CWP No.1117 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 23 .11.2010 Jasbir Singh Bhadana .... Petitioner Versus Haryana Urban Development Authority .... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI, JUDGE Present: Mr. Hemant Bassi, Advocate for the petitioner Mr. J.P. Bhatt, Advocate for respondents Permod Kohli, J. This petition has been filed for quashing the communication Memo No.9979 dated 28th February, 2006 (Annexure P-9) and Memo No. 11742 dated 14th March, 2006 (Annexure P-12). By the first communication, an amount of Rs.5,42,100/- has been returned back to the petitioner whereas by the latter communication, the request of the petitioner for restoration of the plot has been declined and the bank draft furnished by the petitioner returned. It may be useful to briefly notice the factual background leading to filing of the present petition. The residential plot measuring 14 Marla bearing Plot No.2265 in Sector-2, Palwal, CWP No.1117 of 2008 2 District Faridabad was allotted to the petitioner vide Memo No.318 dated 18th February, 1998 on free hold basis. In terms of the allotment letter, the price of the plot was fixed at Rs.1548/- per square meter. The total value of the plot was determined at Rs.4,64,700/-. The petitioner was required to deposit the earnest money of 10 per cent along with application. An amount of Rs.46,470/- was deposited by the petitioner being 10 per cent of the sale consideration. Another amount equivalent to 15 per cent of the total consideration was required to be deposited within 30 days from the date of allotment. In compliance to the aforesaid condition, an amount of Rs.69,705/- was also deposited within the stipulated period. Balance amount of 75 per cent could be deposited within 60 days without interest or in half-yearly installment with interest at the rate of 15 per cent. It appears as petitioner chose to deposit the amount in installments of payment of interest. Details of deposits made by the petitioner in installments is indicated in Para-4 of the writ petition, which is as follows:- (a) Rs.58,090/- towards Ist Instalment, receipt dated 15.2.1999. (b) Rs.58,100/- towards 2nd instalment, receipt dated 11.2.2000. (c) Rs.58,100/- towards 3rd instalment, receipt dated 23.2.2001. (d) Rs.58,100/- towards 4th instalment, receipt dated 14.2.2002. (e) Rs.58,100/- towards 5th instalment, receipt dated 10.2.2003. CWP No.1117 of 2008 3 One of the conditions of the allotment was payment of enhanced price in the event of enhancement of the cost of the land acquired for the development purpose by the Collector/Court. Respondents demanded the enhanced price of Rs.62,431.20/- and another amount of Rs.1,42,000/-, which was also deposited by the petitioner against receipts dated 4th December, 2000 and 19th March, 2002 respectively. It is alleged that despite deposit of amount Rs.6 lacs, the possession of the plot was never offered. The Petitioner visited the site and found lack of development in the area, which sans basic amenities. Petitioner vide his letter dated 2nd May, 2003 (Annexure P-2) asked for refund of the amount deposited by him. In response to the aforesaid communication, petitioner was informed vide letter dated 23rd July, 2003 (Annexure P-3) mentioning therein that the development work concerning his plot is completed but if still he is interested to take the refund, the same shall be paid after deducting 10 per cent of the total consideration as per the policy. Petitioner asked the respondent for the refund of the amount. Petitioner vide his letter dated 28th July, 2003 (Annexure P-4) reinstated his position for refund of the amount. Though the petitioner has not mentioned anything about the refund made by the respondents, however, in the reply, it has come on record that an amount of Rs.5,42,100/- was refunded to the petitioner. In the year 2003, the draft was duly encashed by the petitioner. The aforesaid refund was after deduction of 10 per cent of the price. It appears that the petitioner had a re-think and served a legal notice dated 15th December, 2005 claiming restoration of the CWP No.1117 of 2008 4 plot and by disputing 10 per cent of the price, the petitioner also enclosed pay order bearing No.251985 dated 15.12.2005 for Rs.5,42,100/- along with aforesaid notice. Respondents issued a show cause notice dated 31st January, 2006 to the petitioner under Section 17(3) of the Haryana Urban Development Authority Act, 1977 alleging him to show cause why plot be not resumed, for non-payment of extension fee for the current year on account of failure to construct the building. Petitioner deposited Rs.3000/- as extension fee and also requested for time to complete the construction upto 21st December, 2006 vide his letter dated 3rd February, 2006 (Annexure P-9). The petitioner again sent back the bank draft to the respondents vide his letter dated 3rd March, 2006 (Annexure P-10). Respondents, however, vide Memo No.11743 dated 14.03.2006 (Annexure P-12) again returned the amount to the petitioner and informed that the said plot cannot be re-allotted. I have heard learned counsel for the parties at length. It is an admitted case of the parties that Plot No.2265 in Sector-2, Palwal, District Faridabad was allotted to the petitioner after he had paid the sale consideration. In terms of the allotment, he has also paid enhanced price. It is equally admitted by the petitioner that he asked for refund of the money and the amount of Rs.5,42,100/- was refunded to him after deduction of 10 per cent which amount was encashed by the petitioner in the year 2003. It was only after about 2 years that the petitioner approached the respondents for restoration of the plot disputing deduction of 10 per cent. Respondents have thus declined the request of the petitioner for restoration of the plot CWP No.1117 of 2008 5 and the amount again offered by the petitioner has been returned back. In the application filed by the petitioner, claim of refund is sought to be justified on the ground that there has been delay in offering the possession and thus the petitioner wanted that his money should not be utilized by the respondents. To the contrary, the respondents specifically pleaded that on surrender of plot by the petitioner, he asked for the refund of the money. It is also pleaded that 10 per cent amount was deducted in accordance with the HUDA's policy. It is further claimed by the respondents that the surrendered plot cannot be re-allotted that too after period of two years of surrender. Similar controversy has been considered by this Court in a Division Bench Judgment of this Court reported as 2009 (3) R.C.R. (Civil) 104. In the aforesaid case also allottee asked for the refund by repeated applications and surrendered the plot. It was after deduction of 10 per cent that the allottee initiated proceedings in the said case also. Extension fee was demanded after the surrender and notice of resumption of plot was issued as is the position in the present case. Hon'ble Division Bench considering the fact that there has been conscious decision on the part of the allottee to surrender the plot and thus he cannot be permitted to take summersault and seek resumption of the plot. The facts of the present case are similar to above case. The petitioner after having written number of applications seeking refund of the amount and encashing the draft of refund price with deduction of 10 per cent cannot be permitted to reclaim the plot after a lapse of about 2 years. There is another ground for denying the relief to the petitioner. CWP No.1117 of 2008 6 Admittedly, petitioner filed a Civil Suit claiming re-allotment of the plot. The Civil Suit No.439 of 2006 was later dismissed as withdrawn vide order dated 13th November, 2007 without reserving any right to file the writ petition. Since no details of the exact relief claimed in the Civil Suit are given, it is not possible for this Court to consider the application of principle of res judicata, however, dismissal of the suit without liberty to file the writ petition should attract at least doctrine of es-topple. In the totality of the circumstances, this petition is dismissed with no order as to costs. (Permod Kohli) Judge 23 .11.2010 CWP No.1117 of 2008 7