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2023 DIGILAW 595 (PNJ)

Suman v. State of Haryana

2023-02-08

AUGUSTINE GEORGE MASIH, VIKRAM AGGARWAL

body2023
JUDGMENT Vikram Aggarwal, J. This judgment shall decide two writ petitions, the first one filed by the allottees seeking implementation of the order dated 10.10.2018 passed by the Principal Secretary to Government of Haryana, Town & Country Planning Department and the second one challenging the same. The facts are being taken from the second writ petition titled as 'The Administrator HSVP, Gurugram and Another v. State of Haryana and others. 2. Vide allotment letter dated 17.03.2008, SCO 98, Sector 9-A, Gurugram, measuring 137 sq. meters (hereinafter referred to as 'the SCO') was allotted to one Bhupinder Gahlot for a total consideration of Rs. 1,43,00,000/- being the highest bidder. The SCO was transferred in the name of respondents No.2 and 3 (petitioners in the first writ petition) vide reallotment letter dated 29.08.2008 (Annexure P-2). As per the same, respondents No.2 and 3 were to pay the balance sale consideration of Rs. 1,07,25,000/- alongwith interest at the rate of 9% per annum. In case of lumpsum payment, no interest was to be charged. Only a sum of Rs.23 lakhs was paid by the respondents No.2 and 3 in the year 2011 after which, no further amount was paid. Proceedings under Section 17 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the Act') were initiated. Subsequently, various notices under provisions of Section 17 of the Act were issued. No response was given to the said notices. Thereafter notice under Section 17(3) was issued on 12.05.2017 (Annexure P-3) and that under Section 17(4) was issued on 04.07.2017 (Annexure P-3-A). Neither any reply was submitted nor the installments were deposited. Ultimately, the SCO was resumed vide order dated 16.08.2017 (Annexure P-4) and 10% of the initial amount deposited was forfeited. Respondents No.2 and 3 filed an appeal dated 11.09.2017 (Annexure P-5) taking the ground of illness of respondent No.2 and that of brother of respondent No.3. The appeal was, however, dismissed vide order dated 12.01.2018 (Annexure P-6). A revision petition was preferred (Annexure P-7) which was allowed by respondent No.l vide order dated 10.10.2018 (Annexure P-8). The Estate Officer, Gurugram was directed to calculate the outstanding dues and convey the same to the allottees within 30 days and the amount was to be deposited within a further period of 60 days from the date of receipt of the calculated demand. 3. The Estate Officer, Gurugram was directed to calculate the outstanding dues and convey the same to the allottees within 30 days and the amount was to be deposited within a further period of 60 days from the date of receipt of the calculated demand. 3. It is this order, which has been challenged by the HSVP, in the second writ petition whereas the allottees have sought its implementation by way of the first writ petition. 4. The writ petition has been opposed by the allottees stating that the requisite amount could not be deposited because of the medical exigencies about which they had stated in detail in their pleadings before the authorities and which were accepted by the revisional authority. 5. We have heard learned counsel for the parties and have perused the record. 6. Sh. Deepak Sabherwal, learned counsel representing the HSVP has strenuously urged that the order dated 10.10.2018 passed by the revisional authority is not sustainable. It has been argued that no cogent reasons have been given by the authority for accepting the revision petition of the allottees and that the authority referred to a non-existent policy of HSVP while allowing the revision petition. Sh. Deepak Sabherwal has also referred to the resumption order and the order passed in appeal and has contended that the allottees had not deposited the amount even after undertakings having been given before the appellate authority. It has been contended that now once the prices have sky rocketed, the allottees are wanting to pay the amount at which the SCO had been allotted to them. Learned counsel has contended that the impugned order is not sustainable and deserves to be set aside. In support of his contentions, learned counsel has referred to the judgment of the Hon'ble Apex Court in the case of Municipal Corporation. Chandigarh and Others v. Vipin Kumar Jain, decided on 20.09.2007. 