Punjab-Haryana High Court
Raj Kumar And Etc. vs Union Territory And Anr. on 29 January, 1999
Equivalent citations: AIR1999P&H197, (1999)122PLR332, AIR 1999 PUNJAB AND HARYANA 197, (1999) 122 PUN LR 332 (1999) 2 RECCIVR 238, (1999) 2 RECCIVR 238
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT G.S. Singhvi, J.
1. The petitioners have prayed for quashing the orders passed by the Assistant Estate Officer, the Chief Administrator and the Adviser to the Administrator, Union Territory, Chandigarh under the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as 'the Act') read with Chandigarh Lease Hold of Sites and Building Rules, 1973 (hereinafter referred to as 'the Rules').
2. At the outset, we may notice the facts which are common to all the cases.
3. The petitioners were allotted built-up booths in Sector 17, Chandigarh on leasehold basis in view of the higher bids given by them at the auction held on 22-2-1987. The letters of allotment were issued to them in the months of March and April, 1987. They got possession of the sites in March, April and May, 1987. The electricity connections were released to all the petitioners in 1987 except the petitioners of C.W.P. No. 799 of 1995 who applied for release of electric connection in August, 1988. Their application was granted in September, 1988.
4. The particulars of the booths allotted to the petitioners, viz, the dates of auction, the dates of issue of allotment letters, the dates of handing over possession, the dates of applications for electric connections and the dates of release of electric connections etc., as made available by the learned counsel representing the respondents, are given below :--
"CIVIL WRIT PETITION NO. 15283 OF 1994 Raj Kumar and others Petitioners V. Chandigarh Administration & others Respondents Details of Built up Booth No. 2, Sector 17, (33 KV Sub Station), Chandigarh.
1. Date of Auction :
:
22-2-1987
2. Date of allotment letter :
:
27-3-87
3. Date of handing over possession :
:
27-3-87
4. Price :
:
Rs. 6,11,000/-
5. Annual ground rent :
:
Rs. 15,275/-
6. Date of cancellation :
:
8-7-1992
7. Amount due at the time of cancellation on account of 1st, 2nd and 3rd instalments :
:
Rs. 5,21,640/-
8. Date of application forrelease of electric connection :
:
21-4-1987
9. Date of release of electric connection :
:
17-11-87 CIVIL WRIT PETITION NO. 15400 OF 1994 Kuldip Kaur . . .
Petitioner V. Chandigarh Administration . . .
Respondents Details of Built up Booth No. 3, Sector 17, (33 KV Sub Station), Chandigarh.
1. Date of Auction :
22-2-1987
2. Date of issue of allotment letter :
30-3-87
3. Date of handing over possession :
:
30-3-87
4. Price :
:
Rs. 5,70,000/-
5. Annual Ground Rent :
:
Rs. 14,250/-
6. Date of Cancellation :
:
8-7-1992
7. Amount due at the time of cancellation on account of 1st, 2nd & 3rd instalments :
:
Rs. 4,49,589/-
8. Date of application for release of electric connection :
:
8-4-1987
9. Date of release of electric connection :
:
27-7-1987 CIVIL WRIT PETITION NO. 17273 OF 1994 Pritam Kukreja & another . . .
Petitioners Union Territory, Chandigarh & another . . .
Respondents.
Details of Built up Booth No. 10, Sector 17, (33 KV Sub Station), Chandigarh.
1. Date of auction :
:
22-2-1987
2. Date of allotment letter :
16-4-1987
3. Date of handing over possession :
:
22-4-1987
4. Price :
:
Rs. 5,05,000/-
5. Annual ground rent :
:
Rs. 12,625/-
6. Date of cancellation :
:
8-7-1992
7. Amount due at the time of cancellation on account of 1st, 2nd & 3rd instalments :
:
Rs. 4,17,926/-
8. Date of application for release of electric connection :
:
7-5-1987
9. Date of release of electric connection :
:
25-7-1987 CIVIL WRIT PETITION NO. 18550 OF 1994 Rajinder Singh . . .
Petitioner v.
U.P. Chandigarh Administration...
. . .
Respondents Details of Built up Booth No. 11, Sector 17 (33 KV Sub Station), Chandigarh.
