CIVIL WRIT PETITION NO.908 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 25 ,2011 Brij Mohan .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sanjiv Gupta, Advocate, for the petitioner. Ms. Shruti Jain, AAG, Haryana, for the State. Mr. Manish Bansal, Advocate, for respondent Nos.2 and 3. **** RANJIT SINGH, J. The issue involved in this case primarily would be to see if the petitioner would deserve consideration when he had failed to comply with the undertaking given before the authorities leading to resumption of plot allotted to him. It is true that resumption should be a last resort and should not 1 ordinarily be resorted to but this will depend upon facts and circumstances in each case. Plot No.345, Sector 5 at Karnal was allotted to the CIVIL WRIT PETITION NO.908 OF 2009 :{ 2 }: petitioner on a free hold basis. As per the terms and conditions of the allotment letter, a simple interest at the rate of 15% per annum was chargeable, even if some payments were delayed. The petitioner claims that the interest so chargeable was simple interest as has been held by the Court in various judgements. A sum of `171887/- became over due against the said plot. HUDA, therefore, issued notice to the petitioner under Section 17(1) of the HUDA Act, 1977 (for short, “the Act”) on 31.12.2003. The petitioner was also afforded opportunity of personal hearing on 8.4.2004. Still the petitioner neither deposited the amount nor attended the office for personal hearing. The petitioner was awarded penalty of 10% of the amount due and given time to deposit the amount within 15 days. Upon his failure to comply with the same, another notice under Section 17(3) of the Act was issued to the petitioner on 28.5.2004. He again failed to appear or attend the hearing which was afforded to him. The petitioner then sought waiving of the interest and prayed for time to deposit the amount as originally demanded. This request was refused and order resuming the plot was passed on 30.7.2004. The petitioner then filed an appeal against the said order. Considering the cause and the reason given by the petitioner, the appellate authority found that the default was not deliberate. Finding that the petitioner was ready to pay the penalty and interest as per HUDA policy, the resumption order passed by Estate Officer was revoked. The petitioner was directed to pay the whole amount calculated as per HUDA policy in two equal instalments in four months from the date of receipt of the order. Concededly, the CIVIL WRIT PETITION NO.908 OF 2009 :{ 3 }: petitioner has not complied with the direction to deposit the amount, as per his undertaking given before appellate authority. Rather, the petitioner approached the revisional authority with a request that he had been repeatedly requesting for waiving of the interest and penalty and also made a grievance against action for charging compound interest on the delayed payment. The petitioner accordingly prayed for setting-aside of the order to the limited extent by seeking permission to pay the whole amount calculated as per HUDA policy in two equal instalments in four months from the date of receipt of copy of the order. The above approach was made by the petitioner in the year 2008. The revisional authority considered the same and noticed that appellate authority had revoked the resumption order on 26.4.2005 and had given liberty to the petitioner to pay the whole amount calculated as per HUDA policy in two equal instalments in four months alongwith interest and penalty. It is also noticed that this order was passed as per the consent and willingness expressed by the petitioner. Finding that there was no provision for waiving of interest and penalty, the revision petition was dismissed, being without merit. The petitioner accordingly has filed the present petition with a prayer for quashing this impugned order, whereby he has been denied the benefit of judgment in the case of Mohan Dass and Harbans Lal Vs. HUDA and for issuing writ of mandamus, directing the respondents to calculate the amount payable in terms of the judgment as aforementioned. Prayer was also made for staying the dispossession of the petitioner. CIVIL WRIT PETITION NO.908 OF 2009 :{ 4 }: This Court issued notice of motion and granted interim stay. Reply is filed by respondent-HUDA, opposing the prayer made by the petitioner. As disclosed in the reply, this plot was allotted to the petitioner on 7.4.1992 with the tentative price of `4,76,700/-. The petitioner only paid 10% of the amount i.e. `47,670/- as earnest money. Thereafter, the petitioner deposited 15% of the amount on 30.4.1992. Remaining 75% of the tentative price has not been paid by the petitioner. This amount was payable either in lump-sum without interest or through six yearly instalments with interest. The possession of the site was offered to the petitioner but the petitioner failed to deposit even the first instalment. As per the reply, show cause notice was issued to the petitioner to pay the sum due as per the instalments besides the interest and penalty. The petitioner had then deposited only `25,000/- on 1.3.1994.After following due process of law, the plot was then resumed. Then had followed the process of appeal and revision and the present writ petition. As per the reply, the petitioner is in arrears of `25,47,060/- on the date of filing reply. The prayer made by the petitioner is accordingly opposed. The core issue, which requires consideration is that if the petitioner can now be shown some concession for making the payment? Counsel for HUDA was asked to have instructions but he expressed inability on the part of HUDA even to permit payment of the plot at the prevailing price. As per the counsel, such concession would lead to setting of bad precedent, which the authority like HUDA would wish to avoid. It is, thus, to be examined if the petitioner would CIVIL WRIT PETITION NO.908 OF 2009 :{ 5 }: have any legal right to ask for making payment at this belated stage. The petitioner had himself voluntarily undertaken to deposit the entire amount, including penalty, within four months in two equal instalments and this happened long ago in the year 2005. Till date, the petitioner has not deposited any amount except 25% of the amount due. An opportunity was provided to the petitioner even after 10 years of the allotment of the plot, when the petitioner undertook to discharge the complete liability. The petitioner has failed to stand by his commitment made before the appellate authority. The submission that the petitioner was seeking waiving of interest and penalty appears to be a lame excuse advanced to justify the non-payment of the amount due. If the petitioner had been sincere in this regard, nothing prevented him to deposit atleast the principal or the conceded amount and then ask for waiving of the interest or penalty, if this could so done in terms of the HUDA policy. The petitioner undertook to deposit this amount within four months on 26.4.2005. He remained unsuccessful in revision, which was also decided in October 2008. Still, the petitioner has not taken any action to deposit even a single penny. His intentions appear very clear and that is to buy time. In the process, the property price has increased many folds. No wonder, the petitioner is now desperate to have this property and is now ready to pay the market price. This would even mean that the clock has to be put back number of years. Reliance by counsel for the petitioner on the case of Smt.Kanta Devi Budhiraja Vs. State of Haryana, 2001(3) R.C.R. (Civil) 276 would rather be of no avail to him and appears to be going CIVIL WRIT PETITION NO.908 OF 2009 :{ 6 }: against the submissions made by the petitioner. In this case, the Court has observed that the allottees are bound to pay the instalment of the price on the due date and they can not avoid their contractual liability on the pretext of lack of development. The Court had then gone on to consider the position of law, which would emerge from an undertaking given before the authorities, which is not complied with. As noticed in Smt.Kanta Devi Budhiraja's case (supra), the allottee had also given an undertaking and had secured a favourable order. The Appellate Authority had accepted the undertaking given and had restored the site subject to the condition of payment of outstanding dues in two instalments. In this situation, the Court has observed that after having secured a favourable order by giving an undertaking to pay the outstanding dues alongwith interest, the allottees or their GPA will be deemed to have waived the objection, if any, to levy of the interest as well as the rate of interest and they are estopped from challenging the same. Similar is the position in the present case. Once the petitioner had undertaken to make the payment within four months in two equal instalments alongwith interest and penalty as per HUDA policy, he can not now be heard to seek waiving of interest etc. and is rather estopped from pleading the waiving of interest or penalty. Rather, the petitioner can not now be permitted to deposit the amount as he had failed to comply with the undertaking and the condition on the basis of which the order of resumption was passed. This judgement, thus, in no way would help the petitioner. Reference made by the counsel to the decision in Civil Writ Petition No.3563 of 2008 (Manju Rani and others Vs. HUDA CIVIL WRIT PETITION NO.908 OF 2009 :{ 7 }: and another, would also not be attracted to the facts of the present case. In this case, the petitioner was directed by the Court to deposit the balance amount and be ready to pay the additional demand, if any, towards penal or compound interest. Here in the present case, prayer is for waiving the interest and for calculating the same in terms of some judgment. This plea should have been raised by the petitioner at the appellate stage, when he secured the order in his favour by giving an undertaking, which he has not complied with. In my view, no case is made out for showing any concession to the petitioner, once, he has failed to comply with the undertaking voluntarily given by him. The petitioner could have been helped if the respondents were willing and ready now to accept his offer for paying the market price now prevailing. This offer in my view has not been made with sincerity and appears to have been made only to buy further time and to retain the possession of the property, for which this Court has given him the interim direction. I am, thus, not inclined to interfere in exercise of writ jurisdiction. The same is accordingly dismissed. January 25,2011 (RANJIT SINGH ) khurmi JUDGE