Vijender Jain, C.J.
CM No. 4353 of 2008:
1. Application is allowed. Rejoinder filed to the counter affidavit filed on behalf of respondents No. 2 to 4 is taken on record.
C.W.P. No. 2066 of 2008:
2. This petition has been filed aggrieved by the order dated 14.12.2007 (P.25) of the Revisional Authority setting aside the order dated 8.12.2006 (P.20) passed by the Appellate Authority.
3. It is the admitted case of the parties that on 17.9.2004, respondent No. 4 invited applications for allotment of industrial plots at Gurgaon and in respect thereto the petitioner applied for an industrial plot along with a demand draft of Rs. 3,50,000/- as earnest money. It is the case of the parties that an industrial plot No. 685, measuring 1000 Meters, Sector 37-II, Gurgaon was allotted to the petitioner by the Estate Officer, HUDA respondent No. 4 for setting up an industrial unit of garments thereon. Vide Annexure P.I, petitioner was to give acceptance to the letter and was to deposit a sum of Rs. 6,12,500/- in addition to what had been deposited with the application as earnest money i.e. Rs. 3,50,000/- within 30 days from the date of issuance of the allotment letter to constitute 25% of the total tentative price for the plot. The petitioner sent acknowledgment of the receipt of the allotment letter accepting the plot and requested on 16.10.2004 to respondent No. 4 for grant of 30 days more time to deposit the amount of Rs. 6,12,500/-. It is the case of the petitioner that no reply was received by the petitioner for extension of time. However, the petitioner wrote to the respondents in this regard on 11.11.2004 as well as on 11.4.2005. When no reply was received from the respondents, vide letter 6.12.2005 the petitioner deposited a sum of Rs. 6,20,000/- with respondents by way of three different demand drafts a copy of the same has been filed along with this writ petition as Annexure P.5. On 23.12.2005, the petitioner again deposited a further sum of Rs. 6,50,000/- with respondent No. 4. Again on 24.2.2006, although the possession of the plot was not given to the petitioner on the date given by respondent No. 4 i.e. 6.1.2006, yet the petitioner deposited a sum of Rs. 5,90,000/- with the respondents by way of bank draft. On 14.3.2006, petitioner while informing that he had deposited the instalments due till the date, again requested respondent No. 4 for possession of the plot vide Annexure P.14. On 18.3.2006, again a letter was sent on behalf of the petitioner to hand over the possession of the plot in question. In stead of handing over the possession of the plot, the respondent cancelled the allotment of the plot on 17.4.2006. On 24.4.2006, respondent No. 4 refunded an amount of Rs. 12,70,000/- and Rs. 5,90,000/- after forfeiting 10% amount of earnest money deposited by the petitioner. Thereafter, it is the case of the petitioner that on 1.5.2006, the petitioner after receipt to the cancellation order dated 17.4.200.6 (P. 16), represented to respondent No. 4 while giving detailed representation vide Annexure P. 18.
4. When no response was received from the respondent, the petitioner preferred an appeal before the respondent, No. 3 under the HUDA Act against cancellation order dated 17.4.2006 (P. 16). Said appeal was accepted by respondent No. 3 vide order dated 8.12.2006. The appellate authority set aside the cancellation order of respondent No. 4 subject to payment of dues, surcharge and interest as per the HUDA rules. The appellate authority further ordered that Estate Officer, HUDA would intimate the due amount to be deposited within 15 days from the date of the order and the petitioner was directed to deposit the demanded amount within 30 days from the date of demand made by the Estate Officer, failing which the cancellation order would stand revived. In the meanwhile, it seems that no amount, as directed by the appellate authority, was communicated to the petitioner and the petitioner, on 21.12.2006, again requested respondent No. 4 to intimate him the upto date amount due so that he could deposit the. same within stipulated period of 30 days of the order of the appellate authority. As no reply was received from the respondent, the petitioner of his own again deposited further sum of Rs. 5,77,500/- thereby making total payment of Rs. 27,87,500/- In the meanwhile, respondent No. 4 filed a revision against the order passed by respondent No. 3. Revisional Authority set aside the order passed by the Appellate Authority. Aggrieved by the said impugned order passed by the Revisional Authority, the petitioner has filed this writ petition.
