Judgment
CWP No.23760 of 2012. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.23760 of 2012. [O&M]. Date of Decision:
30. h April, 2013. GMADA Petitioner through Mr. Shekhar Verma, Advocate Versus State of Punjab & Ors. Respondents through Mr. Arun Abrol, Advocate. CORAM:HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE R.P.NAGRATH 1 Whether Reporters of local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the Digest?. SURYA KANT, J.Greater Mohali Area Development Authority [for short GMADA]. seeks quashing of the order dated 23rd August, 2011 [Annexure P-10]. passed by Special Secretary, Department of Housing and Urban Development-cum-Revisional Authority whereby resumption order dated 27th September, 2001 in respect of Booth Site No.69, Phase XI, Mohali has been set aside and its allotment has been restored in favour of respondents No.2 to 5. [2].. Commercial Site - Booth No.69, Phase XI, Mohali was allotted to respondent No.2 along with his deceased brother [ Vinot Kumar ]. on 21st August, 1996 in an open auction held by Punjab Urban Development Authority [for short PUDA]., not represented by GMADA. The site was sold for a consideration of `9,07,000/-, 25% whereof was duly deposited by the highest bidders. On deposit thereof, allotment letter dated 18th October, 1996 [Annexure P-1]. was CWP No.23760 of 2012. ::-2-:: issued along with the terms and conditions of the allotment including the followings:-
“4. The sum of Rs.226750/- being 25% of the total cost of the site deposited by you after the bid has been adjusted as 25% of the sale.
5. The balance amount i.e., Rs.680250/- being 75% of the above price of the plot, can be paid in lump sum without interest within 60 days from the date of auction or in 4 equated installments along with interest @10% per annum.
6. The annual equated installment with interest @10% per annum will be payable as per the following schedule Installment Due Date Amount of Interest Total installment amount 1st 21.08.1997 170062.50 68025.000 238087.50 2nd 21.08.1998 170062.50 51018.750 221081.25 3rd 21.08.1999 170062.50 68025.000 238087.50 4th 21.08.2000 170062.50 17006.25 187068.75 Total 680250.00 170062.50 859312.50 8. No separate notice will be sent for the payment of yearly installments. Payment shall be made in accordance with the schedule mentioned in Clause 6 of this letter.
9. In case the installment is not paid by the 10th of the month following the month, in which it falls due, the Estate Officer shall proceed to take action for imposition of penalty charged @2% per month of the amount, i.e., from the due date in addition to normal simple interest. In case of non- payment of the installment along with interest due thereon for a continuous period of 3 months, the whole or any part of the money paid in respect of the site shall be forfeited and the Estate Officer shall cancel the allotment and resume the site, after giving you appropriate notice and an opportunity of being heard. Benefit of interest on part payment shall not be allowed i.e. Interest shall continue to be charged in the whole due amount till the date of payment of the amount due”.. [Emphasis applied].. [3].. There is no denial to the fact that the allottees did not CWP No.23760 of 2012. ::-3-:: pay even a single single penny towards 75% balance sale consideration despite numerous statutory notices dated 07.09.2000, 02.11.2000, 01.04.2001 and 07.05.2001 issued under Section 45 of the Punjab Regional and Town Planning and Development Act, 1995 [ in short ‘the 1995 Act’]. where-under a site is liable to be resumed and part of the sale consideration forfeited for breach of conditions of transfer. [4].. The Estate Officer thereafter passed the order dated 27th September, 2001 [Annexure P-3]. resuming the subject site and also forfeited 10% of the total allotment price. Thereafter, eviction proceedings were also initiated vide notice dated 12th November, 2001 issued under Section 46[1]. of the 1995 Act and eventually an order of dispossession dated 9th April, 2003 was passed against the allottees. [5].. After more than nine years of passing of the resumption order, the allottees filed two appeals in the year 2010, i.e., one by respondent No.2 and the other by respondents No.3 to 5, who are legal heirs of deceased-Vinot Kumar. Both the appeals were dismissed by the Additional Chief Administrator, GMADA vide a common order dated 07th April, 2011 after dealing with every aspect on merits though he also referred to the inordinate delay in filing of the appeals. [6].. Respondents No.2 to 5 then preferred a revision petition under Section 45[8]. of the 