Punjab-Haryana High Court
Brij Bhushan Sharma vs The Estate Officer, U.T. Chandigarh on 23 August, 1999
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. S/Shri Brij Bhushan Sharma and Ravinder Mohan Sharma have filed the present writ petition under Articles 226/227 of the Constitution of India against the Estate Officer. Chief Administrator and Chief Commissioner, U.T., Chandigarh seeking directions of this court for the quashment of the impugned order passed by the respondents vide which the residential site No. 236, Sector 32-A, Chandigarh has been resumed and the respondent-authorities had forfeited a sum of Rs. 2490/- being 10% of the premium and Rs. 1400/- as ground rent.
2. The case set up by the petitioners is that Plot No, 236, Sector 32-A, Chandigarh, which was a residential site measuring 169 Sq. Yards (about 7 Marias), was leased out to the petitioners by the respondent No. 1 in an open auction for Rs. 24,900/- on 20.12.1975 as per the terms and conditions contained in allotment letter dated 21.1.1976. The lease deed was also executed by the petitioners and the respondent No. 1 on 9.7.1976, The petitioners took the possession of the said residential site on 29.1.1976 after making the payment of Rs, 6.225/-, i.e. 25% of the premium, as per rules. The petitioners were required to make the balance payment of 75% in three equated annual instalments along with interest at the rate of 7% including ground rent. A house was got constructed on the said site by the petitioners by the mid of November, 1976 and the sewerage connect ion was duly sanctioned by respondent No. 1 on 23.11.1976. The house was completely constructed in the month of November, 1976 and it was occupied by the petitioners for their personal use. The petitioners even paid the first instalment along with ground rent to the tune of Rs. 7,739.50 on 20.10.1977 and the said payment was acknowledged by respondent No. 1 on 22.10.1977. Thereafter, the petitioners were in a very tight position and could not make the payment of the second instalment in time. They were served with a notice dated 26.5.1978 under Rule 20 of the Chandigarh Lease Hold and Sites and Buildings Rules, 1973 (hereinafter referred to as 'the Rules'), Through the said notice, respondent No. 1 cancelled the lease vide order dated 4.8.1978 and forfeited the sum of Rs. 2490/- being 10% of the premium and Rs. 1400/- as ground rent. Aggrieved from the order of respondent No. 1, petitioners filed an appeal before respondent No. 2 for the restoration of the site in question. It was specifically pleaded by the peiitioners that they had made the payment of Rs. 93627- of second instalment and only Rs. 1000/- were left out of the third instalment of the premium. The said submissions were not controverted by the respondent No. 1. Hence, respondent No. 2 was satisfied with the case of the petitioners and passed the order with regard to the restoration of the site in question and further ordered that the balance payment can be made by the petitioners within one month from the date of the communication of the order dated 30.4.1981. The said order was received by the peiitioners on 13,5.1981. The petitioners were not served with any demand notice by the respondent No. 1 for making the payment of any outstanding balance amount and they were verbally told that a sum of Rs. 4,200/- was to be deposited as full and final payment towards the site. Accordingly, the petitioners deposited a sum of Rs. 4,200/- vide demand draft on 11.6.1981 and the same was acknowledged by respondent No. 1 on 12.6.1981, i.e. within a period of 30 days from the issuance of the order passed by re-
spondent No. 2. The petitioners filed a revision petition before respondent No. 3, Chief Commissioner on 12.6.1981 for quashing the impugned order of the courts below which were not legal and also against the principles of natural justice, in which it was pleaded that the forfeited amount be given up and the site in question be restored to the petitioners. The petitioners also gave the undertaking to deposit any amount, if due agasint them, within the time which may be given by the Chief Commissioner. During the pendency of the revision, petitioners also tendered further lease money to the tune of Rs. 6,5007- vide demand draft dated 7.8.1987, but the same was not accepted by the respondent No. 1 on the plea that the revision petition is pending before the respondent No. 3. Respondent No. 3 heard the revision petition on 11.7.1988 and erroneously dismissed the same by holding that the order dated 30.4.1981 passed by respondent No. 2, Chief Administrator, which