LPA No. 4 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 4 of 2011 (O&M) Date of Decision: 17.11.2011 The Administrator, Haryana Urban Development Authority, Hisar & another ……… Appellants Versus Anguri Devi & others ………… Respondents ***** CORAM : Hon’ble Mr. Justice M.M. Kumar Hon’ble Mr. Justice Rajiv Narain Raina Present: Mr. Ajay Kumar Kansal, Advocate for the appellant(s). Mr. B.S. Malik, Advocate for respondent No.1. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest. RAJIV NARAIN RAINA, J. 1. This order will dispose of three Letters Patent Appeals* filed by the Administrator, Haryana Urban Development Authority, Hisar against a common order dated 10.9.2010 passed in a bunch of three writ petitions passed by the Learned single judge setting aside the resumption orders of separate properties but identical dated 12.8.2009 by the revisional authority under the Haryana Urban Development Authority, Act ordering resumption of shopping booths allotted to the petitioners in the District Shopping Centre, Urban Estate, Jind, Haryana. On having setting aside the orders of resumption the learned Single Judge has directed that the petitioners be put in possession of the booths. LPA No. 4 of 2011 -2- 2. The brief facts of the case are that the petitioners in the set of three petitions had bid for shopping booths in open auction and being successful they were issued allotment letters in 1991. However, the condition of deposit of 10% earnest money at the time of allotment and 15% of the consideration amount to be deposited within 30 days from the date of issue of allotment letters was alone fulfilled. It is the common case that 25% of the consideration was deposited within the prescribed time. In all the three cases there was, however, default in payment of balance amount. The petitioners appear to have conveniently forgotten about their liability to pay the balance amount and it was only in 2006 that they woke up after they had an epiphany that it’s time to pay the money back so they allege that they visited the office of the Estate Officer, HUDA, Jind and came to know that their plots had alas been resumed. In CWP No. 17171 of 2009 the plot was resumed on 13.2.2001. The resumption orders were in the circumstances obviously passed ex parte. The petitioners preferred appeals before the appellate authority under the HUDA Act praying for setting aside the resumption and for permission to pay the balance amount i.e. pending dues with interest, penalty etc. The appeals succeeded and an order dated 25.7.2007 was passed restoring the booths subject to payment of the entire outstanding amounts within one month together with fine of Rs. 5,000/- within 15 days of the communication of the order. It is also not in dispute that the petitioners deposited the outstanding amount along with interest and penalty etc. as demanded within the prescribed time. After having accepted the outstanding amount from the petitioners the Estate Officer, HUDA, Jind filed a revision petition before the Financial Commissioner & Principal Secretary to Govt. Haryana, Town & Country Planning Department challenging the order of the Administrator, HUDA, passed in the appeals. The Revisional Authority allowed the revision and set aside the orders passed by the Appellate Authority on the short ground of limitation. The Revisional Authority held that there was delay of six years in presenting the appeals and, therefore, the appeals were time barred. Against those orders the LPA No. 4 of 2011 -3- writ petitions were filed before this Court. 3. The case set up in the writ petitions against the order of Revisional Authority reviewing the appellate order is that the resumption was ex parte; the petitioners had no notice of resumption proceedings; the Estate Officer ought to have resorted to substituted service as prescribed in Clause 3 of Section 42(iii) of the HUDA Act, 1977 and it was not so done; that the order was passed at the back of the petitioners, therefore, there was violation of principles of natural justice; the appellate authority was justified in accepting their appeals on payment of outstanding dues together with interest and penalty etc.; the appellate order stood complied with and nothing remained due; that the Revisional Authority was incorrect inasmuch as the period of limitation would commence from the date of knowledge of adverse order and not from the date of its passing, therefore, the appeals were not time barred. It was the further contention that the basic amenities had not been provided nor possession of the booths was delivered to the petitioners, therefore, they were under no obligation to deposit the further amounts according to the schedule of payment recited in the letter of allotment. The petitioners also relied upon photographs of the area showing that the area is water logged and with little infrastructure development. 