1995 Act before the State Government which has been accepted by the Revisional Authority and after CWP No.23760 of 2012. ::-4-:: setting aside the resumption order, the allotment of the site has been restored. The revisional order dated 23rd August, 2011 takes notice of all the contentions made by the revision petitioners in extenso, of course without even touching the contention, if any, raised on behalf of GMADA or the reasonings assigned by the Appellate Authority, and then has concluded as follows:- “After going through the record placed on file and having heard to both the parties I am inclined to accept this revision because the petitioner before approaching this Forum paid the arrears against the booth site to show his bona-fide intention. I accept this revision petition on the compassionate ground and set aside the resumption order of the Estate Officer dated 27.09.2001 and order of Appellate Authority dated 07.04.2011. Accordingly, the allotment of Booth Site No.69, Phase XI, Mohali is restored in favour of the petitioner”.. [7].. The aggrieved GMADA assails the revisional order. [8].. Having heard learned counsel for the parties and after going through the record, we are satisfied that the revisional authority has acted in a whimsical manner and has decided the case with a total casual approach. It could not be disputed by counsel for the allottees that not even a part of installment[s]. was ever deposited by the allottees towards 75% balance allotment price, even though the due amount of every installment along with last date to deposit the same was conveyed to them in the allotment letter itself. It was also not disputed that the resumption order was passed way back in the year 2001 after serving repeated notices to the allottees-in-default. They never contested those notices not gave any explanation for not CWP No.23760 of 2012. ::-5-:: depositing even a single installment. Pertinently, the allottees constructed the Booth soon after the allotment and started its commercial exploitation. [9].. The plea taken by the allottees which appears to have weighed in the mind of the Revisional Authority that one of the allottee [deceased Vinot Kumar]. remained bed-ridden for quite some time till he unfortunately passed away, was also misleading as Vinot Kumar died on 28th January, 2010 whereas the resumption relates to the year 2001. We are surprised, if not shocked, as to how the Revisional Authority apparently believed a concocted story that respondent No.2 was No.'aware of the payments' made to GMADA by deceased Vinot Kumar. The fact of the matter is that no payment was ever made. [10].. In the facts and circumstances of the case where the allottees were proved to be habitual defaulters who did not pay even a single installment and yet continued to enjoy the fruits of the commercial property, they deserved no sympathy either in law or in equity. In fact, no appeal or revision could be entertained after their prolonged acquiescence of more than nine years. [11].. Non-payment of the due installments was admittedly breach of terms and conditions of allotment, for which the petitioner – Authority was well within its right to resume the site and forfeit the whole or any part of the money paid as per Clause [9]. of the allotment letter. Such a power is independently vested in the petitioner-Authority by virtue of Section 45 of 1995 Act also. [12].. It is also relevant to mention at this stage that purely on CWP No.23760 of 2012. ::-6-:: equitable considerations and to enable the allottees to retain the subject booth, counsel for GMADA was directed on 19th February, 2013 to have instructions whether the subject site could be re-allotted to respondents No.2 to 5 as per the allotment rate of the year 2011 when the revision petition was decided. Learned counsel for the petitioner-GMADA today stated at the Bar that the Authorities were willing to re-allot the site after determining its allotment price on the basis of open auction held in the year 2011, namely, the same mode of allotment which was followed in the year 2001. The aforesaid offer, however, is not acceptable to the allottees – respondents No.2 to 5. [13].. For the reasons afore-stated, we allow this writ petition and quash the order dated 23rd August, 2011 passed by the Revisional Authority-cum-Special Secretary, Urban and Housing Department, Government of Punjab. As a result thereto, the resumption order dated 27th September, 2001 and the Appellate Authority’s order dated 7th April, 2011 are hereby restored. [14].. Disposed of. Dasti. ( SURYA KANT ) JUDGE April 30, 2013. ( R.P.NAGRATH ) dinesh JUDGE