IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: CWP.NO. 114/97. Date of Decision On:25.6.2008. Vipul Malhotra and others. …Petitioners. Versus: State of H.P. and others. ….Respondents. Coram: The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting.?1 Yes For the petitioners: Mr.Neel Kamal Sood, Advocate. For Respondents Mr.R.M.Bisht, Dy. Advocate General. _________________________________________________ R.B.Misra.J (Oral). In the present writ petition, a prayer has been made to declare Section 10 of the Himachal Pradesh Urban Estates (Development and Regulation) Act, 1968 (hereinafter referred to as `the Act’) being violative of Articles 14 and 19 (1)(g) of the Constitution of India. Further prayer has been made directing the respondents to accept the balance payment with interest and allow the petitioner to construct the building on the suit plot as per rules and regulations. A specific prayer has been made to quash cancellation order No.89 dated 5th March, 1974 (Annexure:P-8) issued by the Estate Officer, Urban Estate Manali . 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. At the out set, learned counsel for the petitioners has submitted that the first prayer of the writ petitioners, for setting aside and declaring Section 10 of the `Act’, is not pressed for in view of the order dated 22nd May, 1996 of this Court (D.B.) in Civil Writ Petition No. 373 of 1986 titled as Dr. (Mrs.) Shakuntla Duggal Vs. State of H.P. whereby the said section 10 of the ‘Act’ has been declared as illegal and unconstitutional. However, in the facts and circumstances, learned counsel for the petitioner is only praying for adjudication of the present writ petition in reference to the subsequent two prayers made hereinabove. 3. In order to appreciate the adjudication of the present writ petition, it is necessary to give brief facts of the case that the present writ petitioners are the legal heirs of the original petitioner-Sh. Shanti Sawroop Malhotra, who is a permanent resident of New Delhi and he applied on 25th October, 1969 for allotment of one residential plot in Urban Estate Manali, Tehsil and District Kullu, (H.P.), whereby he was intimated by Estate Officer, Urban Estate Manali that he has been allotted, vide letter dated 6th August, 1970, a residential plot No.26 having dimensions 60’ x 25 ½ ‘ measuring 170 sq. yards in Urban Estate Manali, Tehsil and District Kullu for a sale consideration of Rs.4,080/-. In reference thereto, it appears that the original petitioner had paid a sum of Rs.400/- as earnest money vide receipt 3 No.5050/A-17349 dated 22nd December, 1969. It appears, vide letter dated 6th August, 1970, that the petitioner was called upon to make further payment of 25% of the total sale consideration in compliance thereto, the petitioner had made further payment of Rs.620/- on 5th September, 1970 to respondent No.1, as such, 25% of the total sale consideration was deposited. According to the petitioner, in view of paragraph-4 of the present writ petition, the Estate Officer, Urban Estate Manali executed a deal of conveyance deed and the petitioner was put in peaceful possession and as such the petitioner was given layout plans and vide letter dated 2nd July, 1973 of Executive Engineer, Kullu Division, the petitioner was called upon to start construction work on the allotted plot in question. However, the constructions could not be undertaken for lack of ill health and illness of his wife and paucity of funds. Vide letter dated 21st June, 1973 (Annexure:P-6), respondent No.3/Estate Officer called upon the petitioner to execute a fresh conveyance deed with a view to meet certain technicalities and objections and in those reference also the petitioner could not do the needful as he was ailing and subsequently the petitioner visited the office of Estate Officer. 4. According to the petitioner, he was apprised that his allotment has been cancelled on 5th March, 1974. No heed was given to the several representations of the petitioner. 4 Subsequently, vide letter dated 19th October, 1992 (Annexure:P-12), the petitioner was informed by Director, Town and Country Planning, Shimla that the allotment of plot in question has been cancelled and 25% of the sale consideration paid by him has been forfeited. 5. According to the petitioner irrespective of the deposit of 75% of the balance consideration amount the petitioner was in possession of the plot in question and the petitioner could not carry on the construction thereon for lack of funds. However, the cancellation of the plot and the amount deposited by him earlier vide order dated 5th March, 1974 is contrary to law without any authority and the same has been made without affording any opportunity given to the petitioner. The petitioner, therefore, issued a notice dated 15th January, 1993 under Section 80 C.P.C. to the respondent-Collector and preferred a Civil Suit No. 91/93 before the learned Senior Sub Judge, Kullu merely for declaring the petitioner as owner in possession of the suit plot No.26 above mentioned; for restraining the respondent- authority; directing the respondents not to interfere in the possession of the said plot; directing the respondents not to re-allot the said plot to the others and to cancel the order dated 5th March, 1974 (Annexure:P-8) i.e. impugned order. The said suit was contested by the parties. The issues were framed and the same was dismissed vide order dated 30th 5 March, 1996. Civil Appeal No. 13 of 1996 preferred on behalf of the petitioner, too also dismissed by the learned Additional District Judge, Kullu on 16th December, 1996. 