was conveyed to the petitioners on 13.5.1981, have not been complied with. In these circumstances, the petitioners have challenged the orders passed by the respondents treating them illegal, ultra vires and against the principles of natural just ice. They have even attacked the very notice which was given to them under Rule 20 of the Rules on the plea that Rule 20 is not applicable to the facts in hand. Further, the case set up by the petitioners is that the resumption proceedings on the ground of default of the payment of the premium could be initiated against the petitioners only under Rule 12(3) and not under Rule 20. Moreover, the resumption order could be passed only in rarest of the rare cases. In the present case, the petitioners have taken all the steps in the construction of the house and had deposited the amount. So much so a sum of Rs. 7,150/- was also tendered with the respondent-authorities on 14.7.1988, after the dismissal of the revision petition, but the said amount was not accepted. The petitioners have constructed a residential house after making the savings of their whole lives and in these circumstances the orders passed by the authorities for the resumption of the site in question are illegal. With above broad allegations, the petitioners have prayed for the setting aside of the impugned orders Annexures P3, P4 and P6.
3. Before I make a mention of the written pleas of the respondents, it will be useful for me to make a mention of the motion order dated 13.10.1988 passed by the Hon'ble Division Bench. When the writ petition came up before the motion bench, the Hon'ble Judges were pleased to direct the petitioners to deposit the entire dues within three months and the respondents were also directed to tell the petitioners within a period of four weeks the exact sum due from the petitioners. The respondents did not comply with this direction.
4. During the pendency of the writ petition, a Civil Misc. was also moved by the petitioners through which they wanted to place on record certain documents Annexures P8, P9 and P10. Annexure PIO is a relevant document dated 27.2.1997. This is a letter issued by the respondent-authorities to Shri Brij Bhushan Sharma in which it was stated that only full premium of the plot, mentioned above, had been received including the ground, rent upto 18.12.1996. This was, however, subject to check by Audit and revision and the office reserved the right to claim, if any, due amount outstanding upto the aforesaid period against the petitioners, and they were also directed to deposit the ground rent regularly as per condition No. 9(a) of the Allotment Letter.
5. The written statement in this case was filed in the year 1998 and it is strange enough that there is no mention about the document Annexure PtO dated 27.2.1997 which was issued by the respondent-authorities. Be that as it may, in the written statement the stand taken up by the respondents is that the petitioners defaulted in making the payment in respect of the lease amount as a result of which a show cause notice was given. The lease was cancelled vide order dated 4.9.1978, Annexure P3. The petitioners approached the Chief Administrator in appeal, who took a lenient view vide order dated 30.4.1981 and restored Ihe lease of Ihe residential site and directed that the amount of forfeiture along with any other amount which may be outstanding would be paid to the Estate Officer, Union Territory, Chandigarh by the petitioners within 30 days from the date of the issuance of the order. The petitioners did not take the advantage of the concession granted by the Appellate Authority. The petitioners did not clear the outstanding dues within the time granted and, therefore, the order of cancellation of the lease came into operation. The petitioners filed a revision before the Revisional Authority which dismissed the revision on 11.7.1988 and the order is in accordance with law. The notice Annexure P2 is legal and also in accordance with law. In short, the defence taken up by the respondents is that as the petitioners have committed the default in the instalment of the lease amount, therefore, the site has been validly resumed.
6. From the above pleadings of the parties, the controversy which requires to be solved is whether the action on the part of the respondents in the resumption of the site is in accordance with law and what is the effect of the defaull which was admittedly committed by the petitioners. The second point for determination would be whether the notice which was given by the respondents under Rule 20 of the Rules is valid one or not.