1. Date of auction :
:
22-2-1987
2. Date of allotment letter :
:
29-4-1987
3. Date of handing over possession :
:
7-5-1987
4. Price :
:
Rs. 4,91,000/-
5. Annual ground rent :
:
Rs. 12,275/-
6. Date of cancellation :
:
8-7-1992
7. Amount due at the time of cancellation on account of 2nd and 3rd instalments :
:
Rs. 3,23,518/-
8. Date of application for release of electric connection :
:
9-7-87
9. Date of release of electric connection :
:
10-8-1987 CIVIL WRIT PETITION NO. 799 OF 1995 J.S. Bhaika & others . . .
Petitioners V. Union Territory, Chandigarh . . .
Respondents.
Detail of Built up Booth No. 8, Sector 17, (33 KV Sub Station), Chandigarh
1. Date of auction :
:
22-2-1987
2. Date of allotment letter :
:
22-4-1987
3. Date of handing over possession :
:
22-4-1987
4. Price :
:
Rs. 10,11,000/-
5. Annual ground rent :
:
Rs. 25,275/-
6. Date of cancellation :
:
8-7-1992
7. Amount due at the time of cancellation on account of 1st instalment :
:
Rs. 1,75,626/-
8. Date of application for release of electric connection :
:
17-8-1988
9. Date of release of electric connection :
:
13-9-1988"
5. The terms and conditions subject to which booths were leased out to the petitioners have been set out in the letters of allotment. For the purpose of convenience, Clauses 3, 5, 8, 8-A, 16, 17, 20, 29 and 30 of the letter of allotment dated 27-3-1987 issued to Raj. Kumar (petitioner in C.W.P. No. 15283 of 1994) and his co-allottees are extracted below :--
"3. The lease shall be governed by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952, as amended up to date and rules made hereunder.
5. The lease shall be deemed to have commenced from the date of auction. In case, it is intended to pay the premium in instalments, the balance of 75% of the premium together with interest thereon at 7% per annum shall be payable in three equated annual instalments, the first instalment being payable at the expiry of one year from the date of auction. Interest shall accrue from the date of auction. However, no interest shall be payable if the said 75% balance of the premium is paid in full within 30 days of the date of auction. In former case, the following shall be the schedule of payment of instalments of premium :--
Sr. No. of instalment Due date of payment Date up to which payment should be made Amount of equated instalment including interest 1st instalment 22-2-1988 10-3-1988 Rs. 1,74,616.00 2nd "
22-2-1989 10-3-1989 Rs. 1,74,616.00 3rd "
22-2-1990 10-3-1990 Rs. 1,74,616.00 Annual ground rent for 1st 33 years Rs. 15,275.00 xx xx xx xx xx
8. In the event of non-payment of any instalment of premium or rent by the 10th of the month, following the month in which it falls due or such extended period as may be allowed by the Estate Officer but not exceeding three months in all from the date on which the instalment was originally due, the Estate Officer may issue a notice to the lessee calling upon him to show cause as to why the lease may not be cancelled and the site resumed and the amount already paid forfeited to the government.
8-A. After considering the cause, if any, shown by the lessee in pursuance of the aforesaid notice, the Estate Officer may cither allow payment of instalment/rent with penalty which may extend to 100% of the amount due and interest @ 11% p.a. for the delayed period, order cancellation of lease and forfeit the whole/pan of the amount already paid.
xx xx xx xx xx
16. The site and the building erected thereon shall be used only for the purpose of Eatables i.e. Chana Bhatura and chat for which it has been leased.
17. In the event of default, breach of non-compliance of any of the conditions of lease, the lease may be cancelled and the site/building resumed and the whole/part amount paid to Govt. towards the premium/rent of the site may be forfeited to Govt. After the cancellation of lease, it shall be the responsibility of the lessee to remove the malba/structure, if any within such reasonable period, as may be prescribed by the Estate Officer, not exceeding 3 months from the date of cancellation of the lease, failing which the Estate Officer shall be competent to remove the malba or to proceed to auction the site along with the building thereon and after deducting the market price of the site make over the proceeds of the auction to the lessee. In case of any dispute arising out of determination of the amount to be paid to the lessee following the auction of the site and building, thereon, the Chief Administrator shall act as the sole Arbitrator and his decision shall be final and binding on the parties.
xx xx xx xx xx 20. Government shall not be responsible for levelling the uneven sites. xx xx xx xx xx
29. The terms and conditions of this allotment letter shall be in addition to the provisions of Capital of Punjab (Dev. & Regn.) Act, 1952, and the rules made thereunder which shall be binding on the lessee.
