Major Pritam Singh vs State of Haryana and Others

V.K. Bali, J.—Petitioner calls in question the order dated June 30, 1981 passed by General Officer Commanding, Headquarters, Punjab, Haryana and Himachal Pradesh Area, Ambala Cantt. (Annexure P-8) as also order dated September 8, 1982 passed by the Chief Administrator, Haryana (Annexure P-12) made where appeal carried by him against the order dated June 30, 1981 was dismissed. He further prays for a direction to be issued to respondent No. 3 to re-allot to him plot No. 225-P, Sector 12 in Panchkula Urban Estate and if that be not possible, to allot him any other plot in the said Urban Estate. Brief facts giving rise to this petition need to be briefly enumerated.

The petitioner had been serving in the Indian Army and whilst serving in 90 Field Regiment C/o 56 APO in the field area, had submitted an application through Headquarters, Punjab, Haryana and Himachal Pradesh Area in Ambala Cantt for allotment of 300 square meters plot in the Urban Estate at Panchkula. This application was filed in response to the scheme made by the Haryana Urban Development Authorities for allotment of plot in Defence Colony, Panchkula to persons serving in the armed force. As per scheme and Rules which came into being for allotment of residential plots to armed personnel, petitioner was eligible to be considered for allotment of 420 square meters plot. Copy of scheme/Rule (Annexure P-1) would show that even though an Army Officer who was holding the rank of Major was entitled to a plot of 300 square meters yet he could also be considered for allotment of 420 square meters plot depending on availability. In consequence of this application, petitioner was allotted a plot measuring 300 square meters which was a preferential plot bearing No. 225-P in Sector 12, Panchkula on additional payment of Rs. 1,973.40 P. vide allotment letter dated November 9, 1979 issued by the Estate Officer respondent No. 3. The moment petitioner received the aforesaid allotment letter and came to know that he was allotted a plot of 300 square meters which happend to be preferential plot on payment of additional money, he explained vide his letter dated November 22, 1979 (Annexure P-3) to respondent No. 3 that he had not asked for a preferential plot and also that he could be allotted a plot of 420 square meters instead of 300 square meters and, therefore, he would not like to make the additional payment as demanded. He further explained that he would be grateful if he could be allotted a residential plot of 420 square meters and be intimated the probable date of allotment so that he was in a position to make the payment without any delay. No reply was given to the petitioner, thus, constaining him to send reminders dated 15.5.1980, 27.9.1980 and 13.1.1981. Even the reminder elicited no response from the Estate Officer. Being posted at far off place, petitioner deputed one of his friends Major P. S Bains who was incidentally serving at Chandi Mandir to visit respondent No. 3 personally and find out as to what was happenings either to the plot that was allotted to him or his request for allotment of 420 square meters plot that he had conveyed to the Estate Officer vide his letter dated November 22, 1979. On enquiries, Major P. S. Bains came to know that plot No. 225-P in Sector 12 still stood in the name of the petitioner and on the request made by him for allotment of plot of bigger size, no orders have been passed. In the circumstances aforesaid, the petitioner accepting the allotment of plot bearing No. 225-P in Sector 12 sent a Bank Draft for an amount of Rs. 5,830.27 P, in favour of the Estate Officer alongwith covering letter dated February 16, 1981. This amount was received by the Estate officer on February 24, 1981. The petitioner thereafter addressed letters on March 31, 1981 and April 7, 1981 asking the Estate Officer to inform him the balance amount that was required to be paid by him but he received no reply. Ft is only on June 30, 1981 that the petitioner came to know from respondent No. 4 i.e. General Officer Commanding that the plot bearing No. 225-P allotted to him has since been cancelled and the same has instead been allotted to one Major P. S. Bajwa. Petitioner thereafter sent some letters to the Estate Officer but no reply was received at his end. He carried an appeal against the order, referred to above, before the Chief Administrator which did not find favour with the said authorities and was dismissed vide order dated September 8, 1982. The case of petitioner, thus, is that the allotment of plot in question could not be cancelled for the reason that he had paid all the instalments that were due on February 24, 1981 and after accepting all the payments, it was not open to the respondent-authorities to cancel the allotment made in his favour. No order on receipt of his explanatory letter for cancellation of plot allotted to him was passed by the Estate Officer and that the petitioner had neither been served with any notice nor he was afforded any opportunity to be heard by the Estate Officer before issuance of the impugned order dated June 30, 1981. He further contends that the impugned orders were unjust and unfair and were the result of complete failure on the part of the authorities to appreciate the facts that the petitioner was not defaulter in the payment of any instalment on the date of cancellation of allotment by the Estate Officer.

