Punjab-Haryana High Court
Raj Kumar And Another vs State Of Haryana And Others on 28 May, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Naresh Kumar Sanghi
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 11908 of 2013
DATE OF DECISION : 28.05.2013
Raj Kumar and another
.... PETITIONERS
Versus
State of Haryana and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. V.K. Jain, Senior Advocate, with
Mr. A.P. Jain, Advocate,
for the petitioners.
***
SATISH KUMAR MITTAL, J.
1. The petitioners have filed the instant writ petition under Article 226 of the Constitution of India, challenging the resumption order dated 31.12.1997 (Annexure P-3) passed by the Estate Officer, HUDA, Faridabad (respondent No.4 herein); and the order dated 26.6.2012 (Annexure P-22) passed by the Financial Commissioner-cum-Principal Secretary to Government of Haryana, Town & Country Planning Department, Chandigarh (respondent No.2 herein) whereby the order dated 21.12.2010 (Annexure P-18) passed by the Administrator, HUDA, Faridabad (respondent No.3 herein) setting aside the aforesaid resumption order and restoring the Booth in question in the name of the petitioners and permitting CWP No. 11908 of 2013 -2- them to clear the outstanding amount along with penalty and interest as per the HUDA policy within a period of 30 days from the date of issuance of the demand notice by the respondents, has been set aside. The petitioners have also prayed for quashing of the order dated 12.2.2013 (Annexure P-23) whereby the review application filed by them against the aforesaid order dated 26.6.2012 has been dismissed.
2. In the present case, in an open auction held on 30.5.1989, by giving the highest bid, the petitioners got allotted Commercial Booth No. 1- P, Sector 15-A (Part-I) Faridabad for a consideration of ` 8,11,000/-. An amount of ` 81,000/- was deposited by the petitioners at the time of fall of hammer and another amount of ` 1,20,650/- was deposited by them on issuance of the allotment letter dated 30.5.1989 (Annexure P-1), in order to make 25% of the sale consideration. As per the allotment letter, the balance amount of ` 6,08,250/ was to be paid in 10 half yearly instalments.
3. After paying one instalment of ` 91,258/- on 29.3.1990, till the date of the resumption order dated 31.12.1997, the petitioners did not pay the remaining instalments, except an amount of ` 45,000/- on 3.10.1997 and another amount of ` 45,000/- on 27.10.1997. When the proceedings for non- payment of the outstanding dues were initiated and the resumption order was passed, an amount of ` 17,63,150/- was outstanding against the petitioners. When they did not clear the dues, notices were issued to them under Section 17 (1) to 17 (4) of the Haryana Urban Development Authority CWP No. 11908 of 2013 -3- Act, 1977 (hereinafter referred to as `the Act'). When the respondents were going to pass the resumption order against the petitioners on account of non-payment of the outstanding dues towards the said Booth, the petitioners filed a civil suit on 24.12.1997, challenging the aforesaid notices issued to them under Section 17 (1) to 17 (4) of the Act, being illegal, null and void, unconstitutional and not binding on the rights of the petitioners. A decree for permanent injunction was also sought against the respondents restraining them from realising and recovering the amount of ` 17,63,150/-, and further from resuming the Booth in question. The said suit was hotly contested by the respondents. In the written statement, a specific plea was taken by them that on account of non-payment of the outstanding dues, notices under Section 17 (1) to 17 (4) of the Act were issued and in spite of the opportunity granted, the petitioners failed to deposit the said amount, and ultimately, the order of resumption was passed on 31.12.1997. Copy of the said resumption order was also placed on record and proved as Ex.DW3/9. On the pleadings of the parties, various issues were framed regarding the legality of the notices and liability of the petitioners to pay the amount and further with regard to jurisdiction of the civil court to go into the issues raised in the suit.
