IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ PetitionNo.6157 of 1986 Date of Decision:08.02.2010 Smt. Jyoti Nariman ....Petitioner versus The State of Haryana and others ....Respondents CORAM:HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Sanjeev Sharma, Senior Advocate with Mr. Gaurav Bakshi, Advocate for the petitioner. Mr. Ravi Dutt Sharma, Deputy Advocate General, Haryana. Ms. Vandana Malhotra, Advocate for respondents 2 and 3. ---- 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the Reporters or not ? Yes. 3. Whether the judgment should be reported in the Digest? Yes. ----- K. Kannan J.(Oral) 1. An allottee of a residential plot No.548, Sector 14, Gurgaon was served with a notice of resumption dated 16.04.1984 on the ground that the construction had not been made by the allottee within the stipulated period as per the terms of allotment. On an appeal to the Appellate Authority, the time was reported to have been extended till October, 1985 but no construction had been made even within the said period. It appears that a request for further extension of time was made Civil Writ PetitionNo.6157 of 1986 - 2 - on 05.09.1985 and the period was extended upto 04.09.1986. In this letter of request for extension, the petitioner had referred to his property as falling within the plot No.448 instead of plot No.548. Such an extension was also granted upto 04.09.1986. 2. The Estate Officer, Haryana Urban Development Authority, however, passed an order of resumption on 04.03.1986 on the ground that no construction had been made in Plot No.548, ignoring their own order granting an extension because as per the records, it appears that the extension had been granted only in respect of Plot No.448 and not for Plot No.548. The petitioner had a grievance to make that an extension had been granted upto 04.09.1986 and therefore, resumption of the property could not be made by the memo issued on 04.03.1986. This order of resumption, therefore, came to be challenged before the Administrator by preferring an appeal under Section 17(5) of the Haryana Urban Development Authority Act. It appears that no specific order had been passed on appeal but the petitioner has filed a copy of communication from the Appellate Authority to the Administrator referring to the fact that the request for grant of extension of time had been made with reference to Plot No.448 and not for Plot No.548 and that it was a clerical error. By the same letter, the Chief Administrator had also recorded the fact that the issue of the grant of extension to the allottee of Plot No.448 could be clarified and the Estate Officer could be asked to withdraw the extension to Plot No.448 unless it was otherwise justified. It turned out that the Estate Officer cancelled the allotment with reference to Plot No.448 also. Civil Writ PetitionNo.6157 of 1986 - 3 - 3. To a contention by the petitioner challenging the order of resumption and the fact that the appeal had not even been disposed of by the Appellate Authority, the response from the respondents is that when the appeal against the 1st order of resumption on 16.04.1984 was disposed of on 17.04.1984 extending the period of extension upto October,1985, it was a self operative order that made a non-completion of construction within that period as resulting in automatic resumption. According to learned counsel for the respondent, there was no further need for issuing any fresh order of resumption and consequently there was no need for the Appellate Authority to dispose of the appeal by any specific order, against the subsequent order issued by the Estate Officer on 04.03.1986. 4. This contention, in my view, is fallacious. If the order of the Appellate Authority originally passed on 10.07.1985 was self-operative and the non-completion of construction entailed an automatic resumption, there would not have been even a need for fresh order on 04.03.1986. Or, if such an order was merely an act to bring home to the original allottee that the order passed already had taken effect such appeal could have been disposed of by the Administrator on such a ground. The Appellate Authority cannot receive an appeal on its file and treat the appeal remedy as not available to him without passing such an order. When the first order was made by the Appellate Authority on 10.07.1984 granting an extension upto 10.10.1985 and when a further extension was sought by the petitioner, he was no doubt seeking for an extension for Plot No.448, when it should have been only for Plot Civil Writ PetitionNo.6157 of 1986 - 4 - No.548. As observed by the Chief Administrator in his letter dated 07.04.1986 to the Administrator, it was a clear clerical error. If this error had been noticed and if the Estate Officer had not granted a further extension upto 04.09.1986 and rejected the claim on the basis that he was not afterall the owner of Plot No.448 and therefore, he could not have sought for extension, the matter would have ended there. Alternatively, if the Authority had noticed that although the petitioner had referred only to Plot No.448, it should have been only for Plot No.548, but since one extension had been already granted, he could not have asked for extension for completion of construction again, there can have been still no scope for intervention. 