5. Learned Counsel for the petitioner has contended that in terms of Section 17 of Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the Act'), in case of cancellation, resumption, forfeiture or breach of condition of transfer, no show cause notice was issued by HUDA before cancellation. Therefore, on this ground alone, the Revisional Authority ought not to have interfered with the order passed by the Appellate Authority. Learned Counsel for the petitioner has relied upon Section 17 (1)(2)(3), which are to the following effect:
17. Resumption and forfeiture for breach of conditions a transfer:
(1) Where any transferee makes default in the payment of any consideration money, or any instalment, on account of the sale of any land or building, or both, under Section 15, the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why a penalty which shall not exceed ten per cent of the amount due from the transferee, be not imposed upon him.
(2) After considering the cause, if any, shown by the transferee and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded in writing make an order imposing the penalty and direct that the amount of money due along with the penalty shall be paid by the transferee within such period as may be specified in the order.
(3) If the transferee fails to pay the amount due together with the penalty in accordance with the order, made under Sub-section (2) or commits a breach of any other condition of sale, the Estate Officer may, by notice in writing call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building, or both, as the case may be, any forfeiture of the whole or any part of the money, if any paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the land or building of both should not be made.
6. Learned Counsel for the petitioner contended that this Court has dealt with the interpretation of the aforesaid sections of the HUDA Act in Sandhya Jindal v. State of Haryana , wherein it was held that for cancellation of allotment, condition precedent is issuing of notice to the allottee and grant of opportunity of hearing. It was further held that there is no automatic forfeiture of amount once it is found that allottee failed to deposit 15 per cent of bid money. Affected person must be given notice and opportunity of hearing. Section 17 represents embodiment of rule of audi alterm partem. The power of cancellation of allotment and forfeiture of amount already paid is administrative in character and such action follows grave consequences qua the allottee. It was further contended by learned Counsel for the petitioner that having deposited an amount of Rs. 27,87,500/-, the reasons as reflected in the order passed by the Appellate Authority, ought not to have been interfered by the Revisional Authority, while exercising its powers under the revisional jurisdiction.
7. On the other hand, Mr. Arun Walia, learned Counsel appearing for the respondent has contended that in terms of the allotment letter, in the event of non-deposit of 15% of the amount from the date of issuance of the letter straightway, the allotment could be cancelled by respondent No. 4 and earnest money deposited had to be forfeited by the authority. Learned Counsel further contended that the terms and conditions of the allotment particularly clauses 4 & 5 give right to HUDA to cancel the allotment in case of non-deposit of 15% of the amount without going to Section 17 of the HUDA Act.
8. We have given our careful consideration to the arguments advanced by both the sides.
9. Let us first deal with the submission made by learned Counsel for the respondent with regard to the cancellation and forfeiture, as has been argued before us, in view of the terms and conditions of clauses 4 & 5 of the allotment letter, which are to the following effect:
4. In case, you refuse to accept the allotment, you shall communicate your refusal by a registered letter within 30 days from the date of issue of this allotment letter, failing which the allotment shall stand cancelled and the earnest money deposited by you shall be forfeited to the authority and you shall have no claim for damages:
5. In case you accept the allotment, please send your acceptance by registered post along with an amount of Rs. 6,12,500/- within 30 days from the date of issue of this allotment letter, which together with an amount of Rs. 3,50,000/- paid by you along with your application form an earnest money will constitute 25 per cent of the total tentative price.
From a bare perusal of above said clauses, it is manifestly clear that clause 4 deals with forfeiture of earnest money and cancellation of allotment when refusal to accept allotment is not given within 30 days by a successful allottee, whereas such provision with regard to cancellation and forfeiture does not find any mention in clause 5. If the policy of HUDA does not contemplate forfeiture and cancellation of allotment, in case of acceptance of allotment without deposit of the demanded amount within 30 days, then language used in clause 4 cannot be borrowed in the language of clause 5 of the policy of allotment. Our view is further fortified by clause 10 of the allotment letter, which is to the following effect:
10. In the event of the breach of any other condition of the Estate Officer may resume the land in accordance with the provision of Section 17 of the Act.' From a bare reading of clause 10, it is manifestly clear that in case of breach of any other condition, that breach will include the breach of nonpayment of any instalment or making of 15% of payment, the Estate Officer had jurisdiction to proceed in accordance with the provisions of Section 17 of the Act.