7. On the other hand, Shri Amit Jhanji, learned senior counsel representing the respondents has, with equal vehemence, supported the order passed by the revisional authority. He has referred to the pleadings in the appeal, revision, in the current writ petitions as also the medical record appended along with these pleadings to submit that the allottees were actually hard pressed on account of the medical exigencies, as a result of which, they could not deposit the amount due towards them. He has referred to the pleadings in the appeal, revision, in the current writ petitions as also the medical record appended along with these pleadings to submit that the allottees were actually hard pressed on account of the medical exigencies, as a result of which, they could not deposit the amount due towards them. Reliance in this regard has been made to Annexures R-2 to R-6. Learned senior counsel has submitted that a sum of Rs.36 lakhs had initially been deposited which was 25% of the total sale consideration and thereafter, a sum of Rs.23 lakhs had been deposited by the allottees making it to be a total of Rs.59 lakhs and not Rs.23 lakhs as has been projected in every order. Learned senior counsel has referred to the guidelines dated 10.01.2013 (Annexure P-9) in support of his submissions and has contended that the revisional authority could have been referring to these guidelines and instead of using the word 'guidelines', it used the word 'policy'. It has been submitted that no fault can be found with the well reasoned order passed by the revisional authority. Learned senior counsel has also referred to the sale deeds Annexures R-12 to R-14 and comparative tables Annexure R-15 and Annexure R-16 regarding similarly situated properties and has contended that the market price of similarly situated properties in the year 2018 in the revision petition was allowed, was not different from the price, at which the SCO will cost the allottees. It has been argued that as per the account statement Annexure R-l, the total current outstanding amount towards the allottees is around Rs.3 crores and in any case, once the amount due is calculated in compliance with the directions of the revisional authority, it is certain that the state exchequer would not suffer any loss. 8. Rebutting the arguments addressed by learned senior counsel, Sh. Deepak Sabherwal has asserted that the reserved price itself of the SCO and other similarly situated properties is not less than Rs.4 crores and, therefore, the contention of learned senior counsel that there would be no loss to the state exchequer is devoid of merit. 9. Learned senior counsel has also stated that in many similar cases, relief had been granted to the allottees. 9. Learned senior counsel has also stated that in many similar cases, relief had been granted to the allottees. In support of his contentions, learned senior counsel has referred to some judgments i.e. CWP-16634 of 2008 tided as 'Dheera Sineh v. U.T. Chandisarh Administration & Others'. 'Ten Oat Estates (P) Ltd. v. U.T. Chandigarh and others' (2004) 2 SCC130'. CWP-19503 of 2010 titled as 'Suresh Chand v. The State of Haryana and others'. 'Amrit Lal v. Haryana Urban Development Authority and others' 2012 SCC Online P& H . CWP-3197 of 2014 tided as 'Smt Fana alias Maina Devi and others v. The Financial Commissioner and Principal Secretary to Government of Haryana and others' and Municipal Corporation Chandigarh and Others v. Vipin Kumar Jain. decided on 20.09.2007. 10. We have considered the submissions made by learned counsel for the parties. 11. The SCO which is situated in Sector 9-A, Gurugram and measures 137 sq. meters was initially allotted to one Bhupinder Gahlot on 17.03.2008 at an auctioned price of Rs.1.43 crores. The possession certificate dated 16.06.2008 in favour of Sh. Bhupinder Gahlot is Annexure P-1. Vide reallotment letter dated 29.08.2008 (Annexure P-2), the allottees i.e. respondents No.2 and 3 in the present writ petition and petitioners in CWP No.13543 of 2020 tided as 'Suman and anotiier v. State of Haryana and others' became the owners of the SCO. The outstanding amount, at this stage, was Rs. 1,07,25,000/- alongwith interest at the rate of 9% per annum. 12. It is the admitted case of the parties that the outstanding amount was not cleared by respondents No.2 and 3 and show cause notice dated 12.05.2017 (Annexure P-3) was issued under Section 17(3) of the Act. As per this notice, the allottees had failed to pay a sum of Rs.2.46 crores (approx.). This notice also referred to another notice dated 10.02.2014 and called upon the allottees to pay the outstanding dues of Rs.2.44 crores and extension fee of Rs. 1.70 lakhs. Another notice dated 04.07.2017 (Annexure P-3-A) was issued under Section 17(4) of the Act which also referred to previous notice Annexure P-3 and an opportunity of hearing was granted to the allottees. 13. Vide order dated 16.08.2017 (Annexure P-4), after giving reference to notices issued in the year 2013, 2014 and 2017, the order of resumption was passed. 14. Another notice dated 04.07.2017 (Annexure P-3-A) was issued under Section 17(4) of the Act which also referred to previous notice Annexure P-3 and an opportunity of hearing was granted to the allottees. 13. Vide order dated 16.08.2017 (Annexure P-4), after giving reference to notices issued in the year 2013, 2014 and 2017, the order of resumption was passed. 