6. Being aggrieved, the petitioner has also preferred Regular Second Appeal No. 84 of 1997 which is still pending for adjudication and has been tagged along with the present writ petition vide order dated 7th May, 2008 of this Court (D.B). 7. Counter affidavit has been filed on behalf of respondents No. 1 to 3, whereby it has been specifically denied that the petitioner was never put into possession to the plot No.26 in question. According to the respondents, letter dated 14th December, 1991 of the petitioner written to respondent No.2 makes it clear that he had made a request to deposit the balance money so that he could get the possession of the plot in question. The contents of this letter indicate that the petitioner was aware about the fact that he was not in possession of the plot in question. According to the respondents, the petitioner did not avail the remedy against the order of the cancellation (Annexure:P-8), by preferring an appeal to the Chief Administrator under Section 11(i) of the U.P. Urban Estates (Development & Regulation) Act, 1969. According to the respondents, a letter dated 30th November, 1982 was received by respondent No.3 after a gap of more than eight years which was duly replied by respondent No.3 6 vide letter dated 27th January, 1983. The legal notice of the petitioner was also duly replied by the respondents. According to the respondents, in view of the finding of learned Senior Sub Judge, Kullu made in his order dated 30th March, 1996 in Civil Suit No. 91 of 1993, the possession of the said plot was not with the petitioner up to 14th December, 1991. According to the respondents, several letters on different dates, namely, 8th September, 1971, 21st June, 1973, 2nd July, 1973, 29th September, 1973 and 8th January, 1974 were written to the petitioner indicating to deposit the balance amount and get the conveyance deed registered and to start the construction as per the conditions of the allotment dated 6th August, 1970 (Annexure:P-1). However, it was the petitioner who himself had chosen not to bother and come forward to fulfill the requirement as indicated by the respondents. According to the respondents, the possession was only to be given after the execution of the proper conveyance deed, which the petitioner did not execute despite repeated reminders and according to the allotment letter dated 6th August, 1970, it was very clearly indicated to the petitioner that he has to fulfill the terms and conditions of the letter. However, there is a lapse on the part of the writ petitioner which created a situation whereby the impugned order dated 5th March, 1974 has been passed and the present writ petition has been preferred after a lapse of more than 23 years and the suit 7 was preferred after a lapse of 19 years. As such, the writ petition has to be entertained for the serious laches and the Regular Second Appeal has to be dismissed for lack of existence of substantial questions of law and in view of the concurrent finding having been given by learned Senior Sub Judge as well as by learned Additional District Judge, Kullu, more so, also the concurrent finding arrived at the point of jurisdiction to entertain the Civil Suit No. 91/93. 8. According to Mr.R.M.Bisht, in the impugned order dated 30th March, 1996 passed by learned Senior Sub Judge, Kullu in Civil Suit No. 91/93, inter alia, on many of the issues, issue No.4 was framed as under: “Whether this court has no jurisdiction to try the suit, as alleged?” 9. The learned Senior Sub Judge has arrived at a conclusion that Section 20 of the H.P. Urban (Development and Regulation) Rule, 1968 has provided as under: “Bar of jurisdiction of courts: No order made or direction given by the state Government or any authority in exercise of any power conferred by or under this Act shall be called in question in any court”. 10. Therefore, in view of such provisions of law it was held by the learned trial Court that the Senior Sub Judge has no jurisdiction to deal with the subject matter of controversy 8 between the parties. Accordingly, issue No.4 in respect of jurisdiction to deal Civil Suit No.91/93 was decided in favour of the respondent-authority and against the petitioner (plaintiff before the learned Senior Sub Judge, Kullu). 