Punjab-Haryana High Court
Raksha Rani vs Haryana State Agricultural Marketing ... on 14 September, 2012
Bench: Hemant Gupta, Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: September 14, 2012
(i) LPA No.502 of 2011 (O&M)
In CWP 1122 of 2003
Raksha Rani
...Appellant
Vs.
Haryana State Agricultural Marketing Board & others
....Respondents
AND
(ii) LPA No.1868 of 2011 (O&M)
In CWP 1122 of 2003
Haryana State Agricultural Marketing Board & others
...Appellants
Vs.
Raksha Rani ..Respondent
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: - Mr. Ravi Kapur, Advocate and
Ms. Sonia, Advocate, for the allotee.
Mr. Vijay Pal, Advocate,
for the Board.
HEMANT GUPTA, J.
The above-mentioned Letters Patent Appeals arise out of an order dated 6.10.2010 in CWP No. 1122 of 2003, filed by appellant-Raksha Rani (hereinafter referred to as an `Allottee'), wherein challenge was to Annexures P.14 and P.15, demanding extension fee from the said appellant. The appellant has also sought refund of the interest deposited by her towards the payment of installments and penalty. LPA No. 1168 of 2011 has been filed by LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (2) the Haryana State Agricultural Marketing Board (for short `the Board') and Market Committee, Kalka against the same order.
2. The learned Single Judge, has disposed of a number of writ petitions vide the same order dated 6.10.2010. The appeals arising out of the said order have been preferred by the allottees and the Board, including the Market Committee. Certain other appeals have been preferred by the parties aggrieved against the order passed by the learned Single Judge based upon the said order dated 6.12.2010 and also the orders passed by the learned Single Judge on the same lines, but without reference to the order dated 6.12.2010. Certain writ petitions claiming similar relief are also listed for hearing. All these cases, as mentioned at the footnote, are being disposed of by a common order since similar questions of law and facts are raised in these cases.
3. The facts leading to the present appeals are that a public notice was published inviting applications for allotment of plots in Grain Market, Kalka. The public notice contemplated that Mandi is being developed in the modern way and proper arrangements are being made for pucca platform, cattle sheds, park and rest house, latrines, cold drinking water from dispensing machines, electricity and sewerage. In terms of the said advertisement, the auction was held on 15.02.1983. The allottee was successful bidder for allotment of a plot measuring 16' x 50' for an amount of Rs.32,000/-. Some of the relevant conditions of the letter of allotment are as under:
"5. The sum of Rs.8000/- paid by you as earnest money has been adjusted in your plot amount. You are requested to remit a sum of Rs.24,000/- on account LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (3) of 75% balance sale price, either within 30 days of receipt this allotment letter without interest or in three half yearly instalments together with interest at 7-1/2% per annum accruing from the date of issue of this letter as mentioned hereunder.
xx xx xx
6. In case of failure to deposit the instalment/s by the 10th of the month following month in which it fails due a penalty as given below be levied on the defaulters.
For 1st default 5%
For 2nd default 7½ %
For subsequent default 10%
xx xx xx
13. The transferee shall complete the building within one year from the date of issue of items of the allotment orders. The time limit may be extended for a period not exceeding six month by the Market Committee Kalka if it is satisfied that the failure to complete the building within the said period was due to persons beyond the control of the transferee. Beyond that the sanction of the Haryana State Agricultural Marketing Board, shall be required on an application for the extension of time.
14. Market Committee Kalka will not responsible for levelling of uneven sites.
xx xx xx
16. Plans of construction would be first got approved from the Chairman, Haryana State Agricultural Marketing Board or such other Officer as may be authorized. However, standard plan may be obtained from the above office on payment of such a fee as may from time to time be prescribed by the said Board.
xx xx xx
18. Should any transferee fail to observe or comply with any of the terms and conditions mentioned above the plot will be resumed and his deposit shall be forfeited to the Market Committee Kalka which may have the property resold by public auction."
LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (4)
4. It is pleaded by the allottee that in the year 1984, a letter was received to take over possession, but no physical possession was delivered to the allottee and yet the allottee was asked to deposit full amount of price before delivery of possession. It is averred that the Board has miserably failed to provide basic amenities such as drinking water, sheds, latrines, parks, rest house, sewerage system, bank & post office etc. as were assured in the public notice issued. It is also pointed out that even local roadways bus stand is functioning in the market yard though the area is meant for dealers in agriculture products. The allottee has also been asked to deposit extension fee vide communication dated 06.09.2001, a copy of which is Annexure P 8.
