Punjab-Haryana High Court
Goyal And Company vs Union Territory Through Its Chief ... on 25 February, 1992
Equivalent citations: (1992)102PLR303
JUDGMENT G.C. Garg, J.
1. Petitioner was allotted a commercial site in Sector 20, Chandigarh on lease hold basis by allotment letter dated May 22, 1985, Annexure P-1, on the terms and conditions embodied therein and also those incorporated in the lease executed by him, in pursuance of an application made on February 17, 1985. The total premium in respect of the site was Rs. 3,52,666/-. The rent of the site for first 33 years was Rs. 8,816.65 paise per annum. A sum of Rs. 90,000/- was deposited alongwith the application towards 25% of the premium. The remaining 75% of the "premium of the site was payable in three equal instalments including interest, falling due on May 22, 1986, May 22, 1987 and May 22, 1988, besides the ground rent. The lease was to be governed by the provisions of the Chandigarh Lease Hold of Sites and Buildings Rules, 1973. The petitioner failed to abide by the conditions of lease as embodied in the allotment letter and also those contained in the 1973 Rules, inasmuch as the petitioner failed to make the payment of second instalment of premium which fell due on May 22, 1987. Consequently, the Estate Officer, Union Territory, Chandigarh proceeded against the petitioner under rule 12(3) of the Rules ibid and while cancelling the lease of the site allotted to the petitioner, ordered the forfeiture of Rs. 35,267/- being 10% of the total premium plus ground rent and interest pertaining to the period from May 22, 1987, i.e. the date when the payment of second instalment was due, to the date of the said order dated November 15, 1988, Annexure P-11.
2. Against the aforesaid order of the Estate Officer, the petitioner preferred an appeal under rule 22 of the Rules ibid, before the Chief Administrator which was dismissed by order dated September 5, 1989, Annexure P-12. However, the petitioner met with partial success in revision before the Advisor to the Administrator, U.T. Chandigarh, who by order dated March 28, 1990, Annexure P-13 ordered the restoration of lease of the site in question to the petitioner subject to his paying/depositing the outstanding dues of arrears of installments, interest, ground rent and forfeiture etc. on or before May 31, 1990, failing which the revision was to be deemed to have been dismissed' and the order of the Estate Officer to have come into operation.
3. Through this writ petition, the petitioner has prayed for quashing that part of the order of the Advisor (Annexure P-13) whereby forfeiture of ground rent, interest calculated upto November 15, 1988 and the amount equivalent to 10% of the total premium has been upheld in revision.
4. Learned counsel for the petitioner first contended that since actual physical possession of the site was not delivered till as long as May, 1987, the petitioner was not liable to pay ground rent and interest for the period prior to May, 1987. It was submitted by learned counsel that in June, 198: the respondents offered to hand over the possession of the site when in fact, no plots were available with the Administration nor any demarcation had been made. According to learned counsel, only paper possession of the site was offered to the petitioner just to circumvent the amendment brought about in the Chandigarh Lease Hold of Sites and Buildings Rules, 1973 according to which, no ground rent or interest on the installments of premium could be charged from a lessee till the actual physical possession of the site was delivered or offered to be delivered to him, whichever was earlier. In support of this submission, strong reliance has been placed on a Division Bench order of this Court, dated May 23, 1990 (copy attached as Annexure P-10 to the petition). This contention is devoid of any merit. While denying averments made in para 5 of the petition the respondents have categorically stated that the petitioner obtained physical possession of the site in question on June 12, 1985 from the Executive Engineer in pursuance of certificate Annexure R-l. The respondents have specifically denied that there were no roads or the area was not demarcated or not developed. A perusal of letter Annexure P-2 and certificate Annexure R-l clearly show that possession of the site was delivered to the petitioner on June 24, 1985 Certificate Annexure R-l was countersigned by the Executive Engineer, Capital Project No. 2(R), Chandigarh. The relevant portion of certificate Annexure R-I is reproduced here as under :-
"Certified that I, M/s. Goyal and Co. son of Shri Partner Goyal and Co. (Dalip Singh) Partner has this day 24-6-1985 taken possession of site No. 43, Sector 20- C at Chandigarh measuring 153.333 Square yards allotted to me on lease hold vide allotment No. 10125/CPL 4192 CIA-I dated 22-5-1985 from the Executive Engineer, C. P. Division No. 2, Chandigarh.
