Civil Writ Petition No. 20180 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 20180 of 2009 Date of decision: 21.04.2011 Umkal Hospital Private Limited ...Petitioner Versus Haryana Urban Development Authority and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Puneet Bali, Advocate for the petitioner. Mr. Arun Walia, Advocate for respondents No. 1, 2, 4 and 5. Ms. Shurti Jain, AAG, Haryana for the State. RANJIT SINGH J. The petitioner, Nursing Home, has approached this Court to challenge the order dated 14.10.2009 passed by the Chief Administrator, HUDA rejecting the representation of the petitioner for regularizing delayed payment of the nursing home site. This is a second round of litigation. The earlier writ petition filed by the petitioner was disposed of with the directions to the respondents to treat the said writ petition as representation and considering the mitigating circumstances to regularize the allotment by condoning the delay on the payment made by charging surcharge, penal interest or penalty as the case may be in terms of the policy instructions. Respondent, Chief Administrator, HUDA has again rejected the said prayer and, accordingly, the petitioner has filed the present writ Civil Writ Petition No. 20180 of 2009 2 petition. The site in question was auctioned in favour of the petitioner during January, 2004. The petitioner was a highest bidder with ` 50,50,000/-. The petitioner had deposited 10% of the amount when the allotment followed in favour of the petitioner. The petitioner was required to deposit 15% of the bid amount within a period of 30 days, which the petitioner could not. The reason given in this regard is that Dr. Umesh Gupta, one of the Directors had suddenly to leave for United States of America to attend the conference and in his absence remaining Directors could not arrange money. Part payment of ` 1,57,500/-, however, was deposited, which was accepted by the respondents. . The petitioner was under the impression that he could deposit the balance amount of ` 6,00,000/- with 14% interest per annum, as per the terms and conditions of the allotment. On 16.07.2004, the petitioner prepared the bank draft for a sum of ` 6,00,000/-. The same, however, was not accepted. The petitioner, accordingly, submitted an application to the Administrator, HUDA, Gurgaon on 02.08.2004 for accepting the amount with interest. The matter was referred to Chief Administrator, HUDA, Panchkula for appropriate decision. Instead, Chief Administrator, HUDA/respondent to ask as to why allotment of the site in question has not been cancelled. The petitioner gave an explanation for the delay for payment and prayed for condoning the delay. The permission was also sought for depositing the balance amount to take possession of the plot. The petitioner, however, was orally informed during August, Civil Writ Petition No. 20180 of 2009 3 2005 that the allotment in his favour stood cancelled. The petitioner appealled against this order on 24.08.2005. The petitioner again made a request seeking permission to deposit the balance of the amount with interest. No decision, however, was communicated. On 12.09.2005, respondent No. 4 informed the petitioner that he was required to deposit 15% amount within 30 days of the date of issue of allotment letter and so the allotment of site was cancelled besides directing forfeiture of 10% earnest money. The amount of ` 1,57,500/- as deposited by the petitioner was refunded on 26.09.2005. The petitioner, thereafter, made various requests/representations. On one hand, no order was being passed on the appeal filed by the petitioner whereas on the other the petitioner was unable to carry out construction on this site. The petitioner had then filed CWP No. 6922 of 2008 on 22.04.2008. This Court directed respondent No. 2 to decide the appeal filed by the petitioner within a period of eight weeks. During the pendency of the appeal, status quo over the plot in question was directed to be maintained. The appeal ultimately was rejected on 13.06.2008, which order was communicated on 20.07.2008. This order was impugned by the petitioner though CWP No. 16583 of 2008, which came up for consideration before this Court during February, 2009. The Court disposed of the said writ petition directing the respondents to treat the writ petition as representation and to condone the delay enabling the petitioner to seek regularization of the allotment on payment of such penal interest and penalty. The order passed by this Court on 16.02.2009 as is under:- Civil Writ Petition No. 20180 of 2009 4 “ The petitioner was allotted a Nursing Home site, No.NH-5, Sector 45 at Gurgaon in an open auction, vide allotment letter dated 2.3.2004. As per the terms and conditions of the allotment, the petitioner was required to remit a sum of Rs.7,57,500/-, i.e., 15% of the allotment price in order to make it 25% of the total within 30 days from the date of issue of the allotment letter. The petitioner, however, paid Rs.6 lacs only on 16.7.2004 (Annexure P-3). There was, thus, a delay of more than three months in depositing the said amount. The respondents have cancelled the allotment on the ground that the petitioner failed to deposit 25% of the bid price as per the agreed terms and conditions. Notice of motion was issued and in response thereto Learned Counsel for