In view of the afore-stated proposition of the policy itself, the reliance placed by learned Counsel for the respondent on the language of clause 4 is totally misconceived, misplaced and not applicable to the facts of the present case. In this case, the petitioner accepted the allotment made vide letter dated 17.9.2004 (Annexure P.1) and within thirty days vide his request dated 16.10.2004 (Annexure P.2), sought extension of time to deposit the required 15% amount towards the price of the plot as the same is permissible on payment of surcharge under the policy.
10. There is yet another infirmity with the order passed by the Revisional Authority. The ground of cancellation of the allotment is mentioned in letter dated 17.4.2006 (P .16), which is the following effect:
In accordance with the terms and conditions of the allotment letter issued vide this office letter No. 1653 dated 17.9.2004, you were required to deposit a sum of Rs. 6,12,500/- within 30 days from the date of issue of the allotment letter i.e. 16.12.2004 to make 25% tentative cost of the plot. But you have failed to do so. Hence, the allotment of the above plot is hereby cancelled and 10% amount of total cost of the plot is hereby forfeited.
From the perusal of aforesaid letter, it is clear that the cancellation was on account of non-deposit of a sum of Rs. 6,12,500/- within 30 days from the date of issue of the allotment letter, so as to enable the petitioner to make the deposit equal to 25% of the tentative cost of the plot. That order was set aside by the appellate authority after hearing the parties and also in view of the fact that after the acceptance of the allotment of plot, the petitioner had requested for extension of deposit vide his letters dated 16.10.2004 (within 30 days), 11.11.2004 but till 6.12.2005, respondents did not inform or acknowledge those letters written by the petitioner and thereafter he deposited Rs. 6,20,000/- on 7.12.2005 (towards 15% of the cost price), Rs. 6,50,000/- on 23.12.2005 (towards due first installment), Rs. 5,90,000/- on 24.2.2006 (towards second instalment), besides Rs. 3.50 Lacs already deposited with the application form (towards 10% of the cost price as earnest money) thereby making a total deposit of Rs. 22,10,000/- as against the total cost of the plot of Rs. 36,50,000/-. That was the basic consideration, which prevailed in the mind of the appellate authority, while ordering restoration of the plot to the petitioner. The payments were accepted and duly acknowledged by respondent No. 4 by issuing receipts..
11. After the disposal of the appeal on 8.12.2006, the petitioner, on 31.1.2007, deposited another sum of Rs. 5,77,500/- with respondent No. 4 by way of demand draft dated 22.1.2007. However, the possession of the plot was still not delivered and the same was cancelled by the Revisional Authority vide his impugned order dated 14.12.2007 (Annexure P.25) ignoring the fact that the petitioner, to show his bona fide, had already deposited a total sum of Rs. 27,87,500/- by that date. It was also taken into consideration by the appellate authority that the petitioner was a qualified entrepreneur. The design and garments made by him are of excellent quality and have great demand in foreign countries and the unit being 100% EOU shall earn huge foreign exchange for the country. However, the appellate authority had still directed the petitioner to deposit the due amount along with interest; penalty and surcharge as per HUDA rules.
12. We have carved out the order of the appellate authority in order to appreciate the challenge to the order of the Revisional Authority. As reproduced above, cancellation was on account deposit of Rs. 6,12,000/- i.e. to make an deposited amount equal to 25% of the total cost. However, Revisional Authority did not consider that as the basis of cancellation of allotment but went on to interpret and set aside the order of the appellate authority on the ground, which was non-existent for cancellation of allotment. The ground on which the Revisional Authority set aside the order of appellate authority was that as per condition No. 6 of the allotment letter dated 17.9.2004, the balance amount of Rs. 28.87 lacs was required to be paid in five half yearly instalments and the allottee failed to make the payment as per the instalment plan. We have quoted the cancellation letter. The basis altogether being changed by the Revisional authority, shows that Revisional Authority has not applied its mind as to what was the ground of cancellation of allotment. Even otherwise, Revisional Authority cannot exceed its jurisdiction while exercising the revisional power on the basis of the facts, which were not before the appellate authority. Revisional Authority has not discussed the impact of clause 10 of the allotment letter.
By judging from any angle, the order dated 14.12.2007 (P.25) of the Revisional Authority cannot be sustained in the eyes of law.
13. Accordingly, the writ petition is allowed and the impugned order is quashed. A direction is issued to respondent No. 4 to comply with the direction of the appellate authority within four weeks. We further direct the petitioner to deposit the said amount within four weeks after the receipt of the demand from respondent No. 4. After receipt of the demand of the total amount, respondent authority will forthwith deliver the possession of the plot to the petitioner.