Punjab-Haryana High Court
Balbir Pal Dandyan vs Union Territory Chandigarh And Others on 19 November, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
CWP No.17037 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.17037 of 2012
Date of decision: 19.11.2012
Balbir Pal Dandyan
.....Petitioner
versus
Union Territory Chandigarh and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Rameshwar Singh Malik
Present: Mr.Aayush Gupta, Advocate for the petitioner
Jasbir Singh, J. (Oral)
This writ petition has been filed with a prayer to quash an order dated 24.7.2008 (P2) vide which booth site No.906 situated in Motor Market Manimajra was ordered to be resumed and further it was ordered that 10% of the consideration amount be forfeited. Further prayer is to quash an order dated 16.9.2009 (P3) dismissing appeal filed by the petitioner. Still further, a prayer has been made to set aside an order dated 2.6.2010/ 4.6.2010 (P4) vide which revision petition filed by the petitioner was dismissed by the competent authority. Prayer has also been made to set aside an order dated 11.4.2012 (P5) vide which review application filed by the petitioner was dismissed.
It is on record that the petitioner was allotted a booth site in question on 26.9.2003, in an option auction for an amount of Rs.10,00,000/-. He was issued an allotment letter. 25% of the amount was paid towards sale consideration and rest was to be paid in installments as CWP No.17037 of 2012 2 per schedule given in the allotment letter dated 7.11.2003 (P1).
Relevant terms and conditions of the allotment letter reads thus:-
"4. The balance 75% of the cost together with interest thereon at 10% p.a. shall be payable in three annual equated installments, the first installment being payable at the expiry of one year from the date of auction and the subsequent installments shall similarly accrue every year on the due date as the case may be. In case the installment of sale price is not paid on due date, interest @ 20% per annum or at any other rate as may be enhanced by the administration from time to time shall be payable from the due to the date it is actually paid. However, no interest shall be payable if the said 75% balance of the sale price is paid in full within 30 days of the date of auction.
5. The following shall be the schedule of payment of installments of the balance cost:-
S.No. Due date of Date upto which Amount of
payment payment should equated
be made installment
including
interest
1st 26.9.2004 10.10.2004 3,01,587/-
instsall
ment
2nd 26.9.2005 10.10.2005 3,01,587/-
instsall
ment
3rd 26.9.2006 10.10.2006 3,01,587/-
installm
ent
8. In the event of non-payment of any installment of sale CWP No.17037 of 2012 3 price on the date given as in para 5 above, you will be liable to pay penalty which may extend to 10% of the outstanding amount of installment under Rule 11 of the Chandigarh Sale of Site and Building, Rules 1960. In case of non-payment of the outstanding amount along with penalty the Estate Officer, Municipal Corporation, Chandigarh shall proceed to resume the site.
20. In the event of any default or breach or non compliance of any of the terms and conditions of the allotment or for furnishing any wrong or incorrect information, the Additional Commissioner, Municipal Corporation, Chandigarh exercising the powers of Estate of Officer under Capital of Punjab (Development & Regulation) Act, 1952 shall to resume the site and forfeit the whole or part of the premium and other dues paid/ payable by the allottee."
It is on record that after making payment of 25% of the amount, the petitioner failed to discharge his part of the contract. As per allotment letter, due date of payment of first installment was 26.9.2004, it was to be paid upto 10.10.2004, due date of payment of second installment was 26.9.2005, it was to be paid upto 10.10.2005, due date of payment of third installment was 26.9.2006 and it was to be paid upto 10.10.2006. The petitioner did not pay even single penny to the administration. When due amount was not paid as per allotment letter, the administration issued notices to the petitioner on 20.9.2005, 21.2.2006, 17.4.2006, 7.6.2006, 11.5.2006, 6.7.2006, 24.8.2006, 13.9.2006, 2.1.2007, 28.2.2007, 26.3.2007, CWP No.17037 of 2012 4 11.5.2007, 9.1.2008, 24.1.2008, 4.4.2008. The petitioner was also afforded various opportunities of personal hearing on 2.5.2006, 26.5.2006, 22.6.2006, 9.8.2006, 14.3.2007, 15.4.2007, 21.5.2007, 14.1.2008 and 6.2.2008. Another notice was issued on 27.5.2008 affording an opportunity of personal hearing on 6.6.2008. Despite as above, the petitioner failed to make payment of the due amount.
It is apparent from the record that as per the allotment letter, if the installments were not paid in time, it is duty of the petitioner to make payment of interest @ 20% per annum on the due amount. What to talk of payment of interest, even principal amount was not paid. It is also on record that in the event of non-payment of installments towards the sale price, the petitioner was under an obligation to make payment of penalty to the extent of 10% towards the outstanding amount. There was no compliance to the above said provision because the petitioner, despite issuance of notices, failed to make payment of the principal amount and interest accrued thereon. Accrual of interest as per clause No.4 of the allotment letter is automatic. In case of non-payment of sale consideration on the due date interest will accrue and it is duty of the allottee to make payment of the same to the administration with a promptitude.
Faced with the above situation, resumption proceedings were started for which due notice was given to the petitioner. Despite making promises, no deposit was made. It is specifically mentioned in order Annexure P2 dated 24.7.2008 that vide notice dated 27.5.2008, an opportunity was given to the petitioner to deposit the outstanding dues but he failed to comply with the same. He was asked to appear in person and CWP No.17037 of 2012 5 again given an opportunity to make payment on 6.6.2008. Payment was not made. It was only stated by his representative that the petitioner is willing to make the payment. Case was adjourned to 27.6.2008 before that date also no attempt was made to deposit the due amount. Faced with the situation, no option was left with the administration but to resume the site in question.