11. According to Mr.R.M. Bisht finding regarding lack of jurisdiction to adjudicate the said suit No.91/93 was affirmed by learned Appellate Court vide its order dated 16th December, 1996. 12. According to learned Deputy Advocate General, though the provisions and the procedures prescribed under Rule 14 of the H.P. Urban Estates (Sale of Sites) Rules, 1972 dealing with the procedure in case of default has not been observed. However, such non-observance of procedure will not strengthen the cause of the petitioners who have not come before this Court with clean hands in respect of the possession of plot in question and have also come for redressal of their grievance after a lapse of more than 23 years. 13. Mr.N.K.Sood, learned counsel for the petitioner has submitted that in view of the decision in M/s Jagdish Chand Radhey Shyam Vs. The State of Punjab and others, AIR 1972 S.C. 2587, in case when the auction sale of Government land or building is complete, the title in the property vests in the purchaser and it cannot be said that the Government remains the owner of the property till full 9 consideration is paid. In reference to Section 3 of Capital of Punjab (Development and Regulation) Act (Punjab Act 27 of 1952) the unpaid portion of the consideration money will be a first charge on the site or the building and the prohibition against sale, mortgage or transfer by the transferee except with the previous permission of the Estate Officer and after the completion of the sale the authorities were not entitled to forfeit the money paid by the writ petitioner. For the convenience, paragraphs 11,18 and 19 are extracted as below: “11. Broadly stated Section 3 of the 1952 Act indicates these features. The Government has power to sell by auction, allotment or otherwise any land or building. The consideration money is to be paid in such manner as the Government may prescribe. The unpaid portion of the consideration money will be a first charge on the site or the building. The transferee except with the previous permission in writing of the Estate Officer shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building until the amount which is a first charge has been paid in full. Section 3 totally repeals the conclusion arrived at by the High Court that the Government remains the owner until the entire consideration money is paid. A charge is created for the unpaid portion of the consideration money. The prohibition against sale, mortgage or transfer by the transferee except 10 with the previous permission of the Estate Officer of any right, title or interest in the site or building establishes the ownership and rights of the transferee. If the Government were the owner it could not be said that the transferee could sell, mortgage or transfer any right, title or interest. The statute speaks of payment of consideration money by sale to the transferee. The Government cannot after sale remain the owner. The statute forbids such construction. If the Government is the owner the Government cannot at the same time be entitled to a charge on the property for the balance of the consideration money. A charge on a property is under the Transfer of Property Act enforced by instituting a suit and bringing the property to sale. If the property yields a higher price than what the charge represents, the owner is entitled to the excess sum. 18. The Act creates a charge on the property. The Act forbids creation of a third party right by the transferee until the amount represented by the charge is paid in full. In the teeth of statutory security and enforceability it is totally unreasonable restriction on the enjoyment of property by resuming the site for defaults in payments of money and forfeiting the monies paid by the transferee. 19. For these reasons, we are of opinion that the Government is not entitled to forfeit the monies paid and resume the site under the provision contained in section 9 of the 1952 Act. These provisions violate Articles 14 and 19(1) (f). These provisions are unconstitutional.” 11 14. In this respect learned Deputy Advocate General has submitted that since Section 10 of the ‘Act’ has been declared as ultra vires and unconstitutional and in the case in hand, the sale has not been completed and the possession has not been handed over to the respondents, therefore, the action taken by the respondents vide order dated 5th March, 1974 is legal and the decision of the Supreme Court in M/s Jagdish Chand (supra) is a different and distinguishable in the present facts and circumstances of the case. 15. On the other hand the learned counsel for the respondents relying on State of Punjab and others Vs. Gurdev Singh, Ashok Kumar, AIR 1991 S.C. 2219, has submitted that provision of Section 10 of the ‘Act’ before the same was declared unconstitutional shall be made effective for the purpose of cancellation of allotment order. For strengthening the submission learned counsel has relied upon the following paragraphs: “7. Apropos to this principle, Prof. Wade states: “the principle must be equally true even where the ‘brand of invalidity’ is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see: Administrative Law 6th Ed. P.352). Prof. Wade sums up these principles: “The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the 12 right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash if because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ‘void’ order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another” (ibid p.352) 8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.” 