Punjab-Haryana High Court
Date Of Decision:18.07.2013 vs The Estate Officer And Another on 18 July, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.18633 of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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1. C.W.P. No. 18633 of 2001
Date of Decision:18.07.2013
M/s Eider PWI Communication Ltd. .....Petitioner
Versus
The Estate Officer and another .....Respondents
2. C.W.P. No.8794 of 2006
M/s Eider PWI Communication Ltd. .....Petitioner
Versus
Union Territory, Chandigarh and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Kanwaljit Singh, Senior Advocate,
with Mr. B.B.S.Randhawa, Advocates,
for the petitioner.
Mr. Sanjay Kaushal, Senior Standing Counsel,
with Mr. A.P.Setia, Advocate,
for the respondents.
MAHAVIR S. CHAUHAN, J.
Civil Writ Petition No.18633 of 2001, M/s. Eider PW1 Communications Ltd. Versus The Estate Officer and others, and Civil Writ Petition No.8794 of 2006, M/s. Eider PW1 Communications Ltd. Versus Union Territory, Chandigarh and others, involve common questions of fact and law and, therefore, are proposed to be disposed of together by this common order being passed in Civil Writ Petition No. 18633 of 2001, M/s. Eider PW1 Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -2- Communications Ltd. Versus The Estate Officer and others.
Prayer of the petitioner, M/s. Eider PW1 Communications Ltd., in Civil Writ Petition No. 18633 of 2001, under Articles 226 and 227 of the Constitution of India, is for quashing of order dated 12.09.2000 (Annexure P10), whereby Assistant Commissioner, Municipal Corporation, Chandigarh, exercising the powers of Estate Officer under Capital of Punjab (Development and Regulation) Act, 1952 (for short-the 1952 Act), has ordered cancellation of SCO site No.914, Manimajra; and order dated 19.09.2001 (Annexure P12) whereby Chief Administrator, Union Territory, Chandigarh has dismissed petitioner's appeal against order dated 12.09.2000; while in civil writ petition No. 8794 of 2006 prayer is for quashing of order dated 09.11.2001 (Annexure P4 in CWP No. 8794 of 2006), whereby respondent No. 2, Estate Officer has ordered eviction of the petitioner from SCO site No.914, Manimajra under Section 5 of the Capital of Punjab (Development and Regulation) Act, 1952 (for short-the 1952 Act) upon cancellation of lease of the site in question; and judgment dated 05.08.2005 (Annexure P9 in CWP No. 8794 of 2006) whereby the Appellate Authority Additional District Judge, Chandigarh) has dismissed petitioner's appeal against order dated 09.11.2001(Annexure P4).
Facts necessary for disposal of the writ petitions are that S.C.O No.914, Manimajra (for short 'the disputed site') was purchased by Ram Niwas and others (here-in-after referred to as 'the original allottees') in an open auction held on 04.09.1996 at a premium of Rs.1,41,00,00/- only. The original allottees paid 25% of the premium within 30 days from the date of auction and, consequently, letter of allotment dated 09.10.1996 (Annexure P1) came to be Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -3- issued in their favour. The disputed site was later on transferred in favour of the petitioner vide letter of re-allotment dated 28.11.1996. As per terms and conditions of the letter of re-allotment, balance amount of premium was payable in three equated annual installments of Rs.47,94,000/- each, falling due on 04.09.1997, 04.09.1998, and 04.09.1999, respectively. Later on, vide letter dated 22.09.1997, the amount of these equated annual installments was revised to Rs.48,63,695/- per installment.
