Ram Piari vs The State of Haryana and Others

R.S. Mongia, J.—The petitioner was allotted Plot No. 601 Sector 16, Faridabad, measuring 250 Sq. Yards, vide letter dated !7th November. 1968, by the Haryana Urban Development Authority, Faridabad (In short HUDA) She had deposited Rs. 625/- towards part consideration of the price of the plot along with the application at the time of applying for the allotment of the plot. After the allotment, a further sum of Rs. 938/- was deposited to complete 25% of the total price of the plot. The total price of the plot was Rs. 6250/ . According to the terms of allotment, the remaining price of the plot was required to be paid in 6 equated yearly instalments, including interest at the rate of 7%. According to the averments made in the petition, the petitioner had deposited the entire price, of the plot with interest within the stipulated period.

A letter dated 7th August, 1975, was sent by the Estate Officer, HUDA to the petitioner requiring her to pay enhanced price of the plot to the tune of Rs. 1242 42. The petitioner deposited a sum of Rs. 425/- on 5th September, 1975 through a Bank draft. A notice was issued by the Estate Officer u/s 10(2) of the Punjab Urban Estates (Development and Regulation) Act, 1964 (As applicable to Haryana), (hereinafter referred to as the Act), on 13th November, 1975, stating therein that as an amount of Rs. 817.50 towards the enhanced price had not been deposited, a penalty of Rs. 81/- was imposed upon the petitioner and the petitioner was made liable to pay Rs. 898.50 Another notice was issued u/s 100) of the Act on 2nd December, 1975, calling upon the petitioner to show cause within a period of 0 days as to why the plot in question should not be resumed and the amount already deposited towards the price of the plot be not forfieled on the ground that the petitioner had failed to deposit Rs. 898.50. The petitioner on receipt of the notice, deposited Rs. 400/- on 5th January, 1976 through a Bank draft. While sending the draft of Rs. 400/- she had requested that the remaining amount be allowed to be deposited in the month of March, 1976, as due to removal of Khokas, her husband was with- out any work and she was not in a position to deposit the rest of the money immediately. A letter was written on 8th March, 1976, by the Estate Officer stating that the remaining amount of Rs. 417-50 be deposited before 15th March, 1976, failing which the plot of the petitioner would bs resumed and the amount already paid would be forfeited. Instead of depositing the money by 15th March, 1976, the balance was deposited by the petitioner on 19th July, 1976 through Bank draft, which was duly encashed by the Authorities. However, it has been stated in the petition that the petitioner came to know later on that the plot stood resumed vide order dated 19th June, 1976, though the said order was never communicated to the petitioner. In the year 198, the petitioner again received a letter requiring her to pay further amount of Rs. 435/- towards the second enhanced price of the plot. This letter was written on 22nd October, 1980, asking the petitioner to deposit the amount within one month, failing which interest at the rate of 10% would be charged. An amount of Rs. 470/- through Bank draft was remitted on 9th April, 1981. It was on 20th April, 1981, that a letter was written to the petitioner by the Estate Officer that the allotment of the plot to the petitioner stood cancelled vide order dated 19;h June, 1976 and the letter sent to the petitioner on 22nd October, 1980 should be treated as cancelled. Further, to get refund of Rs. 460/- which had already been sent to the Estate Officer, she was required to sign the form sent along with the letter of the Estate Officer. According to the petitioner, it was from this letter of the Estate Officer, dated 20th April, 1981 that she learnt about the cancellation of the allotment of the plot on 19th June, 1976.

The petitioner filed an appeal before the Chief Administrator, Faridabad, against the order of cancellation dated 19th June, 1976 (Annexure P. 6), but the same was dismissed as time barred vide order dated 19th August, 1981 (Annexure P-8) The present writ petition has been filed against the order of resumption, Annexure P-6 and the order of the Chief Anministrator, rejecting the appeal, Annexure P-8.

The learned counsel for the petitioner submitted that the entire initial price of the plot stood paid, and therefore, the petitioner was entitled to immediate delivery of possession The delivery of possession did not depead upon the payment of the enhanced price, which was intimated after the initial entire price had been paid. The counsel submitted that there was delay of about four months in depositing Rs. 417-50 towards the enhanced price of Rs. 1242.42 and that too stood condoned when on 22nd October, 1980, the petitioner was asked to pay another sum of Rs. 435/- towards the enhanced price, which was duly paid within the stipulated period. According to the learned counsel, the respondents could claim only some interest on the delayed payment of Rs. 417-50 for about four months, but in no case the plot could be resumed Further, it is the case of the petitioner that no resumption order was ever conveyed to her, which will be apparent from the fact that the Bank draft of Rs. 417-50 sent on I9th July, 1976 was duly encashed by the respondents and further oh 22nd October, 1980, she was asked to pay another sum of Rs. 435/- towards second enhanced price It was also argued that the Appellate Authority erred in dismissing the appeal as time-barred.

The learned counsel for the petitioner also argued that the resumption could only be ordered in extreme cases as a last resort after talcing into consideration circumstances of each case. He cited a Division Bench case of this Court reported as Jaswant Singh v. Chandigarh Administration, 1992 P.L.J. 522. The petitioner''s counsel also submitted that under the Act, the entire amount could not be forfeited in case of resumption. At the most 10% of the price paid could be forfeited u/s 10(3) of the Act, as amended upto-date

The learned counsel for the respondents, on the other hand, had submitted that the Estate Officer was within its right to resume the plot in case of default of payment. However, he did not contest that the entire amount could not be forfeited.

After hearing the learned counsel for the parties, I am of the view that the petitioner is entitled to succeed In this case, the entire initial price fixed had been paid by the petitioner and the petitioner, was entitled to take possession. However, in August, 1975, the petitioner was informed of the enhancement in the price to the tune of Rs. 1242.42. Out of this enhanced amount, only Rs. 417-50 was deposited late by about 4 months. Apart from the fact that there was only a slight delay in the payment of a very small amount, the same can be deemed to have been overlooked and condoned as the amount was accepted and encashed and even later on the petitioner was asked to pay the second enhanced amount in the year 1980, which was also duly deposited by the petitioner. Even if technically there was some delay in payment of a small amount, the resumption of plot, which is an extreme and last step to be taken, could not have been resorted to on the facts of the present case. The facts and circumstances of the case suggest that there was no earlier default in the payment of any instalment and it was the first default and that too of a very small sum, which had been deposited four months late It has been held by the D B of this Court in Jaswant Singh''s case (supra) that in spite of notices having been issued the allottee unable to make arrangement for payment of instalments--per se not enough to take extreme step of resuming the site. It is to be ordered in extreme cases and that too after taking into consideration all the facts. According to me, this was not one of those extreme cases in which resumption should have been ordered.

It has been stated in the petition that the plot in dispute had been allotted to Respondent No. 4 Shri Islam Udin The learned counsel for the petitioner has stated that the said respondent is not traceable, inasmuch as when the notices were sent to him through this Court, the service could not be effected, as it was stated that no such person is living there and he was served through publication in a Newspaper. According to the learned counsel, there is no such person of the name of Islam Udin and the possession had not been delivered to anybody as the Admitting Bench had ordered status quo regarding possession

For the foregoing reasons, I allow this writ petition and quash the order of resumpcion, dated 19th June, 1975 (Annexure P-6), as well as the Appellate order dated 19th August, 1981 (Annexure P-8), and direct the respondents to deliver the possession of the plot in question to the petitioner. If the said plot has been allotted to anybody and also the physical possession has been handed over to any such allottee, in that eventuality the petitioner be given an alternate plot of equivalent size in Faridabad. I make no order as to costs.