Shiv Saran Kashyap vs The State of Haryana and Others

Permod Kohli, J.—In all the three writ petitions, orders dated 12.8.2009 are under challenge. Though there are separate impunged orders

of the even date, however, the basis for these orders is common. These petitions are accordingly disposed of by this common order.

Shopping Booths were allotted in the District Shopping Centre, Urban Estate, Jind Haryana vide allotment letters dated 31.1.1991 on the basis

of open auction. The costs of the plots are different in different cases. The Petitioners deposited 10% earnest money at the time of allotment.

Under the terms and conditions of the allotment letter 15% of the consideration amount was to be deposited within 30 days from the issue of the

allotment letter. It is stated that 15% of the amount was deposited within the prescribed time. However, the entire balance amount could not be

deposited by the Petitioners in terms of the allotment letter. It is alleged that the Petitioners visited the Office of the Estate Officer, HUDA in the

year 2006 and they came to know that the plots have been resumed. In CWP No. 17171 of 2009, plot was resumed on 13.2.2001. The

Petitioners preferred appeals against the orders of resumption before Respondent No. 3. The appeals filed by the Petitioners against the ex-parte

resumption orders came to be accepted. Petitioners were asked to deposit all pending dues with interest, penalty etc. within one month alongwith

fine of Rs. 5000/- within 15 days from the intimation by the Estate Officer, HUDA. The Petitioners were informed of the amount due by the Estate

Officer, HUDA in writing and had asked the Petitioners to deposit the amount within 15 days. It is accepted case of the parties that the Petitioners

deposited the outstanding amount alongwith interest and penalty etc. within the prescribed time. After accepting the outstanding amount from the

Petitioner, the Estate Officer, HUDA, Jind filed revision petition before the Financial Commissioner and Principal Secretary to Government of

Haryana Town and Country Planning department challenging the orders of the Administrator, HUDA passed in appeals. The revisional authority

has allowed the revisions and set aside the orders passed by the appellate authority only on the ground of limitation. It has been observed that the

appeals have been filed after abnormally a long period of six years from the date of resumption and thus appeals have been held to be barred by

time. Revision Petitions have been accepted. Orders of the reviewing authority have been challenged in these writ petitions.

One of the contentions of the Petitioners is that the order of resumption was ex-parte order. No notice was served upon the Petitioners as

required under law. It is argued that the Estate Officer should have resorted to substituted service prescribed in Clause 3 of Section 42(3) of the

HUDA Act, 1977 and since the orders have been passed at the back of the Petitioners, the order of resumption was violative of the principles of

natural justice. It is accordingly contended that the appellate authority is justified in accepting the appeals. The Petitioners have also stated that the

period of limitation commences from the date of knowledge in the present case and not from the date of passing of the resumption order and thus,

the appeals were within time. One of the contentions of the Petitioners is that there was absolutely no development, even roads were not

constructed, nor possession delivered to the Petitioners. Hence they were under no obligation to deposit the entire amount during the prescribed

time. The Petitioners have placed on record photographs showing that the area is water logged and there is absolutely no development, though

some structures are existing. In the reply filed by the Respondents, the allegations are denied. It is stated that the development in the area was

completed on 15.9.1998. Offer of possession was also made in the year 1998 and letters were sent to the Petitioners through registered posts.

Respondents have also placed on record copy of the dispatch register containing the entries of dispatch of the letters. It is further stated that

notices u/s 17(2), 17(3), 17(4) were issued, but the Petitioners did not respond, forcing the Respondents to pass the order of resumption.

It is contended on behalf of the Petitioners that the Petitioners having complied with the directions of the appellate authority by depositing the

amount, it was not open to the Estate Officer to have filed the revision petition. A Division Bench of this Court in the case of Ajay Singh Mann v.

