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2024 DIGILAW 975 (PNJ)

Satish Kumar Arya v. State of Haryana

2024-07-01

ARUN PALLI, VIKRAM AGGARWAL

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JUDGMENT Vikram Aggarwal, J. Being the highest bidder, built up Booth No. 110, Sector-55, Faridabad (hereinafter referred to as the disputed booth) was allotted to the petitioner on 05.11.2000 for a total sale consideration of Rs. 9,70,000/- (rupees nine lakhs seventy thousand). Since the petitioner defaulted and did not make payments in time, the disputed booth was resumed vide order dated 26.05.2004 (Annexure P-3). Appeal against the said order was allowed vide order dated 28.01.2014 (Annexure P-16) and the resumption order was set aside. However, a revision petition was preferred by the respondents against the said order which was allowed on 16.05.2017 setting aside the appellate order and restoring the order of resumption. It is this order that has been challenged by the petitioner in the instant writ petition. The case set out by the petitioner is that he had already deposited 35.92% of the total sale consideration when the disputed booth was resumed and that the resumption was ordered in a mechanical manner without affording any opportunity to the petitioner to present his case for at no point of time was any show-cause notice served upon the petitioner. It has been averred that even after the order of resumption having been passed, no eviction proceedings were initiated which could have been an indication to the petitioner that the disputed booth had been resumed. It has been averred that it is well settled that resumption is a very harsh action and should be the last resort when all other efforts to recover the outstanding amount have failed. 2. It has also been averred that even with regard to hearing of the appeal filed by the petitioner against the order of resumption, no intimation was given to the petitioner nor was he informed that the appeal had been dismissed in default. On the contrary, a demand was raised from the petitioner which led to the petitioner depositing Rs. 11,98,000/which was duly accepted and encashed by the respondents but was subsequently refunded in an arbitrary manner. 3. The writ petition has been opposed by the respondents. In the written statement, it has been averred that 25% of the total sale consideration was paid by the petitioner in time. 11,98,000/which was duly accepted and encashed by the respondents but was subsequently refunded in an arbitrary manner. 3. The writ petition has been opposed by the respondents. In the written statement, it has been averred that 25% of the total sale consideration was paid by the petitioner in time. The balance 75%, as per Clause No.5 of the allotment letter, was required to be paid either in lump sum without interest within 60 days from the date of issuance of the allotment letter or in ten half yearly installments along with interest @ 15% per annum. The amount to be paid qua each installment was specified in the allotment letter itself in i.e. Clause 23 thereof. It was also specified that in case of delay in payments, interest would be charged @ 18% per annum. Possession of the disputed booth was delivered to the petitioner on 23.01.2001 (Annexure R-2). Since the petitioner failed to make the payment of installments as per the terms and conditions of the allotment letter and not even a single installment was paid by him, show-cause notices under Section 17(1), (2), (3) and (4) of the Haryana Urban Development Authority, Act 1977 (for short the 1977 Act') (Annexure R-3) colly, were issued on 18.02.2002, 27.03.2002, 29.04.2002, 04.06.2002 & 05.08.2002. Despite issuance of the notices (ibid), the outstanding amount was not paid as a result of which the disputed booth was resumed on 26.05.2004. The appeal filed by the petitioner was initially dismissed in default on 21.12.2004 (Annexure R-4). He filed another appeal against the resumption order in 2011, which was also dismissed on 03.05.2011 (Annexure R-5). He then preferred CWP No. 704 of 2012, which was disposed of on 15.10.2021 with a direction to the respondents to decide the appeal on merits. Thereafter, vide order dated 20.03.2014, the appeal was decided on merits and the resumption order was set aside. However, revision petition was preferred by the respondents, which was allowed on 16.05.2017. On merits also, a similar stand has been taken. 4. Learned counsel for the parties were duly heard. 5. It was submitted by learned counsel for the petitioner that the order passed by the Revisional Authority is not sustainable since the view taken by the Appellate Authority was a plausible and a rational view. On merits also, a similar stand has been taken. 4. Learned counsel for the parties were duly heard. 