under the HUDA Act. In these days the allottees after getting the allotment in public auction do not pay the installments due in time with an intention that they will pay the dues along with penalty and interest after many years in order to earn huge profit in case the prices of the property increased. In this way, they want to enjoy the fruits of the property at the cost of the public exchequer. In such cases, the order of the authorities in resuming the site/booth in question should not be interfered. In the present case, for a long period the petitioner did not show his bona fide in making the payment. Therefore, the authorities were fully justified in passing the order of resumption. Certain instances relied upon by the petitioner also do not help him because in those cases the resumption order was passed within three/four years of the allotments when the due amount was not paid within a short period. The case of the petitioner is entirely different. Even otherwise, the equitable clause enshrined in Article 14 of the Constitution of India cannot be invoked to legitimize an illegal action. Thus, in these facts we do not find any ground to interfere in the impugned orders."
We have not been able to persuade ourselves to take a view different from what is stated in the cited judgments and to interfere with the order of resumption as affirmed in appeal and revision.
Judgments cited by the learned senior counsel representing the Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -16- petitioner cannot be of any help to petitioner's plea. Jasbir Kaur versus U.T., Chandigarh (supra) is confined to the facts of the case and the Hon'ble Supreme Court did not express "any opinion on the question of law as raised"
therein. Even otherwise, in that case as per statement of account furnished by the Estate Department, as on 30.06.1998 out of the total amount of installments, penalty etc., was Rs.3,45,185 but the allottee was required to pay within three weeks on 15.12.1992 only an amount of Rs.1,28,000/- and he had already paid Rs.3,45,185 which was not disputed by the respondents.
In Teri Oats Estates (P) Ltd. versus U.T., Chandigarh and ors.
(supra), The second installment which was due in 1989 had not been paid by the appellant but it had deposited a sum of Rs.6,00,000 out of the total sum of Rs.8,91,960 towards the amount due as also ground rent by paying the amounts of Rs.2,50,000 on 05.04.1990, Rs.1,50,000 on 02.05.1990, Rs.1,50,000 on 25.06.1990 and Rs.50,000 on 13.01.1992. Before depositing the aforementioned amounts it, however, had received a notice from the Estate Officer to the effect that he did not deposit the first installment. After a lapse of about three years i.e. on or about 24.06.1992, the Estate Officer, by his letter of the said date, informed the appellant that a sum of Rs.5,31,156 was due. By that time the appellant had already deposited a sum of Rs.6,00,000 but it was not taken into account by the Estate Officer and in spite of that, order of cancellation of lease was passed. Appellate authority allowed to the appellant time to deposit the outstanding dues but the order was received by the appellant late and, as such, it could not deposit the due amount in compliance thereof.Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -17-
The Estate Officer had demanded and accepted various payments from the appellant even after cancellation of lease; the appellant had offered and was allowed to deposit various amounts even during the pendency of civil writ petition (of course subject to decision of the case); and interest @ 24% per annum was charged in spite of the fact the matter with regard to rate of interest was pending adjudication before this Court in CWP No. 17188 of 1995. It was in these circumstances that the Hon'ble Supreme Court came to the rescue of the appellant but by observing, "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 Haryana Urban Development Authority and another versus Om Parkash Sharma (supra), it was found as a fact by the trial Court and first appellate Court that before passing the order of resumption no notice and opportunity of hearing was given to the allottee and this Court in regular second appeal refused to interfere with the concurrent finding of fact recorded by the trial and appellate courts.
In Haryana Urban Development Authority and others versus Rajesh Kumar and others (supra), order of eviction consequent upon Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -18- resumption was set aside by the learned Single Judge of this Court and in Letters Patent Appeal it was conceded on behalf of HUDA that the allottees had paid, though a bit late, the entire outstanding amounts together with penal interest and penalty, as also the amount claimed subsequently and on the day judgment was passed by the learned Single Judge nothing was due from the allottees.
In Anil Kumar versus Union Territory, Chandigarh and others (supra), a Division Bench of this Court found that the Appellate Authority while adjudicating upon the appeal preferred by the allottee, had allowed him further time to discharge his financial liabilities and had, thus, "ignored/over- looked/condoned the delay at the hands of the petitioner in not being able to pay installments, interest and ground rent on time" and then at the very outset, the allottee had undertaken to deposit the entire amount due in lieu of the afore- stated site, along with interest and ground rent etc.; had deposited a sum of Rs. 10 lacs on 10.12.2003 i.e. a few days after the filing of the writ petition; a sum of Rs.37,76,330/- was paid on 02.01.2004 and balance amount of Rs.10,14,542/- reflected as outstanding in the additional affidavit filed by the Assistant Estate Officer dated 13.10.2004 , was also paid during the pendency of the writ petition. It was in these circumstances that this Court disposed of the writ petition by holding, "We are satisfied that the petitioner has not only paid the principal amount, but interest also on account of delayed payments in terms of statutory rules governing allotment of sites at the hands of the respondents besides ground rent etc, to the respondents. In the peculiar Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -19- circumstances of this case, we are, therefore, satisfied that the order passed by the Revisional Authority deserves to be set aside. The same is accordingly set aside. The Revisional Authority shall reconsider the issue keeping in view the payments made by the petitioner, and in case any balance amount is still liberty should be granted to the petitioner to make such payment within a reasonable time. The Revisional Authority shall re-adjudicate upon the issue by passing a fresh order in accordance with law."
