Haryana Urban Development Authority vs The Financial Commissioner and Another

Satish Kumar Mittal, J.—The instant writ petition has been filed by the Haryana Urban Development Authority (hereinafter referred to as the HUDA'') against orders dated 03.04.2012 (Annexure P-9) and dated 01.05.2012 (Annexure R2/1). Vide order dated 03.04.2012, the plot allotted to respondent No. 2 has been restored by passing the following order:--

In this case, initial payment of 10% was made on 3.11.2006 for an amount of Rs. 1,26,000/-. Further an amount of Rs. 1,56,228/- was paid on 5.11.2007, Rs. 2,26,531 on 10.11.2008 and Rs. 3,00,000/- on 11.5.2009. HUDA for the first time refunded the amount on 30.07.2009 which means the payments made in the year 2007-08 were duly accepted and no action was taken by HUDA to refund those amounts. It is only on depositing of Rs. 3,00,000/- on 11.5.2009, HUDA swung into action to refund the amount on 30.07.2009. The amounts having been accepted establishes that delay in making the payment is deemed to have been regularized, in view of the judgments cited by the petitioner. The plot is allowed to be restored with the condition that the petitioner will pay a penalty of Rs. 1.00 lac in addition to the amount that has fallen due till date. The penalty is imposed on account of non-payment of 15% amount in time. Let the due amount be calculated by E.O. HUDA, Panchkula within a period of next fifteen days and intimated to the petitioner. The Petitioner may bring a draft of the due amount along with penalty of Rs. 1.00 lac on the adjourned date of hearing which is fixed as 01.05.2012.

On 01.05.2012, the revisional authority passed the following orders:--

The petitioner in this case had deposited an amount of Rs. 12,87,000/- and claimed that the amount which was due towards this plot as on date has been paid. The photocopy of the receipt dated 17.04.2012 is taken on record. The petitioner further stated that one installment is still due to be paid in November, 2012. The amount having been paid in terms of the order passed on the last date of hearing, the plot is restored to the petitioner. The petitioner is further directed to ensure timely payment of the installment falling due in November, 2012 along with any other due amount. With this direction, the petition is disposed off.

In this case, in a draw of lots, respondent No. 2 was successful and, vide allotment letter dated 03.11.2006 (Annexure P-1), was allotted a residential plot bearing No. 708, Sector 27, Urban Estate, Panchkula, (hereinafter referred to as the plot in question'') for a total consideration of Rs. 12,49,820/-. Rs. 1,24,982/-, being 10% of the total sale consideration, was already paid by respondent No. 2 as earnest money along with the application form on 20.10.2006. 15% amount, which comes to Rs. 1,87,473/-, was to be paid by respondent No. 2 within 30 days from the date of issuance of the allotment letter. The remaining 75% amount, together with interest @ 9% per annum, was to be paid in six yearly installments. The last installment of Rs. 1,56,228/- was payable on 03.11.2012.

The 15% amount, which was to be paid within 30 days from the date of issuance of allotment letter, i.e., by 02.12.2006, was not paid by respondent No. 2 within the stipulated time. Respondent No. 2 paid, first installment of Rs. 1,56,288/- on 05.11.2007, second installment of Rs. 2,26,531 on 10.11.2008 and the third installment of Rs. 3,00,000/- on 11.05.2009. These payments were accepted by the HUDA. Till that time, i.e., 11.05.2009, when all the three installments were paid and were accepted by the HUDA, no action was taken against respondent No. 2 for cancellation of the plot, in terms of condition No. 5 of the allotment letter for not depositing 15% amount of the sale consideration. However, on 30.07.2009, the Estate Officer, HUDA, Panchkula, passed an order of cancellation of allotment (Annexure P-2) of the plot, in question, on the ground that 15% amount, i.e., Rs. 1,87,473/-, was not paid within the stipulated time, i.e., by 02.12.2006, and, by deducting 10% amount of the total sale consideration, the remaining amount of Rs. 6,82,759/- was ordered to be refunded to respondent No. 2. By that time, respondent No. 2 had already paid Rs. 8,07,741/-.

