Punjab-Haryana High Court
Fateh Singh Jitender Kumar vs State Of Haryana And Ors. on 4 May, 1999
Equivalent citations: (2000)126PLR200
Author: Amar Dutt
Bench: Amar Dutt
JUDGMENT G.S. Singhvi, J.
1. Shri Jitender Kumar, who appears to be one of the partners in the firm M/s Fateh Singh Jitender Kumar, was allotted shop plot No. 112 measuring 20' x 85' for a price of Rs. 10,25,000/- on the basis of highest bid given by him at the auction held on 16.4.1998 by the Market Committee, Gohana. Conditions No. 2, 4, 15 incorporated in the letter of allotment dated 10.8.1998 issued by the Chairman/Administrator, Market Committee, Gohana which have bearing on the petitioner's claim, read as under:
"2. The following particular site is hereby allotted to you on the terms and condition announced at the spot and mentioned hereunder:
Kind of Plot Number of Plot Area of Plot Price of Plot Name of
Purchaser(s)
Shop Plot 112 20'x 85' 10,25,000/- Jitender Mor
XX XX
4. The sum of Rs. 2,56,250/- paid by you as earnest money has been adjusted in your plot account. You are requested to remit a sum of Rs. 7,68,750/- on account of 75% balance sale price either within 30 days of receipt of this allotment letter without interest or in six half yearly instalments together with interest at the rate of 15% P.A. accruing from the date of issue of this letter as mentioned hereunder:
No. Due date Amount of Interest Total Remarks
of instalment instalment @15%
1. 3/99 1,28,125/- 57,656/- 1,85,781/-
2. 9/99 1,28,125/- 48,047/- 1,76,172/-
3. 3,2000 1,28,125/- 38,438/- 1,66,563/-
4. 9/2000 1,28,125/- 28,828/- 1,56,953/-
5. 3,2001 1,28,175/- 19,219/- 1,56,953/-
6. 9,2001 1,28,125/- 9,604/- 1,37,734/-
XX XX XX
12. The transferee shall complete the building within two years from the date of issue of allotment order. If the allottee does not complete construction of his premises within the prescribed period of two years for any reason whatsoever, then the market Committee may extend the period by another six months by charging nominal fee of Rs. 100/- if the allottee does not complete the construction within the extended period of six months, then the Chief Administrator Board is competent to grant further extension on calender year basis to any extent subject to charging of extension fee at the rate of Rs. 2,000/- for a shop plot, at the rate of 500/- for booth plot for the 1st calendar year after the expiry of six months extended by the market Committee. The extension fee (i.e. Rs. 2,000/- or Rs. 500/- for subsequent and calendar year or part thereof shall be raised Rs. 1,000/- for a shop plot and Rs. 250/- for a booth plot as the case may be. Thus, further the fee shall be Rs. 2,000/- plus Rs. 1,000/- Rs. 2,000/- plus Rs. 1,000/- and Rs. 4,000/- plus Rs. 1,000/- so on for shop plot and Rs. 500/- plus Rs. 250/-, Rs. 750/- plus Rs. 250/-, Rs. 1,000/- plus Rs. 250/- and so on for booth for next 1st, 2nd , 3rd year of extended period).
xx xx xx
15. The Market Committee, Gohana shall not be responsible for leveling of uneven sites."
2. The allottee took possession some time in September, 1998. Immediately thereafter, he submitted application dated 29.9.1998 to the Secretary of the Market Committee for release of water connection and although it is not born out from the record as to whether or not water connection was released to him, bare reading of the letter Annexure P.5 Shows that the allottee completed the construction of shop and residential unit by installing water pump. Not only this electric and telephone connections were also obtained by him.
3. The grievance of the petitioner is that even though the Market Committee has failed to provide amenities like water and sewerage connections, it is arbitrarily charging interest on the instalments of premium, ft has prayed that the respondent Market Committee may be restrained from charging interest and a writ in the nature of mandamus be issued directing it to provide amenities like water, sewerage and electricity connections, roads, sheds etc.
4. Learned counsel for the petitioner argued that the respondent-Market Committee cannot charge and recover interest on the amount of instalment because it has failed to provide amenities like water and sewerage connection. He submitted that without these facilities the petitioner is unable to commence business in the premises and, therefore, till these amenities are provided the Committee may be restrained from charging interest on the amount of instalments. He relied on the order dated 5.8.1993 passed in C.W.P. No. 4241 of 1992. M/s Makhan Lal Dalip Singh and Ors. v. Haryana State and Anr., and the order dated 9.9.1993 passed in C.W.P. No 1 0948 of 1993.