14. The allottees preferred an appeal against the said order, which was also dismissed vide order dated 12.01.2018 (Annexure P-6). While dismissing the appeal, the appellate authority observed as under:- "The notices under section 17(3), 17(4) were received by the appellants with no response from him. None of the notice received back undelivered and reportedly issued at the correct address available on file. The second appeal of the appellants of non deposit of the due installment is medical problem and financial hardship. There is no medical proof attached with the appeal or produced at the time of argument. The averment in this regard is totally baseless without any supporting proof and seems to be false and concocted. Moreover, HUDA policy guidelines dated 10.01.2013 says that the authorities shall not give relief on arbitrary grounds, routine health problems, illness of relatives and may consider providing relief if, allottees goes in coma and remains under coma for the period when the payments were due and recovers subsequently. If, allottee has to incur major financial expenditure on treatment of serious diseases like cancer, major surgeries, accident traumas rendering him unable to discharge the liabilities of such due payments. In such cases, the allottee will have to submit complete proof of his treatment duly authenticated. The above parameters will also apply in case the allottee's spouse or children suffer from such kind of eventualities. In view of the above discussion, the present appeal is hereby dismissed on merit. " 15. The allottees then preferred a revision petition which was allowed by way of the impugned order. The revisional authority held as under:- "I have gone through the facts of the case and the record produced before me by the concerned official of Estate Officer, Gurugram-Upon the allotment of SCO on 17.03.2008 through auction for price of Rs. " 15. The allottees then preferred a revision petition which was allowed by way of the impugned order. The revisional authority held as under:- "I have gone through the facts of the case and the record produced before me by the concerned official of Estate Officer, Gurugram-Upon the allotment of SCO on 17.03.2008 through auction for price of Rs. 1,43,00,000/- and initial deposit of 25% amount in 30 days, the petitioners were required to deposit the remaining 75% amount in eight half-yearly installments alongwith interest @ 9% p.a. The possession, interest was to accrue after the offer of possession. The perusal of record shows that the petitioners had deposited an amount of Rs.23,00,000/- towards the cost of SCO. It is clear from the record that the petitioners were willing to deposit the dues and are even now are ready to deposit the entire outstanding dues alongwith applicable interest and other dues as per extant HSVP policy. Keeping in view the facts and circumstances of the case and the judgment of Hon'ble Full bench in U.T Chandigarh Administration v. Dheera Singh, it would be proper to grant one more and last opportunity to the petitioners to clear the outstanding dues. Therefore, the present Revision Petition is accepted and the orders passed by the Administrator, Gurugram dated 12.01.2018 as well as the resumption order dated 16.08.2017 passed by Estate Officer, Gurugram are set aside subject to the condition that the petitioner shall deposit the entire outstanding dues including the installments, penalty and extension fee etc as per HSVP policy. The Estate Officer, Gurugram is directed to calculate the outstanding dues and convey the same to the petitioner within 30 days from the receipt of copy of this order which shall be deposited by the petitioner within further 60 days from the date of receipt of this calculated demand by the Estate Officer, Gurugram. The Revision Petition is disposed of in above terms. " 16. The aforesaid facts show that after reallotment in favour of the respondents No.2 and 3 in 2008, they did not clear the outstanding dues till 2017 when the SCO was resumed. It, therefore, means that they slept over the matter for almost 10 years. The ground taken for the delay in payment is the medical condition of respondent No.2 and that of the brother of respondent No.3. The medical record is available as Annexures R-2 to R-6. It, therefore, means that they slept over the matter for almost 10 years. The ground taken for the delay in payment is the medical condition of respondent No.2 and that of the brother of respondent No.3. The medical record is available as Annexures R-2 to R-6. Annexure R-2 shows that respondent No.2 had varicose veins and some back issue. The brother of respondent No.3 namely Mr. Vinod Kumar Saluja is unfortunately said to have been diagnosed with brain tumor. Both these conditions, in the opinion of this Court, are not sufficient for the inordinate delay caused in the payment of the outstanding amount. One could have understood if the respondent No.2 was suffering from some life-threatening disease for which continuous treatment had been going on making it virtually impossible to clear the outstanding dues. In so far