Feeling aggrieved against the order dated 30.07.2009 (Annexure P-2), respondent No. 2 filed appeal before the Administrator, HUDA, Panchkula, which was dismissed by the Appellate Authority, vide order dated 17.03.2011 (Annexure P-6), being not maintainable.

Against the order dated 17.03.2011 (Annexure P-6), respondent No. 2 filed a revision petition before the Financial Commissioner and Principal Secretary, Town and Country Planning and Urban Estates, Haryana, Chandigarh (for short as ''the FCTCP''), which was allowed by the revisional authority, vide impugned orders dated 03.04.2012 and 01.05.2012, which stand already quoted at the outset of this order.

Vide order dated 03.04.2012, the Estate Officer, HUDA, Panchkula, was directed to calculate the amount payable by respondent No. 2 towards the plot, in question, within a period of 15 days and to intimate the same to her. As per the calculation made by the Estate Officer, the petitioner-HUDA raised a demand of an amount of Rs. 12,87,000/-, which was duly paid by respondent No. 2 on 17.04.2012. It led to passing of order dated 01.05.2012. The said amount, i.e., Rs. 12,87,000/- included the payment of penalty of Rs. 1,00,000/- and the interest. Vide order dated 01.05.2012, respondent No. 2 was also asked to pay the last instalment falling due on 03.11.2012, which she had intended to pay within time. It is an admitted position that even the last instalment was paid on 17.10.2012 and after making the said payment, nothing was due against the second respondent. It may also be added that respondent No. 2 paid 3rd annual instalment of Rs. 3,00,000/- on 11.05.2009 though it fell due on 03.11.2009, which shows bona fide, concerns and engagement of 2nd respondent that she never intended to make default of annual instalments.

After accepting all these amounts, the HUDA decided to challenge the order dated 03.04.2012 (Annexure P-9) and order dated 01.05.2012 (Annexure R2/1) passed by the FCTCP and consequently, the instant writ petition has been filed on 10.01.2013.

It is the contention of the petitioner that the FCTCP has committed grave illegality while restoring the plot, in question, to respondent No. 2 on payment of the entire amount with penalty of Rs. 1,00,000/- and interest. It has also been argued that the revisional authority had no jurisdiction to set aside the order of cancellation of plot and forfeiture of the 10% amount.

However, during the course of arguments it has not been disputed that as on date no payment is due from respondent No. 2 as she has paid the entire amount, along with penalty and interest.

We have heard learned counsel for the parties and have gone through the record of the case.

After hearing learned counsel for the parties, we are of the opinion that in the present case, the HUDA, after accepting the entire amount in terms of the impugned order, has decided to file this writ petition contrary to many instances, wherein, in spite of the fact that the orders of resumption/cancellation, were set aside by the appellate/revisional authority after many years, the HUDA has accepted the payment of entire outstanding amounts and restored the plots to the allottees. Even otherwise, while passing the order of cancellation, the Estate Officer, HUDA, Panchkula, completely ignored the various instructions issued by the HUDA, permitting extension of time for payment of 15% of the premium amount. Extension of time for payment of 15% of premium amount could have been granted upto one year or even beyond one year by the authority concerned in view of instructions dated 03.08.2007.

In the present case when order of cancellation was passed on 30.07.2009 (Annexure P-2) by the Estate Officer, the HUDA had already accepted the amount of Rs. 8,07,741/- from respondent No. 2 towards the annual installment of the plot which includes 10% of the sale price of the plot in question, whereas the 15% amount comes to Rs. 1,87,473/- only. The Estate Officer has completely overlooked this fact while passing the order. As aforesaid, even if the payment of 15% was not paid within 30 days, the HUDA instructions/policies clearly provide that the stipulated period to deposit 15% amount can be extended even beyond one year.

