Brij Mohan vs State of Haryana and Others

Hemant Gupta, J.—The present appeal under Clause X of the Letters Patent is directed against the order dated 25.01.2011 passed by the learned Single Judge of this Court, whereby the writ petition filed by the appellant-petitioner was dismissed. The appellant was allotted a residential site measuring 420 square meters vide letter of allotment dated 7.4.1992. The petitioner-appellant deposited 25% of the sale consideration and failed to deposit the remaining amount which led to resumption of the site on 30.7.2004. In appeal filed by the appellant, the resumption order was set aside on 26.4.2005. It was noticed that real brother of the appellant was killed by the terrorists in 1991 and another brother was killed by the terrorists in 1994, therefore, the entire business of the family had suffered badly. In view of the said fact, the appellant was directed to pay the whole amount calculated as per the HUDA policy in two equal installments in four months from the date of receipt of the order.

The appellant filed a revision against the said order challenging the levy of interest and penalty, which was dismissed on 22.10.2008. The writ petition against the said order was dismissed.

The only argument of the Learned Counsel for the appellant before this Court is that since the appellant suffered badly on account of terrorist activities, he could not make the due payment in time. Now the appellant is ready to deposit the due amount along with interest and penalty within one month. Reference has been made to the order of the Hon''ble Supreme Court rendered in Civil Appeal No. 10766 of 2010 (Haryana Urban Development Authority & Anr. v. Ram Gopal) decided on 13.12.2010.

On the other hand, Mr. Bansal relies upon another order passed by the Hon''ble Supreme Court on 12.8.2011 whereby for non-payment of installments in respect of the commercial property i.e. booth, the appeal of the allottee was dismissed.

We find merit in the arguments raised by the Learned Counsel for the appellant. Allotment of residential plot would stand on the different footing than the purchase of a commercial property. A person purchases residential property to achieve one''s desire to have roof over his head. Whereas, the commercial property is purchased either to earn living or to earn rental income. Such property has commercial interest therein. One is for residence and other is for making profit. Since the plot was allotted to the appellant for residential purpose, we deem it appropriate to accept the appeal and set aside the impugned order and direct the appellant to pay the outstanding dues with interest and penalty as per the policy of HUDA. The respondents shall communicate the due amount within two weeks and the said amount shall be deposited without any demur within one month as per undertaking of the appellant. The failure to deposit the amount will be deemed to be dismissal of the present appeal.

The present appeal is this disposed of in the above terms.