Smt. Vijay Garg vs Haryana Urban Development Authority

G.S. Singhvi, J.—Whether the respondents are bound to accept the surrender of the commercial site which was allotted to the petitioners in 1989 in accordance with the provisions of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as the Act) read with the Haryana Urban Development Authority (Disposal of Land and Buildings) Regula tions, 1978 (hereinafter referred to as ''the Regulations'') and refund the entire amount deposited by them is the question which arises for adjudication in this petition.

It has been averred in the writ petition that on the basis of the highest bid of Rs. 7,06,000/- given by them in [he open auction held by the Haryana Urban Development Authority (H.U.D.A.) commercial plot No. SB-152, Sector 17, Panchkula was allotted to the petitioners. The terms and conditions of the allotment are incorporated in the memo dated 28.9.1989 (Annexure P.I), issued by the Estate Officer, HUDA, Panckhula (respondent No. 2). Clauses 2, 3, 4, 5, 8, 9 and 16 of the said memo, which have bearing on the claim of the petitioners, read as under :

"2. Your bid for plot/building No. 152 in Sector 17 at Panchkula has been accepted and the plot/building as detailed below, has been allotted to you on free hold basis as per the following terms and conditions and subject to the provisions of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as the Act) and the rules/regulations applicable thereunder and as amended from time to time including terms and conditions as already announced at the time of auction and accepted by you.

Sector No.

Name of Urban area

Plot/building

Appr. dimension /description as notified at the time of auction

Area in sq. mts.

Price of plot/bl dg.

17

Panch kula

152

550 x 13.75

75.6

7,06,000/-

+ 3. The sum of Rs. 71,000/- deposited by you as bid money at the time of bid will be adjusted against the plot/building.

You are requested to remit Rs. 1,05,500/- in order to make the 25% price of the said plot/building within 30 days from the date of issuing of this letter. The payment shall be made by a Bank draft payable to the Estate Officer, HUDA, Panchkula, and drawn on any scheduled bank at Panchkula. In case of failure to deposit the same amount within the above specified period, the allotment shall be cancelled and the deposit of 10% bid money deposited at the time of bid shall stand forfeited to the authority against which you shall have no claim for damages.

The balance amount i.e. Rs. 5,29,500/- of the above price of the-plot/building can be paid in lump sum without interest within 60 days from the date of issue of the allotment letter or in 8 half/annual instalment. The first instalment will fall due after the expiry of six months/one year of the date of issue of this letter. Each instalment would be recoverable together with interest on the balance price at 10% interest on the remaining amount.

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In case the instalment is not paid by the 10th of the month following the month in which it falls due, the Estate Officer shall proceed to take action for imposition of penalty and resumption of plot in accordance with the provisions of Section 17 of the Act.

In the event of breach of any other condition of transfer the Estate Officer may resume the land in accordance with the provisions of Section 17 of the Act.

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You will have to complete the construction within two years of the date of offer of possession after getting the plans of the proposed building approved from the competent authority in accordance with the regulations governing the erection of buildings. This time limit is extendable by the Estate Officer, if he is satisfied that non-construction of the building was due to reason beyond your control, otherwise this plot is liable to be resumed and the whole or part of the money paid, if any, in respect of it forfeited in accordance with the provisions of the said Act. You shall not erect any building or make any alteration/addition without prior permission of the Estate Officer. No fragmentation of any land or building shall be permitted."

In terms of Clauses 4 and 5 of the allotment letter, the petitioners were required to remit Rs 1,05,500/- in order to fulfil the requirement of paying 25% price of the plot within 30 days and then deposit the balance amount i.e. Rs. 5,29,500/- either in lump sum without interest within 60 days from the date of issue of allotment or in 8 half yearly instalments together with interest at the rate of 10%. They did deposit Rs. 1,05,500/-on 25.10.1989 and one instalment of Rs. 52,950/- on 6.11.1990 but thereafter not a single penny was deposited towards the dues of instalments. After about 4 years, they submitted application Annexure P.2 dated 8.7.1993 to the Estate Officer for refund of the amount already deposited by indicating their lack of interest in retaining the booth. In reply, the Estate Officer remitted a cheque dated 31.8.1998 for refund of Rs. 1,45,554/-. This has been challenged by the petitioners who have described the withholding/forfeiture of the remaining amount as wholly arbitrary, capricious and violative of the provisions contained in the Act and the Regulations.

