GREATER MOHALI AREA DEVELOPMENT AUTHORITY & ANR.versusMANJU JAIN. & ORS.

                      (2010] 10 S.C.R. 134


A   GREATER MOHALi AREA DEVELOPMENT AUTHORITY &
                        ANR.
                                v.
                      MANJU JAIN. & ORS.
                 (Civil Appeal No. 6791 of 2010)
B
                       AUGUST 19, 2010

        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

        Contract - Allotment of house - Failure on. the part of
C allottee in accepting the allotment and depositing money in
  terms of the allotment within stipulated time - Cancellation
  of allotment - Challenged - High Court quashed the
  cancellation order holding that the allotment Jetter was not
  served at the correct address - On appeal, held: -
D Cancellation was justified - Allottee having failed in giving
  acceptance to allotment and in· depositing moneyin terms of
  the ·allotment underrthe hire-purchase scheme, no concluded
  contract came into existence between the .parties - Plea of
  failure 'to serve notice being a new plea before court not
E acceptable - HOLf~ing.

         Plea - Raising of new plea - Before a writ court -
    Permissibility- H~ld: A new plea on facts ormixed question
    of fact and law cannot be raised before a writ court -
    Constitution of lnilia, 1950 - Article 226.
F
       Respondent No. 1 applied to the appellant-Authority
  for allotment of a flat under the hire- purchase scheme.
  One flat was allocated to her. Thereafter the Authority
  issued the letter of allotment to her, seeking her
G acceptance for the allotment and asking her to deposit
  certain amount within the stipulated time. Respondent
  No. 1 did not respond to the letter. After about four years
  from the date of allotment, when she made a query, she
  was informed that her allotment had' been cancelled on
H                            134
     GREATER MOHALi AREA DEVELOPMENT                   135
          AUTHORITY v. MANJU JAIN
her failure to deposit the amount pursuant to the             A
allotment letter.

     Respondent No. 1 made an appeal before the
statutory authority challenging the order, of cancellation.
The appeal was dismissed. The order was affirmed by the
                                                              8
revisional authority. Respondent No. 1 challenged th!:l
orders passed by the authorities in a writ petition. The
same was allowed by the High Court quashing the orders
passed by the authorities and holding that the notice of
allotment was sent to an incorrect person and to the
incorrect address. The instant appeal was filed by the        C
..
appellant-Authority .

     Allowing the appeal, the Court

     HELD: 1. The High Court allowed the writ petition,       0
without examining the entire record placed before it only
on the ground that the dispatch register did not contain
the correct name and address· of respondent No.1. The
writ petition was allowed without giving any proper
opportunity to the appellants to file a reply and produce     E
material to controvert the averments made in the writ
petition. 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. Therefore, the High Court ought to have examined
the issue in the correct perspective, as respondent No.       F
1 had not controverted the plea taken by the appellants
of sending the allotment letter by Registered Post. [Paras
16, 17, 21 and 25] [145-C-E; 147-A]

      Harihar Banerjee vs. Ramshashi Roy AIR 1918 PC 102;     G
A(Tst. L.M.$.Ummu Saleema vs. 8.8.Gujral and Anr. AIR
1981 SC 1191; C.C. Alavi Haji vs. Palapetty Muhammed
and Anr. (2007) 6 SCC 555; Gujarat Electricity Board and
Anr. vs. Atmaram Sungomal Poshani AIR 1989 SC 1433;
ChiefCommissioner of Income Tax (Admn.) Bangalore vs.         H
    136     SUPREME COURT REPORTS            [2010] 10 S.C.R.