Learned senior counsel appearing for the petitioner-HUDA argues that the second respondent did not make a request for extension of time; she did not deposit the amounts with the HUDA and, instead, deposited the same directly in the bank account of the HUDA; and that 15% amount having not been paid within the stipulated time, there was no concluded contract between 2nd respondent and the HUDA, and that being so, Section 17 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as ''the Act'') has no application to the case, in hand. He also relies upon Chaman Lal Singhal Vs. Haryana Urban Development Authority and Others, , and Smt. Sushma Bakshi @ Susham Bakshi v. Haryana Urban Development Authority and another, CWP No. 13278 of 2011, decided on 16.07.2012 to support his aforesaid contention that the 2nd respondent having failed to deposit 15% of the amount of premium within 30 days, Section 17 of the Act has no application to the case in hand.

However, it has not been disputed that the huge amounts paid in the years 2007, 2008 and 2009 by respondent No. 2 towards the cost of the plot were accepted by the HUDA without any objection and reservation and these were ordered to be refunded on 30.07.2009 by passing the order of cancellation of the plot, in question. This shows how unreasonable the HUDA has been and that it wants to defeat the legitimate decision of the FCTCP on technical grounds, viz., no request for extension was made to the HUDA and that amount was deposited by respondent No. 2 directly in the bank account of the HUDA. However, it has not been stated anywhere in the petition that the HUDA did not have the knowledge of deposit of these amounts and, as such, no such argument can be accepted. It, thus, comes out that the Estate Officer, while passing the order of cancellation, has acted arbitrarily and contrary to the HUDA instructions.

The appeal filed by the 2nd respondent was held to be not maintainable but the revisional authority entertained the revision. Objection with regard non-maintainability of the revision was not pressed before the revisional authority. Even otherwise, the Hon''ble Supreme Court in Chaman Lal Singhal v. Haryana Urban Development Authority and others (supra) though has held that if the case of an allottee comes within the ambit of Clause 5 of the allotment letter, the provisions of Section 17 of the Act, would not be applicable but has also observed that the Chairman has power to condone the delay beyond the period prescribed under the instructions, if he is satisfied that the allottee failed to deposit 15% of the amount due to the reasons which were beyond his control. It has been further observed that the revisional authority while disposing of the revision petition can also grant such a liberty to the applicant to approach the appropriate authority with similar request. The revisional authority, in the facts and circumstances of the present case, passed the order dated 03.04.2012 and thereafter, the case was adjourned. The HUDA did not challenge that order and, instead, submitted to the jurisdiction of that authority and on the next date accepted the amount which was tendered in the Court. It, thus, comes out that in the present case huge payment was made by the 2nd respondent which was duly accepted by the HUDA before the cancellation of allotment of the plot and, thereafter, entire balance payment has been made by 2nd respondent. In our opinion, no illegality has been committed by the revisional authority, rather, in view of the facts and circumstances of the case, a just order has been passed, which does not require interference, particularly, at the instance of the HUDA, which, in many cases, has itself acted arbitrarily and has passed discriminatory orders.

During the course of hearing, in a separate case bearing CWP No. 13228 of 2011, a list of more than 25 cases has been filed, wherein orders of cancellation were set aside, and plots were restored either by the Administrator or by FCTCP even after lapse of more than ten years though those restorations are contrary to the rules and regulations. In some cases, even the restorations were made after more than 10 years of the order of resumption but the HUDA did neither file any appeal or revision against those orders, nor challenged the same by way of writ petitions. Generally, it appears that the HUDA is acting discriminately and challenges the orders, where it so likes to challenge them to harass people whereas in other similar cases it does not challenge the orders.

In the instant case, the revisional authority after taking a reasonable and just decision, has restored the plot vide order dated 01.05.2012, which has been challenged by the HUDA in the instant writ petition on technical grounds, whereas in other similarly situated cases it has not challenged such orders. This discriminatory attitude of the HUDA is deprecated. Hence, once a just and fair order has been passed by an authority, we are not inclined to interfere, in the writ jurisdiction, to set aside the said order. Hence, this writ petition is dismissed, with Rs. 25,000/- as costs to be deposited with the Haryana State Legal Services Authority.