30. A booklet containing the Capital of Punjab (Development & Regulation) Act, 1952, the Punjab Capital (Development and Regulation) Building Rules, 1952, The Chandigarh Lease Hold of Sites and Building Rules, 1973 can be had on payment from this office."
The conditions subject to which allotments were made to other petitioners are similar except the amount of premium and ground rent, the rate of instalments and the trade for which the booths were leased out.
6. Due to the failure of the petitioners to pay instalments of premium etc., as required by Rule 12(2) of the Rules and Clause 5 of the conditions of allotment, the Assistant Estate Officer, exercising the powers of the Estate Officer, Chandigarh, initiated proceedings under Rule 12(3) of the Rules for cancellation of lease granted to the petitioners. The Assistant Estate Officer gave 10 to 12 opportunities to each of the petitioners to pay the instalments of premium and ground rent etc. but they neither paid the due nor they appeared before him to show any reasonable cause to justify the non-payment of instalments etc. Instead, they and other similarly situated lessees formed some association to exert pressure on the administration not to take coercive steps for recovery of the instalments of premium and ground rent with interest. The association submitted representation dated 7-7-1992 to the Adviser to the Administrator, Chandigarh with the request that interest and ground rent may be waived off from the date of auction because they could not carry on business due to lack of basic amenities. However, their representation was not accepted by the Adviser. The Assistant Estate Officer took notice of persistent failure of the petitioners to pay the arrears of instalments and rent etc. and cancelled the leases of the booths allotted to the petitioners. He also forfeited 10% of the premium along with interest and ground rent. The relevant portion of elaborate and well reasoned order dated 8-7-1992 passed in the case of petitioner-Raj Kumar is extracted below :--
"In spite of various opportunities the lessee(s) has/have failed to Clear the outstanding dues. The allottees have failed to pay the amount of 1st, 2nd and 3rd instalment, although many opportunities have been given. Shri J. S. Bhaika, President of the Association has given a photo copy of representation made to the Adviser to the Administrator, Chandigarh, on 7-7-1992, requesting for waiving off interest/ground rent from the date of auction on the grounds that basic amenities were not provided by the Govt. when the site was allotted to him and others. This issue has already been decided by the Govt. vide Memo No. 526-UTF1 (5)-91/16337 dated 8^5-1991 which is reproduced below :--
"2. The matter has been considered in consultation with the Legal Remembrancer, Chandigarh Administration who had opined that the existing provisions contained in the Chandigarh Lease Hold of Sites and Building Rules, 1973, (i.e. Rules 10 and 12(2) ibid) do not admit of any contingency like the release of sewerage/electric connections etc, for postponing the payment of the ground rent thereof. Unless an amendment to this effect is made, ground rent is chargeable when actual and physical possession is delivered or offered to be delivered to the lessee which is earlier.
3. As regards the other issue of charging of ground rent on the plot value and not on building portion, the ground rent shall be chargeable on the value of booth as per rules if/the built-up booths were auctioned."
From the above, it is clear that the allottees are evading payment of Govt. dues on one pretext or the other. It is a matter of record that allottees havg not cared to pay even the principal amount of instalments and interest due and the arrears on this account have accumulated to the June of Rs. 5,21,640/-. Under these circumstances, for the sake of academic discussion, even if it is presumed that the allottees deserve some sympathy regarding payment of ground rent (though there is no such provision under the 1973 Rules), the mala fide intentions of the allottees to withhold the payment of even principal amount are cleared from the fact that huge arrears on this account have accumulated against them as referred to above. Sites and built-up booths or shops in the city are leased out by way of auction under the rules quoted ibid and the allottees are required to deposit 25% of the total premium at the fall of the hammer at the time of auction and the remaining amount is to be deposited in three yearly equated instalments. For the quick and proper development in the city, Administration is charging a nominal rate of interest on the principal amount i.e. 7% only whereas the normal bank rate of interest these days is any where between 21% to 25% for raising loans for commercial activities. Therefore, obviously nobody should be allowed to flout the conditions of lease in such cases and withhold payment of Govt.