The petitioner took over physical possession of the disputed site on 10.03.1997 but did not pay the balance amount of premium as per schedule of payment given in the letter of re-allotment. As a notice dated 25.04.2000 issued by the Estate officer asking the petitioner to deposit the outstanding amount of premium and interest etc., remained unresponded, another notice dated 16.05.2000 (Annexure P8) was issued by the Estate Officer to the petitioner clearly stating therein that petitioner's non-appearance on the date fixed, might invite ex parte proceedings. The petitioner neither appeared before the Estate Officer nor paid the outstanding amount. In addition to the above, notices dated 22.10.1997, 09.12.1997, 22.01.1998, 18.02.1998, 30.03.1998, 29.04.1998, 28.05.1998, 06.07.1998, 28.08.1998, 16.09.1998, 13.10.1998, 30.10.1998, 14.01.1999, 18.02.1999, 23.02.1999, 28.04.1999, 17.06.1999, 13.07.1999, 23.08.1999, 11.10.1999, 11.11.1999, 03.12.1999, 13.01.2000, 15.02.2000, 15.03.2000, and 25.04.2000 were also ignored by the petitioner. This led the Estate Officer to pass order dated 14.06.2000 (Annexure P9) imposing penalty equivalent to 5% of the amount of outstanding dues and granting the petitioner three months' time to deposit entire outstanding amount Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -4- together with interest and penalty etc. Still the outstanding amounts were not paid.
Estate Officer then called the petitioner for personal hearing. Petitioner's representative appeared and sought one week's time to seek instructions to pay the outstanding amounts but on the adjourned date said representative of the petitioner failed to give any undertaking to pay the outstanding dues. The matter was once again adjourned for personal hearing but on that day petitioner abstained from the proceedings and faced with the situation that Estate Officer passed order dated 12.09.2000 (Annexure P10) thereby canceling allotment of the disputed site and forfeiting 10% of the amount of premium, interest and other dues payable in respect of the disputed site.
To assail order dated 12.09.2000 (Annexure P10) petitioner preferred an appeal under Section 10(1) of the 1952 Act which was dismissed vide order dated 19.09.2001 (Annexure P12) by holding that "petitioner's plea that it was not possible for it to clear the outstanding dues until sanctions imposed by the USA and World Bank were lifted, was not tenable as there was no understanding that the petitioner would pay the installments after obtaining loan from some financial institution". The appellate authority also observed that the circumstances appearing on record showed that the petitioner was not inclined to clear the outstanding dues and that though six appeals of the petitioner were fixed for hearing on that day but Shri Ramji Dass, Advocate appeared on behalf of the petitioner, only in three of them and in the remaining three (including the one under reference) nobody appeared on behalf of the Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -5- petitioner.
As a consequence, the Estate Officer vide order dated 09.11.2001 (Annexure P4 in C.W.P 8794 of 2006)) ordered eviction of the petitioner and all other occupiers of the building, directing them to vacate the disputed premises within 15 days. Petitioner's appeal also came to be dismissed vide judgment dated 05.08.2005 (Annexure P9 in C.W.P No. 8794 of 2006).
To seek quashing of the order dated 12.09.2000 (Annexure P10), whereby Assistant Commissioner, Municipal Corporation, Chandigarh, exercising the powers of Estate Officer under the 1952 Act, has ordered cancellation of SCO site No.914, Manimajra; order dated 19.09.2001 (Annexure P12) whereby Chief Administrator, Union Territory, Chandigarh has dismissed petitioner's appeal against order dated 12.09.2000; order dated 09.11.2001 (Annexure P4 in C.W.P 8794 of 2006)) ordering eviction of the petitioner and all other occupiers of the building; and judgment dated 05.08.2005 (Annexure P9 in C.W.P No. 8794 of 2006) dismissing petitioner's appeal against the order of eviction, the petitioner has filed the instant writ petitions under Articles 226 and 227 of the Constitution of India.
It is alleged by the petitioner that the petitioner's liability to pay the installments and other dues had a corresponding duty cast on the respondents to provide all requisite infrastructural facilities to convert the piece of land into an SCO site but the respondents did very little to provide such infrastructural facilities till the middle of the year 2000 even though the petitioner had been agitating this matter since the year 1998 and two letters for the purpose were written on 12.10.1998 (Annexure P2) and 22.05.1998 Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -6- (Annexure P3). It also paid an amount of Rs.24,32,000/- vide receipts, Annexure P4, P5, P6, and P7, in the hope that requisite infrastructural facilities would be provided by the respondents. Even during the course of personal hearings, held on 01.06.2000 and 08.06.2000, no heed was paid to the grievance of the petitioner as regards providing infrastructural facilities and the entire stress was placed on the payment of outstanding dues.