5. We have given thoughtful consideration to the submissions of the learned counsel but do not find any merit in them.
6. Admittedly, shop plot No. 112, situated in the area of Market Committee, Gohana was allotted to Jitender Kumar on the terms and conditions embodied in the letter Annexure P.2 dated 10.8.1998. A perusal of which shows that providing of water and sewerage connections has not been made a condition precedent to the payment of instalments of price in accordance with condition No. 4. Therefore, the petitioner cannot claim that it is not liable to pay interest in accordance with the terms and conditions of the contract pursuant to which it got possession of the plot. In our opinion, writ jurisdiction of this Court cannot be allowed to be used for relieving the petitioner of its obligation under the contract entered into between the parties.
7. In Panna Lal and Ors. v. State of Rajasthan and Ors., (1975)2 S.C.C. 33, their Lordships held that a person who enters into a contract with the State and its agencies cannot resile from the express obligation undertaken by him. In that case, the licensees had sought quashing of the conditions of contract on the ground that the same were extremely onerous and arbitrary. The High Court of Rajasthan rejected their contention. in appeal, their Lordships of the Supreme Court held:
"The licenses in the present case are contracts between the parties. The licensees voluntarily accepted the contracts. They fully exploited to their advantage the contracts to the exclusion of others. The High Court rightly said that it was not open to the appellants to resile from the contracts on the ground that the terms of payment were onerous. The reasons given by the High Court were that the licensees accepted the licence by excluding their competitors and it would not be open to the licensees to challenge the terms either on the ground of inconvenient consequences of terms or of harshness of terms."
8. While dealing with a similar issue in Har Shankar and Ors. v. The Deputy Excise and Taxation Commissioner and Ors., A.I.R. 1975 S.C. 1121, a Constitution Bench of the Supreme Court held:
" On the preliminary objection it was fully urged by the appellants that the objection was misconceived because there was in fact, no contract between the parties and therefore, they were not attempting to enforce any contractual rights or to wriggle out of contractual obligations. The short answer to this contention is that the bids given by the appellants constitute offers and upon their acceptance by the Government a binding agreement came into existence between the parties. The conditions of auction become the terms of the contract and it is on those terms that licenses are granted to the successful bidders inform 14-A of the rule. As stated in Cheshire and Fifoot's Law of Contract (Eighth Edn., 1972;p.24).
"In order to determine whether, in any given case, it is reasonable to infer the existence of an agreement. It has long been usual to employ the language of offer and acceptance. In other words, the Court examines all the circumstances to see if one party may be assumed to have made a firm " offer" and if the other may likewise be taken to have "Accepted" that offer. These supplementary ideas present a convenient method of analysing a situation, provided that they are not applied too literally and that facts are not sacrificed to phrases."
Analysing the situation here, concluded contract must be held to have come into existence between the parties. The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations."
9. The facts mentioned in the decision reported in Assistant Excise Commissioner and Ors. v. Issac Peter and Ors., J.T. 1994(2) S.C. 140, show that the licensees did not get the additional quantities applied for by them. They claimed rebate/remission on the amounts payable by them under the contracts. While rejecting their plea that the State had acted arbitrarily and unreasonably their Lordships of the Supreme Court observed.
"In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law filed to ensure the Rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract governed by statutory contract or rather more so............
We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State) for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on any one to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts, it bears repetition to say that the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law it entitled to its money under the contract."