dues and to utilise the public funds for furtherance of their individual businesses. A perusal of record shows that the allottees is totally incorrigible and is a chronic defaulter for making payment in Govt. dues which have gone into arrears since Feb., 1998. I have gone through the records of the case and feel that the allottees have no intention to clear the outstanding arrears and are evading the payment on flimsy grounds. I, therefore, cancel the lease of booth 2 Sector 17, Chandigarh (33 KV station) as a last resort and forfeit 10% of the total premium of site plus interest and ground rent to the date of cancellation. Announced in the presence of Sh. J. S. Bhaika, President and Shri Raj Kumar.
Issued under my hand and seal this 8th day of July, 1992.
Sd/- Asstt. Estate Officer, Exercising the powers of the Estate Officer, Chandigarh Regd. A. D. (for No. 1 only)."
7. The Chief Administrator, Chandigarh, before whom the petitioners submitted appeals, expressed his complete agreement with the views of the Assistant Estate Officer and held that the petitioners are not entitled to any indulgence. The reasons recorded in paragraph 4 of the appellate order dated"28-l-1993 are reproduced below :--
"I have considered the arguments of both the parties and have also gone through the record of the case. Therefrom, I find that the built-up booth No. 2 Sector 17, Chandigarh was leased out to the appellants for the trade of eatables i.e. Chana Bhatura and Chat etc. at a premium of Rupees 6,11,000/- in the auction held on 22-2-1987. According to the terms of allotment, the appellants should have paid the entire amount of premium in three annual equaled instalments i.e. on 22-2-88. 22-2-89 and 22-2-90. The appellants did not abide by the conditions of allotment and failed to make payment of the amount of instalments as well as the ground rent. As a matter of fact, the appellants intentionally withheld the payment of Govt. dues on the pretext that certain facilities were not provided to them. The representative of the Estate Officer has stated that necessary facilities like water, electricity, sewerage connection and parking etc., were provided and that the appellants were running their business there. Furthermore, the appellants could not withhold the payment of the Govt. dues simply because there had not been provided certain amenities in the very beginning. The Estate Officer during the proceedings under Rule 12(3) of the Chandigarh Lease Hold of Sites and Building Rules, 1973, gave the appellants several opportunities to liquidate their liability but they failed to do so. From their act and conduct it is abundantly clear that they deliberately withheld the payment of huge amounts. They are still not inclined to pay the amount of arrears. Under Rule 6 of the Chandigarh Lease Hold of Sites and Building Rules, 1973, the lease commences from the date of auction and under Rule 11 of these Rules, the ground rent starts accruing from the date lessee took over the possession of the site or the date on which the possession is offered. In this case, the appellants having taken over the possession of the demised premises and they having running their business in the demised premises. The lease starts from the date of auction and the ground rent started becoming the due from the date the appellants took over the possession of the demised premises. They having failed to pay the amount of premium and ground rent particularly when they had taken over the possession of booth and having been running their business in the demised premises. I do not find any merit in the present appeal Since the ground for passing the impugned order was the non-payment of Govt. dues which ground still persists. I do not find any justification to interfere with the impugned order. This appeal is, accordingly, dismissed.
Chandigarh, dated Sd/- Chief Administrator, The 28-1-1993. Chandigarh Administration"
8. The Adviser to the Administrator dismissed the revision petitions filed by the petitioners under Rule 22(4) of the Rules. He also dismissed the review applications filed by them. Paragraphs 3, 4 and 5 of the order dated 18-8-1993 passed by the revisional authority dismissing the revision petition of Raj Kumar read as under:--
"3. I have heard the learned counsel for the petitioner, representative of the Estate Officer and have gone through the records of the Estate Officer, carefully.