Thereafter, there is an exchange of letters in respect of delivery of possession and for payment of extension fee. Since the Board was claiming extension fee, the appellant filed writ petition before this Court challenging the levy of the extension fee and praying that the Board be directed to refund the amount of interest deposited by appellant towards payment of installments and the amount of penalty.
5. In the written statement filed, it is averred that basic facilities such as platform, street lights, electricity, water supply, roads and office building etc. have been provided and that availability of basic facilities in the market yard at Kalka is evident from the fact that in the second auction of the plots conducted on 30.11.1990, 24 plots were sold out of the remaining 25 plots. It is averred that it appears that the plots were purchased for resale to make profit. It is also averred that the possession of the plots was offered on 19.05.1984 but the allottee did not pay even a single LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (5) paisa after the allotment of the plot except earnest money deposited at the time of auction. The allottee paid part of the due amount in January-February, 1986. It is pointed out that it was on 17.08.2001 when the allottee sought possession of the plot after 18 years of the allotment. Since there was violation of conditions of allotment, the allottee was asked to pay extension fee as per policy of the Board. Reference is made to Policy dated 29.04.1998 (Annexure R-3).
6. In the rejoinder filed, the allottee asserts that as per letter of allotment, the construction was to be completed within one year, but the offer of possession was made to the allottee on 19.05.1984 i.e. after a period of 13 months. It is also averred that on 19.05.1984, when the Junior Engineer came to deliver the possession, it was found that the area to be allotted was short in measurement and therefore, no possession was delivered at that time. It is further averred that old sub market yard was de-notified in 1988 and in fact, stay was granted in the writ petition filed by some dealer in CWP No.1094 of 1988. Therefore, the dealers were not in a position to work in the principal yard. It is averred that facilities of sewerage and water supply are still not available. The relevant extract from the replication reads as under:
"4. ....However, according to the stand of the respondent- Committee the alleged offer of possession was made to the petitioner on 19.05.1984 i.e. after a period of 13 months. Further on 19.05.1984 when Mr. Katoch, Junior Engineer came to deliver the possession then it was found that the area to be allotted was short and therefore, no possession was delivered at that time. However, as per the information of the petitioner in 1990, green area / parking area adjoining the plots was added, but however, no possession was given to the petitioner. ...
5. ....It is further submitted that plots were sold in February, 1983, whereas existing old sub market yard was denotified in 1988. In fact, stay was granted on the writ petition filed by some dealer in CWP No.1094 of 1988 and LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (6) therefore, the dealers were not in a position to work in the principle yard."
7. On 18.08.2003, a Division Bench of this Court appointed a Local Commissioner to visit the site and to submit report in respect of the amenities. The Local Commissioner in his report dated 02.09.2003 found that:-
"1. The development of the area in question is very poor and only three plots have been constructed out of which one shop of kabari is functioning. The photographs showing the development of the area enclosed herewith as Mark 'A'.
2. The roads in the area have been partly constructed which are in a very bad condition. There is no road either from the back or from the front side of the plots of the petitioner. The photographs showing the conditions of the roads are enclosed herewith as Mark 'B'.
3. The electric poles have been installed in the area but as per the information from the locality, the electricity bulbs/tubes are working only on every Wednesday because there is a Sabzi Mandi held in the area.
4. There is a water tank constructed in the area but there is no system of water supply in the area. There is no water supply to those three plots which have been constructed in the area.
5. There is a provision of sewerage system in the area, but the same is not in working condition. The photographs showing the condition of sewerage system are enclosed as Mark 'C'.
6. There is encroachment on the site in dispute because the area is being used for the purposes of parking of buses and the same is used as bus stand. The parking fee of the buses is being charged in the area. The other vehicles i.e. tempo, truck, cars are parked in the area. There is a big dustbin constructed in front of the plots of the petitioner. The photographs showing the encroachment in the area enclosed herewith as Mark 'D'."