This petition has been contested. On the preliminary objections raised by the respondents that an alternative remedy was available, the petition in the first instance was dismissed by this Court on August 1, 1983. However, when the respondent-authorities themselves realised that no alternative remedy was available u/s 30 of the Haryana Urban Development Authority Act, a request was made to reopen the case and the Writ Petition was admitted to a regular hearing. In the written statement as also in the additional affidavit filed by the respondents, it has been mainly contended that whereas 10% of the total tentative price was required to be paid at the time of making application, 15% of the total consideration was necessarily to be paid within 30 days from the date of allotment of plot. Once 15% of the total amount was not paid within the stipulated time, it involved automatic cancellation of plot. In any case, it is averred in the written statement that the petitioner himself asked for cancellation of the plot that was allotted to him and it is too late in the day for him to ask either for the restoration of the said plot or an alternative plot in lieu thereof.

After hearing the learned counsel for the parties, I am of the view that this petition deserves to succeed.

It would be seen from the Rules for allotment of plots (Annexure P-l) that a person holding the rank of a Major could also be considered for allotment of 420 square meters plot depending upon availability. The petitioner although was not a Major when he applied for allotment of the plot but had since been promoted to the post of Major when the allotment was actually made. It is also made out from the records of the case that the petitioner had not applied for a preferential plot. When the petitioner received the letter of allotment dated November 9, 1979, he addressed a letter to the Estate Officer wherein he pointed out that he was entitled, as per his eligibility, to a plot measuring 420 square meters instead of 300 square meters, and also a sum of Rs. 1,973.40 p. were demanded on account of plot being a preferential one and that he had never requested for a preferential plot. It is true that while pointing out the facts mentioned above, he expressed that he would not like to make the payment as mentioned in para 5 of the allotment order but at the same time he made a request for allotment of residential plot measuring 420 square meters and to intimate him the probable date of allotment so that he was in a position to make the payment without any delay. This clarificatory letter of his could not be treated to be a letter refusing to accept the allotment made to him vide letter dated November 9, 1979. It is not only that after reading the letter aforesaid, I am of this view, but even the respondents thought so he would be presently discussed. The conditions of allotment letter and in particular clause 4 would show that in case of refusal to accept the allotment, the allotted had to communicate his refusal by registered letter within 30 days of the date of allotment letter failing which the allotment was to be cancelled or treated to have been cancelled and the earnest money deposited by the allotted forfeited. It is this clause which is pressed into service to deny the relief to the petitioner and to contend that it was a case of automatic cancellation of allotment. I am, however, of the view that if the clarificatory letter of the petitioner was to be treated as refusal to accept the allotment then the same being admittedly within 30 days from the date of allotment letter, the respondent-authorities were bound to return the earnest money already deposited by the petitioner. It is only on the failure of the allotted to communicate refusal within 30 days that the earnest money is to be forfeited. Admittedly, at no relevant time, the order with regard to forfeiture of the earnest money was passed nor the said amount was ever returned to the petitioner. It is, thus, clear that the respondent-authorities themselves had not been treating the letter, reference of which has been given above, as amounting to refusal to accept the allotment.. The aforesaid clause also cannot stand in the way of the petitioner for getting the relief that he Las prayed for. Further, it would be seen from the records of the case that at no given time, a notice for cancellation of allotment was ever given to the petitioner. On my repeated asking the counsel appearing for the respondent-authorities and even adjourning the matter for that reason, no order vide which the plot in the name of petitioner might have been cancelled was brought to my notice. In fact, when the case was last heard and judgment reserved the learned counsel for the respondents candidly admitted that there was no order cancelling the allotment in favour of the petitioner. If clause 4 of the allotment order is not applicable to the facts of the present case, then the respondent-authorities were duty bound to comply with the provisions of section 17 of the Haryana Urban Development Authority Act of 1977 which admittedly enjoin upon them to issue a show cause notice before order for cancellation can be passed. The matter does not end there. The records of the case further reveal that the petitioner had sent an amount of Rs. 5,830.27 p. on February 16, 1981 and the same was accepted vide receipt dated February 24, 1981. Admittedly by the time the aforesaid amount was paid and received, the petitioner had not been communicated the decision with regard to cancellation of plot by the Mukhyalaya Headquarters, Ambala Cantt. and the said intimation was sent to the petitioner on June 30, 1981. The respondent-authorities, thus, accepted the amount remitted by the petitioner which was towards 15% of the total amount which the petitioner was required to send within 30 days from the date of receipt of allotment letter as also towards one instalment that had become due by then, without demur. As has been mentioned above, there is no order cancelling the plot and Annexure P-8 which is only a communication by the Mukhyalaya Headquarters, Ambala Cantt. to the Estate Officer with copy to the petitioner cannot be treated an order of cancellation. The interim orders passed at the time of motion hearing would also depict that the Bench wanted to see the order of cancellation of the plot but instead of producing the same even at that stage, only an additional affidavit was filed which contains English translation of some proceedings of cancellation order dated May 20, 1980. In the additional affidavit, nothing at all has been mentioned as to how the aforesaid proceedings came into being and between whom all the said proceedings were conducted. No head and tail is made of anything whatsoever from the reeding of English translation of the proceedings referred to above.