It is also alleged in the petition that the disputed site having been allotted under the provisions of Punjab Municipal Corporation Act (Extension to Chandigarh) Act, 1994 (for short 'the 1994 Act'), its lease could not be cancelled under the 1952 Act. Moreover, even though clause 7 of the letter of allotment empowered the Assistant Commissioner to "Either allow payment of installments with penalty which may extend to 10% of the due amount and interest @24% per annum for the delayed period or cancel the allotment and forfeit the whole or part of the amount already paid" but no reasons have been given for not allowing the petitioner to make payment of installments with penalty and interest for the delayed period and why extreme step of cancellation of the allotment has been resorted to.
Further, according to the petitioner, after passing order dated 16.05.2000 imposing penalty upon the petitioner, no further notice was given to it and even its appeal was dismissed without notice of hearing and even without permitting the petitioner to engage a counsel to represent it before the appellate authority.
In the written reply (wrongly described as Additional Submissions), the respondents have come out with a plea that out of the Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -7- remaining 75% of the premium, the petitioner paid only meager amount of Rs.2,50,000/- on 24.03.1998; Rs.2,00,000/- on 20.04.1998; Rs.5,00,000/- on 07.09.1998; Rs.14,82,000/- on 13.10.1998; and Rs.3,00,000/- on 02.06.2000/- and, thereafter, did not pay the remainder amount in spite of numerous notices issued by the Estate Officer. Against the order of cancellation, petitioner filed an appeal before the Commissioner, Municipal Corporation, Chandigarh, and another before the Chief Administrator, Union Territory, Chandigarh. Both these appeals were dismissed on 19.09.2001. Petitioner did not avail the statutory remedy of review before Advisor to the Administrator.
It is further disclosed in the written reply that the petitioner had purchased three plots bearing numbers 705, 706, and 914 from their original allottees by way of friendly transfers. All the three plots were cancelled for non-payment of installments. Petitioner did not challenge cancellation order of plot No.705 and lost upto Supreme Court as regards cancellation of plot No.
706. According to the respondents, payments of installments, interest and ground rent etc. cannot be co-related with providing of infrastructural facilities and, therefore, petitioner has no case.
We have heard learned counsel for the parties and have examined the record in depth.
On behalf of the petitioner it is forcefully argued that impugned orders cannot sustain in so far as the Estate Officer did not give any further notice for cancellation of the plot of the petitioner, after notice dated 14.06.2000 (Annexure P9) which, indisputably, was not for cancellation and Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -8- then the Estate Officer did not wait for the expiry of the period of three months granted by him vide notice dated 14.06.2000 (Annexure P9), to the petitioner to clear the outstanding amount and penalty etc. but ordered cancellation of the plot vide order dated 12.09.2000 (Annexure P10) whereas the period of three months was to expire on 13.06.2000. Further, the fact that no opportunity of hearing was afforded to the petitioner before passing the impugned order dated 12.09.2000 (Annexure P10), shows predetermined mind of the Estate Officer, contends learned senior counsel for the petitioner. To support this contention, learned senior counsel relies upon a Division Bench judgment of this Court rendered in M/s. International Publishers versus Union Territory, Chandigarh, 2000(3) RCR (Civil) 621, and a Full Bench judgment of this Court in Brij Mohan versus Chief Administrator and others, AIR 1980 P & H 236. By referring to a judgment of the Hon'ble Supreme Court of India in M/s. Gagan Foods Processors (P) Ltd. versus Union Territory, Chandigarh and others, 2003 (2) RCR (Civil) 645, he submits that power of resumption being discretionary should be resorted to as the last measure. Petitioner's learned senior counsel further contends that even the appeal filed by the petitioner has been dismissed at his back as no notice of its hearing was given to the petitioner and that Shri Ramji Dass, Advocate, was not engaged by the petitioner in the appeal under reference. Thus, presence of said Shri Ramji Dass, Advocate, in the other three appeals and his refusal to appear in the appeal under reference is inconsequential. According to the learned senior counsel for the petitioner, in fact no counsel was engaged by the petitioner to represent it in the appeal under reference.
Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -9-
No doubt, resumption or cancellation of allotment of a plot should be resorted to as the last measure and before doing so, the allottee has to be afforded an opportunity to show cause why such an action be not taken against him. He also deserves a hearing. It is also not in dispute that vide notice dated 14.06.2000 (Annexure P9) petitioner was given three months' time to deposit the entire outstanding amount, interest and penalty etc. and this period of three months was due to expire on 13.09.2000 and the order of cancellation came to be passed on 12.09.2000. However, a bare look across the relevant clauses of the letter of allotment and glaring circumstances on record would establish that contention of the petitioner lacks substance.
According to clause 4 of the letter of allotment, the balance 75% of the premium, together with interest thereon @ 18% per annum, was to be paid by the petitioner in three equated annual installments of Rs.47,94,000/- each, falling due on 04.09.1997, 04.09.1998, and 04.09.1999, respectively, which was subsequently revised to Rs.48,63,695/- per installment, vide letter dated 22.09.1997.
Clause 7 of the letter of allotment reads as under:
"In case the installment is not paid by the 10th of the month following the month in which it falls due or such extended period as may be allowed by the Assistant Commissioner, Municipal Corporation on payment of penal interest @ 24% but not exceeding three months in all from the date on which the installment originally fell due, the Assistant Commissioner may issue notice to the allottee to show cause as to why the allotment of the site/building be not cancelled and the amount already paid forfeited. After considering the cause, if any shown by the allottee, Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -10- the Assistant Commissioner may either allow payment of installments with penalty which may extend to 10% of the amount due and interest @24% per annum for the delayed period or cancel the allotment and forfeit the whole or part of the amount already paid."
While clause 8 of the letter of allotment says that "No separate notice will be sent for the payment of the installment", clause 9 thereof stipulates as under:-
"The land shall continue to belong to the Municipal Corporation, Chandigarh until the entire consideration money together with interest and other amount, if any, due to the Corporation on account of sale of such land is paid. The allottee shall have no right to transfer by way of sale, gift, mortgage or otherwise the plot or any right, title and interest therein till the full price is paid to the Corporation, except with the prior permission of the Assistant Commissioner, Municipal Corporation, Chandigarh or any other officer authorized by him in this behalf."
Perusal of clauses of the letter of allotment culled out here-in- above, leaves nothing to doubt that for payment of balance installments, no notice was required to be sent to the petitioner and non-payment of installments was to result into cancellation of the allotment of the disputed site which was transferred in favour of the petitioner. It is writ large on record that not only notice dated 14.06.2000 (Annexure P9) but also numerous notices dated 22.10.1997, 09.12.1997, 22.01.1998, 18.02.1998, 30.03.1998, 29.04.1998, 28.05.1998, 06.07.1998, 28.08.1998, 16.09.1998, 13.10.1998, 30.10.1998, 14.01.1999, 18.02.1999, 23.02.1999, 28.04.1999, 17.06.1999, 13.07.1999, 23.08.1999, 11.10.1999, 11.11.1999, 03.12.1999, 13.01.2000, 15.02.2000, Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -11- 15.03.2000, 25.04.2000, and 16.05.2000 were sent to the petitioner but the petitioner ignored all these notices. Estate Officer then called the petitioner for personal hearing. Petitioner's representative appeared and sought one week's time to seek instructions to pay the outstanding amounts but on the adjourned date he failed to give any undertaking to pay the outstanding dues. The matter was once again adjourned for personal hearing but on that day petitioner abstained from the proceedings and faced with the situation, Estate Officer passed order dated 12.09.2000 (Annexure P10) cancelling allotment of the site in question and forfeiting 10% of the amount of consideration money, interest and other dues payable in respect of the disputed site.