4. The trial court, after considering the evidence led by both the parties, decided the material issues No.1 and 2 against the petitioners and vide judgment dated 31.1.2004 (Annexure P-13) dismissed their suit, while CWP No. 11908 of 2013 -4- recording the following findings :-
"After going through the pleadings of the parties and documentary evidence led on record, it is crystal clear that booth in dispute has already been resumed by the defendants for non-payment of balance amount by the plaintiff, in this regard documents Ex.DW-3/2 to Ex.DW-3/9 clinches the matter. Suffice to mention that plaintiffs have failed to lead either oral or documentary evidence to rebut the aforesaid overwhelming evidence of the defendants. Plaintiffs nowhere stated that they have paid the entire balance amount of booth in question. ..... Further, I do not find any face in the arguments of learned counsel for the plaintiffs that defendants have charged excessive rate of interest and no basic amenities provided at the spot by the defendants and thus, they have violated terms and conditions of the allotment letter. ..... plaintiffs have failed to pay the entire outstanding amount of booth in question deserve various notices and reminders issued to them and moreover, a chance of personal hearing was also given to the plaintiffs but they failed to pay any heed to the same, therefore, it is held that defendants have resumed the plot in question in due course of law after giving full opportunity of hearing to the plaintiffs, therefore, no legality of worth name has been for in the impugned notice served U/s 17 (1) to 17 (4) of the HUDA Act. Accordingly, both these issues are decided in favour of the defendants and against the plaintiffs."
The issue regarding jurisdiction of the civil court was not pressed by learned counsel for the respondents during the course of arguments, and hence was given up.
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5. Feeling aggrieved against the said judgment and decree, the petitioners filed appeal, which was also dismissed on merits by the court of learned Additional District Judge, Faridabad, vide judgment dated 24.12.2007 (Annexure P-14), while observing as under :-
"The court has pondered over the submissions and has gone through the rulings. The Court is of the considered opinion that the plaintiffs cannot draw any benefit from the rulings and the order of resumption cannot be upset on the ground as urged in the foregoing paragraph. ..... So, the plaintiffs were not entitled to escape the consequences of resumption order on the ground that they were not liable to pay penalty and interest due to lack of amenities as development work and non-stopping of commercial activities.
Faced in the aforesaid situation, learned counsel for appellants has lastly argued that resumption should be restored in rarest cases and since the plaintiffs are willing to pay the entire outstanding amount along with interest, a direction be given to the HUDA to furnish statement regarding total outstanding balance. Plaintiffs, in fact, have filed an application to this effect in the Court on 18.10.2007. Learned counsel has urged that the Hon'ble Supreme Court and High Court have in number of cases set aside the resumption order considering the same to be harsh and unjust and has urged this Court to issue necessary directions to the HUDA to restore the suit property after accepting entire outstanding amount and interest from the plaintiffs."
Before the Appellate Court, in view of certain observations made in M/s CWP No. 11908 of 2013 -6- Teri Oat Estate vs. U.T. Chandigarh, 2004 (4) HRR 659 and Brij Bhushan Sharma vs. The Estate Officer, UT Chandigarh, 2000 PLR 94, an argument was raised that the petitioners may be given an opportunity to clear all the outstanding dues with interest and penalty and the resumption order be set aside in the interest of justice. The Appellate Court rejected the said contention, while making the following observations :
"..... The Court has already rejected the grounds agitated on behalf of the plaintiffs for setting aside the impugned notices and resumption order. It will be, therefore, not expedient in the interest of justice to set aside the impugned notices and resumption order by showing compassion to the plaintiffs. If the plaintiffs were really keen and willing to pay the outstanding amount along with interest, they were at liberty to do so by responding to the four notices issued to them under Sections 17 (1) to 17 (4) of the Act before resumption of the suit property. They showed total defiance to these and refused to pay the outstanding dues. So, the Court does not deem it fit and proper to allow their application and prayer for issuing directions to the HUDA to revoke resumption order after receiving outstanding dues and interest from the plaintiffs."
The aforesaid judgment and decree of the trial court as well as the first appellate court were challenged by the petitioners by filing Regular Second Appeal (RSA No. 2883 of 2008), which was also dismissed by this Court vide order dated 28.1.2010 (Annexure P-15).
6. After dismissal of their suit and appeals, as stated above, the CWP No. 11908 of 2013 -7- petitioners, by taking the benefit of some observations made in the RSA that the resumption order was not challenged in the suit, which was appealable under the Act, after more than 12 years of the passing of the resumption order, filed an appeal before respondent No.3 along with an application for condonation of delay in filing the appeal. In the application for condonation of delay, it was stated that the petitioners had adopted a wrong Forum while challenging the notices before the civil court, which was having no jurisdiction. It was further averred that the resumption order dated 31.12.1997 was not communicated to the petitioners, therefore, delay in filing the appeal be condoned. In the appeal, it was pleaded that after passing of the resumption order, the respondents themselves had handed over possession of the Booth to the petitioners and also got deposited an amount of ` 40,000/- on 20.8.1998, and the building plans submitted by the petitioners were also sanctioned. The Appellate Authority, without specifically dealing with the issue of condonation of delay in filing the appeal, allowed the appeal of the petitioners vide order dated 21.12.2010, while observing that even after passing of the resumption order, the Estate Officer not only accepted some amount from the petitioners, but also handed over the physical possession of the Booth to them, sanctioned their building plans, and permitted them to raise construction on the same. In these circumstances, it was held that the resumption order should be set aside and in view of the prayer made by the petitioners that they were CWP No. 11908 of 2013 -8- willing to pay the outstanding dues at one time along with interest and penalty as per the HUDA policy, they be given 30 days time to clear all the outstanding dues.
7. Against the said order, the HUDA filed revision petition under Section 17 (8) of the Act along with an application for condonation of delay in filing the revision petition. The said revision petition was allowed by respondent No.2 vide the impugned order dated 26.6.2012, while observing that the Booth site was resumed by the Estate Officer on account of non- payment of the sale consideration by the petitioners as per the allotment letter. It has been observed that respondent No.3 was not justified to set aside the resumption order, particularly in view of the fact that the petitioners had lost their civil suit, in which the resumption order was upheld holding the same to be justified. Regarding the acceptance of certain amount from the petitioners by the respondents, delivery of possession of the Booth site and sanctioning of the building plan of the petitioners, after passing of the resumption order, it has been observed that those irregularities were committed by the HUDA officials in connivance with the petitioners. Therefore, a detailed enquiry is required to be held by the Chief Administrator in this regard. It has also been observed that the benefit of irregularities committed by the officials of the HUDA cannot be given to the allottees. Against the said order, the petitioners filed the instant writ petition.
CWP No. 11908 of 2013 -9-
8. After hearing learned counsel for the petitioners and going through the impugned order as well as the judgments and decrees passed by the Civil Courts, we do not find any merit in the instant petition.
9. Learned counsel for the petitioners primarily raised an argument that in the civil suit, the order of resumption was not upheld or held to be justified, as the same was never challenged before the Civil Court, and the observations made by the Revisional Court in this regard are contrary to the record. Secondly, he argued that the notices issued to the petitioners under Sections 17 (1) to 17 (4) of the Act were patently illegal and void, as the arrears were demanded by those notices along with compound interest at the rate of 18% per annum, which is not permissible under law. Thirdly, learned counsel argued that while taking into consideration the subsequent conduct of the HUDA officials in accepting some amount, delivering possession of the Booth site and sanctioning the building plans, respondent No.3 had set aside the resumption order and provided an opportunity to the petitioners to clear all the outstanding dues with interest and penalty as per the HUDA policy. Therefore, the revisional authority should not have interfered in the said order. Learned counsel further argued that any observation made by the Civil Court is not binding on the petitioners, because the Civil Court has no jurisdiction to decide the issue with regard to validity of the notices issued under Sections 17 (1) to 17 (4) of the Act.
CWP No. 11908 of 2013 -10-
10. We do not find any substance in the aforesaid arguments raised by learned counsel for the petitioners. Though only notices under Sections 17 (1) to 17 (4) of the Act were challenged by the petitioners in the civil suit filed by them and the resumption order was not specifically challenged, but from the findings recorded by the Civil Court, as quoted above, it is clear that not only the resumption order was placed before the Civil Court, but its validity was also examined. A specific finding was recorded that the petitioners have failed to pay the outstanding dues without any justification and reason. In those circumstances, the order of resumption could not have been set aside.
11. The issues with regard to charging of compound interest and non-providing of amenities were specifically discussed and thereafter, a finding was recorded that the petitioners were never willing to pay the outstanding dues and interest, therefore, the resumption order was fully justified.
12. Those findings of the civil court, which have been affirmed in the first appeal as well as the second appeal, are binding on the petitioners. They cannot be permitted to wriggle out of those findings on the plea that the Civil Court was having no jurisdiction, as during the course of arguments, this issue was not pressed by the respondents before the Civil Court.
13. Secondly, a contention was raised by the petitioners before the CWP No. 11908 of 2013 -11- first appellate court that they were ready and willing to clear all the outstanding dues with interest and penalty, as per the HUDA policy. Therefore, they may be provided an opportunity to pay the same, and the resumption order be set aside. The said contention was specifically rejected by the first appellate court. However, the same plea was accepted by respondent No.3 while entertaining the appeal filed by the petitioners against the resumption order. The observation made by the Civil Court while rejecting the said plea is again binding on the petitioners and, in our opinion, the revisional authority has rightly come to the conclusion that in spite of the findings recorded by the Civil Court with regard to justification of passing of the resumption order, which was binding on the parties, the Appellate Authority has illegally set aside the order of resumption and provided an opportunity to the petitioners to clear all the outstanding dues with interest and penalty. The petitioners cannot be permitted to wriggle out of those findings of the Civil Court. By their conduct, they are estopped from challenging those findings on the ground that the Civil Court was having no jurisdiction. Before the Civil Court, as a matter of fact and on consideration of evidence led by both the parties, it was established that the petitioners had failed to pay the instalments according to the allotment letter and when the order of resumption was passed, a huge amount was outstanding against them, and in spite of the opportunity provided to them to clear the same by issuing notices under Sections 17 (1) to 17 (4) of the CWP No. 11908 of 2013 -12- Act, the petitioners did not make the payment. In those circumstances, the order of resumption was held to be fully justified. The contention of the petitioners with regard to charging of compound interest was specifically dealt with and rejected by the Civil Court. Now the petitioners cannot be permitted to raise the similar arguments, challenging the validity of the resumption order.
14. During the course of arguments, learned counsel for the petitioners put much emphasis on the delivery of possession of the Booth site to the petitioners, sanctioning of the building plan, and acceptance of certain amount by the HUDA authorities, after passing of the resumption order. It appears, as rightly observed by the revisional authority, that the HUDA officials in connivance with the petitioners had delivered possession of the Booth site to the petitioners, accepted certain amount from them and sanctioned the building plan, in order to give certain undeserving benefits to them, so that subsequently, the order of resumption could be set aside. We do not find any illegality or perversity in the said approach of the revisional authority. In our opinion, in such circumstances, a detailed enquiry should be conducted, as some officials of the HUDA are conducting contrary to the record and sanctioning the building plans, particularly when a plot/Booth site has already been resumed. In the present case, the petitioners were fully aware that they had not cleared the outstanding dues. They were participating in the proceedings under the Act before the authorities. But CWP No. 11908 of 2013 -13- when the resumption order was going to be passed against them, they challenged those orders by filing civil suit. For more than 12 years, they pursued their suit and when the said civil suit was dismissed upto this Court after recording findings contrary to them, they filed appeal against the resumption order, which was specifically upheld by the Civil Court. In these circumstances, in our opinion, the Appellate Authority, without properly considering the issue of limitation, allowed the appeal of the petitioners, which was filed after more than 12 years of the passing of the resumption order, and permitted them to clear the outstanding dues along with interest and penalty as per the HUDA policy, particularly when such request was specifically rejected by the Civil Court. In our opinion, the said order of the Appellate Authority has been rightly set aside by the revisional authority and the same does not require any interference in the writ jurisdiction of this Court.
15. Dismissed.
( SATISH KUMAR MITTAL )
JUDGE
May 28, 2013 ( NARESH KUMAR SANGHI )
ndj JUDGE