Regular Second Appeal No.23 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.23 of 2009 Date of decision:05.08.2009 Tek Chand son of Balwant Rai Sharma through his general attorney of Smt. Bimla Wilson wife of Leo Wilson resident of 885-A, MIG, Housing Board Colony, Ranjit Avenue, Ajnala Road, Amritsar ..... Appellant. Versus 1.The Secretary, Punjab Housing Development Board, Sector 17, Chandigarh. 2.The Officer Incharge, Punjab Housing Development Board, Rani Ka Bagh, Amritsar. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.R.K. Joshi, Advocate for the appellant. Mr. Ashish Grover, Advocate for the respondents. Regular Second Appeal No.23 of 2009 -2- Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 29.11.2007, rendered by the Court of Additional Civil Judge (Senior Division), Amritsar, vide which it dismissed the suit of the plaintiff and the judgment and decree dated 12.09.2008, rendered by the Court of District Judge, Amritsar, vide which it dismissed the appeal. 2. According to the plaintiff, house No.885-A, MIG Housing Board Colony, Ranjit Avenue, Amritsar, was allotted to him by the defendants (now respondents), vide allotment letter no. PHB-Allot-A-85/10138 dated 02.06.1986, for a sum of Rs.74,314/- as per the terms and conditions of the agreement, executed between the parties. The plaintiff paid a sum of Rs.25,236/- to the respondents and the remaining amount was to be paid in monthly instalments of Rs.832/- PM. The plaintiff paid a sum of Rs.9197/- Regular Second Appeal No.23 of 2009 -3- uptill 13.08.1988 and thereafter made a default. The defendants moved an application under Sections 4,5 and 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, before the Collector, Amritsar, against him(plaintiff), on 13.10.1989, on the ground, that he failed to pay the instalments, as agreed, and his allotment had been cancelled vide order dated 05.04.1988. It was further stated that this application was dismissed, vide order dated 26.03.1992. It was further stated that after the dismissal of the aforesaid application, the respondents received instalments for the years, 1992 to 1995 and the last instalment of Rs.832/- was received on 02.02.1996. In this manner, the plaintiff had paid a sum of Rs.42,111/- till the filing of the suit. It was further stated that the plaintiff approached the defendants to enquire, as to how much amount was payable to them, so that the entire price of the suit house, may be deposited Regular Second Appeal No.23 of 2009 -4- in lump-sum and the sale certificate be issued in his favour, but they did not pay any heed to his request. It was further stated that the defendants threatened to take possession of the house, in dispute, from the plaintiff. It was further stated that the cancellation of order dated 05.04.1988, was illegal, null and void and against the principles of natural justice. It was further stated that the defendants were asked many a time, to withdraw the illegal order, and to deposit the balance amount of the price of the house, in question, but to no avail. Ultimately, a suit for declaration and permanent injunction was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was pleaded that the suit was not maintainable; that the suit was bad for non- joinder of necessary parties; and that the plaintiff had no locus standi to file the Regular Second Appeal No.23 of 2009 -5- suit. It was admitted that the house, in question, was allotted, in favour of the plaintiff, but he made default, in payment of instalments and did not adhere to the terms and conditions, contained in the allotment letter. Accordingly, the allotment was cancelled, vide order dated 05.04.1988. It was denied that the defendants were receiving the amount of instalments, from the plaintiff, for the years 1992 to 1995 and the last instalment of Rs.832/- was paid on 2.2.1996. It was further stated that the plaintiff had deposited the alleged amount, on his own, without demand. It was further stated that since the allotment had been cancelled, the alleged amount, in question, was not required to be deposited by the plaintiff. The filing of petition, under the Public Premises Act and dismissal thereof, was admitted. The remaining averments, contained in the plaint were denied, being wrong. Regular Second Appeal No.23 of 2009 -6- 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- “1- Whether the plaintiff is entitled to declaration as prayed for ?OPP 2- Whether the cancellation order dated 05.04.1988 passed by the defendant is illegal, null and void against the principle of natural justice ?OPP 3- Whether the suit is not maintainable in the present form ? OPD 4- Whether the suit not properly valued for the purpose of Court fee and jurisdiction ?OPD. 5- Whether the suit is bad for non- joinder and mis-joinder of necessary parties ?OPD 6- Relief.” 5 The parties led evidence in support of their case. After hearing the Counsel for the parties, and on going Regular Second Appeal No.23 of 2009 -7- through the evidence, and record of the case, the trial Court dismissed the suit. 6. Feeling aggrieved, an appeal was filed by the appellant-plaintiff, which was also dismissed by the Court of District Judge, Amritsar, vide its judgment and decree dated 12.09.2008. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through the documents on record, carefully. 