REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6791 OF 2010
(Arising out of SLP (C) No. 6427 of 2008)
Greater Mohali Area Development Authority & Anr. ...... Appellants
Versus
Manju Jain & Ors. .......Respondents
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and
order dated 22.11.2007 passed by the High Court of Punjab
and Haryana at Chandigarh, in Civil Writ Petition No. 16621 of
2007, by which the High Court has set aside the judgments
and orders of the Revisional Authority dated 31st July, 2007
and the Appellate Authority dated 30th March, 2006 and the
order of cancellation of the suit plot dated 20th August, 2003
by the statutory authority.
3. Facts and circumstances giving rise to this case are that
the respondent No.1 applied vide application No.026012,
dated 27.1.1997, for allotment of a flat under a hire purchase
scheme along with application money of Rs.20,000/-. After
considering the application of the respondent No.1 along with
other applicants, a draw of lots was held on 28.6.1997 and an
M.I.G. flat was allocated to the respondent No.1 and she was
informed vide letter dated 19.11.1997 about the said
allocation. As per the said allocation letter, the allotment was
for a tentative cost to the tune of Rs.4,79,200/-. Respondent
No.1 would deposit a further 15% of the price of the flat within
30 days of the issuance of the allotment letter and the balance
amount was to be deposited in equal monthly installments
over a period of 13 years. It was also open for her to make
payment of the balance amount in a lump sum within 60 days
from the date of issue of the allotment letter. The authority
issued the letter of allotment dated 9th March, 1999 in her
favour, which made it clear that the price of the house was
Rs.5,55,200/- and that she had to send her acceptance of the
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allotment and deposit 25% of the amount within 60 days of
the receipt of the allotment letter. She had to deposit the
balance amount in monthly installment over a period of 13
years. The respondent No.1 did not make any response to the
said letter nor did she deposit any amount. The appellant-
authority on her query vide letter dated 28th August, 2003,
informed the respondent No.1 that the allotment made in her
favour stood cancelled, as she did not deposit any amount in
pursuance of the allotment letter dated 9th March, 1999.
4. Being aggrieved, respondent No. 1 preferred an appeal
before the Estate Officer of the appellants challenging the
order of cancellation. The said appeal was dismissed vide
order dated 30th March, 2006, against which the respondent
No.1 preferred a revision which was also dismissed by the
Revisional Authority vide order dated 31.7.2007.
5. Being aggrieved, respondent No. 1 preferred Writ Petition
No.16621 of 2007 challenging the orders passed by the
authorities of the appellants, as well as the State Government.
The writ petition has been allowed quashing all the orders
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passed by the authorities of the appellants and of the State of
Punjab. Hence, this appeal.
6. Mr. Satinder S. Gulati, learned counsel appearing for the
appellants, has submitted that the respondent No.1 was sent
the letters of allocation as well as the allotment by Registered
Post. She did not send her acceptance nor did she deposit any
amount whatsoever and she filed an appeal wherein she did
not take the ground that she had not received the letter of
allotment. Respondent No. 1 had made very vague pleadings
stating that she had not heard anything from the appellants
after depositing the application fee. She failed to make any
deposit at any stage and the High Court has wrongly
proceeded as if she did not have any notice of the allocation or
allotment. The High Court summoned the officer of the
appellant-authority and quashed the order of cancellation and
all other consequential orders only on the ground that the
allotment letter had not been sent to the correct person at
correct address, placing reliance upon the receipt and
dispatch register of the authority alone. The appellant-
authority was not given a proper opportunity to file a reply to
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the writ petition. Thus, the order impugned passed by the
High Court is liable to be set aside.
7. On the other hand, Shri Govind Goel, learned counsel
appearing for the respondents, has submitted that greater
injustice has been done to the respondent by the authorities,
as in spite of the order of allotment, the allotment had been
cancelled without issuing any show cause notice to her or
sending any information whatsoever. The High Court has
rightly taken note of the fact that the notice was sent to an
incorrect person and to the incorrect address. Therefore, the
order of the High Court does not warrant interference. The
appeal lacks merit and is liable to be dismissed.
8. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
9. The Appellate Authority, after considering the pleadings,
appreciating the evidence on record and hearing both the
parties, came to the conclusion that respondent No. 1 did not
deposit the required amount and did not execute the hire-
purchase agreement and she failed to give any cogent reason
for the same. The appeal was rejected.
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10. Before the Revisional Authority, no factual foundation
had been laid by respondent No. 1 on relevant factual aspects,
particularly, on the fact that she had not received the
allotment letter. The only relevant ground reads as under:
“That due to some financial difficulties,
the applicant-petitioner could not arrange the
huge sum of Rs.1,19,800/- to be paid within
the stipulated period. The applicant-petitioner
also approached some banks for loan but the
Bank Authorities did not agree to grant loan
for the purpose. However, now the applicant-
petitioner has arranged funds for the purpose
and is willing and ready to make the payment
at any time.”
The revision was dismissed by the Revisional Authority
vide order dated 31.7.2007.
11. This ground impliedly amounts to admission that
respondent No. 1 was fully aware of her liability and she could
not fulfill the requirement only for non-availability of funds.
The fact that she had not received the allotment letter was
neither pleaded before the Appellate Authority nor before the
Revisional Authority. Thus, there was no occasion for either of
the said authorities to record a finding on this factual aspect.
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12. In the writ petition filed on 25-10-2007 before the High
Court, a totally new case was built up on a new factual matrix,
i.e. that respondent No. 1 had never received the allotment
letter and after waiting for a long time when she made a
representation to the authorities, she was informed that
allotment made vide letter dated 9.3.1999 has been cancelled
vide order dated 28.8.2003.
13. The Writ Petition came for admission before the High
Court on 29.10.2007, wherein the following order was passed:-
“Let concerned records be produced by Greater
Mohali Area Development Authority, Mohali on
12.11.2007. Copy of the order be given dasti
under the signature of Bench Secretary.”
14. When matter came up on 12.11.2007 before the High
Court, the appellants herein did not appear, and thus, the
Court passed the following order:-
“Accordingly, Special Secretary to Govt. of
Punjab, Department of Housing and Urban
Development, Mini Secretariat, (ii) Chief
Administrator, Greater Mohali Area
Development Authority and (iii) Addl. Chief
Administrator of Punjab Urban Planning &
Development Authority, Mohali, are directed to
remain present in Court on 22.11.2007 to7
explain reasons for disobeying order dated
29.10.2007 of this court.
A copy of this order be given to Mr. A.G. Masih,
Senior Deputy Advocate General, Punjab for
ensuring compliance.”
15. The officers of the appellants received the order dated
29.10.2007 on 13.11.2007 and that is why, they did not enter
appearance and none of their officers could be present in the
Court on 12.11.2007. To this effect, an affidavit was filed on
20.11.2007. A specific plea was taken therein that the
allotment letter was sent to respondent No. 1 at the correct
address under registered cover as was recorded at serial
no.364 of the Register for dispatch of registered letters and on
which the stamp of the Post Officer, SAS Nagar, dated
11.3.1999 had been affixed along with 11 other registered
letters dispatched on that date. Photocopies of those
allotment letters were appended along with affidavit. It was
further submitted that the letter of cancellation was also sent
to the same address where the allocation and allotment letters
had been sent.
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16. The matter came up before the Court on 22.11.2007
when the writ petition filed by the respondent No. 1 stood
allowed without examining the entire record placed before the
Court, only on the ground that the dispatch register did not
contain the correct name and address of respondent No.1.
The writ petition was finally allowed by the High Court
within a period of 26 days of its filing without giving any
proper opportunity to the present appellants to file a reply and
produce material to controvert the averments made in the writ
petition.
17. The High Court failed to note that the appellants had
taken a specific plea that the letter of allotment had been
communicated to respondent No. 1 by Registered Post. The
Privy Council in Harihar Banerjee Vs. Ramshashi Roy AIR
1918 PC 102, held that there can be a presumption of receipt
of a letter sent under postal certificate in view of the provisions
of Section 114 Ill.(f) of the Indian Evidence Act, 1872
(hereinafter the Evidence Act).