A V.K. Gururaj and Ors.(1996) 7 SCC 275; Poonam Verma
  and Ors. vs. Delhi Development Authority (2007) 13 SCC
  154; Sarav Investment and Financial Consultancy Private
  Limited and Anr. vs. Llyods Register of Shipping Indian Office
  StaffProvident Fund and Anr. (2007) 14 SCC 753; Union of
B India vs. S. P. Singh (2008) 5 SCC 438; Municipal
  Corporation, Ludhiana vs. lnderjit Singh and Anr. (2008) 13
  SCC 506; V.N. Bharat vs. Delhi Development Authority and
  Anr. AIR 2009 SC 1233 - referred to

       2.1 The fact that respondent No. 1 had not received
C 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
  Respondent No. 1, before the revisional authority, took
D the plea that due to financial difficulty, she could not
  arrange the money to be paid within the stipulated time.
  This 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. In the
E writ petition, a totally new case was built up ori a new
  factual matrix. [Paras 11 and 12] [143-G-H] -·

       2.2 Respondent No.1 raised the plea of non-receipt
  of the letter of allotment for the first time before the High
F Court. Even if it is assumed that it is correct, 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. A
  pure question of law can be raised at any time of the
  proceedings but a question of fact which requires
G 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, it
H
      GREATER MOHALi AREA DEVELOPMENT                  137
           AUTHORITY v. MANJU JAIN
must give due opportunity to the opposite party to            A
controvert the same and adduce the evidence to
substantiate its pleadings. [Para 25) [148-D-F]

     State of UP. vs. Dr. Anupam Gupta AIR 1992 SC 932;
Ram KumarAgrawal and Anr. vs. Thawar Das (D) through Lrs.     8
(1999) 7 SCC 303; Vasantha Viswanathan and Ors. Vs. V.K.
Elayalwar and 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; Sanghvi Reconditioners (P) Ltd. vs. Union of India and   C
Ors. (2010) 2 SCC 733 - referred to.

    2.3 Though, the allotment should not be cancelled
unless the intention or motive on the part of the allottee
in not making due payment is evident, but in exceptional
circumstances, where the allottee does not make any           D
payment in terms of the 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. [Para    E
26] [149-D-F]

    Teri Oat Estates (P) Ltd. vs. U. T. Chandigarh and Ors.
(2004) 2 sec 130 - relied on.

     2.4 In the instant case, respondent No.1 did not make F
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. G
Respondent No.1 did not send her acceptance of the
allotment; did not deposit the amount and did not
execute the required hire-purchase agreement with the
appellant-authority. Thus, it is soleiy because of her that
                                                            H
    138       SUPREME COURT REPORTS           [2010] 10 S.C.R. -


A 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. [Para 27] [149-G-H; 150-A]
B
       2.5 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, which itself
C amounts to arbitrariness. 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 this Court has
  examined the entire record and re-appreciated the
D evidence, such a course would not serve any purpose.
  Judgment passed by the High Court is set aside and the
  orders of the aut.horities are restOred. [Paras 25, 28 and
  29] [150-E-F]

E        Fuljit Kaur vs. State of Punjab AIR 2010 SC 1237 .-
    referred to.

       3.1 Mere draw of lots/allocation letter does not confer
  any right to allotment. The system of draw of lots is being
  resorted to with a view to identify the prospective allottee.
F It is 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. [Para 22)
G
       Delhi Development Authority vs. Pushpendra Kumar
  Jain AIR 1995 SC 1 - referred to.

          3.2 If an order is passed but not communicated to the
H
     GREATER MOHALi AREA DEVELOPMENT                    139
          AUTHORITY v. MANJU JAIN
party concerned, it does not create any legal right which      A
can be enforced through the court of law, as it does not
become effective till it is communicated. 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. [Paras 23 and 24]                 B

