JUDGMENT
Prem Chand Jain, J.
1. This judgment of ours would dispose of this petition as well as Civil Writ Petitions Nos. 4361, 4362, 4387, 4593 and 3937 of 1973 and 392 and 692 of 1974, as common question of law arises in all these petitions.
2. In order to appreciate the legal controversy raised before us, certain salient features of this petition may be noticed :–
The petition was allotted industrial plot No. 45, Sector, 24, measuring 1250 square yards at Faridabad vide allotment letter No. 18648/ALC/EO dated 5th July, 1969. A copy of the allotment letter is enclosed an Annexure ‘A’ to the writ petition. The petitioner paid 20% price of the plot before the allotment and the balance of 80% was payable in ten annual instalment with 7% interest thereon. It is alleged in the petition that on 20th Dec., 1972, a notice was received from the Estate Officer, Faridabad, threatening the resumption of the plot in dispute and the forfeiture of RS. 6,650/- on the ground of non-completion of the factory building within a period of three years. The petitioner was also asked to show cause against the proposed resumption and forfeiture. A copy of the notice is attached with the petition as Annex. ‘B’. The petitioner sent a reply to the show cause notice. It is further averred that “without applying his independent and judicious mind, the Estate Officer illegally and arbitrarily resumed the plot vide his order dated 5th April, 1973. A copy of the resumption order is attached with the petition as Annex ‘C’. Feeling aggrieved from the order of resumption, the petitioner filed an appeal which was dismissed by the Chief Administrator vide his order dated 25th June, 1973. A copy of the side order is attached as Annexure ‘D’ with the petition. Still dissatisfied, the petitioner preferred a revision petition to the State Government under Section 11 of the Urban Estates (Development and Regulation) Act, 1964(hereinafter referred to as the Principal Act) as amended. The revision petition was heard by the Secretary to Government, Haryana, Town and Country planning Department and who finding no merit, dismissed the same on 7th Aug., 1973. It is pertinent to observe that after the dismissal of the revision petition, the plot in dispute was allotted to M/s. Lakshmi Chemicals and Engineering Works, 2/13 Ansari Road, Darya Ganj, Delhi, respondent No. 5, on 29th Aug., 1973. The petitioner, through this petition, has challenged the legality of the aforesaid order of the appropriate authorities.
3. The petition was admitted on 12th Dec., 1973.
4. Written statement on behalf of respondents Nos. 1 to 4 has been filed, in which the material allegations made in the petition have been controverted.
5. This petition camp up for hearing on 9th Sept., 1981, when the same was adjourned to await the decision of the Full Bench in C. W. P. No. 2830 of 1979. After the decision of the said writ petition by the Full Bench, the petition was again put up for hearing on 16th Mar., 1982, when M. M. Punchhi, J., ordered that it would be appropriate if this petition is heard by a Division Bench. That is how, this petition has been placed for hearing before us.
6. Though several points have been taken in the petition, yet the only point that was agitated and pressed before us by Shri Bawa Jagat Singh, learned counsel for the petitioner, was that the order of resumption which was passed before the enactment of the Urban Estates (Development and Regulation) Haryana Amendment Act, 1973(hereinafter referred to as the Amendment Act), was inconsistent with the provisions of the Principal Act, as amended, inasmuch as no opportunity of leading evidence and personal hearing was given to the petitioner, with the result that such an order was not saved by Section 10 of the Amendment Act.
7. To test the correctness and plausibility of the contention of Mr. Bawa, certain relevant provisions of the Principal Act and the Amendment Act may be noticed. Section 10 of the Act before amendment reads as under :–
“10. Forfeiture for breach of condition of transfer.–
In the case of non-payment of consideration money or any instalment thereof on account of the transfer of any site or building under S. 3 or of any rent due in respect of the lease of any such site or building or in case of the breach of any other conditions of such transfer the Estate Officer may, if he thinks fit, resume the site or building so transferred and may further forfeit the whole or any part of the money, if any, paid in respect thereof.
After the amendment, Section 10 is in the following terms :–
“10. Resumption and forfeiture for breach of conditions of transfer :–
(1) Where any transferee makes default in the payment of any consideration money or any instalment on account of the sale of any site or building, or both, under Section 3, 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 percentum 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 with 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 such site, 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 suit or building, or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten percentum of the total amount of the consideration money, interest and other dues payable in respect of the sale of the site or building, or both, should not be made.
(4) After considering the cause, if any, shown by the transferee in pursuance of a notice under sub-section (3) and any evidence that he may produce in support of the same 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 resuming the site or building, or both, as the case may be so sold and directing the forfeiture as provided in sub-section (3) of the whole or any part of the “money paid in respect of such sale.”
