Civil Writ Petition No. 4440 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARAYANA, CHANDIGARH Civil Writ Petition No. 4440 of 2010 Date of Decision: 16.12.2011 Saravjeet ..Petitioner Versus Estate Officer, HUDA and others ..Respondents CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE NARESH KUMAR SANGHI Present:Mr. Sanjeev Sharma, Senior Advocate with Mr. Tushar Sharma, Advocate for the petitioner. Mr.Sidharth Batra, Advocate, for HUDA. RAJIVE BHALLA, J. The petitioner prays for issuance of a writ in the nature of certiorari for quashing orders dated 20.3.2002, 13.8.2008 and 12.11.2009 (Annexures P-6, P-7 and P-8, respectively). The petitioner also prays for issuance of a writ in the nature of mandamus directing respondents no.1 and 2 to restore shop/site no. 185, Sector 25, Transport Nagar, Panipat, to the legal heirs of the original allottee, i.e., Hans Raj Chaudhary. Counsel for the petitioner contends that shop/site no. 185, Sector 25, Transport Nagar, Panipat, was allotted to Hans Raj Chaudhary, father of the petitioner as sole proprietor of M/s Delhi Sonepat Transport Company. All installments relating to the consideration amount, as set out in the allotment letter, were paid. Civil Writ Petition No. 4440 of 2010 2 The possession of the site was delivered on 1.3.1988. Shri Hans Raj Chaudhary passed away on 25.10.1990 leaving behind his widow, daughters and sons. The petitioner is the youngest amongst the children left behind by Hans Raj Chaudhary. The petitioner is doing a small time transport business at Panipat. The petitioner had to look after his ailing mother and his daughter, who suffers from Leucodystrophy and Cervical Dystonia and had to be treated at various hospitals all over the country as detailed in the petition. The petitioner's mother passed away after a prolonged illness on 12.1.2008. The petitioner approached the respondents for transfer of the plot to the name of legal heirs of Hans Raj Chaudhary. He was informed that the plot has been resumed on 20.3.2002. The petitioner filed an application under the Right to Information Act, 2005 and was supplied a copy of the resumption order dated 20.3.2002 on 21.4.2008. The petitioner was shocked to learn that the plot was resumed for non-payment of enhanced amount demanded by the respondents as payment of enhanced compensation for land acquired by the respondents. The order of resumption records that a demand was raised for payment of enhanced amount of Rs.2,98,840/- on 5.11.1998, but the allottee did not deposit this amount. A notice dated 20.4.1999 was served under section 17(2) of the Haryana Urban Development Act, 1977 (hereinafter referred to as the “Act”) followed by a notice under section 17(3) of the Act issued on 21.8.2001, but as the allottee has not made payment, the plot is being resumed under section 17 (4) of the Act. The petitioner filed a statutory appeal. The appeal was dismissed on 13.8.2008, as barred by limitation. While dismissing Civil Writ Petition No. 4440 of 2010 3 the appeal, the appellate authority relied upon a statement made by the Deputy District Attorney that as resumption order was duly posted to the allottee by registered post and was received back unserved, a presumption of service arises under section 27 of the General Clauses Act. The appellate authority has also recorded an incorrect finding that the allottee has not deposited 75% price of the plot, which was to be paid in eight and a half yearly installments. The order of resumption and the order passed by the appellate authority were challenged in revision before respondent no.3. The revision was also dismissed. Counsel for the petitioner further submits that the plot was allotted to M/s Delhi Sonepat Transport Company through Shri Hans Raj Chaudhary, father of the petitioner. It is not disputed that the entire consideration amount, as set out in the allotment letters, was paid. The plot has been resumed for non-payment of enhanced amount that became due on account of enhancement of price of land acquired by HUDA. Shri Hans Raj Chaudhary passed away on 25.10.1990. No notice was ever served upon his legal heirs. The first notice was issued in 1998. The registered notices were returned undelivered. The order of resumption was passed on a printed proforma without application of mind. It is further submitted that the appellate authority has upheld the resumption order on the ground that the appellant has not paid the instalments. It is the positive case of the respondents that resumption was ordered as the allottee did not pay the enhanced amount due on account of enhancement