C.W.P. No. 3091 of 1987 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 3091 of 1987 (O&M) Date of decision: 10.5.2011 Subhash Chander Khunger and others .. Petitioners v. The Administrator, Haryana Urban Development Authority and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A. K. Chopra, Senior Advocate with Mr. Harminder Singh, Advocate for the petitioners. Mr. S. S. Dalal, Advocate for the respondents. ... Rajesh Bindal J. The petitioners have approached this court praying for setting aside of orders dated 8.11.1985 (Annexure P-5) and 2.12.1986 (Annexure P-9), whereby the claim for refund of the amount deposited by them on acceptance of their bid at the time of auction, was rejected. Briefly, the facts are that Haryana Urban Development Authority (for short, `HUDA') offered for sale booth sites in Sector 6, Panchkula in open auction. The petitioners were the highest bidders for booth site No. 51 for a sum of ` 1,36,500/-. The auction was held on 25.2.1981. The petitioners deposited ` 13,650/- being 1/10th of the bid amount at the time of fall of hammer. Allotment letter was issued in favour of the petitioners on 16.4.1981. As per the terms of auction, 15% of the bid money, i.e., ` 20,475/- were paid on 15.5.1981. The total amount paid was ` 34,125/-. The balance amount could either be paid in lump sum or in 10 half yearly instalments along with interest. Possession of the plot was offered to the petitioners on 12.8.1983. The petitioners claimed that on C.W.P. No. 3091 of 1987 [ 2] 25.8.1983, they had surrendered the allotment and sought refund of the amount already paid on account of the fact that there was no development at the site, though in terms of conditions in the allotment letter, the possession could be offered only after development. Legal notice was issued on 1.6.1985. The prayer of the petitioners having been rejected by the Estate Officer, HUDA, the appeal was filed before the Chief Administrator, who vide order dated 2.12.1986 dismissed the same. It is against these orders that the petitioners are before this court. Learned counsel for the petitioners submitted that as per clause 6 in the allotment letter, the possession of site could be offered on completion of development work in the area. In the present case, though auction was held on 25.2.1981, the allotment letter was issued in favour of the petitioners on 16.4.1981. Still the possession was offered only on 12.8.1983 and that too without there being any development. The petitioners surrendered the allotment on 25.8.1983 and sought refund of the amount already paid. When the same was not paid, a legal notice was sent on 1.6.1985, which was rejected on 8.11.1985 by the Estate Officer, referring to the policy for surrender of plots. The petitioners filed appeal before the Chief Administrator, where it had come on record that development in the area was not yet complete, but still the appeal was rejected, whereas in other cases under similar circumstances, the Administrator, HUDA accepted the appeals and directed for refund of the amount already paid after deduction of nominal amount. He further submitted that policy dated 12.2.1985 regarding surrender of commercial plots is not relevant in the facts and circumstances of the case, as in the present case the respondents were at fault and not the petitioners, where they failed to carry out development in the area. With the surrender of plots by the petitioners, in fact the respondents were benefitted as subsequently the plot was sold by them in lacs. Reliance was placed upon a judgment of this court in C.W. P. No. 814 of 1986 –Shri Davinder Singh Dhaliwal and others v. Administrator, Urban estate and another, decided on 5.5.2004, where this court directed for refund of the amount already paid along with interest @ 9% per annum. C.W.P. No. 3091 of 1987 [ 3] On the other hand, learned counsel for the respondents submitted that it is wrong to state that development in the area was not complete. It was merely re-carpeting of the parking area which was going on. The judgment in Davinder Singh Dhaliwal's case (supra), sought to be relied upon by learned counsel for the petitioners, is not applicable in the facts and circumstances of the case as at the relevant time, no policy had been framed. The case in hand is squarely covered in terms of the policy. Even HUDA had constructed booths in Sector-6, Panchkula, which itself shows that development in the area was already there. Heard learned counsel for the parties and perused the paper book. A perusal of clause 6 of the allotment letter shows that possession of the site was to be offered on completion of development work in the area. Possession was offered to the petitioners by HUDA on 12.8.1983, though allotment letter was issued on 16.4.1981, i.e. more than two years thereafter. Though the petitioners claimed that they had surrendered the plot on 25.8.1983, however, there is no material as such on record to substantiate that plea as this fact had even been denied by the respondents. A legal notice sent by the petitioners on 1.6.1985 for refund of the money already deposited on surrender of plot is admitted. The surrender was sought on account of the reason that possession of the plot was offered without there being any development activity in the area, as a result of which the petitioners were not able to raise any construction. The prayer of the petitioners was declined by the Estate Officer. Regulation 14 of Haryana Urban Development Authority (Disposal of Land and Building) Regulations,1978, which is extracted below, provides that an allottee/transferee can surrender any land/building if he is unable to raise construction due to certain compelling circumstances, which may be effected at the discretion of the Estate Officer, subject to the policy guide-lines laid down by the Chief Administrator from time to time: “14. Surrender of land/building by the transferee or lessee- If a transferee/lessee is unable to raise construction on the C.W.P. No. 3091 of 1987 [ 4] land disposed of to him due to certain compelling circumstances, the Estate Officer may allow to surrender the land at his discretion, subject to the policy guide lines laid down by the Chief Administrator from time to time. In the case of acceptance of surrender, the interest amount recovered from the transferee or lessee shall not in any case be refunded.” Though a policy on the issue dated 12.2.1985 is sought to be referred, but that policy has to be considered in the light of the provisions of Regulation 14, where surrender is made by an allottee who is unable to raise construction due to certain compelling circumstances. These may be attributable to the allottee. In the present case, the claim of the petitioners is that they had surrendered the allotment on account of the fault of the respondents, where they had failed to carry out development in the area. For the purpose, they have referred to a letter, written by the Executive Engineer to the Administrator on 18.11.1986, much after the date on which legal notice was sent by the petitioners for surrender of the plot and refund of the money already deposited. It was mentioned in the aforesaid letter that earth work of parking area in front of commercial site in Sector 6, Urban Estate, Panchkula is in progress and material for construction of Water Bound Macandam surfacing is being arranged and the development shall take approximately 3-4 months further. A copy of this communication was sent by the Executive Engineer to the Sub Divisional Engineer with a request to complete the development work during the period mentioned in the letter. It clearly shows that in November, 1986, the area was not developed and possession of the plot was offered to the petitioners on 12.8.1983, i.e., more than three years earlier. The contention raised by learned counsel for the respondents that it was merely some re-carpeting work of the parking area which was going on in November, 1986 is merely to be noticed and rejected for the reason that letter of the Executive Engineer clearly mentioned that it was earth work in the parking area which was going on. That means some filling may be required in that area. The parking is obviously in front of C.W.P. No. 3091 of 1987 [ 5] the booth. If there is area in front of the booth where filling is required, the allottee certainly cannot construct the booth as it cannot be used. The area cannot be said to be developed of which the possession could be offered in terms of the condition in the allotment letter. For the reasons mentioned above, in my opinion, the petitioners cannot be made to suffer on account of the lapse on the part of the respondents and they are certainly entitled to be refunded the amount already deposited by them. Accordingly, while setting aside the impugned orders (Annexures-P5 and P9), it is directed that the amount of ` 34,125/- deposited by the petitioners be paid to them along with interest @ 9% per annum from June, 1985 onwards till payment. The writ petition is disposed of in the manner indicated above. ( Rajesh Bindal ) Judge 10.5.2011 mk