5. It was submitted by learned counsel for the petitioner that the order passed by the Revisional Authority is not sustainable since the view taken by the Appellate Authority was a plausible and a rational view. Learned counsel submitted that almost the entire amount stands paid by the petitioner and only a few hundred rupees remain as outstanding. He submitted that even the possession of the disputed booth is with the petitioner, and, therefore, it would be unfair and unjust to deprive the petitioner of his valuable property. 6. Pointed reference was made by the petitioner to orders dated 03.07.2017, 10.09.2019 and 01.04.2024 passed by this Court in the instant writ petition. Learned counsel submitted that it is well settled that resumption is a weapon of last resort and in cases of the kind where the entire amount had been deposited, there would be no occasion to deprive an allottee of his property. 7. Per contra, it was submitted by learned counsel representing the respondents that the conduct of the petitioner would itself show that he is not entitled to any relief. Pointed reference was made to the order of resumption, order in appeal and the revisional order and the observations made therein. It was also submitted that after the appeal having been dismissed in default, no steps were taken by the petitioner for a number of years and it is only when prices of properties sky rocketed that the petitioner woke up from his slumber. 8. Learned counsel submitted that the view taken by the Revisional Authority is a rational and plausible view and merely because the petitioner has deposited the outstanding amount taking advantage of the late filing of the revision petition, the same would not clothe him with any right much less the right of restoration of the disputed booth. 9. We have considered the submissions made by learned counsel for the parties and have given our thoughtful consideration to the issue in hand. 10. As has been noticed while detailing the facts of the case, the allotment of the disputed booth was made as far back as on 15.11.2000. Admittedly, a sum of Rs. 97,000/- was deposited as bid money and Rs. 10. As has been noticed while detailing the facts of the case, the allotment of the disputed booth was made as far back as on 15.11.2000. Admittedly, a sum of Rs. 97,000/- was deposited as bid money and Rs. 145500/- was deposited on the issuance of the allotment letter to complete 25% of the total sale consideration. Thereafter, the petitioner defaulted in making payments. The disputed booth was resumed vide order dated 26.05.2004. The order does not give any details as to why the resumption of the disputed booth was essential. It is well settled that before arriving at a conclusion that a property deserves to be resumed, the authority concerned has to apply its mind and then arrive at a conclusion that the property deserves to be resumed. It has to be recorded by the authority concerned that the default was willful and only then an order of resumption can be passed. Reference in this regard can be made to the judgment of a full Bench of this Court in the case of Dheera Singh v. Union Territory, Chandigarh Administration and others, 2013 AIR (P&H) 93. Reference can also be made to the judgment of the Supreme Court of India in the case of M/s Teri Oat Estates (Private) Limited v. Union Territory and others, 2004 (2) SCC 1330 and Ram Puri v. Chief Commissioner, Chandigarh, AIR 1982 (O&M) 301. In the case of Dheera Singh (Supra), it was held as under:- "81. The doctrine of proportionality as ruled in M/s. Teri Oat Estates Pvt. Ltd. is now an integral part of Section 8-A to protect an allottee against unreasonable or arbitrary action by the Authority under that provision. It necessarily means and the respondents cannot be heard to say otherwise except that the power of resumption can be invoked as a last resort and the action of the Estate Officer is required to be judged on the touch-stone of Article 14 of the Constitution. It implies that the Estate Officer before passing a resumption order shall be obligated to determine whether the breach of terms and conditions of allotment or violation of any building bye-law by the allottee is 'willful' and 'deliberate' or it has occurred for the reasons beyond his control? In the case of the latter category it shall not be possible to invoke the power mechanically and resume the property. In the case of the latter category it shall not be possible to invoke the power mechanically and resume the property. For example, if an allottee indisputably rents out his residential premises to a tenant for residential purposes only and the tenant in utter defiance to the terms of tenancy starts misusing the premises for commercial purposes against whom the landlord, without any inordinate delay, initiates eviction proceedings under the East Punjab Urban Rent Restriction Act, 1949 (as applicable to UT Chandigarh) inter alia on the ground of misuse of the premises, how can the allottee be held guilty of willful and