    Bachhittar Singh vs. State of Punjab and Anr. AIR 1963
SC 395; State of Punjab vs. Amar Singh Harika AIR 1966
SC 1313; Union of India and Ors. vs. Dinanath Shantaram
Karekar and Ors. AIR 1998 SC 2722; State of West Bengal
vs. M.R. Monda/ and Anr. (2002) 8 SCC 443; Laxminarayan        C
R. Bhattad and Ors. vs. State of Maharashtra and Anr. (2003)
5 sec 413 - relied on.
                    Case Law Reference:
                                                               D
    AIR 1918 PC 102          Referred to.          Para 17
    AIR 1981· SC 1191        Referred to.         Para 18
    (2001) 6 sec 555         Referred to.         Para 19
    AIR 1989 SC 1433         Referred to.         Para 20      E
    (1996) 1 sec 215         Referred to.         Para 20
    (2001) 13 sec 154        Referred to.         Para 20
    (2001) 14 sec 753        Referred to.         Para 20 -
                                                               F
    (2008) 5 sec 438         Referred to.         Para 20
    (2008) 13 sec 506        Referred to.         Para 20
    AIR 2009 SC 1233         Referred to.         Para 20
                                                               G
    AIR 1995 SC 1            Referred to.         Para 22
    AIR 1963 SC 395          Referred to.         Para 23
    AIR 1966 SC 1313         Referred to.         Para 23
                                                               H
    140       SUPREME COURT REPORTS              [2010] 10 S.C.R.


A         AIR 1998 SC 2722        Relied on.            Para 23
          c2002) s sec 443       Relied on.             Para 23
          (2003) 5 sec 413       Relied on.             Para 23
          AIR 1992 SC 932         Referred to.          Para 25
B
          (1999) 1 sec 303        Referred to.          Para 25

          c2001) s sec 133        Referred to.          Para 25
          c2006) 6 sec 666        Referred to.          Para 25
c
          c2009) 14 sec 406       Referred to.          Para 25

          c201 O) 2 sec 733       Referred to.          Para 25
          AIR 2010 SC 1237       Referred to.           Para 25
D         (2004) 2 sec 130       Relied on.             Para 26

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6791 of 2010.

         From the Judgment & Order dated 22.11.2007 of the High
E
    Court of Punjab & Haryana at Chandigarh in CWP No. 16621
    of 2007.

        Satinder Singh Gulati, Kamaldeep Gulati for the
    Appellants.
F
          Govind Goel, Ambuj Agarwal, Dr. Kailash Chand, Ajay Pal
    for the Respondents.

          The Judgment of the Court was delivered by

G         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.
H
    GREATER MOHALi AREA DEVELOPMENT             141
 AUTHORITY v. MANJU JAIN [DR. B.S. CHAUHAN, J.]
16621 of 2007, by which the High Court has set aside the                 A
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.
                                                                         B
       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          C
  other applicants, a draw of lots was held on 28.6.1997 and an
  M.l.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       D
· 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      E
  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 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           F
  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         G
  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       H
    142      SUPREME COURT REPORTS               [2010] 10 S.C.R.


A   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
8
   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 passed by the authorities of the appellants and of
C 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
D 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 tre application fee. She failed to make any deposit
E at?llY stage and the High Court has wron'gly proceeded as if
  she:(:fid not have any notice of the allocation or allotment. The
  High Court summoned the officer of the appellant-authority and
  qua~1&ed the order of cancellation and all other consequential
  orde,rs only on the ground that the allotment letter had not been
F 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 the writ petition. Thus, the order impugned passed
  by the High Court is liable to be set aside.            ·

G      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
H sending any information whatsoever. The High Court has rightly
   GREATER MOHALi AREA DEVELOPMENT             143
AUTHORITY v. MANJU JAIN [DR. S.S. CHAUHAN, J.]
taken note of the fact that the notice was sent to an incorrect        A
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.              8
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-              C
purchase agreement and she failed to give any cogent reason
for the same. The appeal was rejected.

      10. Before the Revisional Authority, no factual foundation
had been laid by respondent No. 1 on relevant factual aspects,         D
particularly, on the fact that she had not received the allotment
letter. Jhe 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-         E
     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."                                    F

     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        G
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.                H
    144       SUPREME COURT REPORTS                [2010] 10 S.C.R.


A          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
B   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:-

c        "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."