State of Haryana and Ors. 2009 153 PLR 742 while considering the question of resumption of plot on default in payment of the instalments,

observed as under:

It has been repeatedly held by the Courts that the power of resumption/cancellation of plots, houses, commercial and industrial sites etc. should

be exercised only as a last resort. A Full Bench of this Court in the case of Ram Dass Vs. Sukhdev Kaur and Another, , has categorically laid

down that the power of resumption is ultimate civil sanction and must, therefore, be used as a weapon of last resort. Inevitably it should be used

with great caution and circumspection because in a sense the individualistic property rights have to give way to larger public purpose of planned

and regulated urbanisation (See paras 86 & 87 of the judgment).

The view taken by the Full Bench of this Court in Ram Puri''s case (supra) has been approved by Hon''ble the Supreme Court in the case of Teri

Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, . Hon''ble the Supreme Court discussed the doctrine of proportionality in its historical

perspective (paras 40 to 53) and referred to various facets of the aforementioned doctrine''. It has been held that the Court has to see that the

legislature and the administrative authority maintain a proper balance between the adverse effects, which the legislation or the administrative order

may have on the rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve. It also been concluded

that every case has to be examined on its own facts.

In the case of Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, , Hon''ble Supreme Court further held that the drastic power of

resumption is to be used only as a last resort in a rarest case where the allottee has no intention at all to pay. To the contrary, learned Counsel for

Respondents has referred to a judgment of the Hon''ble Supreme Court in the case of Haryana Urban Development Authority and Anr. v.

Roochira Ceramics and Anr. wherein it has been held that High Court can only examine the procedure of correctness. It is accordingly argued on

behalf of the Respondents that the revisional authority having passed the order, it is not open for this Court to examine the validity of the order of

the revisional authority.

I have heard learned Counsel for the parties. It is now a settled proposition of law that the power of resumption should be the last resort and

should be resorted to only in case of an allottee is unwilling to pay or unable to pay. The Petitioners had deposited 25% of the amount within the

stipulated period, though the balance could not be paid within the prescribed time. The appeals filed by the Petitioners against the orders of

resumption came to be accepted by the appellate authority who is none else than the Administrator, HUDA. The appellate authority, on

consideration of respective contentions of the parties directed the Petitioners (Appellants therein) to pay the amount within a period of 15 days

alongwith interest.

The Estate Officer implemented the order of the Appellate Authority and issued written communication to the Petitioners to deposit the outstanding

amount within 15 days. It is admitted case of the parties that the Petitioners deposited the amount worked out by the Estate Officer within the

prescribed time of 15 days from the date of receipt of the memo for deposit of the amount. It is only after the amount was received by the Estate

Officer that he filed revision petition before the revisional authority and pleaded that the appeals were filed beyond the prescribed time. The action

of the Estate Officer, HUDA is totally illegal and unwarranted. After having implemented the order of the Appellate Authority and receiving the

amount from the Petitioners, it was not open to the Estate Officer to have challenged the order of the appellate authority by invoking revisional

jurisdiction. By communicating the amount payable to the Petitioners and accepting the amount, the Estate Officer in fact acquiesced to the right of

the Petitioners and estopped himself from challenging the orders of the Appellate Authority. Revisional authority has totally ignored this aspect of

the matter.

In addition to this, the Revisional Authority has simply allowed the revision petition on the ground that the appeal was barred by time. It did not

record any finding on the merits of the controversy. I am of the considered opinion that the orders of revisional authority impugned in these

petitions are liable to be set aside firstly because the revision was not competent after the implementation of the judgment of the appellate authority

and secondly the resumption being the last resort, at least one opportunity to deposit the outstanding amount was to be provided to the Petitioners

which opportunity was provided by the appellate authority. The Petitioners deposited the entire outstanding amount along with interest and penalty.

The amount was accepted by the Estate Officer, without any reservation or rider.

These writ petitions are accordingly allowed. Orders dated 12.8.2009 passed by the revisional authority impugned in these petitions are hereby set

aside. Respondents shall hand over the possession of the booths to the Petitioners within a period of one month from the date a certified copy of

this order is received by the competent authority. Copy of this order be placed on record of each concerned file.