4. The counsel for the petitioner argued that the built-up booth was purchased on leasehold basis for trade of eatables. After payment of 25% the possession of the booth was taken over and it was noticed that there was no electricity as well as water and sewerage connection in the said booth. Even the necessary amenities like smoke pipe was missing. The petitioners represented to the Administrator but the Administration failed to provide the said amenities. Since the basic amenities were not provided, the petitioners are not liable to pay the interest, ground rent, instalments etc. A prayer was made for setting aside the impugned order. The representative of the Estate Officer argued that the petitioners have failed to make the payment of the 1st, 2nd and 3rd instalments despite number of opportunities given to them. The petitioners are not entitled to any relief.
5. After hearing the parties and going through the record of the Estate Officer, I do find that the demised booth was leased out to the petitioners for the trade of eatables in the year 1987 and according to the terms of allotment, they were required to pay the entire balance amount of premium in three annual equated instalments. Since the petitioners have failed to make the payment of the 1st, 2nd and 3rd instalments till today, I am convinced that they are not serious in making the payment, thereof. The petitioners thus deserve no sympathy. Consequently, the present petition is dismissed.
Announced. Parties be communicated.
Chandigarh, dated the Sd/- (Ramesh Chandra) 18th August, 1993v Adviser to the Administrator, Union Territory, Chandigarh."
9. The petitioners have challenged the impugned orders on the ground that the administration could not have taken punitive action for their alleged default in the payment of instalments of premium, ground rent and interest because the basic amenities necessary for doing the business of selling eatables etc. had not been provided by the administration.
10. In separate but identical written statements, the respondents have averred that the petitioners were provided with water and electricity connections and other basic amenities at the sites but after taking possession of the booths by paying 25% of the premium, they did not pay the instalments on the false pretext of lack of amenities. The respondents have also averred that the petitioners have been doing business after taking possession of the built-up booths in the centrally located and fully developed Sector 17 but they have deliberately avoided payment of dues in the form of instalments of premium etc. in accordance with the provisions of the Act and the Rules and the terms and conditions of allotment and as such, they are not entitled to any relief under Article 226 of the Constitution of India.
11. The first contention urged by S/Shri M. L. Sarin and S. P. Jain, senior counsel appearing for the petitioners, is that the Assistant Estate Officer did not have the jurisdiction to initiate proceedings under Rule 12(3) of the Rules for cancellation of the leases of the booths allotted to the petitioners because the Chandigarh Administration failed to fulfil its contractual obligation of giving fully developed sites. Learned counsel submitted that due to the lack of basic amenities like water and electricity, parking place etc., the petitioners could not run their business profitably and, therefore, they cannot be held guilty of non-payment of instalments of premium etc. The second contention of Shri Sarin and Shri Jain is that the cancellation of the leases granted to the petitioners should be declared arbitrary, discriminatory and violative of their fundamental right to equality guaranteed under Article 14 of the Constitution of India because in the cases of the lessees of booth Nos. 7 and 13, the administration has accepted the payment made during the pendency of revision petition and writ petition. Shri Sarin placed before the Court photostat copies of the order dated 7-3-1995 passed by the Adviser to the Administrator, Union Territory, Chandigarh in petition No. 115 of 1994, Sukhjit Singh (lessee of booth No. 7) v. The Estate Officer, Union Territory and the order dated 22-4-1996 passed by the High Court in C.W.P. No. 16500 of 1995, Sudarshan Kumar Jain (lessee of booth No. 13) v. Union Territory, Chandigarh and others in support of the above noted submission. The third and the last submission of the learned counsel is that the petitioners have already paid the arrears of instalments of premium, ground rent together with interest and, therefore, the delay in deposit of the dues should be condoned as was done in the case of Sudarshan Kumar Jain.
