R. S. A. No. 2883 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2883 of 2008 Date of Decision : January 28, 2010 Raj Kumar and another .... Appellants Vs. Haryana Urban Development Authority, Faridabad and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kul Bhushan Sharma, Advocate for the appellants. Mr. Rajesh Sehgal, Advocate for Mr. Manish Bansal, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Plaintiffs are in second appeal having remained unsuccessful in both the courts below. Disputed commercial booth in Sector 15-A, Faridabad was allotted to plaintiffs vide allotment letter dated 21.08.1989 by Haryana Urban Development Authority (HUDA). The plaintiffs deposited 25% amount of the total sale consideration. However, thereafter for almost eight years, the plaintiffs did not pay the balance sale price. Defendants issued notices under sub-sections (1), (2), (3) and (4) of Section 17 of the HUDA Act, 1977 (in short – the Act). The plaintiffs, by filing the suit, challenged R. S. A. No. 2883 of 2008 2 the said notices on the ground that the defendants were demanding huge amount of Rs.17,63,150/- as outstanding amount illegally. It is alleged that the said amount is not due. The defendants raised various preliminary objections. On merits, it was admitted that the disputed booth was allotted to the plaintiffs and they deposited 15% of the price thereof. However, the plaintiffs failed to pay the balance amount as per terms and conditions of the allotment letter and therefore, impugned notices under sub-sections (1), (2), (3) and (4) of Section 17 of the Act were issued, but inspite thereof, they failed to pay the balance amount and therefore, resumption order has been legally passed. Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 31.01.2004, dismissed the suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated 24.12.2007. Feeling aggrieved, the instant second appeal has been preferred by the plaintiffs. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the respondents are charging compound interest @ 18% per annum, to which they are not entitled. However, this contention cannot be accepted because the plaintiffs, in the plaint, did not even raise this issue. In addition to the aforesaid, learned counsel for the appellants stated that notices dated 24.12.1992 and 09.11.1992 – both under Section 17 (1) and Section 17 (2) of the Act were issued to the plaintiffs by the defendants. Thereafter, notice dated 04.02.1993 under Section 17 (3) of the Act was issued. Thereafter, notices dated 09.12.1993, 30.08.1996 and 14.08.1997 were issued under Section 17 (4) of the Act and finally resumption order dated 31.12.1997 was passed after the suit had been instituted on 24.12.1997 i.e. a week after the filing of the suit. R. S. A. No. 2883 of 2008 3 From the aforesaid, it is manifest that challenge to notices under sub-sections (1), (2) and (3) of Section 17 of the Act was barred by limitation because the suit was filed much after the expiry of three years from the dates of said notices. Suit to challenge notice dated 09.12.1993 was also barred by limitation. Resumption order was passed on 31.12.1997 i.e. a week after the filing of the suit. However, the said resumption order has not been challenged till date by the plaintiffs. The contention that Court can grant consequential relief to set aside the resumption order, cannot be accepted. The plaintiffs could have amended the plaint to challenge the resumption order, if they wanted to challenge the same. The plaintiffs did not do so. Learned counsel for the appellants states that the plaintiffs may be permitted to amend the plaint now. The contention cannot be accepted. After expiry of more than 12 years from the passing of the resumption order, the plaintiffs in second appeal cannot be permitted to amend the plaint to challenge the resumption order. While the resumption order stands, the plaintiffs cannot get any relief. Notice under Section 17 (1) of the Act is issued when the allottee/transferee makes default in payment of consideration money or instalment of sale of any land or building. By virtue of said notice, the transferee is called upon to show cause why penalty should not be imposed for default in payment of the money. Under Section 17 (2) of the Act, Estate Officer may make an order imposing penalty for the aforesaid default and may direct that due amount with penalty be paid by the transferee within the period specified in the order. Section 17 (3) of the Act provides that if the transferee fails to pay the due amount with penalty as per order made under sub-section (2), notice may be issued to the transferee to show cause why order of resumption of the land or building be not passed. Under Section 17 (4) of the Act, Estate Officer has power to pass order of resumption of the land or building and forfeiture of the amount already paid, not exceeding 10% of the total consideration amount. In the instant case, R. S. A. No. 2883 of 2008 4 notices under Section 17 (1) and Section 17 (2) were issued on 09.11.1992 and 24.12.1992, as stated by counsel for the appellants. However, inspite thereof, the appellants did not pay any amount till the year 1997, nor responded to the said notices, nor in any manner disputed the amount claimed therein. Show cause notice under Section 17(3) of the Act was also issued on 04.02.1993. However, the appellants did not respond to the same. Learned counsel for the appellants stated that notices dated 09.12.1993, 30.08.1996 and 14.08.1997 were issued under Section 17 (4) of the Act. However, Section 17 (4) of the Act provides for passing of the resumption order. It would mean that resumption order was passed as far back as on 09.12.1993. However, the plaintiffs did not challenge the same till filing of the instant suit on 24.12.1997. In addition thereto, Section 17 (5) of the Act provides that any person aggrieved by an order of Estate Officer, under Section 17 of the Act, may prefer appeal to the Chief Administrator. Thus, remedy of appeal has also been provided against order imposing penalty under Section 17 (2) of the Act and against order of resumption passed under Section 17 (4) of the Act. The plaintiffs, however, did not avail of the said remedy of the appeal provided by the Act. Consequently, for this reason also, the plaintiffs could not have approached the Civil Court. The plaintiffs also sought mandatory injunction directing the defendants to deliver possession of the disputed property to the plaintiffs. However, the plaintiffs should have sought the relief of possession instead of mandatory injunction. This question, however, appears to have become redundant because learned counsel for the plaintiffs states that during pendency of the suit, possession of the disputed property was delivered to plaintiffs vide possession certificate dated 11.06.1998 Ex.P-4. Jurisdiction of Civil Court to challenge notices or orders including resumption order passed under various sub-sections of Section 17 of the Act is barred by Section 50 (2) of the Act. In this context, it may be noticed that inspite of notices dated 24.12.1992, 09.11.1992, 04.02.1993, R. S. A. No. 2883 of 2008 5 09.12.1993 and 30.08.1996 referred to herein above, the plaintiffs did not make payment of the balance sale price nor challenged the amount demanded in the said notices till the filing of the suit on 24.12.1997. A sum of Rs.45,000/- was allegedly paid on 03.10.1997 and another amount of Rs.45,000/- was paid on 27.10.1997. However, till before it, inspite of notices issued to the plaintiffs by the defendants, the plaintiffs did not pay the balance amount for several years, nor challenged the quantum of amount demanded by the defendants in the said notices. For the reasons recorded herein above, I find no merit in the instant second appeal, which is accordingly dismissed. January 28, 2010 ( L. N. MITTAL ) monika JUDGE