Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 628 (PNJ)

Baldev Raj Khurana s/o Sh. Hargovind v. HUDA

2013-05-13

AMOL RATTAN SINGH, SATISH KUMAR MITTAL

body2013
JUDGMENT Mr. Amol Rattan Singh, J.:- In this case the petitioner is seeking a writ of mandamus, for quashing the letter dated 27.11.1990, vide which the Estate Officer cancelled the allotment of plot No.654, Sector 46-I, Faridabad, on the ground that the said amount was deposited 4 months and 15 days late. The order dated 15.05.1991, dismissing the appeal filed by the petitioner, has also been challenged. 2. The facts of the case are that, the petitioner, who is now represented by his legal representatives, was a Class-IV employee of the Government of Haryana and had applied for a 4 marla (90 sq. metres), residential plot in Faridabad, in the quota of Government Employees and, being successful in the draw of lots, was issued allotment letter dated 10.05.1990, allotting him the plot at a price of Rs. 55,900/-. As per the terms and conditions of the allotment letter, and the provisions of the Haryana Urban Development Authority Act, 1977 (in short, ‘the Act’), he had already made a payment of 10% of the total price, as earnest money, along with the application form. 15% was to be deposited at the time of allotment and the remaining 75% could be either deposited in lump sum, without interest, within 60 days, or in six annual installments carrying an interest of 10% per annum on the remaining amount. 3. After the allotment he was, thus, required to deposit Rs.8385.12/- within 30 days and the remainder by installments as mentioned above. 4. In view of the fact that he was a low paid Class IV employee (and claims that he was sick at the relevant time), he represented to the Estate Officer (respondent No.3), on 06.06.1990, that he was working as a Peon in the Government Polytechnic Institute, and it was difficult for him to arrange the necessary Rs.8,000/- immediately, and he would deposit the said amount by the month of September 1990, along with the 18% interest mentioned at the footnote of the allotment letter. (It may be noted here that though the copy of the allotment letter annexed with the petition does not carry such a footnote, the same is not denied by the respondents; however, they have raised an objection with regard to the context of the footnote, as will be seen later). 5. Not having received a reply to his representation, he presumed that the extension had been granted. 5. Not having received a reply to his representation, he presumed that the extension had been granted. Towards proving his sickness, a medical certificate from a private nursing home, dated 15.09.1990, has been annexed as Annexure P-3 with the petition, in which the Medical Officer has certified that the petitioner was suffering from “Euterel fever and then infective” since 17.04.1990 and was admitted to the nursing home from 15.09.1990 to 24.09.1990. 6. The petitioner retired from service on 31.07.1990 and received his retirement benefits on or about 24.09.1990. Immediately thereafter, he is stated to have deposited Rs.8700/-, i.e. Rs.8385.12/- due as 15% down payment after the allotment, plus 18% interest, as calculated by him, on 25.09.1990. Along with the payment, he again made a written request to the Estate Officer, to accept the said amount and maintain the allotment of the plot in his favour. 7. Thereafter, on 12.10.1990, he received a letter from respondent No.3 (Estate Officer), asking him to send a photostat copy of the demand draft deposited by him towards payment of 15% of the plot price, to which he replied immediately, on 15.10.1990, complying with the direction. However, thereafter, the impugned letter was issued on 27.11.1990, informing him that the allotment of the plot stood cancelled as he had failed to deposit the required 15% of consideration money within 30 days. The letter further stated that, as per HUDA policy, he could have also deposited the said amount with an additional 15% interest within 60 days, but that his deposit came after 4 ½ months. The amount he had deposited on 25.09.1990, i.e. Rs.8700/-, was returned to him along with the cancellation letter; however, 10% of the price of the plot, i.e. Rs.5590/-, deposited by way of earnest money, was forfeited. 8. The petitioners’ appeal was dismissed on 15.05.1991. In that order, it has been stated that the matter was referred, on the appellant’s request, to the Chief Administrator, for sympathetic consideration, but since the order passed by the Estate Officer was as per the instructions on the subject, the case had been rejected by the Chief Administrator. The appeal was, consequently, dismissed and the present petition filed in 1991. 9. The appeal was, consequently, dismissed and the present petition filed in 1991. 9. In this petition, the petitioner has cited the case of one Chander Sekhar Narula of Kaithal, who had been allowed to deposit the required 15% amount after more than 3 months of the allotment because of pressing family circumstances etc. At the time of issuing notice (in the present petition) on 29.08.1991, a co-ordinate Bench of this Court had stayed further allotment of the plot in question. 10. In the reply by the respondents, Clause-IV of the allotment letter is reproduced, which reads as under :- “In case you refuse to accept this allotment, you shall communicate your refusal by a registered AD letter so as to reach this office within 30 days from the date of allotment letter failing which this allotment shall stand cancelled and the earnest money deposited by you shall be forfeited to the authority and you shall have no claim for damage.” Citing the above, it has been stated that as per the terms and conditions of the allotment letter, the cancellation was in order and no fault could be found with it. Receiving of the petitioners’ letter seeking extension on 06.06.1990 itself, is admitted, as also the factum of payment of Rs.8700/- by him in the month of September 1990. 