IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14209 of 2000(O&M) Date of Decision: 27.08.2009 Krishan Kumar Kathuria Petitioner Versus Haryana Urban Development Authority and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.Puneet Bali, Advocate for the petitioner Mr.B.S.Walia, Advocate for the respondents ….. Jasbir Singh, J. This order will dispose of Civil Writ Petition bearing Nos.13943, 14209, 14210, 14211, 14235, 14294 and 14470 of 2000, involving similar questions of law and facts. For facility of reference, facts are being mentioned from CWP No.14209 of 2000. This writ petition was admitted on 10.1.2001. The petitioner has filed an application, bearing No.5653 of 2008 with a prayer that the writ petition be disposed of in terms of the judgment and decree dated 24.12.2003, passed by the Additional District Judge, Faridabad (A1), in favour of the similarly situated petitioners/ claimants, who were allotted booths in Sector 15, Faridabad, by respondent No.1. On 20.7.2009, it was ordered that the writ petition itself will be taken up for regular hearing on the next date of hearing. Civil Writ Petition No.14209 of 2000 With the consent of counsel for the parties, all the writ petitions, mentioned above, are taken on Board, for final disposal. As prayed in this application, copy of the judgment (Annexure A1) is taken on record. The petitioner has filed this writ petition with a prayer to quash order dated 31.7.1998 (P8) and also order dated 28.8.2000 (P10), vide which, appeal filed by the petitioner was dismissed. Counsel for the parties heard. Record reveals that the petitioner was inducted as a tenant in booth No.107, Sector 37, Faridabad on 11.5.1985. Lease was sanctioned for a period of two years, @ Rs.400/- per month. Lease expired on 10.5.1987, however, the petitioner continued in possession, in the year 1996 the respondents issued notice under Section 18(1) (2) of the Haryana Urban Development Authority Act, 1977 (in short, the Act), for his ejectment. Before the competent authority, the petitioner took up a stand that he had already submitted an application (P3) for purchase of the booth as per Policy of the State government dated 30.5.1988(P2). Vide the impugned order, the competent officer gave an option to the petitioner to purchase the site at, the latest auction price i.e. Rs.10,08,500/-, or to vacate the booth within 15 days from the date of order i.e. 31.7.1998. The petitioner went in appeal, which was dismissed on 28.8.2000. Hence, this writ petition. Counsel for the petitioner has vehemently contended that the petitioner was inducted as a tenant in the year 1985 for a period of two years. On expiry of the lease period, the petitioner continued in possession of the booth, on payment of rent. It was also averred that after rejection of his appeal on 28.8.2000, as demanded, the petitioner deposited an amount of Rs.31,200/- towards arrear of rent. It is stated by the counsel for the 2 Civil Writ Petition No.14209 of 2000 petitioner that an offer was given, to purchase the booth at a price, fixed after taking note of the latest auction price before passing the order dated 31.7.1998. He argued the that amount claimed towards price, runs contrary to the Policy of the State Government published on 30.5.1988. He further argued that many similarly situated lessees, from whom, higher amount was demanded, than the one, as provided in the Policy mentioned above, went to the Civil Court, their suit was dismissed, however, vide judgment and decree dated 24.12.2003, their claim was accepted and the respondents were directed to transfer the booth-cum-shop in their favour, on receipt of price, fixed by taking note of first auction, which had taken place after leasing out the booth(s) to those lessees. He further stated that the judgment stood implemented qua those lessees and sale deeds have been executed in their favour. He prayed that the petitioner who is similarly situated, be also granted the same relief. Prayer made has vehemently been opposed by counsel for the respondents, by stating that the lease in favour of the petitioner, was only for two years and thereafter, he had no right to sit over the property and in view of that, order has rightly been passed, giving him an option to purchase the booth, at a price, mentioned therein. He prayed that the writ petition, having no substance, be dismissed. This Court feels that in view of facts of this case, this writ petition deserves to be allowed. It is not in dispute that the petitioner was inducted as a lessee, in the booth in question, on 11.5.1985. The lease was for a period of two years. After expiry of his lease period, the petitioner continued in possession. In consequent to the Policy of the Government, dated 30.5.1988, he moved an application (P3) to purchase the booth, in question, 3 Civil Writ Petition No.14209 of 2000 on expiry of five years from the date of first entry in the booth. In that application, it is further stated that as per Policy, mentioned above, booth be allotted to him. His request was not considered. At a very belated stage, in the year 1996/1997, notice under Section 18(1)(2) of the Act was issued for his ejectment. Before the competent authority also, the petitioner made a request that he be allowed to purchase the booth in question like many other lessees, to whom that benefit was extended, in Sector 15, Faridabad. By taking note of that prayer, the competent officer, in order dated 31.7.1998, observed as under:- “I have heard both the parties at length and gone through the record of the file. After a long discussion held with the parties, I have come to conclusion that the lessee is illegal occupant of the booth. I have also gone through the contents of the decision received from C.A. HUDA conveyed vide his memo No.A-16-97/32577 dt. 30.9.97. A Policy regarding such type of cases was also framed in 1988 under which it was decided that the lessees who are in possession of booth for more than 5 years may give an option either to purchase the booth on the latest reserve price of auction or to vacate the booth. This policy was received from C.A. HUDA vide his memo No.A-11-P/77-78/19149-59 dated 30.5.88. Keeping in view of the circumstances of the case and decision taken by C.A. HUDA in the case of lessees of Sector 15 Faridabad, I am of the opinion that the relief to the lessee be given in the light of decision of C.A. in case of lessees of Sector 15 Faridabad. 