5. If there was a mistake on the part of the petitioner in referring to his property as coming within Plot No.448, there was equally a mistake on the part of the Administration in failing to note that the petitioner was not an owner of Plot No.448 and he could not have asked for an extension of period for such a plot number or for plot No.548. The petitioner had at least a reason to assume that when an extension was granted, he was still entitled to complete the construction upto September, 1986. If an order of resumption was made in March, 1986, at least then the Authority could have reviewed its decision and specifically cancelled that the extension, which they had granted, was on a wrong basis and that it would not avail to him to take such option. This stand must have been made explicit at least by the Appellate Authority before whom the appeal was pending. The non-consideration of the issue in the appeal filed against the order dated 04.03.1986, amounted to abdication Civil Writ PetitionNo.6157 of 1986 - 5 - of a statutory duty. In my view, it is no answer to contend that there was no need for passing an order in appeal since an appeal had already been decided on 10.07.1984 and a fresh appeal could not have been entertained. Even such a stand must only come through an express order of the Appellate Authority. The reply in the writ petition cannot substitute the need for a sweeping order that the occasion demanded. 6. The order of resumption, which was made on 04.03.1986 was incompetent in that it assumed that there was no extension granted for the claim of the petitioners for completing the construction. The claim of the petitioner for extension had been granted. But if there was a mistaken reference to Plot No.448, it was only a clerical mistake. The order of resumption could not have been made after allowing extension for the period of construction. 7. Learned counsel states that the property in Gurgaon was offered for allotment as early as in the year 1980 for a paltry sum of Rs.9,000/- and there has been no construction for all these years. If the property value has increased and we have come to a stage where no construction has still come about, the petitioner alone can not be inculpated. As far as the Administration was concerned except, the fact that a construction did not come up, the whole consideration due for the plot had been received. The resumption was not for non-payment of price but for failure to put up construction. 8. The counsel for the respondents who offered to inform the Court on instructions what the present market value was, expresses her inability to do so. The case is of the year 1986 and I do not think the Civil Writ PetitionNo.6157 of 1986 - 6 - case should brook any further delay I have taken a decision relating to the resumption as being not valid and even if any part of sale consideration had remained due of price, I would only direct that the petitioner shall pay the balance of amount which is shown as payable as on that date when a resumption was ordered and also entitle HUDA to collect simple interest at 18% from the date when the amount fell due till the payment. The amount shall be calculated and paid to the respondent within a period of 4 weeks from the date of demand, failing which the respondents shall be at liberty to take such fresh action on the Rules or terms and conditions permit. 9. The learned counsel appearing for the respondents states that the directions for payment of interest and the balance of the amounts as of the year 1980 as grossly unjust and the appropriate direction shall only be for payment of the present market rate. The learned senior counsel appearing for the petitioner contends that if the payments were to be made on the market rate, there was no need for even adjudication for person may always take a purchase from the open market if a property was available. The consideration of the case was required to be done only on the justification of the resumption order and once it was held that resumption order could not have been validly passed, then the liability shall be only for the balance of amount, if at all, found payable with interest as provided for above. I have considered the rival contentions and my directions for payment of interest alone would be possible in a case where it is found that the resumption order passed was not just. I have not been shown through any particular provision enabling the Civil Writ PetitionNo.6157 of 1986 - 7 - HUDA to claim penalty also. 10. The writ petition is, therefore, allowed in the light of the directions given above. (K.KANNAN) JUDGE 08.02.2010 sanjeev