Section 10 of the Amendment Act, which makes provision for validation, is in the following terms :–
“10. Validation.–Notwithstanding any judgment, decree or order of any Court, anything done or any action taken (including any notice, issued, any order made for resumption of any site or building, or both, as the case may be, or any such resumption effected, or any order made for the forfeiture of any money or any money forfeited, or any order made for the recovery of any arrears or any arrears recovered, or any penalty imposed or recovered) or purported to have been done or taken under the principal Act shall, in so far as it is consistent with the provisions of the principal Act as amended by this Act, be deemed to be as valid and effective as if such thing or action was done or taken under the principal Act as amended by this Act, and accordingly no suit or other legal proceedings shall be maintained or continued in any Court:–
(i) for the recovery of any site or building, or both, as the case may be, which has or have been resumed; or
(ii) for the cancellation of any order made for the resumption of any site or building, or both, as the case may be, or
(iii) for the recovery of any money forfeited; or
(iv) for the cancellation of any order made for the forfeiture of any money; or
(v) for the refund of any arrears recovered, or
(vi) for the cancellation of any order made for the recovery of any arrears; or
(vii) for the refund of any penalty recovered or
(viii) for the cancellation of any order imposing and penalty.”
8. A bare scrutiny of the aforesaid provisions would go to show that there is merit in the contention of Mr. Bawa. Under Section 10 of the Act, no procedure at all that may be adopted before passing an order of resumption, is provided. However, after the enactment of the Amendment Act, Section 10 has undergone a radical change. Under sub-section (3), it is provided that if there is a commission of a breach of any other condition of such sale, then the Estate Officer is required to call upon the transferee to show cause within a period of 30 days why an order of resumption of the site or building or both, as the case may be and forfeiture of the whole or any part of the money should not be made. Under sub-section (4), if a cause is shown by a transferee in pursuance of the notice issued to him under sub-section (3), then the Estate Officer is required to give the transferee an opportunity to lead evidence in support of the pleas raised by him in his reply to the show cause notice and also afford him a reasonable opportunity of hearing in the matter. It is thereafter that an order of resumption can be passed by the Estate Officer. There can be no gainsaying that in the instant case positively the procedure that has been specified in sub-section (4) of Section 10, has not at all been followed.
9. The question that now falls for determination is as to what is the effect of the provisions of Section 10 of the Principal Act as amended on the order of resumption that was passed before the enactment of the Amendment Act because if the Amendment Act had not been enacted, then there can be no gainsaying that the order of resumption was passed in accordance with law. To find out a correct answer, reference will have to be made to Section 10 of the Amendment Act, which makes provision for validation. A bare perusal of the said Section shows that only those actions taken under the Principal Act are protected which are consistent with the provisions of the Principal Act, as amended by the Amendment Act and such actions and order would be deemed to be as valid and effective as if such thing or action was done or taken under the Principal Act as amend by this Act. Now adverting to the impugned orders, I find that the same cannot legally be sustained, as neither the transferee (the petitioner) was afforded an opportunity of leading evidence to substantiate his pleas raised in the reply nor was he afforded an opportunity of hearing, with the result that the earlier order of resumption passed cannot be held to be consistent with the provisions of Section 10 of the Principal Act, as amended by this Act.
10. Mr. Anand Swaroop, Senior Advocate, learned counsel for the Administration, sought to support the action of the Authority by contending that principles of natural justice were followed inasmuch as a show cause notice was issued and no receipt of the reply from the petitioner, the matter was considered and it was thereafter that the order of resumption was passed and in this situation, it should be taken that there has been substantial compliance of the procedure laid down in sub-section (7) of Section 18, as amended. I am afraid, I am unable to agree with this contention of the learned counsel. As earlier observed, under sub-section (4) the Estate Officer is required to give an opportunity to the transferee to lead evidence and also to afford him an opportunity of hearing. I fail to understand as to how on the mere consideration of the reply to show cause notice, it can be held that there has been substantial compliance of the provisions of sub-section (4). The impugned order does not conform with the procedure laid down in sub-section (4), with the result that there can be no escape from the conclusion that the same is inconsistent with the provisions of Section 10 of the Principal Act as amended and is invalid and ineffective. Mr. Anand Swaroop also sought to argue that the petitioner should not be permitted to raise this point as the same was not raised before the Revisional Authority. To me, it appears to be an argument of despair, especially in view of my finding that the impugned orders of resumption cannot legally be sustained being inconsistent with the provisions of Section 10 of the Principal Act as amended. The point raised is purely legal and in the circumstances of the case, is permitted to be raised.
11. No other point was urged.
12. Consequently, I allow these petitions and quash the impugned orders of resumption dated 5th April, 1973 in all these petitions. Subsequent orders passed by the appellate authority and the revisional authority, dated 25th June, 1973 and 7th August, 1973 in C. W. P. No. 4386 of 1973; dated 25th June, 1973 and 6th August, 1973 in C. W. P. No. 4362 of 1973, dated 25th June, 1973 and 7th August, 1973 in C. W. P. No. 4593 and 7th August, 1973 in C. W. P. No. 3937 of 1973, dated 13th June, 1973 and 20th July, 1973 in C. W. P. No. 392 of 1974; and dated 21st June, 1973 and 7th August, 1973 in C. W. P. No. 692 of 1974, respectively, are also quashed. In the circumstances of the case, I make no order as to costs.
S.S. Sandhawalia, C.J.
13. I agree.
14. Order accordingly.