Punjab-Haryana High Court
S.S. Gill And Ors. vs The Union Territory Of Chandigarh And ... on 3 February, 1999
Equivalent citations: (1999)122PLR17
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT G.S. Singhvi, J.
1. After about one year of the issuance of letter of allotment in their favour in respect of residential site No. 1459, Sector 40-B, Chandigarh for a premium of Rs. 13,10,000/-, a request was made by the petitioners for surrender of the site on the ground that they were unable to pay the instalments. The Assistant Estate Officer did not accept their request. Instead, he issued notice dated 15.7.1991 (the date has been incorrectly mentioned as 11.7.1991 in the order Annexure P.2) under Rule 12(3) of the Chandigarh Lease-Hold of Sites and Building Rules, 1973 (hereinafter referred to as 'the Rules') proposing cancellation of the lease and forfeiture of the premium and ground rent. In response to the notice, petitioner No.1 appeared before the Assistant Estate Officer on 28.8.1991 and reiterated, that surrender of the site may be accepted. On that very day, the Assistant Estate Officer, exercising the powers of the Estate Officer, Union Territory, passed order Annexure P.2 for cancellation of the lease and forfeiture of Rs. 13,100/- i.e., one per cent of the premium plus interest and ground rent. The Chief Administrator dismissed the appeal filed by the petitioners under Rule 22 of the Rules.
2. Aggrieved by the afore-mentioned orders, the petitioners have invoked jurisdiction of this Court under Article 226 of the Constitution of India for quashing of the orders Annexures P.2 and P.3 mainly on the ground that the Assistant Estate Officer did not have the jurisdiction to invoke Rule 12(3) for cancellation of the lease and forfeiture of the premium because the petitioners did not commit any default in the payment of the premium. They have also described the forfeiture of Rs. 1,26,339/- as wholly arbitrary and unjustified.
3. The respondents have pleaded for sustaining the order of cancellation of lease by stating that after having shown their unwillingness to retain the allotment, the petitioners cannot challenge the order passed by the Assistant Estate Officer. The respondents have also justified forfeiture of the amount deposited by the petitioners on the ground that they were required to pay ground rent in accordance with the conditions of allotment and Rule 13 of the Rules.
4. We have heard Shri M.K. Garg, counsel for the petitioner, and Shri Ashok Aggarwal, Senior counsel appearing for the respondents.
5. A perusal of the record shows that in accordance with the conditions of allotment and the Rules, the petitioners were required to pay Rs. 3,27,500/- representing 25% of the premium within a period of 30 days from the date of allotment. The remaining premium was payable in three equated instalments of Rs. 3,74,382/- each along with ground rent at the rate of Rs. 32,750/- per annum. The petitioners deposited 25% of the premium but they did not accept the offer of possession made to them by the competent authority on 10.4.1990. Instead, a written request dated 4.3.1991 was made on their behalf for surrender of the site and refund of the amount deposited by them. As on that day, first of the three equated instalments had not become payable. Therefore, the Assistant Estate Officer did not have the jurisdiction to invoke Rule 12(3) of the Rules which applies to the cases of default in the payment of premium. However, the fact of the matter is that the Assistant Estate Officer not only failed to take action on the application dated 4.3.1991 but also ordered cancellation of the lease and forfeiture of the amount deposited by the petitioners. This in our considered opinion, he could not have done because the petitioners had surrendered the site before the first instalment became due.
6. We are also of the view that after having formed an opinion that the request made by the petitioners for surrender of the site cannot, in the absence of any provisions in the Rules to that effect, be accepted, the Assistant Estate Officer was duty bound to give three months' notice to the petitioners requiring them to pay the amount of instalment. He could take further action under Rule 12(3) only if the petitioners had neglected in paying the dues in accordance with the conditions of allotment under Rule 12(2). Admittedly, this he did not do. In view of this, we may have invalidated the order of cancellation of lease but having regard to the fact that the petitioners did not challenge the order of cancellation of lease before the appellate authority and confined their prayer for refund of the amount forfeited by the Assistant Estate Officer, we do not consider it proper to restore the site to them and we feel that ends of justice would be met by quashing the order of forfeiture and directing the respondents to refund the amount deposited by the petitioners after deducting the ground rent which the petitioners were required to pay in terms of the letter of allotment.
7. The appellate order passed by the Chief Administrator, which is merely an order of affirmance, is also liable to be invalidated in view of the fact that the original order passed by the Assistant Estate Officer suffers from a patent legal error affecting the jurisdiction of the concerned authority to pass the order.
8. For the reasons mentioned above, writ petition is partly allowed. Order Annexure P.2 and P.3 are declared illegal and quashed to the extent of forfeiture of the amount deposited by the petitioners. The respondents are directed to refund the amount to the petitioners after deducting the ground rent payable by the petitioners from 10.4.1990 to 4.3.1991, i.e. from the date of allotment to the date of submission of application for surrender. The respondents shall refund the amount to the petitioners within two months from today.
9. A copy of this order be given Dasti on payment of fee prescribed for urgent applications.