Not only this, the petitioner did not pay the outstanding amounts at the time of filing or during pendency or after disposal of its appeal against the order of cancellation of allotment. A specific question was put to the learned counsel for the petitioner during the course of hearing, whether the petitioner had got prepared some Demand Draft or Pay Order or Banker's Cheque etc. of the balance amount for being deposited with the respondent towards expiry of the period of three months' time granted to it vide notice dated 14.06.2000 (Annexure P9). The learned counsel very candidly replied in the negative.
Further, while issuing notice of motion on 28.11.2001, this Court passed the following order:
"In case the petitioner deposits the entire amount due from it alongwith interest within two months from today, the order of cancellation will remain in abeyance."
However, no amount has been paid by the petitioner. Order dated Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -12- 17.01.2002 passed by this Court, while dealing with an application moved by the petitioner, also indicates that the petitioner had neither cleared the outstanding dues till then nor the petitioner had an intention to clear the same in future. The order reads as under:
"We had pointed to the learned counsel for the petitioner that we would extend the time to the end of February, 2002 for making the payment as ordered by this Court. The learned counsel for the petitioner, however, remained silent and gave no answer. We thus have no option but to dismiss the application.
At this stage, the learned counsel contends that the petitioner will make the deposit by the end of February, 2002. We according extend the time for making payment upto that date. In case the payment is not made within this period, the order dated 28.11.2001 shall be deemed to operate........"
Still nothing was paid. A Civil Miscellaneous application was then moved by the petitioner praying for permission to deposit the outstanding amount in installments. But when that application was taken up for hearing on 17.05.2002 nobody appeared on behalf of the petitioner and this Court passed the following order:
"No one appears in support of this application. In view of the earlier orders that have been passed by this Court and which have since been reproduced in the application, prima facie, this Court is of the view that the prayer contained in the application in hand to make over balance amount in three equal quarterly installments cannot be accepted. However, as none appears on behalf of the applicant, the application is dismissed for want of prosecution."Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -13-
Once again, on 28.02.2003, on behalf of the petitioner an undertaking was given before this Court that the petitioner would deposit an amount of Rs.75,00,000/- towards amount due from it, within one week. Even this undertaking has not been honoured.
In the face of the facts and circumstances enumerated here-in- above, it ill lies in the petitioner's mouth to say that the Estate Officer did not wait for expiry of three months period granted to it to make the payment of the outstanding amount, vide notice dated 14.06.2000 (Annexure P9) and that it was not afforded sufficient opportunity of being heard before passing order dated 12.09.2000 (Annexure P10) Similarly, the contention raised by the petitioner's counsel that the appeal filed by the petitioner has been dismissed at its back; no notice of its hearing was given to the petitioner; that Shri Ramji Dass, Advocate, was not engaged by the petitioner in the appeal under reference; and that no counsel was engaged by the petitioner to represent it in the appeal under reference, is without any substance as memorandum of appeal, Annexure P11, filed by the petitioner is shown to have been filed by Shri K.S. Lamba, Advocate. It is unfathomable that an advocate would file an appeal on behalf of a party without being instructed and without having been engaged by said party and that an appellant would require a notice to pursue its appeal. When confronted with a question as to what action was taken by the petitioner against the counsel for not appearing before the appellate authority when the appeal was taken up for hearing, learned senior counsel representing the petitioner chose to remain silent.
Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -14-
It may be added here that both the proceedings, i.e., one for imposition of penalty and the other for cancellation of allotment were going on parallel to each other and in this situation, no separate or further notice was required to be given to the petitioner.
It is also contended on behalf of the petitioner that the disputed site was allotted to him by the Assistant Commissioner, Municipal Corporation, Chandigarh and, as such, its allotment could not be cancelled by or through any power of the Estate Officer under the 1952 Act. The contention, however, is not available to the petitioner because it has come on record that it availed itself of both the remedies by filing an appeal under the 1994 Act and the 1952 Act. It lost both the appeals and is not shown to have challenged either of the two orders before revisional authorities.