deliberate violation of the building bye-laws? The only recourse in such an eventuality available with the Estate Officer shall be to keep the resumption proceedings in abeyance till the eviction proceedings are decided though he must keep track of the status of eviction proceedings from time to time. Any attempt to deviate from such like fait accompli conditions shall vitiate the action rendering the resumption proceedings to nothing but a colourable exercise and/or abuse of power by the Estate Officer. Similarly, the first or stray violation(s) can hardly justify the impaling effect of 'resumption' and any such casual attempt with a bureaucratic approach deserves serious view in exercise of power of judicial review." Further in the case of M/s Teri Oat Estates (Supra), the Supreme Court of India held as under:- "22. One of the questions which, therefore, must always be posed by the Estate Officer, while initiating a proceeding under Section 8A of the Act is as to whether the drastic power of resumption and forfeiture has been taken recourse to as a last resort. The order of the Estate Officer dated 13.3.1992, does not say so. No reason has also been assigned in the said order. 23. It may be that the appellant even did not comply with the appellate order but it has a legitimate grievance therefor insofar as the said order was made available to it after 7.3.1995 whereas the part payment in terms thereof was to be made on the said date. No reason has also been assigned in the said order. 23. It may be that the appellant even did not comply with the appellate order but it has a legitimate grievance therefor insofar as the said order was made available to it after 7.3.1995 whereas the part payment in terms thereof was to be made on the said date. The revisional order dated 17.5 .1995 provided that payment be made in terms of the accounts submitted by the Estate Officer but the question as to whether the Estate Officer could levy interest over and above 12% p.a. i.e. 15% from 1992 and 24% from 1993 was the subject-matter of a writ petition which was pending before the High Court. The appellant paid the entire amount which, according to the it, was due to the respondent. It further kept in readiness a pay order of Rs. 13,00,000/-, a copy whereof had also been filed with the review application. 24. It is, therefore, not a case where the court will have to take one stand or the other in the light of the statutory provisions. The question as to whether the extreme power of resumption and forfeiture has rightly been applied or not will depend upon the factual matrix obtaining in each case. Each case may, therefore, have to be viewed separately and no hard and fast rule can be laid down therefor. In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not. It is, therefore, manifestly clear that the order of resumption was passed without due application of mind. 11. Still further, the petitioner was never served in a proper and effective manner with any show cause notice calling upon him to pay the outstanding amount failing which, resumption proceedings would be initiated. This finding was given by a Coordinate Bench when the petitioner approached this Court against the dismissal of his appeal in default and his application for restoration of the same also having been rejected. This finding was given by a Coordinate Bench when the petitioner approached this Court against the dismissal of his appeal in default and his application for restoration of the same also having been rejected. It was categorically held by the Coordinate Bench that it was apparent from the record that at no point of time, the petitioner was heard on merits and that resumption was ordered at his back and even his appeal was rejected on technical grounds. The Coordinate Bench, vide order dated 15.10.2012 passed in CWP No.704 of 2012, titled as Satish Kumar Arya v. HUDA and another, directed the Appellate Authority to look into the merits of the case and then take a fresh decision. It was after this that the Appellate Authority examined the matter on merits and observed as under:- "I have heard the arguments of both the counsels and perused the record placed before me. The allottee had deposited 35.92% money when his property was resumed. There is no record on file to show that the Estate Officer, HUDA, Faridabad made any efforts to call the allottee or to pressurize him to make even part payments. The allottee has deposited one installment in June 2002 of which the Estate Officer had not taken any cognizance. The plot has been resumed in May 2004 in a mechanical manner on the basis of a notice under section 17(4) issued in August 2003. After the resumption order, the Estate Officer, HUDA, Faridabad has made no efforts for 10 years to evict the allottee and to take possession of HUDA property. The Estate Officer, HUDA, Faridabad has not issued any eviction order nor any effort was made to