Punjab-Haryana High Court
Kanshi Ram vs State Of Haryana & Ors on 8 September, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
No.10587 of 2013
CWP No.17267 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.17267 of 2014
Date of decision: 8.9.2014
Kanshi Ram ....Petitioner
VERSUS
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Rajesh Bansal, Advocate for the petitioner.
****
HEMANT GUPTA, J.
The present writ petition has been preferred by Kanshi Ram through his attorney Sh. Rajesh Mittal, claiming a writ of certiorari for quashing the order dated 17.04.2014 whereby the petitioner has been held liable to pay simple interest at the rate of 12.5% per annum and penal interest at the rate of 4% per annum. The petitioner has also claimed a writ of certiorari for quashing the letter dated 24.06.2014 whereby transfer of plot No.94 was made subject to circular No.31 dated 06.03.2013 issued by respondents.
The Market Committee, Jagadhari invited applications for sale of plots in open auction in Anaj Mandi, Jagadhari in the year 1991. The plot No.94 measuring 20 x 50 feet in Anaj Mandi, Jagadhari, was allotted to the petitioner-Kanshi Ram vide letter of allotment dated 16.05.1991. The allottee was to make payment of Rs.2,58,000/- in six yearly installments along with interest at the rate of 12.5 %.
GULATI DIWAKER 2014.09.16 14:54 I attest to the accuracy and integrity of this document No.10587 of 2013 CWP No.17267 2014 2
It is asserted that the Market Committee, Jagadhari, failed to deliver possession of the site allotted even after deposit of 25% of the amount for the reason that the amenities such as water facilities, street lights and underground sewerage were not made available. The allottee was unable to construct on the plot allotted. The Market Committee claimed interest and extension fee which was disputed in appeal by the allottee before the Chief Administrator, Haryana State Agricultural Marketing Board, Panchkula (for short 'the Board'). In the said appeal, reference was made to an order passed by the Financial Commissioner & Principal Secretary to Government of Haryana, Agricultural Department on 22.07.2010 in respect of another allottee. After referring to the said order it was observed as under:-
"It is an admitted fact that the said order was implemented by the respondent market committee in letters and spirit and the respondent committee charged the interest upon those plot holders in terms of the aforesaid orders. It is also an admitted fact that plot in question was sold through the same auction and allotment letter also contains the same terms and conditions. The facts and circumstances of the present appeal is squarely identical with the facts and circumstances of plot No.92 and 101 of New Grain Market. Being the similar facts and circumstances and sold the plots in the same mode in the same Market yards, it is not justifiable to dispose off the present appeal differently. The matter in issue has already been adjudicated by the Revisional Court while deciding the numbers of revision petitions of the plot holders of same auction. The government authority should adopt the same approach while deciding the matter involving the similar facts and circumstances. Therefore, the similar behaviour should be met to the present appellant also and the relief granted vide order dated 06.09.2012 should also be extended to the present appellant. Otherwise it will invite the litigation and cause grave and manifest injustice to the appellant.
Keeping the above, the present appeal is disposed off in same terms of order dated 22.07.2010 passed by the Revisional Court. It is need to be clarified that the appellant is liable to pay the interest, penal interest and extension fees in the aforesaid terms from the date of allotment till the date of depositing the balance amount. The respondent market committee is hereby directed to give the calculations to the appellants within 15 days GULATI DIWAKER 2014.09.16 14:54 I attest to the accuracy and integrity of this document No.10587 of 2013 CWP No.17267 2014 3 from the receipt of this order and the appellant will deposit the same within two months and construct the shop as per the approved plan within a period of 4 months from the date of receiving the said calculation. The failure to do so, the market committee is hereby directed to resume the plots in accordance with law.
Be communicated."
The Board has issued a circular No.31 on 06.03.2013 in respect of permission to transfer the plots and to grant extension for raising construction pursuant to meeting of the Board held on 27.10.2012. The petitioner through his attorney sought transfer of plot in favour of the allottee vide communication dated 01.07.2014 (Annexure P-5). It was in response to such communication, the Secretary Market Committee was informed by the Board and action should be taken as per circular No.31 dated 06.03.2013 referred to above.
The circular No.31 of 06.03.2013 restricts the undesirable speculative practice. It has been provided that the transfer of shops/booths sold prior to 11.01.2013 may be allowed subject to the condition that the transferee shall construct shop/booth within 3 months from the date of permission of transfer of plot. While extending the instructions dated 26.07.2012 restricting the transfer of resumed plots for 5 years after restoration of such plots by an order passed in quasi judicial proceedings with the purpose of stopping the speculation in the market, it was decided that such instructions may be extended to all such plots where the plot is restored, waived off interest/penal interest/extension fee.
A perusal of the record shows that the present petition has been filed on the strength of Special Power of Attorney executed on 03.01.2013. The Attorney has sought transfer of the plot in his favour. It, thus, transpires that the Attorney was executed as a mean of transfer of the plot. The GULATI DIWAKER 2014.09.16 14:54 I attest to the accuracy and integrity of this document No.10587 of 2013 CWP No.17267 2014 4 Hon'ble Supreme Court in Suraj Lamp & Industries (P) v. State of Haryana and another, (2012) 1 SCC 656, has passed a categorical order that the mechanism of Power of Attorney cannot be adopted for the sale of the plots. It was held to the following effect:-
"15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the well settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or GULATI DIWAKER 2014.09.16 14:54 I attest to the accuracy and integrity of this document No.10587 of 2013 CWP No.17267 2014 5 conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."
In view of the fact that the petition has been filed by Attorney after the judgment of the Hon'ble Supreme Court in Suraj Lamp's case (supra) wherein the Attorney is claiming right in the plot, we find that the petitioner cannot claim any indulgence in the present writ petition. The present petition is in contravention of the order of the Hon'ble Supreme Court.
Consequently, the present writ petition is dismissed.
(HEMANT GUPTA)
JUDGE
SEPTEMBER 8, 2014 (KULDIP SINGH)
'D. Gulati' JUDGE
GULATI DIWAKER
2014.09.16 14:54
I attest to the accuracy and
integrity of this document