16. According to learned Deputy Advocate General, even if the order dated 5th March, 1974 is stated to be void, however, the same shall be effective till it is not set aside. In our respectful consideration, the submission of the learned Deputy Advocate General is mis-conceived and the order dated 5th March, 1974 in exercise of the powers under Section 10 of the ‘Act,’ has been declared unconstitutional in view of the such order dated 22nd May, 1996 of this Court (D.B), therefore, the such order dated 5th March, 1974 cannot be said to be legally sustainable. 13 17. Learned counsel for the respondents has placed reliance on Chandigarh Administration and another Vs. Jagjit Singh and another (1995) 1 SCC 745 where for a similar issue in respect of allotment of plot for non depositing the indicated amount in terms of the conditions, the writ petitioner’s claim was said to be not sustainable after the lapse of more than 17 years. In view of the observation of the Supreme Court made in paragraph-13 it was observed that the writ petitioner after the lapse of 17 years woke up for his right evidently in view of the rise in prices and approached the High Court more in the nature of a gamble than for vindicating the legitimate rights. 18. In Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh and others (2004) 2 SCC 130 , it has been held that no sympathy has to be extended to the writ petitioner when he is failed to establish his legal rights. 19. In SDO, Grid Corporation of Orissa Ltd. and others Vs. Timudu Oram, (2005) 6 SCC 156, it was emphatically observed that when the Civil Suit filed for the some course of action has been dismissed then the writ petition under Article 226 for the same cause cannot be entertained after a lapse of ten years. 20. Relying upon the decision in Karnataka Power Corpn. Ltd. Through its Chairman & Managing Director and another Vs. K.Thangappan and another (2006) 4 S.C.C. 322, 14 learned counsel for the respondents has submitted that the rights of the party, if any, could not be adjudicated upon in exercise of the power under Article 226 by the High Court when the same has been brought before the Court by inordinate delay of 20 years and the period of 20 years was said to be sufficient to dismiss the grievance on the ground of limitation, delay and laches. For this purpose, the learned counsel has placed reliance on paragraphs-6 and 9 which reads as under: “6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad Vs. Chief Controller of Imports and Exports (1969) 1 SCC 185. Of course, the discretion has to be exercised judicially and reasonably.” 9. It was stated in State of M.P. V. Nandlal Jaiswal (1986) 4 SCC 566 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not 15 satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.” 21. We have also been taken to note, that the petitioner despite repeated directions by the respondents has not fulfilled the terms and conditions of the allotment and has miserably failed to vindicate his grievance within reasonable time and has also not come before the Court with clean hands in respect of the possession of the plot in question. Therefore, the mandamus, as prayed for the restoration and giving possession of the plot and subsequent direction for allowing him to deposit the money for the purpose of getting the plot in question cannot be issued. It has also been submitted that the plot in question is being used by the State Government for car parking after 5th March, 1974. 16 22. After hearing the learned counsel for the parties and perusal of the documents, we are of the considered view that the impugned order dated 5th March, 1974 has been passed in exercise of the powers under Section 10 of the ‘Act’, which was declared as unconstitutional in view of the observation made hereinabove. As such the order dated 5th March, 1974 cannot be said to be legally sustainable, therefore, the same is set aside. However, for restoration of possession and giving any direction to the respondents- authorities, by way of mandamus cannot be exercised in view of the facts and circumstances, when the party has approached to this court by inordinate delay of 23 years, without any proper explanation. Therefore, the mandamus, as prayed for, cannot be issued and in view of the above observations, the writ petition is partly allowed accordingly. (R.B.Misra), Judge. (Sanjay Karol), Judge. June 25, 2008(R)