refund the amount of resumed booth. It is clear from the record that the resumption is a mere paper formality. The Estate Officer, HUDA has made no efforts to either recover the outstanding dues or the HUDA property. It has been held by the Hon'ble Punjab & Haryana High Court in CWP No.21047 of 2010 Gulab Singh v. State of Haryana that resumption is a very harsh measure and should be the last resort, when all other efforts to recover the outstanding dues have failed In the present case there have been no sincere efforts made by the Estate Officer, HUDA, Faridabad dated 26.05.2004 is hereby set aside. The Estate Officer, HUDA, Faridabad will convey the outstanding dues to the appellant within 15 days of issuance of this order. The allottee is directed to deposit all outstanding dues within 45 days of issuance of the Estate Officer outstanding dues letter otherwise the resumption will automatically be enforced " 12. A perusal of the aforesaid order shows that the Appellate Authority took cognizance of the fact that the petitioner was not a rank defaulter and had deposited 35.92% of the total sale consideration when the disputed booth was resumed. It was found that the plot had been resumed in a mechanical manner and that even after the order of resumption having been passed, no efforts were made for ten years to evict the allottee from the disputed booth nor any eviction order was issued. Under the circumstances, the Appellate Authority set aside the resumption order and directed the HUDA Authorities to convey the outstanding dues to the allottee within 15 days, whereafter, the allottee was directed to deposit the all outstanding dues within 45 days. 13. Pursuant to the aforesaid order passed by the Appellate Authority, the petitioner deposited all the outstanding dues. As per the calculations submitted by learned counsel for the respondents during the course of hearing, only a sum of Rs. 632/- is outstanding. 14. The Revisional Authority, however, set aside the appellate order stating that the Appellate Authority had erred in allowing the resumption proceedings. In the concerned opinion of this Court, the order passed by the Revisional Authority is not sustainable for the Revisional Authority did not consider the matter from the correct perspective and did not consider as to whether the resumption proceedings had been initiated and concluded in a legal manner. Still further, the Revisional Authority did not attach much importance to the fact that the entire outstanding amount had been deposited by the petitioner after his appeal was allowed and before the revision petition was filed. At the cost of repetition, it needs to be mentioned here that even at the time of resumption, 35.92% of the total sale consideration stood deposited. It cannot, therefore, be said that the petitioner was a chronic or a rank defaulter and that there was some willful default on his part. At the cost of repetition, it needs to be mentioned here that even at the time of resumption, 35.92% of the total sale consideration stood deposited. It cannot, therefore, be said that the petitioner was a chronic or a rank defaulter and that there was some willful default on his part. Nothing has been brought on record to even suggest that the petitioner had been served and heard before passing of the resumption order and the order in appeal vide which the appeal was dismissed in default. Nothing has been brought on record to even prima facie show that the appellate order dismissing the appeal in default had been conveyed to the petitioner. Still further, the possession of the disputed booth continues to be with the petitioner. 15. It needs to be noticed here that the petitioner deposited the entire outstanding amount including the entire interest, penalty etc., which in itself shows his intention. There may have been circumstances on account of which the petitioner could not deposit the outstanding amount initially but the moment he was given an opportunity to deposit the same, he duly deposited the outstanding amount. It is also worth noticing here that even in the year 2009, the petitioner had deposited a substantial amount which was however refunded to him at a subsequent stage stating that the same could not be accepted as the plot stood resumed. 16. From the totality of the facts and circumstances, this Court is of the considered opinion that the impugned order dated 16.05.2017 (Annexure P-17) is not sustainable and accordingly deserves to be set aside. In view of the settled position of law and the facts and circumstances of the case as have been discussed in the preceding paragraphs, the writ petition is allowed. The impugned order dated 16.05.2017 (Annexure P-17) is set aside and order dated 28.01.2014 (Annexure P-16) is upheld. The petitioner may deposit the outstanding amount within two weeks from today after which the respondents shall regularize the account of the petitioner.