8. On the basis of such factual background, the learned Single Bench, referring to earlier judgments of this Court as well as of the Hon'ble Supreme Court in U.T.Chandigarh Administration Vs. LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (7) Amarjeet Singh & others (2009) 4 SCC 660 held that unless there is any obligation on the part of the authorities to provide amenities and the payment of installments has co-relation with the amenities to be provided, the allottee is not discharged of its liability to pay interest and penal interest in the event of default. It was on the basis of such finding that the learned Single Judge issued the following directions:
"(1) All cases of allotment prior to framing of statutory rules dated 10.3.2000 shall be governed by the contract. Under the contract, there is no condition or covenant that the liability to pay interest, penal interest shall be dependent upon providing facilities/amenities. Such of the allottees who were allotted plots prior to 10.3.2000 are liable to pay interest and penalty, in accordance with the terms and conditions of the allotment letter.
(2) Such of the allottees who were allotted plots after 2000 are liable to pay interest and penal interest from the date offer of possession was made. The possession is to be offered from the date of basic facilities, like roads, water supply, electrification are made available. Thus, the liability to pay interest under the statutory provisions becomes payable from the date basic facilities are provided and possession is offered.
(3) In so far as the liability to pay extension fee is concerned, at the time of allotment of plots in the year 1988, there was no provision either in the contract or any statutory provision for payment of extension fee. Extension fee for the first time came to be introduced vide policy decision dated 29.4.1998 and thus the extension fee becomes payable only in respect of plots where construction has not been carried out in accordance with the terms and conditions of aforementioned policy dated 29.4.1998."
9. Broadly, these cases form two categories i.e. (i) where the allotment of plots has been made by the Board before 5.03.2002; and (ii) where the allotments have been made on or after the said date.
LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (8)
10. It was on 10.03.2000, the Board framed Haryana State Agricultural Marketing Board (Sale of Immovable Property) Rules, 2000 (for short 'the Rules'), which contemplates levy of charges for delayed payment, penalty as well as for extension fee for not raising construction within the time fixed in the letter of allotment. The Rule 4(5) and Rule 5 have been amended vide notification dated 5.3.2002. The rules so amended contemplate that the interest shall accrue from the date of offer of possession and that the offer of possession shall be made after the basic amenities such as roads, water supply, sewerage and electrification is complete. The relevant extract of the rules read as under:-
"3. (1) All immovable properties in the markets developed by the Board or Market Committees shall be disposed of by way of allotment / transfer / open auction in accordance with the provisions of these rules. The shop plots will be allotted to the old licensees of category (ii) of old market which is to be denotified, resulting in displacement of such licensed dealers of category (ii), on free hold basis, for conducting the business of sale and purchase of agricultural produce in the new markets, on the following terms and conditions, namely :
xx xx xx 4(5) The balance seventy-five percent of the price of plot may either be deposited without interest within thirty days from the date of issue of allotment letter or in six half yearly instalments, with fifteen percent interest or at such rate of interest as may be specified by the Board from time to time. The first such instalment shall fall due after six months from the date of allotment letter.*[However, interest on instalments shall accrue from the date of offer of possession].
LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (9)
5. The possession of the plot shall be offered to the allottee by the Executive Officer-cum-Secretary, Market Committee within thirty days from the date of issue of allotment letter *[if the basic facilities i.e. roads, water supply, sewerage and electrification are existing and if the said basic facilities are not existing, then after providing the said basic facilities.] (Note *added by notification dated 5th March 2002)"
11. Before this Court, learned counsel for the allottees have argued that in terms of the recent judgment of the Hon'ble Supreme Court in Haryana State Agricultural Marketing Board & another v. Raj Pal; (2011) 13 SCC 504, the Board can charge simple interest at the rate of 15% even in respect of allottees, who have been allotted plots prior to 10.03.2000/5.3.2002. It is also pointed out that a Division Bench of this Court in CWP No.13024 of 2001 titled "M/s Panna Lal Kundan & others v. State of Haryana & others" decided on 17.05.2012, following the aforesaid judgment, has directed the Board to charge simple interest at the rate of 15%. Therefore, the allottees can be charged interest only in terms of the aforesaid direction. Learned counsel for the allottees referred to the judgments of Division Benches of this Court in Om Parkash & others v. Haryana State Agricultural Marketing Board & another, 2003 (3) PLR 772 and in CWP No.4241 of 1992 titled "M/s Makhan Lal Dalip Singh etc. v. H.S.A.M.B. & another" decided on 05.06.1993. It is thus argued that direction No.1 needs to be modified accordingly.
12. In respect of direction No.2, it is argued that the possession is to be offered only after all the basic facilities are made LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (10) available, which still have not been made available, therefore, the interest and penal interest cannot be claimed from the allottees.