12. Shri Ashok Aggarwal urged for dismissal of the writ petitions by arguing that the finding of fact recorded by the Assistant Estate Officer, i.e., that the petitioners are guilty of wilful default in the payment of instalments of premium along with interest and ground rent, which have been affirmed by the appellate and the revisional authorities, do not suffer from any error of law. He further argued that the contumacious conduct of the petitioners of not paying the dues of instalments etc. Tor years together should be treated as sufficient to dis-entitle them from getting any relief under Article 226of the Constitution of India. He submitted that the order passed by the Adviser to the Administrator in the case Of Sukhjit Singh cannot be treated as a precedent to be followed in other cases because it is not only contrary to law but is opposed to public policy and is also detrimental to public interest. Shri Aggarwal relied on the following judgments of this Court in support of his submission that the writ petitions merit dismissal:--
(i) C.W.P. No. 9503 of 1996, Ajit Singh v. Chandigarh Administration, decided on 29-8-1996;
(ii) C.W.P.No. 17947 of 1995, Ashok Kumar v. Union Territory, Chandigarh, decided on November 20, 1996;
(iii) C.W.P. No. 14865 of 1995, Smt. Maya Devi v. Union Territory, Chandigarh, decided on July 3, 1997;
(iv) C.W.P. No. 3370 of 1997, Sukhpal Singh Kang v. Chandigarh Administration decided on October 16, 1998 (reported in AIR 1999 Punj & Hry 156).
13. Before we deal with the rival arguments, it will be useful to notice the relevant statutory provisions and analyse them.
14. The Act was enacted by the Legislature to re-enact and modify the law in relation to the development and regulation of new capital of Punjab. Section 8-A of this Act empowers the Estate Officer to resume the site or building or booth and forfeit any part of the money paid in respect thereof in case of default in the payment of consideration money provided that such forfeiture shall not exceed 10% of the total consideration money, interest or other dues. Section 10 of the Act provides for appeal and revision by any person who is aggrieved by an order of the Estate officer made under Section 8 or 8-A. In exercise of the powers conferred by Sections 3 and 22 of the Act as adopted by the Punjab Re-organisation (Chandigarh adaptation of Laws on State and Concurrent Subjects) Order, 1968, the Administrator of the Union Territory, Chandigarh made the Rules. Rule 4 of the Rules empowers the Chandigarh Administration to transfer sites and buildings at Chandigarh on lease for 99 years by allotment or by auction in accordance with the provisions of the Rules. Rule 5 empowers the Chief Administrator to reserve sites/buildings for groups of individuals or for persons practising any profession or carrying on any occupation, trade or business or for the implementation of any scheme framed by the Chandigarh Administration. Rule 9 contains the procedure for grant of lease by auction. Rule 9-A empowers the Chief Administrator to extend the period for deposit of 25% of the auction money. Rule 10 provides for delivery of possession. Rule 12 contains the provisions for payment of premium and consequences of non-payment or late payment. Rule 13 speaks of the rate of rent and consequences of non-payment. Rule 17 enumerates general conditions of lease. Rule 20 empowers the Estate Officer to cancel the lease and forfeit the whole or part of the ground rent on the ground of default, breach or non-compliance of any of the terms and conditions of the lease or for furnishing in writing incorrect information under Rule 19. There are two rules numbered Rule 21-A. First of these empowers the Administrator to relax all or any provisions of the Rules. The second one empowers the Estate Officer to re-transfer the site of which the lease has been cancelled under Rules 10, 12 or 20. Rule 22 contains provisions for appeal and revision by any person feeling aggrieved by an order of the Estate Officer made under Rules 10, 12, 13, 20 or 21.
15. Section 8-A of the Act and Rules 12 and 20 of the Rules, which are relevant in the context of the issues raised in this petition are reproduced below:--
1952 Act : "8-A. Resumption and forfeiture for breach of conditions of transfer.-- (1) If any transferee has failed to pay the consideration money or any instalment thereof on account of the sale of any site or building or both, under Section 3 or has committed a breach of any other conditions of such sale, the Estate Officer may, by notice in writing, call upon the transferee to show cause why an order of resumption of the site or building, or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the site or building or both should not be made.
(2) After considering the cause, if any, shown by the transferee in pursuance of a notice under Sub-section (1) and any evidence he may produce in support of the same and after giving him reasonable, opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded in writing, make an order resuming the site or building or both, as the case may be, so sold and directing the forfeiture as provided in Sub-section (1), of the whole or any part of the money paid in respect of such sale, The 1973 Rules : 12. Payment of premium and consequences of non-payment or late payment :-- (1) In addition to payment of 25 per cent premium under Rule 8 or 9 as the case may be the remaining 75 per cent premium may be paid in lump sum within 30 days from the date of allotment/auction without any interest.