D       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
E         Secretariat, (ii) Chief Administrator, Greater Mohali Area
          Development Authority and (iii) Addi. Chief Administrator
          of Punjab Urban Planning & Development Authority,
          Mohali, are directed to remain present in Court on
          22.11.2007 to explain reasons for disobeying order dated
F         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."
G         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
H   letter was sent to respondent No. 1 at the correct address under
   GREATER MOHALi AREA DEVELOPMENT             145
AUTHORITY v. MANJU JAIN [DR. B.S. CHAUHAN, J.]
registered cover as was recorded at serial no.364 of the              A
Register for dispatch of registered letters and on which the
stamp of the Post Officer, SAS INagar, 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      B
letter of cancellation was also sent to the same address where
the allocation and allotment letters had been sent.

     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         C
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           D
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           E
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 114 111.(f) of the Indian Evidence Act, 1872
                                                                      F
(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
presumption of service of letter sent under postal cover, and
observed:-                                                            G
     "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 H
    146       SUPREME COURT REPORTS              [2010] 10 S.C.R.


A         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
B         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.
C (2007) 6 sec 555, this court re-iterated a similar view that
  Section 27 of General Clauses Act, 1897 and Section 114 111.(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 :-

D         "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 unti( the ·
          contrary is proved by the addressee, service of notice is
          deemed to have been effected at the time at which the
E         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.),
F   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. L/yods Register of
  Shipping Indian Office Staff Provident Fund & Anr. (2007) 14
G SCC 753; Union of India Vs. S. P. Singh (2008) 5 SCC 438;
  Municipal Corporation, Ludhiana Vs. lnderjit Singh & Anr.
  (2008) 13 SCC 506; and V. N. Bharat Vs. Delhi Development
  Authority & Anr. AIR 2009 SC 1233.

H         21. In view of the above, the High Court ought to have
    GREATER MOHALi AREA DEVELOPMENT             147
 AUTHORITY v. MANJU JAIN [DR. B.S. CHAUHAN, J.]
 examined the issue in the correct perspective, as respondent A
 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 B
  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 C
  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 Stati of
 Punjab Vs. Amar Singh Harika AIR 1966 SC 1313, h~ve held D
 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. E
 Vs. Dinanath Shantaram Karekar & Ors. AIR 1998 SC 2722;
 and State of West Bengal Vs. M.R. Monda/ & Anr. (2002) 8
 sec 443. ·
      In Laxminarayan R. Bhattad & Ors. Vs. State of F
 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.                                                  G

      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
                                                                    H
    148       SUPREME COURT REPORTS               [2010) 10 S.C.R.


A   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
B         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)

c   In the instant case, an acceptance letter had not been sent by
    respondent No.1. Thus, the allotment in he; favour remained of
    no significance.

       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
D 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
E 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
F 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
G Kumar Agrawal & Anr. Vs. Thawar Das (D) through Lrs., (1999)
  7 SCC 303; Vasantha 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
H
   GREATER MOHALi AREA DEVELOPMENT             149
AUTHORITY v. MANJU JAIN [DR. B.S. CHAUHAN, J.]

Sanghvi Reconditioners· (P) Ltd. Vs. Union of India & Ors.           A
(201 O) 2 sec 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
                                                                     8
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      C
AIR 2010 SC 1237).

     26. In Teri Oat Estates (P) Ltd. Vs. U. T. Chandigarh & Ors.
(2004) 2 sec 130, this Court held that cancellation of an
allotment should be a last resort. The allotment should not be       D
cancelled unless the intention or motive on the part of the
allottee in not. making due payment is evident. The drastic
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
                                                                     E
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.
                                                                     F

     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         G
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;          H
    150       SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A and did not execute the required hire-purchase agreement with
  the appellant-authority. Thus, it is solely because of her 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
B earnest money is in terms of the statutory i:-rovisions.

       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
C 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.

0       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
E 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
  and re-appreciated the evidence, such a course would not
  serve any purpose.

F       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.

    K.K.T.                                           Appeal allowed.