13. In respect of direction No.3, it is argued that the extension fee is not part of conditions of letter of allotment and that such conditions came to be incorporated for the first time in the Rules notified on 10.03.2000, therefore, prior to the said date, the claim of extension fee is untenable and illegal. Thus, the finding of the learned single judge holding that in terms of the policy, the Board is entitled to claim extension fee is not tenable.
14. On the other hand, learned counsel for the Board has argued that the allottees were offered possession in the year 1984 after the basic amenities were provided. It is argued that even in the replication, the allottees have not disputed that basic amenities were not in existence at that time i.e. in the year 1984. Even the Local Commissioner has found that the amenities have been provided though the maintenance and up-keep can be said to be poor. It was for the reason that the allottees were not using the infrastructure created by Board. It is, thus, contended that the allottees are liable to pay interest and penalty in terms of the letter of allotment. It is also contended that the basic amenities like road, water supply, electrification & sewerage etc. have been provided, though the non-availability of any of such basic amenity is not a ground for the allottees not to pay the installments along with interest thereon. In support of the arguments raised, the learned counsel for the Board has relied upon Sector 6, Bahadurgarh Plot Holders' Association (Regd.) v. State of Haryana; (1996) 1 SCC 485;
Municipal Corporation, Chandigarh & others v. Shantikunj
LPA No.502 of 2012 (O&M) &
LPA No.1868 of 2011 (O&M) (11)
Investment (P) Ltd. & others; (2006) 4 SCC 109; Secy.,
Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 SCC 684; Haryana State Agricultural Marketing Board & another v. Raj Pal; (2011) 13 SCC 504.
15. It is argued that in Raj Pal's case (supra), the Supreme Court has found that the basic amenities were not provided till the year 2007, therefore, in respect of the period prior to the promulgation of the Rules, the Court has directed the payment of interest @ `15% per annum. But in the present case, the basic amenities were made available in the year 1984 itself, therefore, the allottees are liable to pay interest and penalty from the date the offer of possession was made. It is also argued that the Rules will not be applicable to the allottees who have been allotted plots prior to 10.3.2000 as there is no retrospective applicability of such Rules to the allotments already made. The Rules were subsequently amended on 5.3.2002, contemplating charging of interest only on providing of basic amenities. Therefore, the allotments made on or after 5.3.2002, alone are not liable to pay interest and penalty unless the basic amenities are provided.
16. In respect of allottees, who have been allotted plots prior to 10.03.2000, the allotment of plots is in terms of the conditions of letter of allotment. The letter of allotment contemplates payment of interest and penalty for delayed payment. The allotments prior to 10.3.2000 were not made under any statutory Rules and Regulations. Such allotments are governed by a contract arrived at between the parties on the issue of letter of allotment and accepted by the allottees. Section 18 of the Punjab Agriculture Produce Markets Act 1961, as applicable to Haryana provides that a Market Committee, a body corporate, has a right to LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (12) lease, sell or otherwise transfer any immovable property. The Rules for sale of immoveable property were notified on 10.03.2000. Such Rules, contemplating disposal of plots by way of allotment/ transfer/open auction, are applicable in respect of the process of sale undertaken on or after the said date, which is evident from Rule 3 of the said Rules. Therefore, the allottees who have been allotted plots prior to 10.03.2000 are bound by the terms and conditions of sale mentioned in the letter of allotment.
17. The Hon'ble Supreme Court in judgment reported as Secy., Bhubaneshwar Development Authority v. Susanta Kumar Mishra; (2009) 4 SCC 684, observed that the condition in the letter of allotment of charging interest and penalty is binding even if there is no Statutory Rule. It observed: -
"17. There was also some delay in paying the subsequent instalments. If the Development Authority charged interest for the defaulted/delayed instalments, in accordance with Clause (6) of the lease-cum-sale agreement, the respondent could not object to the same. We are therefore of the view that the orders of the State Commission and the National Commission are not justified."
The Court has thus upheld the levy of interest on delayed payment of installments in terms of the lease agreement. It was held that such provisions ensure that the due installments are paid promptly to avoid misuse of the concession given in payment of installments.
LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (13)
18. The Hon'ble Supreme Court has considered similar allotments and rules in the judgment reported as Raj Pal's case (supra). The Civil Appeal in the aforesaid case arises out of the Division Bench judgment of this Court in Sham Lal v. Haryana State Agricultural Marketing Board, (CWP No. 2943 of 2008 decided on 15.10.2008). The challenge in the writ petition was to the auction of the sites in the Market Committee, Nighdu, Tehsil and District Karnal. The Division Bench relied upon another judgment reported as Om Parkash's case (supra), one of the judgments relied upon by the learned counsel for the allottees. The writ petitions were allowed with the following directions:-
"If the writ petitioners have not deposited any installment then the same is to be deposited within a period of one month.
The respondents are directed not to charge interest and penal interest as per different demand notices issued to the writ petitioners.
The respondents are directed not to charge any interest/penal interest on the original price of the plots/booths fixed at the time of auction of the plots/booths.
The respondents are directed to provide the remaining basic facilities to the writ petitioners at the new Grain Market, Nighdu within a period of six months."
19. The said directions of this Court were set aside by the Hon'ble Supreme Court in Raj Pal's case (supra), wherein the Court took into consideration the fact that the work pertaining to providing of basic amenities of water and sewerage commenced only in the year 2001 and 2002 and was in progress even in the year 2007. The Court found that the Market Committee has yet to complete certain infrastructural work like water and sewerage disposal, therefore, the Market Committee can claim only simple interest at the rate of 15% per annum. The Court held that the LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (14) allottees cannot postpone the payment of installments merely on the ground that some of the amenities were not ready. It was held to the following effect:
"11. In view of the principles laid down in Bahadurgarh Plot Holders' Association (supra), Shantikunj (supra) and Amarjeet Singh (supra), it is clear that the allottees cannot postpone the payment of instalments merely on the ground that some of the amenities were not ready. If they were not entitled for postponement of the instalments, it follows that they will be liable to pay the normal interest on the delayed instalments up to date of payment. However, having regard to the fact that the Rules did not contemplate compound interest and penal interest and the Market Committee was yet to complete certain infrastructural work like water, sewerage disposal, as held in Shantikunj (supra), the Market Committee will not be entitled to claim any compound interest or penal interest."
20. The judgment of this Court in M/s Makhan Lal Dalip Singh's case (supra), was the basis of judgment in Om Prakash's case (supra). The Division Bench judgment in Om Prakash's case (supra), was the basis of the judgment of this Court in Sham Lal's case (supra). The judgment in Sham Lal's Case has been set aside by the Hon'ble Supreme Court. Therefore, the ratio of the Om Prakash's case (supra) or for that matter Makhan Lal's case has not been approved by the Hon'ble Supreme Court. The said judgments cannot be said to be a good law.
21. The rules notified on 10.3.2000 had no provision of linking payment of installments with the availability of amenities. Such condition came to be introduced only on 5th March 2002. Therefore, the allotments made on or after 5th March 2002 alone would be governed by the amended rules. Such rules are neither expressly made applicable to the allotments already made nor such rules can be applied to the allotments made earlier, as no such LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (15) intention can be found from the reading of the rules. Therefore, the allottees prior to 5.3.2002 cannot dispute the levy of interest and penalty in terms of the letter of allotment in view of the judgments referred to above particularly in Raj Pal's case (supra).
22. In respect of direction No.2, the question requires to be examined is as to whether, the offer of possession by the Board or the Market Committee itself is sufficient to justify demand of interest and penalty or the Court in exercise of its power of judicial review can examine the question as to whether the basic amenities have been provided or not?