18. In Mst. L.M.S. Ummu Saleema Vs. B.B.Gujral & Anr.
AIR 1981 SC 1191, this Court dealt with the issue of
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presumption of service of letter sent under postal cover, and
observed:-
“The certificate of posting might lead to a
presumption that a letter addressed to the
Assistant Collector of Customs was posted on
14-8-80 and in due course reached the
addressee. But it is only a permissible and
not an inevitable presumption. Neither Section
16 nor Section 114 of the Evidence Act compel
the Court to draw a presumption. The
presumption may or may not be drawn. On
the facts and circumstances of a case, the
Court may refuse to draw the presumption.
On the other hand, the presumption may be
drawn initially but on a consideration of the
evidence, the Court may hold the presumption
rebutted.”
19. In C.C. Alavi Haji Vs. Palapetty Muhammed & Anr.
(2007) 6 SCC 555, this court re-iterated a similar view that
Section 27 of General Clauses Act, 1897 and Section 114 Ill.(f)
of the Evidence Act, give rise to a presumption that the service
of a notice has been effected when it is sent to the correct
address by registered post. This Court held as under :-
“Section 27 gives rise to a presumption that
service of notice has been effected when it is
sent to the correct address by registered
post……… Unless and until the contrary is
proved by the addressee, service of notice is
deemed to have been effected at the time at1
which the letter would have been delivered in
the ordinary course of business.”
20. This Court has reiterated a similar view in Gujarat
Electricity Board & Anr. Vs. Atmaram Sungomal Poshani
AIR 1989 SC 1433; Chief Commissioner of Income Tax
(Admn.), Bangalore Vs. V.K. Gururaj & Ors. (1996) 7 SCC
275; Poonam Verma & Ors. Vs. Delhi Development
Authority (2007) 13 SCC 154; Sarav Investment & Financial
Consultancy Private Limited & Anr. Vs. Llyods Register of
Shipping Indian Office Staff Provident Fund & Anr. (2007)
14 SCC 753; Union of India Vs. S. P. Singh (2008) 5 SCC
438; Municipal Corporation, Ludhiana Vs. Inderjit Singh &
Anr. (2008) 13 SCC 506; and V. N. Bharat Vs. Delhi
Development Authority & Anr. AIR 2009 SC 1233.
21. In view of the above, the High Court ought to have
examined the issue in the correct perspective, as respondent
No. 1 did not controvert the plea taken by the appellants of
sending the allotment letter by Registered Post.
22. Mere draw of lots/allocation letter does not confer any
right to allotment. The system of draw of lots is being resorted
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to with a view to identify the prospective allottee. It s only a
mode, a method, a process to identify the allottee i.e. the
process of selection. It is not an allotment by itself. Mere
identification or selection of the allottee does not clothe the
person selected with a legal right to allotment. (See Delhi
Development Authority Vs. Pushpendra Kumar Jain, AIR
1995 SC 1).
23. Constitution Benches of this Court in Bachhittar Singh
Vs. State of Punjab & Anr. AIR 1963 SC 395; and State of
Punjab Vs. Amar Singh Harika AIR 1966 SC 1313, have held
that an order does not become effective unless it is published
and communicated to the person concerned. Before the
communication, the order can not be regarded as anything
more than provisional in character.
A similar view has been reiterated in Union of India &
Ors. Vs. Dinanath Shantaram Karekar & Ors. AIR 1998 SC
2722; and State of West Bengal Vs. M.R. Mondal & Anr.
(2002) 8 SCC 443.
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In Laxminarayan R. Bhattad & Ors. Vs. State of
Maharashtra & Anr. (2003) 5 SCC 413, this Court held that
the order of the authority must be communicated for
conferring an enforceable right and in case the order has
been passed and not communicated, it does not create any
legal right in favour of the party.
Thus, in view of the above, it can be held that if an order
is passed but not communicated to the party concerned, it
does not create any legal right which can be enforced through
the court of Law, as it does not become effective till it is
communicated.
24. Clause 4 of the allotment letter reads as under:-
“In case you accept this allotment, you should
send your acceptance by registered post along
with amount of balance of twenty five percent of
price within sixty days from the date of receipt of
allotment letter.” (Emphasis added)In the instant case, an acceptance letter had not been sent by
respondent No.1. Thus, the allotment in her favour remained
of no significance.