The aforesaid facts would clearly make out that it is essentially a dispute between a plot seeker who, in the present case, happens to be an officer from the armed forces and H.U.D.A. relating to belated payment of essential 15% of the value of the plot in the first instance.. The respondent-authorities were not at all justified to treat the allotment as having been cancelled on applicability of clause 4 of the allotment order. I have already said in the earlier part of judgment that clause 4 of the allotment letter, in the facts and circumstances of the present case is wholly in applicable. Further it is now too late for the respondents to contend that 15% of the cost of plot was not deposited in time.

Having regard to the facts and circumstances of this case and equities involved, I think it to be a fit in which the plot should be restored to the petitioner and the allotment be regularised in his favour but unfortunately the plot allotted to the petitioner has since been given to respondent No. 5 who is stated to have made a double storeyed building thereon. The petitioner, in the circumstances aforesaid, cannot be restored the same plot but the facts and circumstances of this case would need a direction to be issued to the respondent-authorities to allot a plot of 300 square meters to the petitioner in Defence Colony and if some how all plots in the said Defence Colony of Panchkula have since been allotted then to allot him plot of the same dimension in any of the Sectors in the Urban Estate of Panchkula within two months from today. The allotment would be made to the petitioner on the rates on which he was allotted the plot on November 9, 1979. The respondent-authorities would be entitled to charge 6% interest from the petitioner on the delayed payments upon the time when the petitioner not only deposited 15% of the total tentative value of the plot but also the first instalments. Thereafter, it is only on account of the fault of the respondents that no further instalment was deposited by the petitioner and, therefore, no interest would be charged on the remaining instalments. However, the petitioner would be bound to pay the entire amount that has become due by now towards all the instalments as also 6% interest in the manner and for the period indicated above within one month from today. There shall, however, be no order as to costs.