(2) If payment is not made in accordance with Sub-rule (1) of this rule, the balance of the 75 per cent premium shall bepaid in three annual equated instalments along with interest at the rate of 7 per cent per annum (or at such higher rate of interest as may be fixed by the Chief Administrator by a notification in the Official Gazette) before the commencement of the lease. The first instalment shall become payable after one year from the date of allotment/auction. Provided that in the case of allotment of site or building of Small Scale Industries as defined by Chandigarh Administration from time to time in the industrial area, the balance of the 75 per cent of the premium may be paid in ten annual equated instalments or such other number of annual equated instalments as may from time to time be fixed by the Chief Administrator along with interest at the rate of 10 per cent per annum or such higher rate of interest as may be fixed by the Chief Administrator by a notification before the commencement of the lease.
(3) In case any instalment is not paid by the lessee by the date on which it is payable, a notice may be served on the lessee calling upon him to pay the instalment within a period of 3 months together with a penalty which may extend up to 10 per cent of the amount due. If the payment is not made within the said period, the Estate Officer may cancel the lease and/or forfeit the whole or any part of the money if paid in respect thereof which, in no case, shall exceed 10 per cent of the total amount of the consideration money, interest and other dues payable in respect of the lease:
Provided that forfeiture will not be made in addition to penalty;
Provided further that no order of cancellation or forfeiture shall be made without giving the lessee a reasonable opportunity of being heard. If the order of cancellation is for non-payment or penalty, the lessee may show cause why the penalty should not have been levied.
(3-A) In case any equated instalment or ground rent or part thereof is not paid by the lessee by the date on which it became payable he shall be liable to pay in respect of that instalment or ground rent or part thereof as the case may be, interest calculated at the rate of twenty four per cent per annum from the date on which the instalment or ground rent became payable till such date it is actually paid-
(4) Each instalment shall be remitted to the Estate Officer by the prescribed mode of payment. Every such remittance shall be accompanied by a letter showing full particulars of the site of building to which the payment pertains or a statement giving reference to the number and date of the allotment referred to in Rule 8. In the absence of these particulars, the amount remitted shall be deemed to have been received only on the date when the remitter supplies correct and complete information.
xx xx xx xx
20. Notwithstanding and without prejudice to other provisions of these rules the Estate Officer may, by notice in writing, cancel the lease and forfeit the whole or part of the premium and ground rent paid in respect thereof which in no case shall exceed ten per cent of the total amount of premium, interest and other dues payable in respect of the site or building or both as the case may be, on the ground of default, breach or non-compliance of any of the terms and conditions of lease or for furnishing in writing incorrect information under Rule 19 :
Provided that no order regarding cancellation of lease/forfeiture under this rule shall be made unless the lessee has been given a reasonable opportunity of being heard.
xx xx xx xx
16. A conjoint reading of the provisions extracted hereinabove shows that the lease of the sites and buildings allotted or auctioned by the Administration commences from the date of allotment or auction. The tenure of the lease is 99 years. It is renewable on such terms and conditions as the administration may decide. Where the lease is granted by auction, at least 25 per cent of the bid money is to be paid on the spot. Proviso to Rule 9 empowers the Estate Officer to accept 10 per cent of the bid money and give 30 days further time to the bidder to deposit the remaining of 25 per cent. Rule 9-A empowers the Chief Administrator to condone the delay in the deposit of 25 per cent of the bid money or to extend the time on such terms and conditions as he thinks fit including the payment of the penalty not exceeding 10 per cent of the amount in default in addition to the interest at the normal rate. Rule 12(1) gives option to the lessee to pay 75 per cent premium in lump sum within 30 days from the date of allotment/auction without any interest. Rule 12(2) lays down that if the lessee does not opt for payment in lump-sum then the balance of 75 per cent premium has to be paid in three equated yearly instalments along with interest at the rate of 7% per annum or such higher rate of interest as may be fixed by the Chief Administrator by a notification in the official Gazette before the commencement of the lease. The figure 7 came to be substituted by 10 vide notification dated 29-10-1990. Proviso to Rule 12(2) which relates to the allotment of the site or building for Small Scale Industries is not relevant for the purpose of this case. Rule 12(3) lays down that in case the lessee fails to pay any instalment by the date on which it is payable the Estate Officer may serve a notice on the lessee calling upon him to pay the instalment within a period of three months together with a penalty which may extend to 10 per cent of the amount due and if the payment is not made within the said period, the Estate Of-