9. The Counsel for the appellant submitted that, no doubt, in the first instance, the appellant defaulted in making payment of instalments of the price of the house, which was allotted, in his favour, but later on, he continuously deposited the same, which were accepted by the defendants (now respondents). He further submitted that no show cause Regular Second Appeal No.23 of 2009 -8- notice was served upon the plaintiff, (now appellant) asking him to explain, as to why the allotment of the house be not cancelled, on account of default in making the payment of instalments. He further submitted that the plaintiff was, thus, condemned unheard. He further submitted that since the order of cancellation being a nullity, the suit could be filed by the plaintiff (now appellant) when the cloud was cast, on his right. He further submitted that the suit was within limitation. He further submitted that the entire price of the house, in question, has already been deposited by the appellant and only a sum of Rs.2,014/- is yet to be deposited. He further submitted that the judgments and decrees of Courts below, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondents, submitted that no doubt, the plaintiff (now appellant) was Regular Second Appeal No.23 of 2009 -9- allotted the house, in question, but he made repeated defaults, in paying the instalments of the price and, as such, a notice was served upon him and, ultimately, the allotment was cancelled. He further submitted that if thereafter of his own, without getting the order of cancellation of allotment set aside, the appellant continued depositing the instalments in the account of the defendants (now respondents) without their knowledge, that was hardly of any effect. He further submitted that the allotment was cancelled on 05.04.1988 and the application under Sections 4,5 and 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, was filed in the year 1989, which was dismissed on 26.03.1992, wherein, it was, in clear cut terms, stated by the respondents that the allotment was cancelled on 05.04.1988, yet the suit was filed by the plaintiff on 09.02.1998 and, Regular Second Appeal No.23 of 2009 -10- as such, it was barred by time. He further submitted that the judgments and decree of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. The first question, that falls for consideration, is, as to whether, the notice was given to the plaintiff, before cancellation of his allotment of the house, in question, or not.Gurmit Singh, Junior Assistant, (PW-4) proved allotment letter, Ex.PW4/2 and other documents. He, in categorical terms, stated that before cancelling the allotment, notices were given to the plaintiff, including the final notice. The plaintiff (now appellant) himself did not put in appearance, in the Court, to say that he did not receive any notice Regular Second Appeal No.23 of 2009 -11- before the cancellation of allotment. The attorney, who appeared, on behalf of the plaintiff, as a witness, could not be said to have personal knowledge with regard to the receipt of notices by the plaintiff (now appellant). Under these circumstances, it could not be said that no notice before cancelling the allotment, was served upon the plaintiff, who was the allottee of the house, in question. Reliance was placed by the Counsel for the appellant on Sham Lal Nagpal v. State of Haryana, 1997(2) PLR 673, Sandhya Jindal v. State of Haryana, 1996(3) PLR 614, and Surinder Singh v. The Chief Administrator, Haryana Urban Development Authority, Manimajra, 1996(2) PLR 159 to contend that the cancellation of a plot, without service of notice, could not be made. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. It is evident, from para no.11 of the judgment of the trial Regular Second Appeal No.23 of 2009 -12- Court, that notices were issued to the appellant and even final notice Ex.PW4/4 was issued, before cancellation of the allotment. Therefore, it could not be said that the order of cancellation, was passed, without affording an opportunity to the plaintiff to present his version. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. The allotment was cancelled on 05.04.1988, as the plaintiff failed to deposit the instalments of the price of the house, in question, which was allotted in his favour. Even if, for the sake of arguments, it is assumed that the notice of cancellation, was not served upon the plaintiff, he came to know, in the year 1989 when the application under Sections 4,5 and 7 of the Punjab Public Premises Land (Eviction and Rent Recovery) Act, 1973, was filed against him. That application was decided on 26.03.1992. In Regular Second Appeal No.23 of 2009 -13- that petition, it was, in clear-cut terms, stated that the order of cancellation of the house, in question, was passed on 05.04.1988. Even then, the plaintiff did not show due diligence, in filing the suit, for setting aside the order dated 05.04.1988. The suit, on the other hand, was filed on 09.02.1998. He could file the suit for setting aside the cancellation order within three years from the date of passing the same (cancellation order) or from 26.03.1992, when the application, referred to above was dismissed. It is settled principle of law, that even if, an order is illegal, null and void that has to be got set aside by filing a suit, within the period of limitation. Until and unless, the order, may be illegal, is set aside, the same remains operative. The Courts below were, thus, right in holding that the suit having been filed on 09.02.1998 was palpably barred by time. The submission of the Counsel for the Regular Second Appeal No.23 of 2009 -14- appellant, being without merit, must fail and the same stands rejected. 13. The appellant made default, in paying instalments, as per the schedule. If, on one day, he woke up, after a number of years, and started depositing the amount of instalments in the bank account of the defendants(now respondents) without making any application before them, that the cancellation order, referred to above, be set aside and he be allowed to deposit the amount of instalments, such an act of the plaintiff did not amount to setting- aside the order dated 05.04.1988 of cancellation of allotment. Deposits of instalments, after a number of years, and after the cancellation of the allotment of the house, in question, without any permission from the defendants (now respondents) by the plaintiff, (now appellant), did not revalidate the allotment which had already been cancelled. The Courts below were right in Regular Second Appeal No.23 of 2009 -15- holding so. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. The concurrent findings of fact on the aforesaid points, recorded by the Courts below, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 14. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 15. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed. ( Sham Sunder ) August 05, 2009 Judge dinesh