7. Before I deal with the matter on merits, it will be useful for me to make a brief mention of the documents which have been relied upon by the petitioners. An-nexure P1 is the letter of allotment dated 21.1.1976 in which the schedule of payments has also been mentioned. The payment of the first instalment could be made upto 10.1.1977. Second insialment could be given on or before 10.1.1978 and the third instalments could be given on 10.1.1979. The annual rent for the first 33 years could be given on or before 10th of January of each year. The instalment of lease money was Rs. 7,117/-, while the instalment of ground rent was Rs. 622.50 per annum. Annexure P2 is the notice un- der Rule 20 of the Rules, through which it was intimated to the petitioners that they had failed to make Ihe payment of Rs. 9,054.65 on account of the second insialment, interest and penalty. Annexure P3 is the order dated 4.9.1978, through which the allotment of the site in question was cancelled, and the premium and ground rent were forfeited. Annexure P4 is the order of the Appellate Authority dated 30.4.1981 in which it has been clearly mentioned that since the appellants had paid the bulk of the amount relating to second and third instalments of premium and only nominal amount of Rs. 1,000/- was stated to be outstanding against the appellants, Iherefore, a lenient view is taken and the lease of the residential site No. 236, Sector 32-A, Chandigarh is restored to the appellants. Also it was observed by the Appellate Authority that "The amount of forfeiture shall however stand which should be paid together with any other amount which may be outstanding against the appellants within thirty days reckonable from Ihe date of issue of this order. Non-compliance with this order will bring into operation the impugned order of Estate Officer." This order was communicated to the petitioners on 13.5.1981. It appears that this order was duly complied with by the petitioners, who made the payment of Rs. 4,200/- on 12.6.1981 against receipt No. 1384/65. Annexure P5 is the statement showing the payments due/made against the site in question by the petilioners in terms of allotment letter dated 21.1.1976. A reading of this would show that the trouble started from the payment of the second instalment of Rs. 7117/- and the lease money amounting to Rs. 622.50. Out of all this due amount the pelitioners paid Rs. 4,000/- on 9.10.1978 and Rs. 3739.50 on 18.7.1979. This statement further shows that as against the total amount due of Rs. 29,443.50, a sum of Rs. 31,526.50 was paid. Annexure P6 is Ihe order of the Revisional Authority. Annexures P7, P8 and P9 are the further documents relied upon by the petitioners and 1 need not make a mention of these documents in this judgment. Regarding document Annexure P10 dated 27.2.19971 have made a mention above.
8. The contention of the learned Counsel for the petitioners was that the petitioners throughout had been showing their anxiety either for the construction of the house or they had been making the payments from time to time. So much so, the house was constructed upto November, 1976. There was no default on the part of the petitioners with regard to the first instalment. Even with regard to the second instalment, the amounts were paid on 9.10.1978 and 18.7.1979 as shown in Annexure P5 and if at all there was any default that was with regard to the delay in payment of the instalments and in these circumstances the respondent-authorities could issue the notice under Rule 12 of Ihe Rules and the notice under Rule 20, Annexure P2, and order annexure P3 are bad. In support of his contention, the learned Counsel for the petitioners relied upon Punjab Book Centre v. Union Territory, Chandigarh and others, 1981 P.L.R. 371, in which it was held as follows :-
"Held, that sub-rules (1) and (2) of rule 12 prescribe the mode of payment and sub-rule (3) operates in the consequence of default of any instalment of the premium, the course of payment of which is determined by sub-rule (2). This rule, therefore, is of a special nature and makes a specific provision to deal with the consequence of default in payment of instalments of the premium. Rule 20 on the contrary is a general provision. It comes into operation in case of breach or non-compliance of the terms and conditions of the lease or of the allotment order on default in payment or even furnishing of any wrong or incorrect information under rule 19. This rule can spring into action against any transferee even on account of wrong or incorrect information under rule 19. Rule 20 is undoubtedly a general provision covering more grounds for mobilising it for use by the Administration. The Rules, which are a part of the Act, being statutory, have provided for the cancellation of the lease. In rule 20 cancellation is provided for several reasons but in rule 12(3) default of the premium is provided specially. In such a situation, rule 20, which is general, is to give way to rule 12(3), which is special, of this category."