of price of the acquired land. The order passed by the appellate authority is, therefore, factually incorrect. It is further Civil Writ Petition No. 4440 of 2010 4 submitted that as during pendency of the petition, the petitioner has deposited Rs.5,30,000/-,instead of the original demand of Rs.2,98,840/-, the writ petition may be allowed and orders of resumption may be set aside. Counsel for the HUDA, on the other hand, submits that the petitioner did not deposit the enhanced amount demanded on 20.4.1999. The petitioner's appeal and revision were, therefore, rightly dismissed as barred by time. It is further argued that though the petitioner may have paid the original price of the plot, but as he was obliged to pay enhanced compensation, he cannot be allowed to take benefit of the fact that the original allottee passed away or that notices issued were received back unserved. The obligation to deposit any amount demanded by the HUDA, lies upon the allottee, failing which the authorities are empowered to cancel allotment and resume the plot. It is prayed that as neither the petitioner nor the other legal heirs have come forward to deposit the enhanced amount, the writ petition should be dismissed. We have heard counsel for the parties and perused the impugned order. Admittedly, the shop/site in dispute was allotted to M/s Delhi Sonepat Transport Company thorough Shri Hans Raj Chaudhary, father of the petitioner, on 1.3.1988. It is not disputed that Shri Hans Raj Chaudhary passed away on 25.10.1990 leaving behind the petitioner, Lajwanti, his widow, and four other children. It is not denied that the entire sale consideration for the booth/site was paid in accordance with the schedule set out in the allotment letter. A demand for payment of Rs.2,98,840/- towards enhanced Civil Writ Petition No. 4440 of 2010 5 compensation for acquisition of land was raised on M/s Delhi Sonepat Transport Company for booth/site no.185, Sector 25, Transport Nagar, Panipat, vide notice dated 5.11.1998 issued under section 17(1) of the Act. Another notice under section 17(2) of the Act was issued on 20.4.1999, requiring allottee to appear on 11.5.1999 and show cause why he has not paid this amount. As no response was forthcoming, a penalty of Rs.29,884/- was imposed vide order dated 21.8.2002 followed by a notice under section 17(3) of the Act, requiring the allottee to show cause why allotment be not cancelled. As admitted by the respondents, all the notices were received back undelivered. The plot was eventually resumed and 10% of the consideration amount was forfeited vide order dated 20.3.2002. The petitioner alleges that no notice was ever received by the firm or by the legal heirs of Hans Raj Chaudhary. A perusal of the order passed by the appellate authority reveals that apart from dismissing the appeal on the ground of limitation, the same was dismissed on the premise that the allottee had not paid balance installments. It would be necessary to state that it is not the case of the respondents whether in the resumption order or in their reply that the original instalments were not paid. In fact, it is the positive case of the respondents that the allottee failed to pay an amount payable towards enhanced compensation. Section 17 of the Act confers a confiscatory power that empowers the respondents to resume a plot and forfeit part of the consideration amount. The power of resumption has to be exercised with care, caution and as a last resort as it deprives a person of his property. It is not denied by the respondents that original Civil Writ Petition No. 4440 of 2010 6 installments have been paid. The notices were received back unserved. The shop/site continues in the name of the original allottee, i.e., M/s Delhi Sonepat Transport Company through Shri Hans Raj Chaudhary, father of the petitioner. During pendency of proceedings, the petitioner has deposited Rs.5,30,000/-. While considering a similar order of resumption, though in the context of the Capital of Punjab (Development and Regulation) Act, 1952, the Hon'ble Supreme Court in a case titled M/s Teri Oat Estates (P) Ltd. v. U.T., Chandigarh 2004(2) S.C.C., 130, held in favour of the allottee, where the allottee had paid only 25% of the original consideration and set aside the order of resumption. A relevant extract from this judgment reads as follows: "22. One of the questions which, therefore, must always be posed by the Estate Officer, while initiating a proceeding under Section 8A of the Act is as to whether the drastic power of resumption and forfeiture has been taken recourse to as a last resort. The order of the Estate Officer dated 13.3.1992, does not say so. No reason has also been assigned in the said order. 