CWP No.17154 of 2009 & other connected matters 1 IN THE HON’BLE HIGH COURT OF PUNAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 10 .9.2010 1.CWP No.17154 of 2009 Shiv Saran Kashyap …Petitioner Versus The State of Haryana and others …Respondents 2.CWP No.17171 of 2009 Raj Kumar …Petitioner Versus The State of Haryana and others …Respondents 3.CWP No.17181 of 2009 Anguri Devi …Petitioner Versus The State of Haryana and others …Respondents QORAM HON’BLE MR.JUSTICE PERMOD KOHLI Present: Mr.Ashok Malik, Advocate for petitioners CWP No.17154 of 2009 & other connected matters 2 Mr.SS Pattar,Sr. DAG, Haryana Mr.A.K.Kansal, Advocate for HUDA respondents PERMOD KOHLI, J. In all the three writ petitions, orders dated 12.8.2009 are under challenge. Though there are separate impunged orders of the even date, however, the basis for these orders is common. These petitions are accordingly disposed of by this common order. Shopping Booths were allotted in the District Shopping Centre, Urban Estate, Jind Haryana vide allotment letters dated 31.1.1991 on the basis of open auction. The costs of the plots are different in different cases. The petitioners deposited 10% earnest money at the time of allotment. Under the terms and conditions of the allotment letter 15% of the consideration amount was to be deposited within 30 days from the issue of the allotment letter. It is stated that 15% of the amount was deposited within the prescribed time. However, the entire balance amount could not be deposited by the petitioners in terms of the allotment letter. It is alleged that the petitioners visited the Office of the Estate Officer, HUDA in the year 2006 and they came to know that the plots have been resumed. In CWP No. 17171 of 2009, plot was resumed on 13.2.2001. The petitioners preferred appeals against the orders of resumption before respondent no.3. The appeals filed by the petitioners against the ex-parte resumption orders came to be accepted. Petitioners were asked to deposit all pending dues with interest, penalty etc. within one month alongwith fine of Rs.5000/- within CWP No.17154 of 2009 & other connected matters 3 15 days from the intimation by the Estate Officer, HUDA. The petitioners were informed of the amount due by the Estate Officer, HUDA in writing and had asked the petitioners to deposit the amount within 15 days. It is accepted case of the parties that the petitioners deposited the outstanding amount alongwith interest and penalty etc. within the prescribed time. After accepting the outstanding amount from the petitioner, the Estate Officer, HUDA, Jind filed revision petition before the Financial Commissioner and Principal Secretary to Government of Haryana Town and Country Planning department challenging the orders of the Administrator, HUDA passed in appeals. The revisional authority has allowed the revisions and set aside the orders passed by the appellate authority only on the ground of limitation. It has been observed that the appeals have been filed after abnormally a long period of six years from the date of resumption and thus appeals have been held to be barred by time. Revision Petitions have been accepted. Orders of the reviewing authority have been challenged in these writ petitions. One of the contentions of the petitioners is that the order of resumption was ex-parte order. No notice was served upon the petitioners as required under law. It is argued that the Estate Officer should have resorted to substituted service prescribed in Clause 3 of Section 42 (iii) of the HUDA Act, 1977 and since the orders have been passed at the back of the petitioners, the order of resumption was violative of the principles of natural justice. It is accordingly contended that the appellate authority is justified in accepting the appeals. The petitioners have also stated that the period of limitation commences from the date of knowledge in the present CWP No.17154 of 2009 & other connected matters 4 case and not from the date of passing of the resumption order and thus, the appeals were within time. One of the contentions of the petitioners is that there was absolutely no development, even roads were not constructed, nor possession delivered to the petitioners. Hence they were under no obligation to deposit the entire amount during the prescribed time. The petitioners have placed on record photographs showing that the area is water logged and there is absolutely no development, though some structures are existing. In the reply filed by the respondents, the allegations are denied. It is stated that the development in the area was completed on 15.9.1998. Offer of possession was also made in the year 1998 and letters were sent to the petitioners through registered posts. Respondents have also placed on record copy of the dispatch register containing the entries of dispatch of the letters. It is further stated that notices under Section 17(2), 17(3), 17(4) were issued, but the petitioners did not respond, forcing the respondents to pass the order of resumption. It is contended on behalf of the petitioners that the petitioners having complied with the directions of the appellate authority by depositing the amount, it was not open to the Estate Officer to have filed the revision petition. A Division Bench of this Court in the case of Ajay Singh Mann vs. State of Haryana and others, 2009(1) R.C.R. (Civil) 474 while considering the question of resumption of plot on default in payment of the instalments, observed as under:- “11. It has been repeatedly held by