4 Civil Writ Petition No.14209 of 2000 I am therefore of the opinion that the lessee be provided an opportunity either to purchase the booth/ shop at the latest auction price i.e. Rs.10,08,500/- (Tentative Cost) or to vacate the booth within 15 days from the date of this decision. However, the commercial rent will have to be paid by the lessee w.e.f. the date of expiry of lease period to till date.” Reading of the order, extracted above, indicates that offer to purchase, was given to the petitioner as per terms and conditions of the Policy dated 30.5.1988 (P2). In that Policy, it is mentioned that on completion of five years, in possession, option be given to a lessee either to vacate the booth/ shop or to purchase it at a reserved price fixed after the first auction. Relevant portion of the Policy reads thus:- “In token of appreciation of the pioneering efforts of the lessees of shops/ booths in various sectors of HUDA, it was decided that after a period of 5 years from the date of original lease, the lessee would be given an option either to purchase the shop/ booth or vacate the premises. If the choice is to purchase the booth, the same be offered to him at the reserve price fixed after the first auction. The option would be withdrawn thereafter, and would not be available to him. The rent would, however, be charged at commercial rates.” Before this Court, it is not disputed that the petitioner is governed by the Policy, mentioned above. Similar dispute arose between many other lessees and the respondents, after making offer, their prayer, to purchase the booths, in their possession was declined. They went to the Civil Court, their suit was dismissed, however, appeal was allowed on 24.12.2003, by observing as under:- 5 Civil Writ Petition No.14209 of 2000 “It is also evident from Ex.P1 letter written by the Chief Administrator, HUDA dated 30.5.1988 that in token of appreciation of the pioneering efforts of the lessees of shops/ booths in various sectors of HUDA, it was decided that after a period of five years from the date of original lease the lessee would be given an option either to purchase the shop/ booth or vacate the premises. If he choose to purchase the shop/ booth, the same be offered to him at the reserved price fixed after first auction. It is also ample clear from Ex.P2 letter written by the Estate Officer, HUDA Faridabad that first auction was held on 2.11.1977 and reserved price was worked out to be Rs.30,750/- and after adding 10% interest per year, reserved price was worked out Rs.88,000/- and for corner plot Rs.96,800/-. Admittedly the appellants/ plaintiffs chose to purchase the booths/ shops in question and in pursuance of offer made by the respondent/ defendant, they deposited Rs.22,000/- each i.e. 25% amount of the total cost. 17. Now the question arises whether the Chief Administrator, HUDA or the respondent/ defendant can demand latest reserved price of the booth/ shop in question from the appellants/ plaintiffs vide Ex.P5 or not after a lapse of period of approximately nine years. The question has been well answered by our own Hon’ble High Court in case Bal Raj Kapuria and other versus State of Punjab and others 1994 HRR-212 wherein it is held that allottees are entitled to seek allotment at the rates prevailing at the time of initial allotment. It is not proper for the respondent to demand the enhanced 6 Civil Writ Petition No.14209 of 2000 price from the allottee petitioners. They cannot be made to suffer due to arbitrary action of the department who delayed the issuance of allotment letter to the petitioner. In the cited judgment, the allottees were allotted plots in S.A.S. Nagar at the rate of Rs.58/- per sq. yard in the year 1980. 1/4th amount was duly paid and they were allotted registration number also. They were allotted the plots in 1980 though allotment letters were issued in 1989. Respondent enhanced the price and petitioners were asked to deposit the latest revised price.” Petitioner is also similarly situated. On completing five years in occupation of the booth, he moved an application (P3) to purchase the same, as per the State Policy, mentioned above, however, the request was not considered. He was allowed to continue in possession upto the year 1996 when, for the first time, notice was issued to him for ejectment. In the written statement, it is admitted that under the Policy of the Government, many lessees were allowed to purchase properties, under their possession. However, offer was not made to the petitioner because he had not completed five years when Policy was issued in the year 1988. Before this Court, it is not disputed that the Policy was in operation when case of the petitioner was considered for allotment of a booth. If that was so, it is not justified to offer allotment of a booth to the petitioner at a price, fixed by taking note of the latest auction price, held immediately before passing of the order on 31.7.1998 (P8). At the time of arguments, counsel for the petitioner made a very fair offer that the petitioner can be allowed to purchase the booth at a price which may have been fetched for a similar property, in auction, first in time, after the booth was leased out to the petitioner. He further submitted 7 Civil Writ Petition No.14209 of 2000 that from the year 1991, when application was moved to purchase of the booth, the petitioner shall also pay an interest @ 8% per annum (simple) on the price so determined. This Court feels that the stand taken is appreciable. As per the Policy, published in the year 1988, the petitioner is eligible to purchase the booth at a reserve price, fixed after taking note of the price fetched in auction, which may have been conducted immediately, after 11.5.1985, when booth was leased out to the petitioner. In view of above, this writ petition is allowed, order under challenge, claiming amount on the basis of auction conducted immediately before 31.7.1998 is set aside and directions are issued to the respondents to transfer booth in question in favour of the petitioner against reserved price which may be fixed by taking note of first auction that may have been conducted after 11.5.1985 (i.e. the date when lease was executed in favour of the petitioner). On the price so determined, the petitioner shall pay an interest @ 10% per annum (simple) from 10.5.1990 i.e. when he completed five years possession till the date of payment of full amount. No order as to costs. 27.08.2009 (Jasbir Singh) gk Judge 8