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2013 DIGILAW 1328 (PNJ)

Sunil Kumar Verma v. Housing Board, Haryana

2013-10-01

MAHAVIR S.CHAUHAN, SATISH KUMAR MITTAL

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JUDGMENT Mr. Mahavir S. Chauhan, J.: - Petitioner, Sunil Kumar Verma, applied for allotment of a LIG house in the year 1983. His name was included in the draw of lots held on 16.08.1983 and he was successful therein. Accordingly, vide memorandum dated 26.09.1983, he was asked to deposit an amount of Rs.1680/- within a period of 30 days, which the petitioner deposited and accordingly, vide letter of allotment dated 10.07.1984 (Annexure P2) tenement No.1870A(P), Sector-6, Karnal, was allotted to him on hire-purchase basis for a total premium of Rs.32,600/-. Condition (3) of the letter of allotment required the petitioner to execute a Hire-Purchase Tenancy Agreement and take possession of the tenement, within thirty days of the issue of letter of allotment as possession of the tenement was to be given after the execution of agreement and first instalment and such other dues, as would be demanded, were paid. The necessary hire-purchase tenancy Agreement was executed on 13.08.1984 and before that, petitioner had deposited an amount of Rs.8,300/-. 2. According to Clause 2(q) of the Hire-Purchase Tenancy Agreement dated 13.08.1984 (a copy whereof has been produced by counsel for the petitioner in Court during the course of hearing), the petitioner was required to make full payment regularly and in case of default of payment, he was liable to pay penalty. The said clause reads thus:- “2(q) The hirer shall make full and regular payment of all the dues that are required to be made by him in pursuance of these presents or the Regulations. If any, such payment is delayed, he shall be liable to pay a penalty not exceeding twenty-five percent of the amount due. In case of defaults of more than two months, the tenancy shall stand determined and the hirer shall be liable to be evicted. All the outstanding dues of the owner shall be recoverable as arrears of land revenue.” 3. Petitioner did not pay the instalments regularly. In fact, he paid an amount of Rs.1,056/- on 16.11.1984 and another amount of Rs.2,360/- on 13.12.1984. As the petitioner did not adhere to the schedule of payment of instalment, respondents served upon him a notice dated 07.1.1986 (Annexure R-1) advising him to deposit an amount of Rs.1,900/- due till December 1985 on or before 15.01.1986. However, the petitioner did not bother. As the petitioner did not adhere to the schedule of payment of instalment, respondents served upon him a notice dated 07.1.1986 (Annexure R-1) advising him to deposit an amount of Rs.1,900/- due till December 1985 on or before 15.01.1986. However, the petitioner did not bother. Another notice dated 06.06.1986 (Annexure R-2) reminding the petitioner that an amount of Rs.1,450/- was outstanding against him as rent for two months commencing from January, 1986, was issued while directing him to deposit the said amount within 30 days. Still nothing was paid by the petitioner and, as such, vide notice dated 21.08.1987 (Annexure R-3/P-3), the Estate Manager, Housing Board, Haryana, Karnal(S) (respondent No.2) granted last opportunity to the petitioner to deposit an amount of Rs.10,449/- as arrears of monthly instalments upto 07.09.1987 with a clear stipulation that in the event of the petitioner’s failure to make payment of the aforesaid amount by the given date, a penalty to the extent of 25% shall be imposed upon him under Section 53A(1) of the Haryana Housing Board Act, 1971 (hereinafter referred to as ‘the Act’). Even to this notice, the petitioner did not bother. Again, vide notice dated 11.09.1987 (Annexure R-4), petitioner was called upon to pay an amount of Rs.10,499/- within 30 days from the date of receipt of that notice and it was also stated that in the event amount being not paid within the aforesaid time period, it would be recovered as arrears of land revenue. Even this notice failed to bring any effect on the petitioner and, as such, vide order dated 30.10.1987 (Annexure R-5) passed under Section 51(I) of the Act, the competent authority ordered eviction of the petitioner and directed him to vacate the tenement within 30 days from the date of effecting service of that order upon the petitioner. Petitioner neither deposited the outstanding arrears of land revenue nor vacated the tenement, which led 2nd respondent to issue memorandum dated 16.11.1988 (Annexure R-6/P-4) directing the petitioner to vacate the tenement on or before 30.11.1988 and also clarified that in the event of the tenement being not vacated by him, he would be evicted forcibly therefrom. Petitioner did not comply with this direction as well. Petitioner did not comply with this direction as well. The 2nd respondent, vide his memorandum dated 28.08.1989 (Annexure R-7/P-5), told the petitioner that physical possession of the tenement would be taken by the respondents at 10:00 A.M. on 12.09.1989, in case, he fails to vacate it on or before 11.09.1989. Petitioner did not vacate the tenement and, ultimately, possession of the tenement was taken over from him by the 2nd respondent on 12.09.1989 and a public notice (Annexure R-8) was published in this respect. In the meantime, petitioner sent a demand draft for Rs.3,000/- to the respondents on 04.09.1989. This amount was retained by the respondents and was adjusted towards arrears of rent outstanding against the petitioner. After his eviction from the tenement in question, petitioner sent a demand draft for Rs.8,000/- on 19.07.1990 but the respondent returned this amount, vide memorandum dated 21.09.1990 (Annexure P-8), as the allotment of tenement has already been cancelled and the physical possession has already been taken due to non-payment of instalments. The petitioner sent a duplicate demand draft dated 07.04.1992 amounting to Rs.8,000/- towards balance instalments, vide his application dated 18.04.1992 (Annexure P-14), to the 2nd respondent but the 2nd respondent returned the same, vide memorandum dated 08.05.1992 (Annexure P-16), to the petitioner stating therein that the same could not be adjusted at that stage and the petitioner was further advised by 2nd respondent not to make any further correspondence in this regard in future. 