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

J U D G M E N T  

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  to  

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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 at   

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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  4½ 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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