Sd/- Dalip Singh Jain (in Urdu)"
The petitioner has not chosen to file any re-joinder to the written statement filed by the respondents, specially, to the averments made in paras 3 and 5 thereof whereby it has been specifically stated that the possession of the site was delivered in June, 1985.
5. The Division Bench order, Annexure P-10 also does not help the petitioner in any way. The contention of the petitioner in that case was that although plot was offered to be delivered but since no demarcation or any development was made at the spot, it was impossible to occupy the plot without complying with those formalties. This contention of the petitioner was accepted because reply to the petition was found to be vague. Thus, there is no doubt that the said order was passed on its own facts and it has no application to the facts of the present case. Moreover, the respondents have produced an application. Annexure R-2, made by the petitioner and stated to have been received in the office of the Estate Officer, Chandigarh on November 8, 1985, whereby a request has been made that since the petitioner Company wants to raise construction on the site, necessary permission to mortgage the property may be granted. This application also lends credence to the submission of the respondents that in November, 1985 the plot was ready for construction and, therefore, the petitioner sought permission to mortgage it to raise loan for that purpose. In the circumstances noticed above, there is no manner of doubt that physical possession of the site was handed over to the petitioner in June, 1985. The petitioner was, therefore, rightly held liable to pay ground rent in respect of the site and also the interest for the period from June, 1985 to May, 1987.
6. The next contention raised by learned counsel for the petitioner is that there was no order imposing penalty of 10% for not paying the installments of premium, which became due on May 22, 1986, May 22, 1987 and May 22, 1988, in time and thus imposition of penalty of Rs. 10,890/-on all the three occasions was without any basis. This contention is again without any merit. The petitioner himself has averred in para 14 of the petition that the respondents imposed a penalty of Rs. 10,890/- on all the three aforesaid dates. This imposition of penalties has not been challenged by the petitioner at any stage. Even challenge before the Chief Administrator was against cancellation of site and forfeiture of 10% of the premium of site amounting to Rs. 35,267/-, besides ground rent and interest. In the present petition also, the only challenge is that these penalties were not supported by an order. In view of the averments made in para 14 of the petition, it cannot be concluded that the penalties were not supported by an order.
7. Learned counsel for the petitioner, as a matter of last resort, contended that when the order of cancellation of lease of the site has been set aside, the order of forfeiture of Rs. 35,267/- equivalent to 10% of the premium of the site automatically comes to an end. In other words, the contention is that once the order of resumption of site is set at naught by the Adviser to the Administrator by order Annexure P-13, the order of forfeiture of 10% of the premium also becomes inoperative and the petitioner could not be asked to pay this amount. Learned counsel for the respondents has not been able to controvert the submission of counsel for the petitioner. He only submitted that this aspect of the matter has not been challenged in this petition by making any specific allegations. Having regard to the facts of this case, I am of the view that the petitioner is entitled to this much relief at least. There can be no manner of doubt that forfeiture of 10% of premium of lease could be ordered while resuming the site by canceling the lease and once the lease is restored, the order of forfeiture could not stand. It is true that this aspect of the matter has not been specifically agitated but the order Annexure P-11 passed by the Estate Officer goes to show that forfeiture of 10% of premium of lease amounting to Rs. 35,267/- was ordered while cancelling the lease in favour of the petitioner. Order Annexure P-13 clearly goes to show that the aforesaid order of the Estate Officer was set aside and consequently the lease of the site was restored. In these circumstances, the respondents cannot take any advantage for denying this relief to the petitioner on technicalities. The petitioner is, thus, not liable to pay a sum of Rs. 35,267/- on account of forfeiture of 10% of premium of lease.
8. In view of the foregoing observations, the writ petition is disposed of in the terms indicated above. The amount of Rs. 35,267/- on account of forfeiture of 10% of premium of lease of the site in question if already paid, is ordered to be refunded to the petitioner forthwith subject to adjustment of any amount due from him. There will, however, be no order as to costs.