CWP NO. 12158 OF 2008. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C..W.P. No. 12158 of 2008. [O&M] Date of Decision: 19th May, 2009. Kalawati Verma Petitioner through Ms. Vandana Malhotra, Advocate Versus HUDA & Anr. Respondents through Mr. Sachin Kapoor, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. In this Civil Writ Petition, the petitioner seeks a writ of certiorari for quashing of the impugned order dated 6th May, 2008 [Annexure P-47] whereby residential Plot No. 1204-P, Sector 7, Urban Estates, Karnal has been resumed and 10% of the consideration money deposited by the petitioner has also been forfeited. The petitioner also seeks a Mandamus for restoration of the allotment of the afore-stated plot with a further direction to the respondents to sanction the building plans submitted by her and also to refund the extension fee of Rs.1,57,572/- deposited by her under protest on 7.4.2008. [2]. In order to appreciate the controversy, a brief reference to the facts may be made. [3]. Plot No. 1204-P, Sector 7, Urban Estates, Karnal CWP NO. 12158 OF 2008. ::-2-:: measuring 299 square meters was allotted to one Yogesh Kumar Gupta on 21.1.1986. The said allottee sought and was granted permission on 16.8.1989 to transfer the said plot in favour of the petitioner. While granting permission to the original allottee to transfer the plot, the Estate Officer, HUDA, Karnal – respondent No. 2 vide clause [5] of his Memo dated 16th August, 1989 specifically stipulated that “the following over-due will also have to be paid:- “[i] due [installment] Rs.11,294.30; [ii] Extension fee for non-construction; [iii] arrears of transferee, misc. etc. [iv] any other dues; [v] transferor will submit an indemnity bond on non- judicial stamp papers worth Rs.15/- duly attested by Ist Class Magistrate and an affidavit duly attested by Ist Class Magistrate”. [4]. The dues were cleared and thereafter only re-allotment letter dated 31st August, 1989 [Annexure P-2] was issued in favour of the petitioner, in terms whereof, she was required to pay the following balance annual installments on the due dates:- “Due date of Annual Installments Amount 21.01.90 11069.60 21.01.91 11069.60 21.01.92 11069.60 Enhancement: 9.3.90 10,569.70 9.9.90 2,644.00 [5]. While the petitioner was paying the due installments regularly as per the schedule, she received a show cause notice under Section 17[1] and [ii] of the Haryana Urban Development Authority Act, 1977 [for short 'the HUDA Act'] dated 22nd April, 1992 CWP NO. 12158 OF 2008. ::-3-:: [Annexure P-4] asking her to explain as to why a penalty of Rs.6219.90 be not imposed on account of her failure to remit the installment of Rs.43,879/- plus 'extension charges' of Rs.1832/-. The petitioner responded to the show cause notice vide her reply dated 29th May, 1992 [Annexure P-5], giving details of the cheques whereby all the due installments as per the re-allotment letter were deposited by her and receipts issued by the HUDA. However, respondent No. 2 vide another Memo dated 3rd June, 1992 [Annexure P-6] reiterated that the amount demanded vide the show cause notice dated 22nd April, 1992 was correct. It was after a long correspondence that the second respondent disclosed to the petitioner that there were in fact two installments which were not deposited by the original allottee and while issuing No Dues Certificate or permitting him to transfer the plot in the name of the petitioner, these installments could not be recovered inadvertently from the original allottee and therefore, the petitioner was liable to pay the same. Notwithstanding the fault solely attributable to the HUDA authorities, the petitioner vide letter dated 5th February, 1993 [Annexure P-11] deposited though under protest the arrears of two installments which had become due on 21st January, 1988 and 21st January, 1989, i.e., much before the transfer of the plot in her name. [6]. No Dues Certificate was, however, not issued to the petitioner. She,therefore, filed a Complaint No. 174 of 1996 under Section 12 of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum [for short 'the District Forum'], inter-alia, seeking issuance of NDC, refund of Rs.26,775/- paid by CWP NO. 12158 OF 2008. ::-4-:: her towards non-payment of installments falling due on 21st January, 1988 and 21st January, 1989 and Rs.20,000/- towards harassment and the loss suffered by her. The petitioner's aforesaid complaint was allowed by the District Forum vide order dated 6th August, 1996 [Annexure P-13] to the extent that the respondents were directed, not to charge any interest on the installments or the enhanced compensation; to issue NDC to the petitioner and to pay Rs.10,000/- as compensation besides costs of Rs.500/-. The claim of the petitioner for the refund of Rs.26,775/-, however, was rejected. The HUDA went in appeal which was dismissed by the State Consumer Disputes Redressal Commission, Haryana [for short 'the State Commission'] on 15th December, 1999 [Annexure P-14]. So was the fate of its revision petition, which was dismissed by the National Consumer Disputes Redressal Commissioner on 19th August, 2001 [Annexure P-15]. [7]. There after only that the petitioner was able to secure a Certificate of Non-encumbrance on 15th July, 2002 [Annexure P-16]. [8]. Meanwhile, the second respondent slapped another notice dated 26th September, 2000 [Annexure P-17] on the petitioner informing her that a sum of Rs.25,289/- was recoverable from her towards extension fee as per the details given therein. [9]. The said demand notice again prompted the petitioner to approach the District Forum by way of Complaint No. 378 of 2001 in which besides seeking NDC and delivery of physical possession of the plot, she also sought a restraint order against recovery of extension fee as well as