Learned counsel for the petitioner further contends that the petitioner had paid an amount of Rs.60,00,000/- (or say 43% of the total premium) and then tendered Rs.1,25,48,800/- on 01.12.2005. The petitioner has, thus, paid the entire outstanding amount to show his bona fides and, therefore, cancellation of the plot in question is liable to be quashed. Learned counsel relies upon Jasbir Kaur versus U.T., Chandigarh, AIR 1999 SC, 2189 and Jatinder Singh and another versus Chandigarh Administration and others, 2006(1) PLJ, 726 to contend that entire outstanding dues having been cleared by the petitioner, the order of cancellation of the petitioner's plot has to be treated as nonest.
Very true, the original allottees deposited an amount equivalent to 25% of the amount of price of the disputed site and, thereafter, the petitioner Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -15- paid an amount of Rs.24,32,000/- vide receipts, Annexure P4, P5, P6, and P7. But total price of the plot was fixed at Rs.1,41,00,000/- and as per clause (5) of the letter of allotment, Annexure P1, the allottee/ petitioner was required to pay three equated annual installments of Rs.48,63,695/- per installment, falling due on 04.09.1997, 04.09.1998, and 04.09.1999. Thus, the amount, reflected in Annexures P4 to P7, does not make up the total even of the first installment of Rs.48,63,695/-. It has already been observed that the petitioner did not pay even a single penny before or after 22.10.1998 except for the 25% of the cost of the price paid, initially. As regards the amount of Rs.1,25,48,800/- suffice it to say that it was tendered in CWP No.18339 of 2005, M/s. Eider PW1 Communications Ltd. Versus Union Territory, Chandigarh, which has since been dismissed as withdrawn vide order dated 08.05.2006 and as reported by the Registry, the drafts are lying in safe custody with the Cashier of this Court. The petitioner, therefore, cannot be heard to say that said amount was paid by him to the respondents towards clearance of the dues outstanding against it.
Towards the end, petitioner's learned counsel argued that the petitioner's liability to pay the installments and other dues had cast a corresponding duty on the respondents to provide all requisite infrastructural facilities to convert the piece of land into an SCO site but the respondents did little to provide such infrastructural facilities till the middle of the year 2000 even though the petitioner has been agitating this matter since the year 1998 and two letters in this regard were written on 12.10.1998 (Annexure P2) and 22.05.1998 (Annexure P3). It also paid an amount of Rs. 24,32,000/- vide receipts, Annexure P4, P5, P6, and P7 in the hope that requisite infrastructural Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -16- facilities would be provided by the respondents. Even during the course of personal hearings held on 01.06.2000 and 08.06.2000 no heed was paid to the grievance of the petitioner as regards providing of infrastructural facilities and the entire stress was laid on payment of the outstanding dues.
This contention of the petitioner need not hold the attention of this Court for long because learned senior counsel representing the petitioner has not been able to point out any clause in the letter of allotment or any provision of law whereby making payment of installments, interest and penalty etc., is dependent upon provision of infrastructural facilities/amenities. A similar contention raised in Municipal Corporation Chandigarh & others Vs. M/s Shantikunj Investment Pvt. Ltd., 2006(2) RCR (Civil) 26, was answered by the Hon'ble Apex Court, as under:
"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 installment, interest and penalty, if any, as provided under the Act and the Rules...... 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....... It is true the word, "enjoy" appearing in the definition of the word "premium" in Rule 3(2) of the Rules, means the price paid or promised for the transfer of a right to enjoy immovable property under the Rules. It was very seriously contended before us that the word, enjoy immovable property Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -17- necessarily means that the Administration should provide all the basic amenities as appearing under Section 2(b) of the Act for enjoying that allotment. The expression "premium" appearing in the present context does not mean that the allottees/lessees cannot enjoy the immovable property without those amenities being provided. The word "enjoy" here in the present context means that the allottees have a right to use the immovable property which has been leased out to them on payment of premium i.e. the price..... 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 on an 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 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 installments 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 installment. 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 liable to pay the interest".
