LPA No.1166 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.1166 of 2011 Date of decision: 15.7.2011 M/s Rajendras (India) Limited ...Appellant Versus Haryana Urban Development Authority, Faridabad and another ...Respondents CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL, ACTING CHIEF JUSTICE HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Rajesh Aggarwal, Advocate for the petitioner. Adarsh Kumar Goel, ACJ. 1. This appeal has been preferred against order of learned Single Judge dismissing the writ petition of the appellant for direction to deliver possession of the Cinema site in question to the appellant. 2. Case of the appellant is that it purchased a Cinema site at Faridabad on October 4,1987 in auction conducted by the Haryana Urban Development Authority (HUDA). While the petitioner deposited 25% of the amount as per terms of allotment, it failed to pay the balance of the amount. The HUDA raised demand of the balance amount and also offered physical possession vide letter dated 21.4.1994. Since due payment was not made even for 18 years, Show Cause Notice dated 24.6.2005 was issued proposing to take action under section 17(2) of the HUDA Act, 1977 for default of payment. On 7.8.2006, on appeal of the 1 LPA No.1166 of 2011 appellant, the Administrator, HUDA exercising powers of the Chief Administrator directed as follows:- “After hearing the parties at length and after examining the record of the case carefully, I am of the view that since that appellant has not deposited any amount during the last 18-19 years, where as per terms and conditions of allotment, he was required to deposit the amount either in lump sum within 60 days or in eight six monthly installments i.e. within four years (by 1991). Despite the fact that for more than 15 years has lapsed since when the appellant was required to deposit total amount, but the appellant has not bothered to deposit even a single penny after he deposited 25% of the auction amount about 18-19 years back. Thus he is a chronic defaulter besides he is stated to have entered into a alleged agreement of sale and therefore does not deserve any leniency. However there has been some disputes as to when the development has been actually completed. Therefore, the case is remanded back to EO HUDA Faridabad to determine the actual date of completion of development work on the site, and treating that date to be date of offer of possession and calculate the amount due towards the appellant alongwith a proper calculation sheet and intimate the same to the appellant. The appellant is also directed to deposit the amount due towards the appellant within 60 days of such intimation. In case the appellant fails to do so, the respondent would be at liberty to initiate action under section 17 of the HUDA Act, 1977. The appellant is directed to appear before Estate Officer, HUDA Faridabad on 4.9.2006. The appeal is accepted to above extent only.” 3. While the matter was still pending before the Estate Officer, the appellant filed writ petition seeking direction to deliver possession. The writ petition was contested with the plea that in view of default of the appellant, prayer for delivery of possession could not be accepted and the appellant could not pre- empt proceedings under section 17 for resumption by seeking delivery of possession without payment of the dues. During pendency of 2 LPA No.1166 of 2011 the writ petition, notice dated 30.9.2010 was issued to the appellant requiring it to pay a sum of Rs.2.75 crores. 4. Learned Single Judge dismissed the writ petition. It was observed that since the appellant failed to discharge its lawful liability, there was no ground for interference. The operative finding recorded by learned Single Judge is :- “It is clear that Civil Writ Petition No.21646 of 2008 is filed only to avoid liability arising out of offer of possession of the site made to it in the year 1994. Even the Administrator, while deciding the appeal filed by the petitioner, has observed that the petitioner has not deposited any amount during 18/19 years, as per the terms and conditions of allotment. The petitioner is described as chronic defaulter and it was observed that he did not deserve any leniency. The case was only remanded to Estate Officer HUDA to determine the actual date of completion of development work. The petitioner thereafter failed to appear before the Estate Officer. The petitioner has then chosen to invoke the remedy of writ and has thus been able to avoid its liability for another period of two years. The petitioner still has been asked to deposit the amount due, which it has challenged by filing a second writ petition. The facts as noticed would clearly show that the petitioner really is not interested in making any payment and is misusing the process of court and authorities. A chronic defaulter is fighting to catch some straw but perhaps would not be able to swim across the difficulties that the petitioner has created for itself. The petitioner was given opportunity and a chance to make mends and show its bonafides but still failed to take advantage of the same. Had the petitioner been genuine, it could have availed this golden opportunity. This conduct would be enough to decline hearing to the petitioner once it has gone back from the undertaking made voluntarily before the Court. The petitioner is desperately sticking to a losing cause.” 5. We have heard learned counsel for the appellant. 6. Learned counsel for the appellant submitted that the appellant was willing to pay sum of Rs.1 crore on possession being delivered with the right of construction. He submitted that the pending proceedings are illegal as the appellant 3 LPA No.1166 of 2011 having deposited 25% of the amount, was not liable to pay any further amount till possession is delivered. 7. We are unable to accept the submission. It is clear that the appellant failed to make deposit as per terms of allotment. It is further clear that even after possession was offered, the appellant failed to take necessary steps. In these circumstances, prayer for delivery of possession to the appellant with right of construction on payment of Rs.1 crore cannot be accepted. Mere payment of 25% did not create any right in favour of the appellant to get possession without any payment. Contention that possession was never offered cannot be accepted. Consequences of non-payment include forfeiture, penalty and resumption. Proceedings are still said to be pending before the Estate Officer. There is no ground for interference by this Court at this stage. 8. Accordingly, this appeal is dismissed. It is, however, made clear that this will not be treated as expression of final opinion on merits so as to affect proceedings pending before the HUDA for action under the provisions of the HUDA Act nor debar the appellant from taking such pleas as may be available to it. (Adarsh Kumar Goel) Acting Chief Justice July 15, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4