10. The question whether an allottee of land can seek the Court's assistance to justify non-payment of price etc. in accordance with the conditions of allotment has been considered and answered in the negative in CWP 9503 of 1996 - Ajit Singh and Ors. v. Chandigarh Administration through Administrator, Union Territory and Ors., decided on 29.8.1996, and CWP 3370 of 1992 - Sukhpal Singh Kang and 19 Ors. v. Chandigarh Administration and Anr., decided on 16.10.1998; (1999(1) P.L.J. 219) along with 13 other petitions. It those cases also, the petitioners had prayed for directing the respondents not to recover the instalments of price with interest till the basic amenities like water, sewerage, roads and electricity were provided by the Administration. While rejecting the contention of the petitioners in Ajit Singh's case the Court observed as under:
" There is another important reason why no indulgence should be shown to the petitioner. The allotment letter, Annexure P.1. contains a clear stipulation regarding the schedule of payment. Para 8 of the Allotment letter postulates cancellation of lease on account of non-payment of instalments money. Para 8-A empowers the Estate officer to allow payment of instalments with penalty upto 100 per cent of the amount . due and interest at the rate of 12 percent for the delayed period. Duty to pay fee and taxes etc. was also of the petitioners. In addition to the conditions incorporated in the letter of allotment, the petitioner were bound to abide the provisions of the Act and the Rules. The general terms and conditions laid down by the Administration form part of the contract entered into between the petitioners and the respondents. Paras 11,12 and 21 of the general conditions also contemplate payment of 25 per cent amount as a condition precedent of the acceptance of bid; remaining 75% per cent in three equated instalments along with interest; and cancellation of the lease as well as forfeiture of the whole or part of the premium already paid. The petitioners took possession of the property and raised construction thereon after having accepted the conditions incorporated in Annexures P.1 and R.1. They did so knowing fully the implications and consequences of their failure to pay the instalment money. After having accepted those condition and taken public property on an assurance that they would faithfully comply with the conditions of payment laid down by the Administration, the petitioners are not entitled to plead that they were not bound to make payment of instalments on the ground that basic amenities were not provided by the Administration. We may add that payment of instalments was not subject to the Administration providing basic amenities to the petitioner Rather the conditions incorporated in Annexures P.1 and R.1 made it obligatory for the petitioner to pay their dues. Thus the petitioners cannot wriggle out of the contract which they had entered into with the respondents. In matters like the present one. writ jurisdiction cannot be exercised by the High Court to permit a party to commit a breach of the terms and conditions of contract of allotment." In Sukhpal Singh Kang's case (supra) the Court held as under;
"The argument of the learned counsel that the respondent are estopped from making recovery of the instalments of premium etc. because they have violated the terms and conditions of contract entered into with the petitioners by not providing the amenities is wholly untenable. At the cost of repetition, we deem it appropriate to observe that neither in the conditions of auction nor in the terms of allotment any indication was given to the petitioners that the respondents will be giving possession of the fully developed sites or that the availability of amenities like approach roads, street lights, parking places etc. would constitute a condition precedent for payment of instalments. Therefore, the petitioners cannot avoid their liability to pay the instalments of premium and ground rent. That apart, after having taken part in the auction with full knowledge of the terms and conditions notified by the respondents and having accepted the leases of the sites on the basis of terms and conditions incorporated in the letters of allotment without any protest, the petitioners will be deemed to have agreed to pay the amount of premium along with interest and ground rent in terms of Rules 12 and 13 of the 1973 Rules. In our considered opinion, the petitioners cannot seek intervention of the Court for getting themselves relieved of their obligation to pay the amount due to the respondents in accordance with the terms of contract."
11. The roads Annexures P.6 and P.7 relied upon by Shri Hooda do not in any manner support the case set up by the petitioner. A careful reading of the order in Makhan Lal Dalip Singh and Ors. v. Haryana State and others (supra) shows that petitioners M/s Makhan Lal Dalip Singh had come forward with the plea that it could not start construction due to lack of water and sewerage connections and also because the electric wires were passing over the plot. The counsel appearing for the respondent-Market Committee seems to have, on a realisation that it was impossible for the petitioner to raise construction because of the existence of electric wires over the plot, agreed to the imposition of condition by the Court that interest shall not be charged on the amount of instalments. The order passed in C.W.P. No. 10948 of 1993 is nothing but a reiteration of the direction given in M/s Makhan Lal Dalip Singh's Case (supra). The petitioner, in our considered view, cannot take advantage of those orders because as per his own showing the construction has been completed and electricity and telephone connections have been made available to it.
12. We also do not approve of the hot haste with which the petitioner has rushed to the Court after making representation dated 1.4.1999. It ought to have waited for reasonable time before approaching the Court with the com plaint that water and sewerage connections have not been provided by the Market Committee.
13. For the reasons mentioned above, the writ petition is dismissed. However, who give liberty to the petitioner to make further representation to the Market Committee and the Haryana State Agricultural Marketing Board for release of water and sewerage connections and we hope that appropriate action will be taken by the concerned authorities at the earliest.