23 XX XX XX 24. It is, therefore, not a case whether the court will have to take one stand or the other in the light of the statutory provisions. The question as to whether the extreme power of resumption and forfeiture has rightly been applied or not will depend upon the factual matrix obtaining in each Civil Writ Petition No. 4440 of 2010 7 case. Each case may, therefore, have to be viewed separately and no hard and fast rule can be laid down therefor, In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not. 25 to 42 XX XX XX 43. In terms of the provisions of the Act, the respondents are entitled to, (1) resumption of the land, (2) resumption of the building and (3) forfeiture of the entire amount paid or deposited. Having regard to the extreme hardship which may be faced by the parties, the same shall not ordinarily be resorted to. 44. The situation, thus, in our opinion, warrants application of the doctrine of proportionality. 45. XX XX XX 46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the Civil Writ Petition No. 4440 of 2010 8 purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purposes which they were intended to serve.” 47. XX XX XX 48. XX XX XX 49. XX XX XX 50. In Om Kumar (supra), however, this court evolved the principle of Primary and Secondary Review. The doctrine of primary view was held to be applicable in relation to the statutes or statutory rule or any order which has the force of statute. The secondary review was held to be applicable inter alia in relation to the action in a case where the executive is guilty of acting patently arbitrarily. This court noticed E.P.Royappa v. State of Tamil Nadu [(1974(4) SCC3] and observed that in such a case Article 14 of the Constitution of India would be attracted. In relation to other administrative actions as for example punishment in a departmental proceeding, the doctrine of Civil Writ Petition No. 4440 of 2010 9 proportionality was equated with Wednesbury Unreasonableness. 54. Keeping in view the aforementioned principles in mind would it be proper for us to take a view as has been suggested by Ms. Jaiswal? The answer to the said question must be rendered in the negative, if competing interest can be balanced.” After holding as above, the Hon'ble Supreme Court, set aside the order of resumption as the petitioner offered to pay the entire amount. We have considered the ratio of the above judgment and are satisfied that as the original consideration was paid and the unpaid amount relates to enhancement of the price as compensation for acquisition of land, the appellate and the revisional authorities should have taken a pragmatic view of the matter and granted an opportunity to the petitioner, to pay the amount along with interest, penalty etc. The petitioner's explanation, based upon the extreme illness of his minor daughter who is suffering from Leucodystrophy and Cervical Dystonia, illness of his mother, the original allottee's passing away, notices returned unserved should, in our considered opinion, have to be accepted. The petitioner has deposited Rs.5,30,000/- under interim orders passed, during pendency of the writ petition. The principle of proportionality as set out by the Hon'ble Supreme Court and the doctrine of equity, inherent in Article 226 of the Constitution of India, persuades us to hold that the order of Civil Writ Petition No. 4440 of 2010 10 resumption should be set aside. We, however, do not propose to set down any rule of law that in all cases, where payment is offered during the writ petition, the resumption order must be set aside, but hold that each case of resumption must be adjudged in its own peculiar facts and the offer to make payment with penalty, interest etc. is one of the factors that may be considered. In view of what has been stated hereinabove, we allow the writ petition, set aside the impugned orders dated 20.3.2002, 13.8.2008 and 12.11.2009, Annexures P-6, P-7 and P-8, respectively, and direct the respondents to restore the shop/site no.185, Sector 25, Transport Nagar, Panipat, to legal heirs of the original allottee. The amount of Rs.5,30,000/- paid by the petitioner during pendency of these proceedings, shall be adjusted towards any amount that may be due against the above shop/site. The respondents will be free to levy interest and penalty in accordance with law. No orders as to costs. ( RAJIVE BHALLA ) JUDGE 16th December, 2011 ( NARESH KUMAR SANGHI ) VK JUDGE Civil Writ Petition No. 4440 of 2010 11