4. To challenge notices dated 21.08.1987 (Annexure R-3/P-3), dated 16.11.1988 (Annexure R-6/P-4), dated 28.08.1989 (Annexure R-7/P-5) and memoranda dated 21.09.1990 (Annexure P-8) and dated 08.05.1992 (Annexure P-16), the petitioner has brought the instant writ petition, under Articles 226/227 of the Constitution of India. 5. In the response, filed on behalf of the respondents, it has been stated that the petitioner being a habitual defaulter did not pay the rent despite repeated notices and it was as a last resort his eviction was ordered from the tenement in question as he did not pay anything towards rent after 13.12.1985 notwithstanding affecting service of various notices upon him and, as such, he is not entitled to any relief. It is also stated in the response by the respondents that the writ petition suffers from delay and latches as possession of the tenement was taken over on 12.09.1989 and the writ petition has been filed on 20.07.1992, i.e., after about three years silence and no explanation whatsoever is coming forth for this delay. 6. We have heard learned counsel for the parties and have perused the record. 7. It is argued on behalf of the petitioner that the petitioner has been consistently corresponding with the respondents in respect of tenement in question and the respondents accepted an amount of Rs.3,000/- from the petitioner on 04.09.1989, i.e., much after the order of eviction dated 30.10.1987 (Annexure R-5) which has rendered the order of eviction nonest and all subsequent proceedings inconsequential. It is also contended on behalf of the petitioner that no notice under Section 51(I) of the Act was served upon the petitioner before passing the order of eviction. 8. Learned counsel for the respondents has, however, defended eviction of the petitioner from the tenement in question on the plea that it was clearly stated in Clause 2(q) of the Hire-Purchase Tenancy Agreement dated 13.08.1984 that default in payment of rent for more than two months was to result in automatic determination of the tenancy and as is evident from the record, the petitioner has been a chronic defaulter as regards the payment of rent. It is also pointed out on behalf of the respondents that the petitioner has invoked the extra-ordinary jurisdiction of this Court without availing the remedy of appeal available to him under Section 54 of the Act and even otherwise, the tenement in question has already been allotted to someone else after evicting the petitioner. 9. It is not in dispute that the eviction of the petitioner was ordered vide order dated 30.10.1987 (Annexure R-5). This order has not been challenged by the petitioner. In the absence of any challenge to the order of eviction dated 30.10.1987 (Annexure R-5), challenge to notices dated 16.11.1988 (Annexure R-6/P-4), 28.08.1989 (Annexure R-7/P-5) and memoranda dated 21.09.1990 (Annexure P-8) and dated 08.05.1992 (Annexure P-16) is of no avail as all these notices/memoranda are the consequence of the order of eviction dated 30.10.1987. Similarly, challenge to notice dated 21.08.1987 (Annexure R-3/P-3) is also of no consequence, it being a notice only. Similarly, challenge to notice dated 21.08.1987 (Annexure R-3/P-3) is also of no consequence, it being a notice only. In the absence of challenge to order of eviction dated 30.10.1987 (Annexure R-5), the petitioner cannot be heard to say anything as regards his eviction from the tenement in question. Still on perusal of the record, we have found that the order of eviction was proceeded by four notices calling upon the petitioner to deposit the arrears of rent and it was after stubborn silence of the petitioner in spite of the repeated notices that order of eviction dated 30.10.1987 (Annexure R-5) was passed. In our opinion, the petitioner did not deserve any notice in view of Clause 2(q) of the Hire Purchase Tenancy Agreement, which clearly stipulated that non-payment of rent for more than two months would result into automatic determination of tenancy. Still, the respondents served repeated notices upon the petitioner and in spite of that, petitioner did not make payment of the outstanding arrears of rent. 10. Not only this, the petitioner had a remedy of appeal available to him under Section 54 of the Act but he chose not to avail that remedy and has rushed to this Court. As an efficacious remedy has been left unavailed of, the writ petition cannot be entertained. 11. Not only this, the order of eviction was passed on 30.10.1987 and the instant writ petition has been filed on 20.07.1992, i.e. after, about five years of passing of the order of eviction. No explanation for this delay is coming forth, the writ petition, therefore, suffers from delay and latches and is liable to be dismissed. 12. Lastly, it is intimated during the course of hearing that the tenement in question has been allotted to someone else after the eviction of the petitioner and, thus, third party rights have come into existence. The said allottee of the tenement in question is not before us and, therefore, no order adverse to his interest can be passed in his absence. It may also be added that one, who claims equity, is expected to prove equity himself. The circumstances appearing on record reveal that the petitioner has been occupying a tenement belonging to the respondents for years together without payment of rent and has ignored successive notices served upon him by the respondents. For that reason also the petitioner is not entitled to any relief. 13. The circumstances appearing on record reveal that the petitioner has been occupying a tenement belonging to the respondents for years together without payment of rent and has ignored successive notices served upon him by the respondents. For that reason also the petitioner is not entitled to any relief. 13. In the consequence, the writ petition fails and is hereby dismissed.