4. HUDA in its written statement before the writ Court denied the allegations. It further stated that development of the area was completed on 15.9.1998; possession was offered in 1998; and letters were sent by registered posts; HUDA produced evidence of dispatch of letters from the dispatch register maintained in the regular course of business; that HUDA issued notices under Section 17(2), 17(3) and ultimately under Section 17(4) of the Act were not responded to by the respondents leaving no room for HUDA except to adopt the course taken i.e. of resumption of the booths. 5. The learned Single Judge has relied upon the Division Bench decision of this Court in the case of Ajay Singh Mann vs. State of Haryana and others, 2009(1) R.C.R.(Civil) 474, in which this Court applied the law laid down by the LPA No. 4 of 2011 -4- Full Bench of this Court in the case of Ram Puri vs. Chief Commissioner, Chandigarh, AIR 1981 (P&H) 301 that power of resumption is weapon of last resort. Still further that the decision in Ram Puri's case (supra) was approved by Hon'ble the Supreme Court in the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130. Taking this law into consideration the learned Single Judge in the impugned order held that once the appellate authority i.e. the Administrator, HUDA had accepted the appeals on a condition of payment of balance amount etc, then discharge of liability under the appellate order having come into effect inasmuch as the order having been implemented by HUDA itself HUDA's action in taking up the matter in revision before the Financial Commissioner was illegal and unwarranted. The Estate Officer, HUDA, Jind had exceeded the bounds of his jurisdiction in invoking the revisional jurisdiction and on this line of reasoning the learned Single Judge set aside the order of the Revisional Authority, both on the ground of jurisdiction and well as on the point that the power of resumption should be used as a last resort and thus allowed the writ petitions. 6. We have given our thoughtful consideration to the matter and are of the considered view that the learned Single Judge was right in applying the law laid down in Ram Puri's case (supra), Teri Oat Estates (P) Ltd. case (supra) and the Division Bench judgment of this Court in Ajay Singh Mann's case (supra); which followed the aforesaid two precedents, to the facts of the present case. We can also are of the considered view that the principle of law laid down by the Hon'ble Supreme Court in the case of Haryana Urban Development Authority and Another vs. Roochira Ceramics and another, 1997(1) RCR (Civil) 696 (SC) would not apply to the case in hand as there was no appellate order in existence in those appeals accepting the plea for restoration of possession by quashing the resumption order. This Court in writ jurisdiction was not called upon to examine the correctness of the appellate orders all dated 25.7.2007. That order was in favour of the petitioners/respondents. We, therefore, confirm the LPA No. 4 of 2011 -5- finding that the petitioners would remain owners in possession of the shopping booths. 7. We, however, feel that it would not be just and equitable to pin down price of the shopping booths as on the date of allotment in 1991, if the price is pegged down to 1991 then it would act as a premium on default of payment of installments. The consequences of pinning down prices to 1991 in the present case would unjustly work as a lottery for defaulters, or manna from heaven which would not be legally palatable. We would not pass an order that might tend to lead to unjust enrichment. We, therefore, expanded the debate during the course of arguments before us on the doctrine of proportionality as lucintly expounded in Teri Oat Estates (P) Ltd. case (supra and relied upon in the judgment in appeal) with a view to examine how best to strike a proper balance between adverse effects, which the legislature or the administrative authority's order may have on the rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve. In Teri Oat Estates (P) Ltd. case (supra) the Hon'ble Supreme Court has held that every case is to be examined on its own facts when applying the said doctrine. It was perhaps on this solid line of reasoning that the First Bench of this Court passed the interim order dated 6.4.2011, which reads as under :- “Before passing any final orders in the appeal, we are of the view that the following information should be laid before us by the learned counsel for the appellants:- 1. The total amount that would be payable in terms of the order of the learned Single Judge i.e. allotment price interest and penalty; 2. What was the valuation of the property on the date of the appellate order i.e. 25.7.2007 by which the resumption order was set aside, as per rates applied by the HUDA? 3. What would be the price of the property as on date as per the HUDA norms? The above information be laid before us on the next date of hearing. List on 21.7.2011.” (underlined for emphasis) LPA No. 4 of 2011 -6- In response to the queries of this Court Mr. G.L. Yadav, Estate Officer, HUDA, Jind filed an affidavit dated 11.11.2011 stating as under :- i. The total amount that would be payable in terms of the order of the learned single Judge i.e. Allotment price, interest and penalty. It is humbly submitted