Contention of counsel for the petitioner that before ordering resumption, it was duty of the administration to first pass an order regarding payment of penal interest on failure of the petitioner to make payment and it was further duty of the administration to pass an order regarding imposition of penalty and only thereafter, resumption order could have been passed.
We are not convinced with the argument raised. There is no such stipulation provided in the allotment letter. To the contrary, accrual of penal interest is automatic and it was duty of the petitioner to deposit the same along with due amount of the sale consideration. The petitioner was afforded many opportunities to make payment along with interest but nothing was done. The petitioner went in appeal which was dismissed by the competent officer by observing as under:-
"Both the parties have been heard. The counsel for the appellant admits that whatever dues were there have not been deposited in time. The fact is that these are old properties and over a period of time the rates have gone very high and increasing value of real estate as such it is obvious for any defaulted allottee to now come forward for depositing the balance amount because the existing property rates are much CWP No.17037 of 2012 6 higher. However, once the allottee is defaulted in payment and deposit several opportunities have been given by the Secretary, Municipal Corporation exercise the powers of Estate Officer for depositing the balance dues if the due payments are not made within the time and just action on the part of Secretary, Municipal Corporation exercising the powers of Estate Officer can only be resumption."
Revision petition filed by the petitioner was also dismissed by passing a detailed order on 2.6.2010. The petitioner did not come to this Court, rather to gain time, frivolous application for review was filed, which was also dismissed on 11.4.2012. Thereafter, the present petition has been filed. It was an effort of the petitioner throughout, to gain time, so that, in future, he may get benefit of escalation in price of the site in dispute. The property was allotted to him for development of the city. It was expected and stipulated in the allotment letter that construction of the site shall be raised in time. It is also not in dispute that after allotment possession was delivered to the petitioner. The petitioner raised construction thereon and started earning from the same. Despite that, payment of the sale consideration amount was not made. Attitude of the petitioner is totally dishonest.
It is further contended by counsel for the petitioner that resumption should be the last resort. From the facts and circumstances of the case, we feel that action of the administration is perfectly justified. When despite many opportunities numbering about more than 20, no effort was made by the petitioner to deposit the amount, order of resumption was CWP No.17037 of 2012 7 rightly passed.
In the case of commercial properties, Court cannot show sympathy as has been held by a Division Bench of this Court in case titled as The Adviser to the Administrator, UT, Chandigarh & others v. B.K.Nanda (LPA No.90 of 2012) decided on 16.8.2012. In the above case it was held as under:-
"We need to emphasize that the allottee is a purchaser of a commercial property in an open auction. Once he has given bid to purchase commercial property in public auction, the allottee is presumed to have means and intention to enjoy the possession of the same. He has also by his bid excluded the rest of the bidders from entering upon the premises say even by a single rupee and sought to deny timely payments to the public exchequer and engaged the appellant in relentless litigation causing waste of public time and money. Therefore, the assertions made ingratiatingly time and again that he has no source of income other than from meager agriculture pursuits and is an old person and therefore could not pay on time are alien to examine the claim of the allottee for the extension of time. The commercial interest has to be weighed keeping in view the larger pubic interest and that for delay and default of an allottee, no benefit accrues or ought to be granted to an allottee.
The equitable considerations for extension of time of cancellation of lease or resumption of a residential plot would CWP No.17037 of 2012 8 be materially different from cancellation of a lease of a commercial property. The residence is a basic necessity fundamental to decent human existence, whereas commercial property is purchased for profit motive either to make a living out of it or to exploit the same commercially by renting out the same. The allottee is a purchaser of a commercial property in an open auction knowing fully well that the balance premium amount has to be paid in three annual installments. Having purchased the commercial property in an open auction, then to raise a plea of lack of insufficient funds is wholly unjustified and untenable. If the allottee has no funds, he should not have ventured into the arena of purchase of commercial property. The terms of allotment have to be strictly adhered to as it is a commercial motive, which prompted the allottee to participate in an open auction. Therefore, he is bound to honour such commercial commitments in terms of the allotment letter."
To claim that leniency be shown to the petitioner, reliance has been placed upon judgment of the Supreme Court in Teri Oat Estate (P) Ltd. v. U.T. Chandigarh and others, (2004) 2 Supreme Court Cases 130. After going through the judgment, we feel that no benefit can be given to the petitioner. In the above judgment, it was observed as under:-
"SYMPATHY :
36.We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. CWP No.17037 of 2012 9
It is further trite that despite an extra- ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision.
37. As early as in 1911, Farewell L.J. in Latham v. Richard Johson & Nephew Ltd., (1911-13 AER reprint p. 117) observed :
""We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will O' the wisp to take as a guide in the search for legal principles."
(See also Ashoke Saha v. State of West Bengal & Ors.).
38. In Sairindhri Dolui v. State of West Bengal, (2000) 1 SLR 803 (Cal), a Division Bench of the Calcutta High Court (wherein one of us Sinha, J. was a Member), followed the aforementioned dicta.
39. This Court also in C.B.S.E. and Another v. P. Sunil Kumar and Others, [1998] 5 SCC 377 rejecting a contention that great injustice would perpetrate as the students having been permitted to appear at the examination and having been successful and certificates had been issued in their favour, held:
".. . We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students CWP No.17037 of 2012 10 of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students. . ."
In view of ratio of the judgment in the above said case, no compassion can be shown to the petitioner.
Accordingly, the writ petition stands dismissed.
(Jasbir Singh)
Judge
19.11.2012 (Rameshwar Singh Malik)
gk Judge