the parties have been heard. The HUDA has framed a policy dated 9.4.1999 (Annexure P-14), inter-alia, providing condonation of delay in respect of allotment of commercial/residential plots, etc. It appears from the policy that the delay upto 30 days could be condoned by the Chief Administrator, HUDA after levying 5% surcharge on the balance amount. The allottee could be asked to pay penal interest also. The policy further provides that, “the powers of condonation beyond 60 days in cases of hardship is vested with Chairman, HUDA”. It is informed that the Chief Minister, Haryana is the Ex-officio Chairman of HUDA. Civil Writ Petition No. 20180 of 2009 5 The power to condone the delay above 30 or 60 days, as the case may be, thus, vests with the Chairman, HUDA to whom, the petitioner does not appear to have represented so far. Learned Counsel for the Petitioner submits that it is a case of extreme hardship as the petitioner is running the clinic from a residential premises and penal action for the unauthorized use of the said residential premises has already been initiated. The petitioner is, therefore, keen to construct the allotted site to shift her nursing home. Having heard Learned Counsel for the parties and considering the mitigating circumstances highlighted on behalf of the petitioner, I deem it appropriate to dispose of the writ petition with a direction to the Chief Administrator, HUDA to treat this writ petition as a representation on behalf of the petitioner for further condonation of delay so as to enable her to seek regularization of the allotment on payment of the surcharge, penal interest and/or penalty, as the case may be, provided that the delay in payment is condoned by the Competent Authority, namely, the Chairman, HUDA. The petitioner's representation be accordingly placed before the said competent authority, as early as possible. Till the decision is taken by the Chairman, HUDA, status quo as it exists today shall be maintained. The order passed by the Chief Administrator, HUDA is rendered redundant. Disposed of.” Civil Writ Petition No. 20180 of 2009 6 The respondents, however, have still decided to reject the prayer of the petitioner for condoning the delay and he has now filed the present writ petition to impugn the said order dated 14.11.2009, Annexure P-16. The respondent-HUDA has filed reply. It is prayed that the writ petition would deserve to be dismissed on short ground that the petitioner himself has conceded that he did not deposit 15% of balance amount within 30 days. The plea of the petitioner that the impugned order rejecting the appeal, revision etc. is cryptic is contested. The order, accordingly, is justified on the ground that this would disclose valid and just reason to reject the prayer of the petitioner for condoning the delay. I have heard counsel for the parties. It is to be seen from the impugned order that the Chairman, HUDA has primarily rejected the prayer of the petitioner on the ground that this case cannot be treated as case of hardship and that the same is not covered by the policy guidelines dated 09.04.1999. It is also viewed that in commercial transaction time is essence of contract and prices of such contract normally keeps on increasing. Finally, it is held that the condonation of delay beyond 30 days in depositing 15% in such cases is not permissible under the old policy and the subsequent policy formulated by the respondents. It would, thus, be seen that the absence of provision to condone the delay beyond 30 days is a main reason for which the prayer of the petitioner has been declined. It is in this context that counsel for the petitioner has invited my attention to the relevant policy dated 09.04.1999, which is placed on record as Annexure P-15. As per this policy, the provision for condonation of Civil Writ Petition No. 20180 of 2009 7 delay in depositing 15% amount, in case of residential/commercial/ institutional/industrial sites, is clearly provided. The reading of the policy would show that initial 15% amount towards the price of the plot is required to be paid within 30 days from the date of issue of allotment letter in case of commercial/institutional and industrial plots/sites and within 90 days of the date of issue of allotment letter in case of residential plot. For those allottees, who are unable to make payment within stipulated period, further relaxation in depositing the above 15% amount can also be allowed on merits as provided in the policy instructions. It is clearly mentioned in the policy that keeping in view the genuine difficulties of the allottees where they could not make payment of 15% initial amount even within the laid down limits, the matter was placed in the 75th meeting held on 10.03.1999 and the concerned authorities has considered and had granted approval for condoning the delay in respect of the residential plots as well as in respect of commercial and residential plots allotted through auction. As per this decision, for delay upto 7 days in depositing the amount for residential/commercial plots could be condoned by the Estate Officer by charging surcharge @ 1%. Delay upto 14 days could be condoned by an Administrator by charging 2.5%. Chief Administrator can condone the delay upto 30 days on surcharge of 5%. Besides surcharge the allottee is also required to pay penal