11. As regards grant of similar benefit to Chander Sekhar Narula of Kaithal is concerned, the same has virtually been denied for want of knowledge, describing it as a vague averment. 12. With regard to the footnote on the charging of 18% on the delayed payment, it has been stated that such interest is not applicable in case of delayed payment of the 15% amount which is to be deposited on allotment, but only on the remainder 75% which is to be paid by installments. 13. Ms. Nimrata Shergill, learned counsel for the petitioner, has argued that denial of grant of extension to one person and granting it to another, especially in the circumstances of the petitioner, is an obvious act of arbitrariness and abuse of power. 13. Ms. Nimrata Shergill, learned counsel for the petitioner, has argued that denial of grant of extension to one person and granting it to another, especially in the circumstances of the petitioner, is an obvious act of arbitrariness and abuse of power. She, further, stressed upon the petitioner’s status in society viz., that of a low paid, Class IV, Peon, as also on his health and other family circumstances, due to which, she submits, he could not make the payment in time and for which he duly sought extension within the 30 days that the payment was to be made in. 14. She has further submitted that the moment the petitioner had received his retirement benefits, he deposited the required amount along with interest, immediately; therefore, it is obvious that his difficulty was genuine and he made good the shortfall within a reasonable time, as soon as he obtained the wherewithals to do the needful. 15. Sh. Ajay Nara, learned counsel for the respondents, has reiterated the stand taken in the written statement and has submitted that the cancellation was good, as per law. 16. We have heard learned counsel for the parties and, in our opinion, this is a case which warrants interference by this Court. 17. Before proceeding further, it may be appropriate to reproduce Section 17 of the Act, which governs resumption and forfeiture for breach of any condition of transfer. 17. Resumption and forfeiture for breach of conditions of transfer .- (1) Where any transferee makes default in the payment of any consideration money, or any instalment, on account of the sale of any land or building, or both, under section 15, the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why a penalty which shall not exceed ten percent of the amount due from the transferee, be not imposed upon him. (2) After considering the cause, if any, shown by the transferee and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded in writing, make an order imposing the penalty and direct that the amount of money due alongwith the penalty shall be paid by the transferee within such period as may be specified in the order. (3) If the transferee fails to pay the amount due together with the penalty in accordance with the order made under sub-section (2), or commits a breach of any other condition of sale, the Estate officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building, or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money,l interest and other dues payable in respect of the sale of the land or building, or both, should not be made. (4) After considering the cause, if any, shown by the transferee in pursuance of a notice under sub-section (3) and any evidence that he may produce in support of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate officer, may for reasons to be recorded in writing, make an order resuming the land or building or both, as the case may be, and directing the forfeiture as provided in sub-section (3) of the whole or any part of the money paid in respect of such sale. (5) Any person aggrieved by an order of the Estate Officer under section 16 or under this section may, within a period of thirty days of the date of the communication to him of such order, prefer an appeal to the Chief Administrator in such form and manner, as may be prescribed : Provided that the Chief Administrator may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (6) The Chief Administrator may, after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit. (6) The Chief Administrator may, after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit. (7) The Chief Administrator may, either on his own motion or on an application received in this behalf, at any time within a period of six months from the date of the order, call for the record of any proceedings in which the Estate Officer has passed an order for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order in relation thereto as he thinks fit : Provided that the Chief Administrator shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.” (The above is a reproduction of Section 17 as it stood at the relevant time). 18. A perusal of sub-sections (1) and (2) shows that the Estate Officer is required to first issue a notice calling upon the transferee to show cause within a period of 30 days, as to why a penalty, not exceeding 10% of the amount due, should not be imposed upon him. Thereafter, after giving the transferee (allottee) an opportunity of being heard, an order imposing penalty may be passed, further directing that the amount due, along with penalty, should be paid within the period specified in the order. 19. In the present case, simply a letter was addressed to the petitioner on 25.09.1990, the gist of which states that he had not complied with clause (5) of the allotment letter and that in case he had deposited the required 15% of amount, i.e. Rs.8385.12/-, then he was required to send a photostat copy of the demand draft immediately. 