23. Though the offer of possession by the Market Committee or the Board in the absence of anything contrary on record, should be deemed to be a valid statement of completion of the basic amenities as all official acts are deemed to be regularly performed, but this Court in exercise of its power of judicial review can interfere with the offer of possession given by the Market Committee or the Board if the allottees are able to satisfy such offer of possession is colourable exercise of power without creating basic amenities. It will be a question of fact in each case in respect of allotments made after 5.3.2002, whether the basic amenities have been provided. The ancillary question needs to be examined is that what would constitute basic amenities. In Municipal Corporation, Chandigarh & others v. Shantikunj Investment (P) Ltd. & others, (2006) 4 SCC 109, the Hon'ble Supreme Court has held that it is not possible in every case that the entire area is developed first and allotment is served on a platter and that it is not possible to accept a sweeping proposition that if all the facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty without fear of being LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (16) visited by the consequences of non-payment or delayed payment. Such has never been the condition precedent. It was observed that it is true that in order to fully enjoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, is not the correct approach in the matter. It was further held that once the allotment has been made in favour of the allottee, he can take possession of the property and use the same to his benefit in accordance with law. That does not mean that all the facilities should be provided first for the so-called enjoyment of the property as this was not the condition of auction. The Court observed:-
"26. We have bestowed our best of the attention to the provisions of the Act and the Rules. On a plain reading of the definition "amenities" read with Rule 11(2) and Rule 12, it cannot be construed to mean that the allottees could take upon themselves not to pay the lease amount and take recourse to say that since all the facilities were not provided, therefore, they are not under any obligation to pay the instalment, interest and penalty, if any, as provided under the Act and the Rules. It is not possible to accept a sweeping proposition that if all the facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty would be going too far. It has never been the condition precedent. It is true that in order to fully enjoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, that is not the correct approach in the matter........................ ....... .......................................Since the allottees had paid the price or promised to pay after the transfer of the right to enjoy the immovable property, this cannot be construed that the property cannot be enjoyed without providing the basic amenities. It is the common experience that for full development of an area it takes years. It is not possible in every case that the whole area is developed first and allotment is served on a platter. Allotment of the plot was made, as is where is basis and the Administration promised that the basic amenities will be provided in due course of time. It cannot be made a condition precedent. This has never been a condition of the auction or of the lease. As per the terms of allotment LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (17) upon payment of the 25 per cent, possession will be handed over and rest of the 75 per cent of the leased amount to be paid in a staggered manner i.e. in three annual equated instalments along with interest at the rate of 10 per cent. If someone wants to deposit the whole of the 75 per cent of the amount he can do so. In that case, he will not be required to pay any interest. But if a party wants to make payment within a period of three years then he is under the obligation to pay 10 per cent interest on the amount of instalment. This is the obligation on the part of the allottee as per the condition of lease and he cannot get out of it by saying that the basic amenities have not been provided for enjoying the allotted land, therefore he is not entitled to pay the interest. This construction is not borne out from the scheme of the Act and the Rules."
24. In Sector 6, Bahadurgarh Plot Holders' Association (Regd.)'s case (supra), the Court observed:-
"8.... As the offer had stated that modern amenities noticed above 'wiil be provided', it cannot be held that till the amenities as mentioned have become fully functional, the offer is incomplete. It is for this reason that the fact that full development has not yet taken place, even if that be the position as contended by Shri Bhandare, cannot be a ground to hold that interest has not become payable. It is true that the applicants were given to understand that the amenities noted above would become available (and within reasonable time), the fact that the same did not become available to the desired extent could not be a ground not to accept delivery of possession. From the order of the High court which we have quoted above, we find that the offer of possession of the under developed plot was not accepted by the counsel of the appellant. That order being of 17.10.1980, we are of the view that interest did become payable from that date. The fact that the plot has not yet been fully developed, as is the case of the appellant, has, therefore, no significance in so far as charging of interest is concerned. We are not in a position to accept the submission of Shri Bhandare that equity would not demand charging of interest, even though the plots are yet to be fully developed. When parties enter into contract, they are to abide by the terms and conditions of the same, unless the same be LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (18) inequitable. In the present case, question of equity does not really arise in as much as the condition relating to interest is founded on a statutory rule, vires of which has not been challenged".
25. In Amarjeet Singh's case (supra), the Court observed:-
"44. In the instant case, having regard to the provisions in the Leasehold Rules and the contractual terms ( as contained in the general terms and conditions of the auction, the lease and the letter of confirmation of lease- cum-offer of possession), the following position is evident: -
(i) Interest at 10% per annum is payable from the date of auction till the date of payment on the balance of premium (if the lessee chooses to pay 75% of the premium in installments.
(ii) payment of interest has nothing to do with provision of amenities.
(iii) If the premium interest on ground rent is not paid on the due date, then interest will be payable at 24% p.a. From the date of default (due date) to date of payment.
(iv) The lessee will not be liable to pay interest on the premium installments or the rent, till the actual and physical possession of the site is delivered or offered to be delivered to the lessee (whichever date is earlier)."
26. In view of the judgments referred to above, the basic amenities which are required to be provided by the Market Committee or by the Board are the amenities which enable the allottee to use the allotted plots. The complete development of infrastructure takes long time. Therefore, the expression "basic amenities" have to be understood in the sense that in the absence of LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (19) such amenities i.e. the water supply, sewerage, roads and provision of electricity, site allotted cannot be used. The question of raising of pucca platforms, streetlights or other facilities for optimum utilization of the sites are not part of the basic amenities. Therefore, the offer of possession can be interfered with by this Court only if the basic amenities, in contradistinction to the facilities for optimum utilization are not provided.