that as per orders of the learned Single Judge an amount of Rs. 4,21,518/- would be payable as allotment price, interest and penalty. The details are annexed herewith as Annexure A/1. ii. What was the valuation of the property on the date of the appellate order i.e. 25.7.2007 by which the resumption order was set aside as per rates applied by the HUDA? It is humbly submitted that the valuation of the property on the date of the appellate order i.e. 25.07.2007 is Rs. 10,78,974/-. Copy of Account Statement till 25.07.2007 is annexed herewith as Annexure A/2. iii. What would be the price of the property as on date as per the HUDA norms? It is humbly submitted that the price of the property as on date as per the HUDA norms is Rs. 20,07,341/-. Copy of Account Statement is annexed herewith as Annexure A/3. 8. We have heard learned counsel for the parties at length and have given serious thought as to the formula to be applied for balancing out competing interests by applying the doctrine of proportionality. 9. When we turn to the broad facts of the present case we find that it is not in dispute that the allotments were made as far back as in the year 1991; there was admitted default in payment beyond 25% of the allotment price; the resumption order was passed on 13.2.2001; no payments were made for ten years; it took the petitioners/respondents yet another six years to file appeals, which culminated in the order dated 25.7.2007 in their favour; and still further the respondents must have enjoyed the use, occupation, usufruct or rent of the premises unlawfully. We thought that 25.7.2007 would be the most appropriate date to work out the valuation of the shopping booths and call upon respondents- petitioners to pay the market rate as on the date of the appellate order i.e. Rs. 10,78,974/- and not Rs. 4,21,518/-. We, therefore called upon Mr. B.S. Malik, learned counsel for respondent No.1 to take instructions from his client whether they would be prepared to settle the matter on payment of Rs. 10,78,974/-. Mr. LPA No. 4 of 2011 -7- Malik, on instructions, received from his clients on the mobile, on a pass over of the matter granted for the purpose, informed us that they would be ready and willing to pay the amount suggested without demur. We would be happy to make this statement an undertaking to the Court. 10. However, on the other hand Mr. Ajay Kumar Kansal, learned counsel for the appellant(s) then insisted that appellant HUDA be permitted to charge current valuation of Rs. 20,07,341/-. Since we are convinced that the basic order of the learned Single Judge is correct in restoration of ownership, we reject his argument or any other argument, for that matter, built on the stand taken in the written statement and make Mr. Malik’s statement made before us on instructions from his clients as rule operating as an undertaking. We also think it wholly unjustified to call upon the petitioners to pay the price as on today, as after all they have an appellate order dated 25.7.2007 in their favour, which they have satisfied. 11. By applying the doctrine of proportionality as explained in Teri Oat Estates we direct that respondents would now pay Rs. 10,78,974/- each for the shopping booths/property. The order of the learned Single Judge is modified accordingly. The difference between Rs. 10,78,974/- and Rs. 4,21,518/- i.e. Rs. 6,57,456/-, would be payable by the respondents to the HUDA either in lump sum within 60 days from the date of receipt of a certified copy of this order without interest or within one year thereof with interest @ 10% per annum. We adopt this realistic approach to balance out competing interests of the parties and that it would best sub serve public interest. The respondents would remain bound by the undertaking and in case of breach the resumption order would stand and HUDA would return Rs 4,21,518/- to each of the respondents in the three petitions without interest and deal with the properties in accordance with law without reference to the respondents. We would also set HUDA free in case of breach to calculate the value of illegal use, occupation and beneficial enjoyment of the premises from resumption till 24.7.2007 and call upon the LPA No. 4 of 2011 -8- respondents to regurgitate the amount to HUDA after affording them hearing limited to mesne profits and by passing a speaking order within 3 months of breach of undertaking, in case. The principles laid down above would govern the other two connected cases mutatis mutandis. 12. The appeals stand disposed of in the above terms. 13. Copy of this order be placed on record of each file concerned. (M.M. KUMAR) (RAJIV NARAIN RAINA) Judge JUDGE 17.11.2011 ‘sp’ * Sr. No. L.P.A. No. Titled 1 4 of 2011 The Administrator, Haryana Urban Development Authority, Hisar & another vs. Anguri Devi & others 2 5 of 2011 The Administrator, Haryana Urban Development Authority, Hisar & another vs. Raj Kumar & others 3 6 of 2011 The Administrator, Haryana Urban Development Authority, Hisar & another Vs. Shiv Saran Kashyap & others (M.M. KUMAR) (RAJIV NARAIN RAINA) Judge JUDGE 17.11.2011 ‘sp’