interest @ 18% per annum on the 15% amount for delayed period. Power to condone the delay beyond 60 days in case of hardship is vested with the Chairman, HUDA. It is this policy, which was invoked by the petitioner and it was this policy under consideration when the Chairman, HUDA passed the impugned Civil Writ Petition No. 20180 of 2009 8 order. Infact, reference has been made to the said policy in the order itself. If that is the policy as noted above, it is not understood as to how Chairman could observe that the case is not covered by the policy guidelines dated 09.04.1999. Once the provision is made for condoning the delay in deposit of amount, then the aspect whether such concession can be shown in commercial transaction would become redundant. The time being essence of the contract obviously would have to be taken into consideration. To invoke this principle to decline the prayer of the petitioner would not appear justified because the policy itself has made a provision for condoning the delay in depositing the amount of 15% in commercial sites keeping in view the hardship and other requirement. Provision is made for condonation of delay in commercial as well as residential sites. What has been observed by the Chairman in the impugned communication while rejecting the representation is that the plots sold through auction cannot be treated as hardship cases as these are not covered by the policy. This observation would clearly appear contrary to the policy, which has been placed before me. So much so that the counsel appearing for HUDA could not dispute this aspect that as per the policy, the delay could also be condoned in respect of the commercial/ residential plots allotted through auction. In the policy it is specifically provided that - “Condonation of delay in respect of commercial/residential plots (allotted through auction)”. Obviously, the impugned order would reflect non-application of mind. It is one thing to say that it is not a fit case for condoning the delay but quite different that delay cannot be Civil Writ Petition No. 20180 of 2009 9 condoned as per the policy instructions. The impugned order, thus, clearly reveal that the prayer has been declined on the ground that matter is not covered by the policy instructions. The case of the petitioner has not been considered in accordance with law. This reasoning is totally and obviously contrary to the policy instructions. The observation that the delay beyond 30 days for depositing 15% is not permissible is again in clear contradiction to the policy instructions placed on record. The impugned order, thus, in a case of non-application of mind and on that ground alone the same cannot be sustained. There is yet another reason why the order appears to be unfair. The same issue was raised by the petitioner in his earlier writ petition, which was disposed of on 16.02.2009. The Court had clearly noted that after hearing the counsel for the parties and considering the mitigating circumstances highlighted on behalf of the petitioner, it was issuing directions to the Chief Administrator, HUDA to treat this writ petition as a representation and take up the case for condoning of delay so as to enable the petitioner to seek regularization of allotment on payment of surcharge, penal interest and penalty as the case may be. To my mind, these directions appear to be clear and categorical. This Court was of the view that there were mitigating circumstances as were highlighted in the petition. The writ petition was, therefore, directed to be treated as representation. The policy instructions having been considered, the respondents, in my view, were required to consider the same in terms of policy and to regularize the allotment on the payment of surcharge, penal interest and penalty as the case may be. The impugned order apparently has Civil Writ Petition No. 20180 of 2009 10 been passed ignoring the directions issued by this Court and cannot be sustained. The combined effect is that the petitioner has made out a case for condonation of delay in depositing the amount. To balance the equities, I would deem it appropriate to direct that the delay in payment would stand condoned and payment accepted only after surcharge as leviable keeping in view the delay involved and so also the penal interest as well as the interest on the delayed payment as is provided for in the policy instructions. The petitioner was also required to clear the remaining instalments which he could not have paid because of the impugned order. The petitioner would have to clear the remaining instalments within some time bound period. It would not be fair to allow the petitioner to pay the remaining amount with any further delay. Respondents/HUDA can ask the petitioner to clear the remaining amount within a laid down time bound period and the petitioner would undertake to clear the remaining payment within this stipulated period. Mr. Walia has drawn my attention to that part of the allotment letter whereby delayed payment of instalment is to be cleared at the rate of 14% interest per annum. The petitioner would be duty bound to clear the remaining amount of instalment with interest at the rate of 14% per annum from the date these were due to the date of payment. The writ petition is allowed in the above terms. April 21, 2011 (RANJIT SINGH ) rts JUDGE