Shri S.S. Bedi argued that the impugned decision should be declared as nullity because it is totally arbitrary and unjustified. He submitted that the provisions contained in the Act and the Regulations do not empower respondent No. 2 to deduct almost 50% of the amount deposited by the petitioners. He further submitted that the respondents cannot charge interest on the dues of instalments prior to 4.8.1992, i.e. the date on which possession of the plot was offered. Shri Bedi placed reliance on the decision of the Supreme Court in H.U.D.A, and another v. Ravinder Nath Sharma AIR 1996 S.C. 1981 and argued that in view of Clause 4 of the allotment letter, the respondents cannot deduct anything over and above 10% of the total amount deposited by the petitioners.

In our opinion, the submission of the learned Counsel is devoid of substance and the writ petition is liable to be dismissed summarily. A bare perusal of Clause 4 of the allotment letter shows that 10% of the bid money was to be forfeited if the petitioners failed to deposit 25% of the price within 30 days from the date of issuance of allotment letter. However, the fact of the matter is that the petitioners did not violate this clause. Rather, after depositing Rs. 1,05,500/-, they took possession of the site and paid one instalment of Rs. 52,950/-. What they did not do was to make payment of the balance price in accordance with Clause 5 of the allotment letter and for this respondent No, 2 has rightly taken action keeping in the view Clauses 8, 9 and 16. In our opinion the deduction of about 50% of the price deposited by petitioners is neither ultra vires to the provisions of the Act and the regulations nor it is arbitrary and capricious. The rationale of this decision of respondent No. 2 is easily discernible. Admittedly. in view of Clause 5 of the allotment letter, the petitioners were to pay the balance amount, i.e. Rs. 5,29,500/- either in lump-sum without interest or in eight half yearly instalments with interest at the rate of 10%. However, the fact of the matter is that the petitioners did not pay the dues of instalments after 6.11.1990 and as on the date of submission of application for surrender, five instalments had fallen due which they were to pay along with interest. The Estate Officer had, while refunding the amount, made deductions keeping in view the petitioners'' liability to pay the instalments along with interest. Thus, it is not possible to find any fault with the impugned decision.

The submission of Shri Bedi that interest could not be charged from a date prior to the offer of possession is not supported by the conditions of allotment or the provisions of the Act and the Regulations. In fact. Regulation 14 of the Regulations makes it clear that "In the case of acceptance of surrender, the interest amount recovered from the transferee, lessee shall not in any case be refunded."

The judgment of the Supreme Court, relied upon by the learned Counsel, has no bearing on the plea raised by the petitioners. Rather, the ratio of that decision negatives the argument of Shri Bedi. A careful reading of that decision shows that the question which fell for consideration by the Apex Court was whether the competent authority of H.U.D.A. was entitled to deduct more than 10% of the amount deposited by the allottee as a condition precedent to the acceptance of surrender. A Division Bench of this Court accepted the plea of the allottee that H.U.D.A. authorities cannot deduct more than 10% of the amount deposited by him. While reversing the view of the High Court, the Apex Court held as under :

"This being the legal position and the allottee having accepted the allotment and having made some payment on instalments basis then made the request to surrender the land, has committed default on his part and, therefore, the competent authority would be fully justified in forfeiting the earnest money which had been deposited and not the 10% of the amount deposited as held by the High Court. The High Court was totally in error in issuing the direction in question on the ground that the respondents were not in a position to deliver the possession of the land to the allottee. It may be stated that in the letter of allotment no period was stipulated within which the possession of the land was to be delivered. The land in question was required to be developed and then to be delivered and in absence of any period in the letter of allotment, it was required to be delivered within a reasonable period. In the facts and circumstances, it cannot be said that the reasonability had lapsed particularly when the allottees had not paid up the entire instalment due and merely paid a part thereof."

On the basis of above discussion, we hold that the decision of the Estate Officer to refund only Rs. 1,45,554/- to the petitioners does not suffer from any legal error warranting interference by this Court Article 226 of the Constitution of India.

Hence, the writ petition is dismissed.

Petition dismissed.