We asked the learned counsel for the parties to tell us which Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -18- is the obligation of the lessor in the lease deed which says that they will not charge interest on the installments before providing the amenities. There is neither any condition in the lease nor any obligation under the auction. If the parties have given their bids and with their eyes wide open, they have to blame themselves. It cannot be enforced by any mandamus as there is no obligation contained in the lease deed or in the auction-notice."
The proposition of law adumbrated in the case of Municipal Corporation Chandigarh & others Vs. M/s Shantikunj Investment Pvt. Ltd. (supra) has been reasserted in U.T. Chandigarh Administration Vs. Amarjeet Singh, & others, 2009 (2) RCR (Civil) 401.
This Court was also confronted with a similar question in CWP No. 15768 of 2001, Satwant Singh versus Chandigarh Administration, U.T., Chandigarh and Others (and a bunch of other petitions). A Division Bench of this Court (of which one of us, Satish Kumar Mittal, J.) was a member disposed of the controversy by holding thus:
"Therefore, on the touchstone of the law laid down by the Supreme Court, in the case law cited above, read with the terms and conditions of the letter of allotment and as per the provisions of the Chandigarh (Lease Hold of Sites and Buildings), Rules 1973, it is held that timely payment of instalments, as per the letters of allotment, and payment of interest on such instalments as per the 1973 Rules, as also payment of ground rent, and penal rent for non-payment of instalments and ground rent, is not dependent upon provision of basic amenities. The petitioners, who are allottees of sites leased out to them by auction, would be bound by the terms and conditions of the allotment letter, and Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -19- payment of installments and ground rent, as also interest and penal interest, would have to be in accordance with the relevant rules, read with the letter of allotment. The interest and penal interest, wherever charged, would be as was stipulated in the 1973 Rules, on the date of auction, in each case".
It may be apposite to point out here that it is the case pleaded by the petitioner itself, in the writ petitions, that building structure had been constructed on the disputed site in the middle of the year 1999, which means that the petitioner is enjoying the user of the building since then by running its business and has been inventing one excuse after the other to avoid payment of installments, interest and penalty etc. We are, therefore, constrained to observe that the petitioner represents the pernicious tendency that has grown in the haves of the society to grab public property by hook or by crook and after acquiring the property, not to pay the consideration amount on one pretext or the other. Keeping in view the manifold increase in the prices of real estate in the City Beautiful since the day of allotment of the disputed site, it is anybody's guess that the petitioner has been thriving at the cost of public exchequer by earning profits without paying for the property usage for the purpose.
Learned senior counsel for the petitioner has also placed reliance upon a judgment of the Hon'ble Supreme Court of India in the case of Jasbir Kaur versus U.T., Chandigarh, AIR 1999 SC 2189 and a Division Bench judgment of this Court in the case of Jatinder Singh and another versus Chandigarh Administration and others, 2006 (1) PLJ 726 and contends that in these cases resumption orders were set aside in view of payment of entire Virender Singh Adhikari 2013.08.16 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.18633 of 2001 -20- premium. We, however, are of the view that the petitioner cannot derive any benefit from these judgments because judgment in Jasbir Kaur versus U.T., Chandigarh (supra) does not lay down a binding precedent whereas in the judgment in Jatinder Singh and another versus Chandigarh Administration and others (supra) only a direction has been given for consideration of representation of the petitioner therein and no proposition of law has been laid down.
In view of the above discussion, the order of cancellation of allotment of site in favour of the petitioner, the order of eviction and judgment of the appellate authority dismissing petitioner's appeal against that order cannot be faulted.
In the consequence, we dismiss both the writ petitions with costs amounting to Rs.10,000/- (Ten thousand rupees).
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
18.07.2013
adhikari
Virender Singh Adhikari
2013.08.16 16:35
I attest to the accuracy and
integrity of this document
High Court Chandigarh