compensation of Rs. 4 lacs and costs of CWP NO. 12158 OF 2008. ::-5-:: litigation etc. [10]. The District Forum vide order dated 31st December, 2002 [Annexure P-19] held that since the physical possession of the plot has been handed-over to the petitioner on 15th July, 2002 only, the HUDA is not entitled to charge any 'extension fee' for the period prior thereto. It further held the petitioner entitled to raise construction over the plot within two years of the offer of possession without paying any extension fee, i.e., till 15th July, 2004. The District Forum also granted compensation of Rs.5000/- to the petitioner on account of having been harassed unnecessarily. [11]. The afore-stated order passed by the District Forum has been appealed by the HUDA and the matter is sub-judice before the State Commission. [12]. There is no denial to the fact that soon after taking physical possession of the plot on 15th July, 2002, the petitioner submitted the building plans, on receipt whereof, the second respondent, vide his Memo dated 17th November, 2003 [Annexure P- 23] informed the petitioner as follows:- “You are requested to deposit following dues so that further action may be taken:- 1. Extension fee; 2. Enhancement; 3. Installment; 4. Compounding fee; 5. Execute the conveyance deed; 6. Your building plan could not be passed because the extension fee case is pending under consideration before State Consumer Forum”.[Emphasis applied] CWP NO. 12158 OF 2008. ::-6-:: [13]. The record reveals that the petitioner was entitled to refund of some amount due to decrease of the actual area of the plot at the spot and she had to involve herself in an un-ending correspondence to get that refund. [14]. The petitioner, meanwhile responded to the Memo dated 17th November, 2003 also informing the HUDA authorities that the extension fee “was not liable to be imposed in view of the order passed by the District Forum and that the HUDA authorities could not take advantage of the pendency of the appeal which they have filed before the State Commission”. [15]. Respondent No. 2 slapped yet another notice vide Memo No. 18342 dated 21st November, 2006 [Annexure P-32] asking the petitioner to deposit the 'extension fee' of Rs.1,57,572/-. The petitioner did agitate the matter but finally in her anxiety to get the house constructed, she deposited the aforesaid amount vide demand draft dated 7th April, 2008, though under protest and subject to the final decision of the HUDA's appeal pending before the State Commission. The petitioner, vide her application dated 7th April, 2008 [Annexure P-44] further informed respondent No. 2 that with the deposit of the said amount, nothing remained due against her even as per the HUDA authorities, therefore, there was no legal embargo against sanctioning of her building plans. [16]. Though the petitioner disputed her liability to pay the extension fee and had deposited the demanded fee under protest, nevertheless the second respondent issued another show cause notice to the petitioner under Section 17[3] of the HUDA Act on 12th CWP NO. 12158 OF 2008. ::-7-:: November, 2007 [Annexure P-36] as to why the subject plot be not resumed as the petitioner had “failed to submit the building plans for approval by 30th June, 2007 and also failed to construct the building up to 31st December, 2007”. The petitioner responded to the said show cause notice vide her reply [Annexure P-37], however, after granting personal hearing etc. the second respondent proceeded to pass the impugned order dated 6th May, 2008, inter- alia, holding that since the petitioner had failed to get the building plans approved by 30th June, 2007 and complete the construction of the building by 31st December, 2007, the subject plot stands resumed along with forfeiture of 10% of the total consideration money deposited by her. [17]. Aggrieved, the petitioner has approached this Court. [18]. While issuing notice of motion, a Division Bench of this Court took notice of the fact that the petitioner had already submitted the building plans as was acknowledged by the 2nd respondent vide his Memo dated 17th November, 2003 [Annexure P-23] informing the petitioner that her building plans could not be passed on account of pendency of the dispute regarding extension fee. The operation of the impugned resumption order was accordingly stayed. Thereafter, learned counsel for the parties have been heard at length and the original records have also been produced and perused. [19]. There are two questions which arise for consideration in this case. Firstly, is there any failure on the part of the petitioner in not complying with the terms and conditions of the allotment or the HUDA Regulations which could entail the penal consequence, like CWP NO. 12158 OF 2008. ::-8-:: resumption of the plot? Secondly, could there be any justification in law or equity for resumption of the plot? [20]. It is indeed an admitted fact that while re-allotting the plot to the petitioner vide letter dated 31st August, 1989, she was asked to pay four annual installments as per the details given in the re- allotment letter itself. It is also not in dispute that the petitioner paid those installments on time. The respondents concededly failed to get the two installments due on 21st January, 1988 and 21st January, 1989, deposited from the original allottee, may be inadvertently. The arbitrariness in the action of respondent No. 2 is writ large by the fact that instead of disclosing the true cause for demanding payment of these two installments, the petitioner was in the very first- opportunity, served with a Show Cause Notice under Section 17 of the HUDA Act. The said show cause notice [Annexure P-4] did not disclose as to how the amount mentioned therein was due from the petitioner. It was only after a long