27. The argument of the allottees that extension fee was not contemplated in the letter of allotment and, therefore, such fee cannot be charged prior to notification of the Rules on 10.03.2000, is again not tenable. The letter of allotment contemplated that construction should be completed within the time limit so fixed and failure to comply with the terms and conditions of the allotment would entail cancellation of plots. The terms of allotment also empower the Board to grant extension in time for raising construction. Though in the written statement, the claim of extension fee was based upon a policy dated 29.04.1998, but in appeal filed by the Board, an application under Order 41 Rule 27 CPC for additional evidence has been filed to produce an earlier policy dated 25.08.1987 as well. Though learned counsel for the allottees have vehemently argued that the additional document i.e. policy dated 25.08.1987, cannot be taken into consideration as the same was not produced before the learned Single Bench, but the fact remains that the counsel for the allottees could not dispute that there was, in fact, such a policy in place.
28. Therefore, the question required to be examined is:
whether the Board can claim extension fee on the basis of policy of the year 1987 or of the year 1998 in the absence of any condition to claim such extension fee in the letter of allotment.
LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (20)
On account of failure to comply with any condition of allotment, the plot was liable to be resumed (reference may be made to clause 18 of the letter of allotment). By charging extension fee for non-construction, the allottees are visited with lesser penal consequences, less than the deprivation of property by way of resumption of plot. Though the plots could be resumed, the Board has decided to charge extension fee, therefore, such a condition is legal and valid so as to ensure compliance of the conditions of letter of allotment. Therefore, the extension fee prior to publication of the Rules on 10.03.2000 can be claimed in terms of the policies framed by the Board from time to time in exercise of rights of a committee under Section 18 of the Act. The allotments have been made by the market committees and the extension fee is also being claimed by the committee though under the control and supervision of the Board in terms of Section 3 of the Act. Therefore, we hold that the Board/Market Committee is entitled to charge extension fee as is fixed from time to time prior to publication of Rules on 10.3.2000.
29. In view of the above, the following directions are substituted as against the directions issued by the learned Single Judge:-
(1) All cases of allotment prior to amendment of statutory rules on 5.3.2002 shall be governed by the contract. Under the contract, there is no condition or covenant that the liability to pay interest, penalty shall be dependent upon providing facilities/amenities. Such of the allottees who were allotted plots prior to 5.3.2002 are liable to pay interest and penalty in accordance with the terms and conditions of the allotment letter.
LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (21) (2) Such of the allottees who were allotted plots after 5.3.2002 are liable to pay interest and penalty from the date offer of possession was made. The offer of possession is to be made after the basic facilities, like roads, water supply, sewerage, electrification are made available. It would be a question of fact to be decided in each case as to whether the possession has been offered on completion of basic amenities, in contradistinction with such amenities as are in optimum utilization of the plot.
(3) The liability to pay extension fee is in terms of the policy framed by the Board/ Market Committee from time to time prior to the framing of Rules on 10.3.2000. The plots allotted on or after the said date would be liable to pay extension fee in terms of the Rules framed.