20. On the said date (25.09.1990), the petitioner had already prepared a draft of Rs.8700/- which he duly sent along with his covering letter on 28.09.1990. Obviously, without considering this, the impugned letter/order dated 27.11.1990 was passed, cancelling the allotment of the plot. As a matter of fact, as per sub-section (3) of Section 17 of the Act, it is only if the transferee fails to pay the amount due together with the penalty, in accordance with the order made under sub-section (2), then a show cause notice for resumption of the land or building is to be issued. As a matter of fact, as per sub-section (3) of Section 17 of the Act, it is only if the transferee fails to pay the amount due together with the penalty, in accordance with the order made under sub-section (2), then a show cause notice for resumption of the land or building is to be issued. In case the transferee fails to satisfy the Estate Officer with the cause for the delay in payment/non-payment, thereafter, resumption can be resorted to, after hearing the transferee. 21. In the present case, without considering the fact that the petitioner had actually applied for extension of time within the first 30 days of the allotment letter having been issued, giving therein his circumstances, and the fact that he actually made such payment within 4 ½ months, and immediately upon receiving his retirement benefits, respondent no.3 simply went ahead to cancel the allotment, by issuing the letter dated 27.11.1990. 22. No doubt, Section 17 of the Act speaks of resumption and not of cancellation. However, sub-section (1) thereof uses the phrase “where any transferee makes default in the payment of any consideration money, or any installment, on account of the sale of any land or building, or both, under Section 15, the Estate Officer may. . .”) (emphasis supplied) 23. Further, clause (4) of Section 15 and clause (e) of Section 54 of the Act, stipulate that the Authority may, for the purpose of sale, lease, transfer of land, by auction or allotment, frame regulations. 24. Regulation 5 of the Haryana Urban Development (Disposal of Land & Buildings) Regulations, 1978, deals with procedure in case of sale or lease of land or building by allotment. Clause 5 thereof (similar to Clause IV of the allotment letter), is also relevant to the issue and reads as under :- “(5) The applicant to whom the land/building has been allotted shall communicate his acceptance or refusal in writing within 30 days of the date of allotment, by registered post to the Estate Officer. In case of acceptance, the letter shall be accompanied by such amount as intimated to him in the allotment letter. In case of refusal, he shall be entitled to the refund of the money tendered with the application. In case of acceptance, the letter shall be accompanied by such amount as intimated to him in the allotment letter. In case of refusal, he shall be entitled to the refund of the money tendered with the application. In case he fails to either accept or refuse within the stipulated period, allotment shall be deemed to be cancelled and the deposit made under sub- regulation (2) may be forfeited to the Authority and the applicant shall have no claim for damages.” (emphasis supplied) 25. Thus, nothing, either in Regulation 5 of the 1978 Regulations, or in Section 17 of the Act, provides for automatic cancellation of an allotted plot, without application of mind, especially in the circumstances enumerated above, where the petitioner made a request for extension of time for payment, within 30 days of the issue of the allotment letter. Therefore, in our view, it is definitely not a case where he failed to either accept or refuse the allotment. 26. In our opinion, to deprive a Class IV employee, who applied for extension of time for payment before expiry of the 30 days in which such payment was to be made and who actually made such payment within 4 ½ months of the allotment, the moment he was paid his retirement benefits, is absolutely unreasonable and arbitrary and is, in fact, an unjust act on the part of the respondents, and deserves to be set aside. 27. Hence, this writ petition is allowed. The letter/order dated 27.11.1990 (Annexure P-7), cancelling allotment of the 90 sq. metre plot No.654, Sector 46-I, Faridabad, and forfeiting the earnest money deposit made by the petitioner, is quashed, along with the order in appeal dated 15.05.1991 (Annexure P-8). Respondents are directed to hand over possession of the said plot to the petitioners, on payment of the remaining 75% amount due as consideration money, along with 10% interest due thereupon, for the number of years that have intervened between the date of allotment till now. Thus, the petitioners shall pay the remaining consideration money (Rs.41925.60/-), as mentioned in clause (6) of the allotment letter, along with 10% simple interest, to run from the date of allotment till the date that payment is made. The petitioners would make the deposit within a period of three months from today and the respondents would, thereafter, hand over possession of the plot within one month. The petitioners would make the deposit within a period of three months from today and the respondents would, thereafter, hand over possession of the plot within one month. As regards the sum of Rs.8700/- said to have been refunded to the petitioner, if the refund instrument was encashed by the petitioners, then the said amount would also be paid by them and would also carry an interest of 10%, from the date of encashment till the date of payment now to be made. If that instrument was not encashed and remained unclaimed in the bank, then the respondents would, obviously claim it back from the bank with no burden on the petitioners qua that amount (Rs.8700/-). Allowed as above, with no order as to costs.