Ajit Singh versus Union of India (supra), is confined to the facts peculiar to that case. It may be relevant to cull out here following observations made by the Division Bench in that case:
"The facts of the case show that the petitioner is guilty of highly contumacious conduct of persistently committing default in the payment of instalments of price and the ground rent together with interest. He not only violated the conditions of allotment, but also showed scant respect for his own undertaking given before the Chief Administrator and the Adviser to the Administrator by refraining from depositing the outstanding dues in pursuance of the concessional orders passed by them. In view of this, we would have refrained from granting any further indulgence to him, but keeping in view the fact that while issuing notice of motion on 23.1.1995, a Co-ordinate Bench had taken note of the statement made by the counsel for the petitioner about his client's willingness to pay the price along with interest within three months and the fact that a part of the amount has already been deposited, we deem it appropriate to accept the oral prayer made by Shri Ram Saran Dass for grant of more time to the petitioner to pay the outstanding amount together with interest payable in terms of Rules 12(3) and 13(3-A) of the Rules..."Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -20-
In Ram Kishan Gulati versus State of Haryana (supra) one of the questions raised was whether HUDA could charge interest @ 18% per annum from the petitioners as a condition for restoration of the plot and the Division Bench of this Court answered the question by holding as under:
"14. The issue whether penal rent should be charged from the allottees who default in the payment of price was considered in the 36th meeting of the Financial Committee of the HUDA held on 14.8.1987. The proposal put up before the Finance Committee was that in the case of default interest shall be charged @18% instead of the normal interest @10%. This proposal was approved by the Finance Committee vide agenda item No. XXXVI(17) and on that basis circular No. HUDA-Accounts-87/1398-1408 dated 15.1.1987 was issued by the Chief Administrator. That circular read as under :-
"Haryana Urban Development Authority SCO No. 841, Manimajra No. HUDA-Acctts-87/1398-1408 Dated : 15.1.87 To All the Estate Officers, HUDA (in the State).
Subject : Revised rates of interest on instalments of plot holders. It was under the active consideration of the Authority to change higher rate of interest on the delayed payments. It was observed that the recovery of enhanced compensation and instalments are not being effected from the plot- holders in time because of lower rate of interest. The matter has been examined in detail and it has been decided that following rates of interest may be charged from the plot-holders who do not make the payment in time :
a) Normal rate of interest : 10% P.A.
b) Interest for delayed payment of instalments : 18% P.A. (which Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -21- include 10% P.A. normal interest) Due date means the last day on which the payment falls due. Thus, interest at 18% P.A. is to be charged if payment is made after even one day after the due date. However, after the expiry of the one year from the due date, the resumption proceedings may be initiated.
In the case of amount due in account of "Enhanced compensation"
the interest pattern of charging 10% interest from the due date will continue as such.
One notice should be issued to the plot holder regarding charging of this interest. This notice may be issued immediately after the due date if instalment has not been received. These instructions will come into force with immediate effect.
Please acknowledge its receipt.
Sd/-
Controller of Finance for Chief Administrator, HUDA."
The decision contained in the above reproduced circular was reiterated in the 37th meeting of the HUDA held on 29.3.1988 under the Chairmanship of the Chief Minister. The decision taken and the agenda item No. A-XXXVII(2) was that for the delayed payment interest @18% should be charged. The relevant extract of that decision is reproduced below :-
"It was further decided that the payment schedule in respect of residential/industrial plots will be as under :
(i) 10% bid money at the fall of hammer;
(ii) 15% within 30 days from the date of issue of allotment letter; and
(iii) balance 75% in six half yearly instalments. However, for payment in instalments interest @10% per annum may be charged from the date of offer of possession with provision to charge 18% interest on delayed payments."Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -22-
In our opinion, these policy decisions govern the case of the petitioners and other cases of delayed payment of instalment/default in the payment of instalments and, therefore, no illegality has been committed by the respondents in charging 18% interest as a condition for restoration of the plot.
15. We are further of the opinion that the petitioners cannot question the levy of penal interest at a rate higher than 10% because theirs is not a case of simple delayed payment. Their plot was resumed by the competent authority because of the non- compliance of the conditions of allotment. That order was upheld by the appellate authority and when the revision came up for hearing before the Commissioner and Secretary, Town and Country Planning Department, the counsel appearing for the petitioners stated that his clients will pay the dues of instalments alongwith interest, which necessarily means that the interest payable in accordance with the policy of HUDA. In our opinion, after having given an unequivocal undertaking before the revisional authority to pay the dues of the instalments with interest, the petitioners cannot turn around and challenge the jurisdiction of the respondents to charge interest @18% in accordance with the policy. The plea of the petitioners that they cannot be asked to pay interest @18%, if accepted, will lead to anomalous results. In that situation, no allottee of the HUDA land would pay the price in accordance with the conditions of allotment and feel relief against the resumption of plot by stating that he/she/it is ready to pay the entire price with interest at the normal rate. Otherwise also, it sounds wholly incongruous that an allottee who has defaulted in the payment of instalments of the price is treated at par with the one who regularly pays the instalments with interest."
Contention raised by the learned senior counsel for the petitioner Virender Singh Adhikari 2013.12.05 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.21639 of 2010 (O&M) -23- that the order of resumption has been passed by ignoring interim order dated 23.11.2005 (Annexure P12) is also without substance, firstly because the Civil Court lacked jurisdiction in the matter and as such the above-cited order was non-est; and secondly because the order was conditional in so far as the respondents were thereby restrained from resuming the booth site provided the petitioner deposited all the installments together interest @10% per annum within one month. The petitioner, indisputably, did not deposit the amount in terms of the order of the Civil Court and for that reason the order was rendered inoperative.
As a consequence of all what has been said and discussed here-in- above, we regret our disinclination to interfere with the impugned orders. The civil writ petition, therefore, fails and is dismissed with costs amounting to Rs. 20,000/-.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
03.12.2013
adhikari
Virender Singh Adhikari
2013.12.05 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh