Punjab-Haryana High Court
Suresh Chand vs The State Of Haryana And Others on 10 January, 2013
Bench: Satish Kumar Mittal, Amol Rattan Singh
CWP No.19503 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.19503 of 2010 (O&M)
Date of Decision: January 10, 2013
Suresh Chand
...Petitioner
Versus
The State of Haryana and others
....Respondents
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE AMOL RATTAN SINGH
Present: Mr.Vikas Kumar, Advocate,
for the petitioner.
Mr. Kshitij Sharma, Advocate,
for respondent No.1.
Mr. Sidharth Batra, Advocate,
for respondents No.2 and 3.
..
SATISH KUMAR MITTAL, J.
In the present petition the petitioner has challenged the order dated 19.3.2001 (Annexure P2) passed by the Estate Officer, H.U.D.A., Panchkula, whereby the booth site in question along with construction was ordered to be resumed on account of willful default in paying the outstanding dues; as well as the orders dated 22.11.2005 (Annexure P3) and 20.11.2009 (Annexure P4), passed by the Administrator, H.U.D.A., Panchkula and the Financial Commissioner and Principal Secretary to Government Haryana, Town & Country Planning Department, respectively, CWP No.19503 of 2010 (O&M) -2- whereby the appeal and revision filed by the petitioner against the aforesaid orders have been dismissed.
In the present case, Booth Site No.25, Sector 11, Panchkula was purchased by the petitioner in public auction held on 21.2.1986. At the time of the bid the petitioner had deposited 10% of the consideration money. His bid was accepted and he was issued allotment letter dated 3.3.1986 (Annexure P1). According to the said allotment letter, the petitioner was to deposit the remaining 15% amount within 30 days from the date of issuance of the allotment letter and the balance 75% amount in lump sum without interest within 60 days or in 10 half yearly installments with interest @ 10%. The petitioner deposited 15% amount within the prescribed period and thereafter took possession of the booth site. It is mentioned here that on the said site the petitioner constructed a booth and occupied the same in gross violation of the letter of allotment and rented out the same without obtaining Occupation Certificate.
As per the allotment letter, the last installment was to be paid on 3.3.1991, but by that time no installment was paid by the petitioner. On the other hand, he had started earning from the booth by letting out the same, which was illegally constructed by him. When except 25% price of the site no amount was paid by the petitioner for five years, the Estate Officer, HUDA issued notice to the petitioner under Section 17(1) of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as the `HUDA Act') to clear the outstanding dues with penalty. In spite of that, no response was given by the petitioner. Thereafter, notices under sub- sections (2) and (3) were given, but the petitioner again failed to respond to CWP No.19503 of 2010 (O&M) -3- those notices. Ultimately when by repeated opportunities given to the petitioner to make payment of the outstanding dues, he did not make the payment, the final order of resumption was passed on 19.3.2001.
It is pertinent to mention here that for nine years the proceedings under Section 17 remained pending, but the petitioner did not respond and cleared the outstanding dues. On the date of resumption of the booth site, a sum of Rs.7,94,540/- was outstanding against him.
The aforesaid order of resumption was duly communicated to him, but instead of challenging the said order by filing an appeal under Section 17(5) of the HUDA Act before the Administrator, the petitioner filed a Civil Suit challenging the order of resumption being null and void and not binding upon him. In the said civil suit, his application for interim injunction was dismissed by the trial Court vide order dated 27.2.2003. Against the said interim order, he filed an appeal which was also dismissed by the Appellate Court on 5.4.2003.
After more than two years from the said order, when the suit of the petitioner was still pending he filed an appeal against the order of resumption under Section 17(5) before the Administrator. The said appeal was dismissed by the Administrator on 22.11.2005. The Appellate Court's order was further challenged by the petitioner by filing revision petition which was also dismissed on 20.11.2009.
These orders have been challenged in the present writ petition. We have heard the learned counsel for the parties.
Learned counsel for the petitioner argued that the site in question should not have been resumed only on the ground of non-payment CWP No.19503 of 2010 (O&M) -4- of outstanding amount, particularly when the petitioner was ready and willing to clear all the outstanding amount with interest. He further argued that the readiness and willingness of the petitioner to clear the outstanding amount is reflected from the fact that before the Civil Court he had tendered a Pay Order of ` 2,16,000/- in favour of Estate Officer, HUDA, Panchkula, but the said amount was not accepted by the respondents. Learned counsel argued that the petitioner was kept in dark by the tenant in not depositing the outstanding amount which he was to deposit as per the agreement entered into by the petitioner with him. Therefore, non-payment of the outstanding installments against him was not intentional and deliberate and in these facts the authorities under the HUDA Act were not justified to take the extreme step of resumption of the booth.
The learned counsel argued that as per the decision of the Hon'ble Supreme Court in Teri Oat Estates (P) Ltd. vs. U.T., Chandigarh and Others, (2004) 2 SCC 130, the power of resumption should be normally resorted at the last and merely on the ground of non-payment of installments, the site, on which the petitioner had raised the construction, should not have been resumed. The learned counsel, on the basis of certain orders (Annexures P5 to P7) placed on record by him during the pendency of the writ petition, whereby the resumption orders were set aside on payment of outstanding dues with penalty and penal interest, argued that in case of the petitioner similar relief be granted to him.
On the other hand, learned counsel for the respondents/HUDA submitted that after getting the possession of the site in question the petitioner did not make payment of the balance amount and after more than CWP No.19503 of 2010 (O&M) -5- five years of the allotment, no installment was paid by the petitioner. For nine years the resumption proceedings remained pending. During the said period also the petitioner failed to make any payment and ultimately when he did not respondent at all, the ex parte resumption order was passed against him. These facts clearly establishes that he was a chronic and intentional defaulter. He further stated that in utter violation of condition No.10 of the allotment letter, he raised construction on the booth site in question and leased out the same without obtaining occupation certificate and, thus, started earning profit without making payment towards the balance amount for years together. In these facts and circumstances, learned counsel for respondents No.2 and 3 argued that the authorities were fully justified in passing the order of resumption. He further argued that as far as setting aside of the resumption orders Annexures P5 to P7 passed in case of other allottees are concerned, which have been relied upon by the petitioner, the same are not applicable in the present case as in those cases the allotments of booths were made in the year 1997/1998 and the resumption orders were set aside by the authorities after three/four years of the allotment, whereas in the present case the allotment was made in the year 1986 and for many years the petitioner did not make payment of the amount due. Therefore, in the present case the impugned order cannot be said to be illegal and contrary.
After hearing the learned counsel for the parties and keeping in view the facts and circumstances of the case, we do not find any ground to interfere in the impugned orders.
Undisputedly, in the present case the petitioner was to pay 75% CWP No.19503 of 2010 (O&M) -6- balance amount in lump sum without interest within 60 days from the date of issuance of the allotment letter or in 10 half-yearly installments up to 3.3.1991. Five years time was given to him to make the payment in easy installments with interest @ 10% only. Admittedly, except 25% of the amount the petitioner did not make the payment towards any installment. After taking possession of the site on 25.5.1988 he constructed the booth and rented out the same in gross violation of condition No.10 of the allotment letter. The petitioner also started earning income from the site, but never took any steps to pay the balance amount. He even did not move an application for extension of time in making payment of the balance amount on any ground, including financial hardship. Ultimately, the Estate Officer had to proceed against him under the provisions of the HUDA Act. He did not respond to those proceedings also. The notices were duly served upon him but he neither appeared for hearing nor made any payment. For nine years the proceedings remained pending. During the said period also he did not pay even a single penny towards the outstanding dues. With the passage of time the outstanding dues increased up to ` 7,94,540/- before passing the order of resumption. Ultimately on 19.3.2001 the Estate Officer passed the order of resumption and due intimation about the same was given to him. Undisputedly, the said order was received by the petitioner but he did not take any step to apply to the authorities for clearing the outstanding amount with interest and penalty, or, for setting aside the order of resumption while explaining the reasons for his non-appearance before the authorities. But instead of taking the said step he filed the civil suit knowing fully well that the Civil Court was having no jurisdiction. His ad-interim application was CWP No.19503 of 2010 (O&M) -7- dismissed. The appeal against the said order was also dismissed. In the meanwhile, the possession of the site in question was taken back by the respondents. After more than four years of passing the order of resumption the petitioner filed the appeal which was dismissed and affirmed in revision. The only explanation given by the petitioner is that as per oral agreement between him and his tenant, the amount of installment was to be paid by the tenant and that the tenant kept him in dark that no payment was made by him. This explanation is totally concocted as during the course of hearing the petitioner was asked to show any such agreement between him and the tenant, but he failed to place on record any such agreement. In our opinion, in the present case the petitioner has committed default in payment of arrears intentionally and has failed to establish that the non-payment of installments or the outstanding amount was due to financial hardship. In these facts, in our opinion the authorities under the HUDA Act were fully justified in resorting to resumption of the site in question. The site was allotted in the year 1986 and the order of resumption was passed after 15 years when no payment at all was made by the petitioner. Merely because a pay order for a sum of Rs.2,16,000/- had been placed on the file of the civil suit in the year 2003, it cannot be said that the petitioner was always willing to pay the outstanding amount. Even in Teri Oat Estates (P) Ltd.'s case (supra) though it was observed that the order of resumption on account of non-payment of outstanding dues shall not ordinarily be resorted to having regard to the extreme hardship which may be faced by the parties, if the default is not absolute willful or a dishonest one but occasioned due to situation which may be beyond one's control, yet the present case is not CWP No.19503 of 2010 (O&M) -8- falling under that category. As discussed above, in the instant case the default of the petitioner was totally willful and he deliberately did not honour his commitment in the allotment letter and even while earning income from the booth site for years together by renting out the same in gross violation of the letter of allotment.
Recently, the Hon'ble Supreme Court in Municipal Corporation, Chandigarh and others Versus Vipin Kumar Jain (Civil Appeal No.12968 of 2006, decided on 20.9.2007), while setting aside the order of this Court, whereby after quashing the order of resumption two months' time was given to the respondent to deposit the entire outstanding amount with interest, has observed as under:-
"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 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 CWP No.19503 of 2010 (O&M) -9- 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".
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 CWP No.19503 of 2010 (O&M) -10- action. Thus, in these facts we do not find any ground to interfere in the impugned orders.
No merits. Dismissed.
(SATISH KUMAR MITTAL)
JUDGE
January 10, 2013 (AMOL RATTAN SINGH)
vkg JUDGE