the Courts that the power of resumption/cancellation of plots, CWP No.17154 of 2009 & other connected matters 5 houses, commercial and industrial sites etc. should be exercised only as a last resort. A Full Bench of this Court in the case of Ram Puri v. Chief Commissioner, Chandigarh, AIR 1981 P&H 301, has categorically laid down that the power of resumption is ultimate civil sanction and must, therefore, be used as a weapon of last resort. Inevitably it should be used with great caution and circumspection because in a sense the individualistic property rights have to give way to larger public purpose of planned and regulated urbanisation (See paras 86 & 87 of the judgment). The view taken by the Full Bench of this Court in Ram Puri’s case (supra) has been approved by Hon’ble the Supreme Court in the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130. Hon’ble the Supreme Court discussed the doctrine of proportionality in its historical perspective (paras 40 to 53) and referred to various facets of the aforementioned doctrine. It has been held that the Court has to see that the legislature and the administrative authority maintain a proper balance between the adverse effects, which the legislation or the administrative CWP No.17154 of 2009 & other connected matters 6 order may have on the rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve. It also been concluded that every case has to be examined on its own facts.” In the case of M/s Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and others, 2004(2) SCC 130, Hon’ble Supreme Court further held that the drastic power of resumption is to be used only as a last resort in a rarest case where the allottee has no intention at all to pay. To the contrary, learned counsel for respondents has referred to a judgment of the Hon’ble Supreme Court in the case of Haryana Urban Development Authority and Another vs. Roochira Ceramics and another wherein it has been held that High Court can only examine the procedure of correctness. It is accordingly argued on behalf of the respondents that the revisional authority having passed the order, it is not open for this Court to examine the validity of the order of the revisional authority. I have heard learned counsel for the parties. It is now a settled proposition of law that the power of resumption should be the last resort and should be resorted to only in case of an allottee is unwilling to pay or unable to pay. The petitioners had deposited 25% of the amount within the stipulated period, though the balance could not be paid within the prescribed time. The appeals filed by the petitioners against the orders of resumption came to be accepted by the appellate authority who is none else CWP No.17154 of 2009 & other connected matters 7 than the Administrator, HUDA. The appellate authority, on consideration of respective contentions of the parties directed the petitioners (appellants therein) to pay the amount within a period of 15 days alongwith interest. The Estate Officer implemented the order of the Appellate Authority and issued written communication to the petitioners to deposit the outstanding amount within 15 days. It is admitted case of the parties that the petitioners deposited the amount worked out by the Estate Officer within the prescribed time of 15 days from the date of receipt of the memo for deposit of the amount. It is only after the amount was received by the Estate Officer that he filed revision petition before the revisional authority and pleaded that the appeals were filed beyond the prescribed time. The action of the Estate Officer, HUDA is totally illegal and unwarranted. After having implemented the order of the Appellate Authority and receiving the amount from the petitioners, it was not open to the Estate Officer to have challenged the order of the appellate authority by invoking revisional jurisdiction. By communicating the amount payable to the petitioners and accepting the amount, the Estate Officer in fact acquiesced to the right of the petitioners and estopped himself from challenging the orders of the Appellate Authority. Revisional authority has totally ignored this aspect of the matter. In addition to this, the Revisional Authority has simply allowed the revision petition on the ground that the appeal was barred by time. It did not record any finding on the merits of the controversy. I am of the considered opinion that the orders of revisional authority impugned in these petitions are liable to be set aside firstly because the revision was not competent after the CWP No.17154 of 2009 & other connected matters 8 implementation of the judgment of the appellate authority and secondly the resumption being the last resort, at least one opportunity to deposit the outstanding amount was to be provided to the petitioners which opportunity was provided by the appellate authority. The petitioners deposited the entire outstanding amount along with interest and penalty. The amount was accepted by the Estate Officer, without any reservation or rider. These writ petitions are accordingly allowed. Orders dated 12.8.2009 passed by the revisional authority impugned in these petitions are hereby set aside. Respondents shall hand over the possession of the booths to the petitioners within a period of one month from the date a certified copy of this order is received by the competent authority. Copy of this order be placed on record of each concerned file. 10.9.2010 (Permod Kohli) MFK Judge NOTE:Whether to be referred to the Reporter or not:YES