as the respondent No.3 is concerned, it has not been shown as to how his brother was dependent upon him and what treatment was going on and further whether it was respondent No.3 who was incurring expenses on the same and if yes, then what was that amount. The illness of respondent No.2 and the brother of respondent No.3 appears to have been just taken as a shield for the non-payment of the outstanding dues for almost a period of 10 years. The guidelines dated 10.01.2013 (Annexure P-9) on which, as per learned counsel for respondents No.2 and 3, the revisional authority may have relied also do not support their case. These guidelines state that no relief should be given to the allottees while deciding the appeals/revisions on arbitrary grounds like financial hardship, health problems etc. and the guidelines infact lay down certain circumstances which may be considered while providing relief. The relevant portion of the instructions lay down such circumstances reads as under:- "However, in the following circumstances, the Authorities may consider providing relief- i) If, allottees goes in coma and remains under coma for the period when the payments were due and recovers subsequently. ii) If, allottee has to incur major financial expenditure on treatment of serious diseases like cancer, major surgeries, accident traumas rendering him unable to discharge the liabilities of such due payments. In such cases, the allottee will-have-to-submit complete proof of his treatment duly authenticated. The above parameters will also apply in case the allottee's spouse or children suffers from such kind of eventualities. " 17. In such cases, the allottee will-have-to-submit complete proof of his treatment duly authenticated. The above parameters will also apply in case the allottee's spouse or children suffers from such kind of eventualities. " 17. A perusal of the aforesaid shows that relief can be granted under very extreme circumstances which is not at all the case here. The revisional authority did not examine the matter from this perspective and got swayed by the fact that respondents No.2 and 3 were willing to deposit the outstanding amount even at this stage in accordance with the HSVP policy. It is an admitted fact that apart from the guidelines referred to above, there was no such policy in existence at the relevant time. The view taken by the revisional authority is, therefore, not sustainable. 18. We have also gone through the judgments relied upon by both sides. In the case of Municipal Corporation, Chandigarh and Others v. Vipin Kumar Jain (supra) and Suresh Chand v. The State of Haryana and others (supra), no relief had been granted to the allottees. Learned senior counsel representing respondents No.2 and 3 has made an attempt to place reliance upon these judgments by contending that in those cases, the allottees had not made any effort to clear the outstanding amount and there was an inordinate delay on their part even after the resumption proceedings. As per learned senior counsel, in the present case, respondents No.2 and 3 were initially prevented from depositing the outstanding amount on account of the medical condition of respondent No.2 and the brother of respondent No.3 but after resumption they did not delay the matter. It has, therefore, been stated that these judgments would not affect the present case. We are, however, unable to agree with learned senior counsel. In the case of Municipal Corporation, Chandigarh and Others v. Vipin Kumar Jain, the Hon'ble Apex Court held 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. 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 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. " 19. Similarly, in the case of Suresh Chand v. The State of Haryana and others. a coordinate bench of this Court, after referring to the judgment in Municipal Corporation, Chandigarh's case held as under: - "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 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 action. Thus, in these facts we do not find any ground to interfere in the impugned orders. " 20. The facts of the present case are in fact similar to the facts of above two cases and, therefore, we do not find any reason to take a different view than that taken in the aforesaid cases. The other judgments relied upon by learned senior counsel would also, therefore, not be of any help to respondents No.2 and 3. 21. The discussion in the preceding paragraphs leads us to the conclusion that the order dated 10.10.2018 (Annexure P-8) passed by the revisional authority is not sustainable. The same is accordingly set aside and the order of resumption dated 16.08.2017 (Annexure P-4) is upheld. As a consequence, thereof, the writ petition No.14435 of 2020 titled as 'The Administrator, HSVP, Gurugram and Another v. State of Haryana and others' is allowed and the Civil Writ petition No.13543 of 2020 titled as 'Suman and another v. State of Haryana and others' is dismissed.