(HEMANT GUPTA)
JUDGE
September 14, 2012 (RAJIV NARAIN RAINA)
vimal/ds JUDGE
LPA No.502 of 2012 (O&M) &
LPA No.1868 of 2011 (O&M) (22)
Sr.No. Case Number
1. LPA No.503 of 2011
Ashwani Kumar & another Vs. Haryana State
Agricultural Marketing Board & others
2. LPA No.504 of 2011
Tara Rani & another Vs. Haryana State
Agricultural Marketing Board & others
3. LPA No.505 of 2011
Ramesh Chand Vs. Haryana State Agricultural Marketing Board & others 4. LPA No.506 of 2011 Jai Parkash Vs. Haryana State Agricultural Marketing Board & others 5. LPA No.507 of 2011 Pardeep Kumar Vs. Haryana State Agricultural Marketing Board & others 6. LPA No.508 of 2011 Ashok Kumar Vs. Haryana State Agricultural Marketing Board & others 7. LPA No.509 of 2011 Balwant Rai Vs. Haryana State Agricultural Marketing Board & others 8. LPA No.1405 of 2011 Amar Singh Vs. Haryana State Agricultural Marketing Board & others 9. LPA No.1821 of 2011 Chief Administrator, Haryana State Agricultural Marketing Board & another Vs. Chabbil Dass & others 10. LPA No.1869 of 2011 Haryana State Agricultural Marketing Board & others Vs. Ramesh Chand 11. LPA No.1870 of 2011 Haryana State Agricultural Marketing Board & others Vs. Ashok Kumar 12. LPA No.1871 of 2011 Haryana State Agricultural Marketing Board & others Vs. Surinder Kumar 13. LPA No.1872 of 2011 Haryana State Agricultural Marketing Board & others Vs. Sarla Rani 14. LPA No.1873 of 2011 Haryana State Agricultural Marketing Board & others Vs. Shankuntla Devi 15. LPA No.1874 of 2011 Haryana State Agricultural Marketing Board & others Vs. Kalicharan & others 16. LPA No.1875 of 2011 Haryana State Agricultural Marketing Board & others Vs. Ashwani Kumar & another 17. LPA No.1876 of 2011 Haryana State Agricultural Marketing Board & others Vs. Jai Parkash LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (23) 18. LPA No.1877 of 2011 Haryana State Agricultural Marketing Board & others Vs. Balwant Rai 19. LPA No.1878 of 2011 Haryana State Agricultural Marketing Board & others Vs. Pardeep Kumar 20. LPA No.1879 of 2011 Haryana State Agricultural Marketing Board & others Vs. Smt. Tara Rani & others 21. LPA No.1880 of 2011 Haryana State Agricultural Marketing Board & others Vs. Radha Kishan & others 22. LPA No.1938 of 2011 Sanjiv Kumar & another Vs. Haryana State Agricultural Marketing Board & others 23. LPA No.1926 of 2011 Raj Kumar Vs. State of Haryana & others 24. LPA No.1835 of 2011 Jai Dayal & others Vs. Haryana State Agricultural Marketing Board & others 25. LPA No.1585 of 2011 Gurmeet Singh & another Vs. Haryana State Agricultural Marketing Board & others 26. LPA No.1386 of 2011 Satpal Vs. Haryana State Agricultural Marketing Board & others 27. LPA No.1393 of 2011 Sanjeev Kumar Vs. Haryana State Agricultural Marketing Board & others 28. CWP No.15001 of 2001 M/s Sewa Ram Ram Niwas & others Vs. State of Haryana & others 29. CWP No.6472 of 2007 Krishan Lal & others Vs. Haryana State Agricultural Marketing Board & another 30. CWP No.2338 of 2010 The Kosli Railway Station Co-operative Marketing Society Ltd. Vs. State of Haryana 31. CWP No.8109 of 2010 Harisha Kumar Kalra & others Vs. Haryana State Agricultural Marketing Board & another 32. CWP No.12990 of 2011 Jai Kishan Saini & others Vs. State of Haryana & others 33. CWP No.15994 of 2011 Suresh Chand Vs. State of Haryana & another 34. CWP No.15998 of 2011 Ashish Kumar & others Vs. State of Haryana & another
35. CWP no.15999 of 2011 Ashish Kumar Vs. State of Haryana & another 36. CWP No.16635 of 2011 The Rewari Co-operative Marketing Society Ltd. Rewari Vs. State of Haryana & others 37. CWP No.19151 of 2011 Naveena Goyal & another Vs. State of Haryana & others LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (24) 38. CWP No.20363 of 2011 M/s Rajinder Kumar Vishnu Parshad Singal & sons Vs. The State of Haryana & others 39. CWP No.24001 of 2011 M/s Diwan Chand Ramesh Kumar Vs. The State of Haryana & others 40. CWP No.24087 of 2011 M/s Ramditta Mal Surinder Kumar Vs. State of Haryana & others 41. CWP No.3155 of 2012 Nirmal Parkash Sharma & others Vs. Financial Commissioner -cum- Principal Secretary, Department of Agriculture, Haryana & others 42. CWP No.11916 of 2012 Darbara Singh Vs. State of Haryana & others 43. CWP No.11963 of 2012 Didar Singh & another Vs. State of Haryana & others 44. CWP No.13196 of 2012 Kashmiri Lal Vs. State of Haryana & others 45. CWP No.13199 of 2012 Avnashi Lal Vs. State of Haryana & others 46. CWP No.13330 of 2012 Ashok Kumar Vs. Haryana State Marketing Board & another