correspondence and when the petitioner had to frame certain questions and put to the second respondent that she was informed about the 'inadvertent' non- payment of two installments by the original allottee. As soon as the petitioner deposited those two installments and proved deficiency in service on the part of respondent No. 2 before the Authorities under the Consumer Act, the respondents started harassing her with one after the other show cause notice against alleged non-deposit of extension fee. It may be true that the petitioner successfully questioned her liability to pay the extension fee on the plea that the possession of the plot was delivered to her on 15.7.2002, before the CWP NO. 12158 OF 2008. ::-9-:: District Forum, Karnal, though the matter is presently sub-judice before the State Commission. [21]. Be that as it may, the petitioner has admittedly paid the extension fee of Rs.1,57,572/- also on 7th April, 2008, i.e., much before the passing of the impugned resumption order. In my considered view, the respondents, on account of pendency of their appeal before the State Commission, could not have insisted upon the deposit of the extension fee by the petitioner as the matter is still sub-judice. They could, at best, sanctioned the building plans submitted by the petitioner in the year 2002-03, without prejudice to their right to recover the extension fee in case their appeal is accepted by the State Commission. Suffice it to say that the power to resume a plot on account of non-payment by an allottee of lawful dues, is not taken away merely because an allottee has constructed the house. In any case, once the petitioner had deposited the extension fee, it was imperative upon the respondents to take a decision on the building plans submitted by her and thereafter grant her two years time to construct the house as was permitted by the District Forum vide its first order dated 6th August, 1996 which has already attained finality. The denial of such an opportunity to the petitioner is per-se arbitrary and smacks of vindictive attitude of the authorities. [22]. Adverting to the second question, namely, even semblance of justification for resumption of the plot, it stands proved that the impugned action is founded upon non-existent reasons and exhibits complete non-application of mind. It appears to have been CWP NO. 12158 OF 2008. ::-10-:: actuated with ulterior motive to harass the petitioner who lives at a far away place like Mumbai. Anguished by one after the other legal actions taken by the petitioner, it appears that respondent No. 2 was pre-determined to cancel the allotment on one false pretext or the other. It deserves to be mentioned that no notice demanding the extension fee was served upon the petitioner for years. The petitioner though successfully challenged the said demand before the District Forum but after receipt of second notice dated 21st November, 2006 demanding a sum of Rs.1,57,572/- towards extension fee, she deposited that amount also, though under protest. Fully aware of the fact that non-payment of extension-fee was no longer available as a ground to resume the plot, the 2nd respondent resorted to yet another totally false, vague and arbitrary ground that the petitioner had not submitted her building plans or raise construction of the building by 31st December, 2007. During the course of hearing as also in the reply, the respondents nowhere have disputed the petitioner's plea and have conceded that the building plans stood submitted by her way back in the year 2002-03 and the same have never been rejected, though respondent No. 2 refused to process the same for non-deposit of extension fee etc. Once the petitioner had deposited the extension fee on 7th April, 2008, respondent No. 2 had no authority to proceed with the resumption proceedings. [23]. This Court is constrained to observe that after issuing the show cause notice for resumption of the plot, the petitioner was to be afforded personal hearing by respondent No.2. The petitioner unfortunately lost her elder son, who expired on 18th March, 2008. CWP NO. 12158 OF 2008. ::-11-:: Her younger son informed respondent No. 2 on 21st March, 2008 [Annexure P-41] that the petitioner was in deep shock and would take some time to reconcile to the tragedy and, therefore, three months time may be granted. The reply sent in response thereto by respondent No. 2 dated 2nd April, 2008 [Annexure P-42] exhibits total inhuman, senseless and brutal approach by a public authority. The petitioner was informed that only 15 days time is required “according to Hindu Rites” which shall expire on 17th April, 2008 and, therefore, she should immediately appear on that day, failing which the plot would be resumed. [24]. The above quoted response alone is self-sufficient to hold that the respondent authorities acted in a most biased and prejudicial manner against the petitioner, leaving a clear inference of mala-fide and colourable exercise of power. [25]. For the reasons afore-stated, the writ petition is allowed; the impugned order dated 6th May, 2008 [Annexure P-47] is hereby quashed. Since the building plans submitted by the petitioner are now stated to have been sanctioned, it is directed that the petitioner shall be entitled to construct the house within a period of two years as per the HUDA policy from the date of sanction of the building plans. This order shall, however, have no bearing on the issue of extension fee which is pending consideration before the State Commission. The petitioner shall also be entitled to costs of Rs.30,000/- which the respondents shall pay within a period of two months. The HUDA shall be entitled to recover the cost amount from the erring Estate Officers/other officials, in accordance with law. May 19, 2009. ( SURYA KANT ) dinesh JUDGE