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25. The respondent No.1 raised the plea of non-receipt of the
letter of allotment first time before the High Court. Even if it is
assumed that it is correct, the question does arise as to
whether such a new plea on facts could be agitated before the
Writ Court. It is settled legal proposition that pure question of
law can be raised at any time of the proceedings but a
question of fact which requires investigation and inquiry, and
for which no factual foundation has been laid by a party before
the Court or Tribunal below, cannot be allowed to be agitated
in the Writ Petition. If the Writ court for some compelling
circumstances desires to entertain a new factual plea the
court must give due opportunity to the opposite party to
controvert the same and adduce the evidence to substantiate
its pleadings. Thus, it is not permissible for the High Court to
consider a new case on facts or mixed question of fact and law
which was not the case of the parties before the Court or
Tribunal below. (Vide State of U.P. Vs. Dr. Anupam Gupta,
AIR 1992 SC 932; Ram Kumar Agrawal & Anr. Vs. Thawar
Das (D) through Lrs., (1999) 7 SCC 303; Vasantha
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Viswanathan & Ors. Vs. V.K. Elayalwar & Ors. (2001) 8 SCC
133; Anup Kumar Kundu Vs. Sudip Charan Chakraborty,
(2006) 6 SC 666; Tirupati Jute Industries (P) Ltd. Vs. State
of West Bengal, (2009) 14 SCC 406; and Sanghvi
Reconditioners (P) Ltd. Vs. Union of India & Ors. (2010) 2
SCC 733.
In the instant case, as the new plea on fact has been
raised first time before the High Court it could not have been
entertained, particularly in the manner the High Court has
dealt with as no opportunity of controverting the same had
been given to the appellants.
More so, The High Court, instead of examining the case
in the correct perspective, proceeded in haste, which itself
amounts to arbitrariness. (Vide Fuljit Kaur Vs. State of
Punjab AIR 2010 SC 1237).
26. In Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh & Ors.
(2004) 2 SCC 130, this Court held that cancellation of an
allotment should be a last resort. The allotment should not be
cancelled unless the intention or motive on the part of the
allottee in not making due payment is evident. The drastic
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power of resumption and forfeiture should be exercised in
exceptional cases but that does not mean that the statutory
rights conferring the right on the authority should never be
resorted to. In exceptional circumstances, where the allottee
does not make any payment in terms of allotment, the order of
cancellation should be passed. Sympathy or sentiment by
itself cannot be a ground for passing an order in favour of
allottees by the courts nor can an order be passed in
contravention of the statutory provisions.
27. If the instant case is examined in the light of the
aforesaid settled legal propositions, it becomes clear that
respondent No.1, did not make any response whatsoever after
applying for allotment. No explanation could be furnished by
respondent No.1 for why she kept quiet for 4= years after
receiving the allocation letter and why she did not make any
attempt to find out what had happened to her application.
Respondent No.1 did not send her acceptance of the allotment;
did not deposit the amount which became due in 1999 itself;
and did not execute the required hire-purchase agreement
with the appellant-authority. Thus, it is solely because of her
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that no concluded contract could come into existence between
the parties. In such a fact-situation, the respondent No.1
could not be handed over possession of the flat. The
forfeiture of the earnest money is in terms of the statutory
provisions.
While deciding the writ petition, the High Court did not
even consider the well reasoned judgments/orders by the
authorities under the Statute. The Court was supposed to
examine the correctness of those orders. More so, the relevant
record of the authority was not examined.
No reason, leave alone a cogent reason has been given by
the High Court for the reversal of these orders.
28. The High Court while deciding the case did not give
opportunity to the authority to file a reply to the writ petition.
The Court proceeded in haste and decided the case relying
upon irrelevant materials. An appropriate course may be to
set aside the Judgment and order of the High Court and remit
it for consideration afresh. However, as a period of 13 years
has already been elapsed, since the proceeding came into
existence and we ourselves have examined the entire record
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and re-appreciated the evidence, such a course would not
serve any purpose.
29. In view of the above, the appeal is allowed. The judgment
and order of the High Court is set aside and the orders passed
by the authorities under the statute are restored. No order as
to costs.
…………………………….J.
(P. SATHASIVAM)
…………………………….J.
(Dr. B.S. CHAUHAN)
New Delhi,
August 19, 2010
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