There is merit in the contention raised by the learned Counsel for the petitioners. The respondent-authorities could not issue notice to the petitioners under Rule 20. Rule 20 is of a general nature and it has to give way to rule 12 which deals with those exigencies when a default of any instalment of the premium is made. When the very basis of Annexure P3 is bad, the order Annexure P3 cannot be sustained. Be that as it may, the order Annexure P3 was challenged by the petitioners and vide order Annexure P4 the Appellate Authority categorically held that since the petitioners had paid the bulk of the amount relating to second and third instalments of premium and only nominal amount of Rs. 1,000/- was stated to be outstanding, therefore, by taking a lenient view into the matter, the lease of the residential site stands restored. The only dispute was with regard to the amount of forfeiture which was supposed to be paid by the petitioners within 30 days from the date of the communication of the order. The orders were communicated on 13.5.1981. In other words, this amount could be deposited on or before 13.6.198 1. There is noting to suggest on the record that the respondent-authorities took any efforts intimating the petitioners about the amount due. Rather the case of the petitioners is that they made verbal enquiries and they deposited a sum of Rs. 4,200/- on 12.6.1981. Meaning thereby that the petitioners were already ready and willing to comply with the directions of the Appellate Authority dated 30.4.1981. The Revisional Authority did not go into this aspect of the case at all nor it made any efforts to enquire as to whether the petitioners had cleared the dues or not. In fact, it appears that simultaneously with the filing of the revision, the petitioners deposited the amount of Rs. 4,200/- with a further prayer that they are ready to deposit the balance amount, if any, if time is granted to them.
9. Resumptions of the sites are very sensitive matters. Of course, under the allotment rules and conditions of allotment powers have been vested to the authorities to pass adverse orders against the allottee, who fail to comply with their commitments. But before resorting to these orders, the authorities must ensure that such orders should be passed in rare cases when the authorities are further satisfied that the default committed by the allottee is intentional and consistent. If on the contrary the conduct of the allottee indicates that he is sincere in complying with the conditions of allotment and he has taken substantial steps not only in complying the terms of allotment but also he had invested huge amount on the construction of the site for his residential purposes, harsh orders in the shape of resumption should be avoided as far as possible. It is not the intent of the law to deprive the citizens of ihe properties which they have acquired in a legal manner. As far as possible the authorities should try to accommodate its citizens unless the things have gone out of their control. In the present case it further stands proved from Annexure P10 that full premium of the plot had already been received by the authorities including the ground rent upto 18.12. t996. There is no demand notice from the side of the authorities. This aspect of the case has not been mentioned at al! in the written statements of the respondents.
10. In view of the above, it can be safely concluded that the notice of resumption which was given under Rule 20 was a bad one. If that is so, the order of resumption passed by the authorities cannot sustain in the eyes of law. Similarly, the orders passed by the Appellate Authority and the Revisional Authority had to be struck down. Moreover, since the petitioners had successfully shown that they had paid the entire amount of the premium as well as the ground rent as per the demand of the respondents, therefore, such an order should not be endorsed. The respondents have not been able to show even from their written statements as to what was the amount due against the petitioners.
11. Taking in view the totality of the circumstances, I am of the opinion that the notice Annexure P2, the order of resumption Annexure P3 dated 4.9.1978, the order dated 30.4.1981 passed by the Appellate Authority, Annexure P4 and the order dated 11.7.1988 passed by the Revisional Authority, Annexure P6 are liable to be quashed and I order accordingly. Resultantly, the petition is allowed by holding that the site in dispute cannot be resumed by the respondent-authorities and the forfeiture of Rs. 2490/- and Rs. 1400/- as premium and ground rent is illegal. There shall be no order as to costs.