ficer may cancel the lease and/or forfeit whole or any part of the money paid in respect thereof. However, the forfeiture shall not exceed 10 per cent of the total amount of the consideration money, interest and other dues payable in respect of the lease. The first proviso to Rule 12(3) says that forfeiture will not be in addition to penalty. The second proviso to Rule 12(3) requires giving of a reasonable opportunity of being heard to the lessee before an order of cancellation or forfeiture can be made. Sub-rule (3-A) of Rule 12 which came to be added vide notification No. 5112-UTF (III) dated 15-12-1979 lays down that the lessee shall be liable to pay interest calculated at the rate of 12% in case any equated instalment or ground rent or part thereof is not paid by the lessee by which date it becomes payable. The figure of 12 has been twice substituted by the figures 15 and 24 vide notifications dated 29-12-1990 and 22-7-1993.
17. In the light of the above analysis of the relevant provisions, it is to be seen whether the impugned orders suffer from want of jurisdiction or an error of law warranting interference by this Court in exercise of its equitable jurisdiction.
18. A bare perusal of the various clauses of the letter of allotment, extracted hereinabove, shows that the petitioners were made aware of their liability to pay 75% of the premium either in lump-sum without interest or in three equated instalments together with interest. The petitioners were also made aware of their liability to pay the penalty in case of failure to pay the instalment/rent and also of the possibility of cancellation of the lease of the site and the forfeiture of the premium already deposited or a part thereof. The provisions of the Act and the Rules were made part of the conditions of allotment. Therefore, the same were binding on the petitioners who were under obligation to comply with the same in order to continue to avail the benefit of allotment made in their favour. However, they contemptuously ignored their liability to pay the instalments of premium in accordance with letter of allotment. Due to their persistent failure to abide by the terms and conditions of the contract entered into between them and the Chandigarh Administration, the petitioners made themselves liable to be proceeded against under Rule 12 of the Rules. They were given ample opportunity to show cause against the proposed action of can-
collation of the lease but the petitioners exhibited complete lack of seriousness and did not take steps to comply with the requirement of paying the instalments of premium, ground rent etc.
19. In the orders of cancellation, the Assistant Estate Officer has given elaborate and cogent reasons for holding that the petitioners are guilty of wilful default in the payment of instalments of premium along with interest and ground rent. The appellate and the revisional authorities have expressed their complete agreement with the views expressed by the Assistant Estate Officer. Therefore, we do not find any valid ground to interfere with the orders of cancellation, particularly, because learned counsel for the petitioners have not been able to draw our attention to any patent error in the finding recorded by the concerned authorities.
20. The argument of Shri Sarin and Shri Jain that the impugned orders should be declared arbitrary and violative of Article 14 of the Constitution of India is without substance. It cannot be doubted that the property vesting in the Central Government/Chandigarh Administration is a public property and the Administration is its trustee. Section 3 of the Act empowers the Central Government/Administration to dispose of the property by allotment or by auction. In exercise of powers vesting in him under Section 3 read with Section 22 of the Aet, the Governor of Punjab enacted the Chandigarh (Sale of Sites and Buildings) Rules, 1960 (for short the 1960 Rules). After 13 years, the Administrator of the Union Territory enacted the Rules. Under the two sets of rules, the administration was/has been given power to sell and/or lease out the property by allotment or by auction with the condition of payment of premium in instalments. These provisions were enacted for achieving twofold objective. Firstly, the government wanted to attract more and more people to settle in the new city. Secondly, it wanted to augment the revenue which could be utilised for undertaking development of the city beautiful. If the Act and the Rules contained a provision that the competent authority can dispose of the property only by outright sale, no exception could have been taken by anybody. By enacting provisions for payment of lease money in instalments, the Legislature and the rule making authority will be deemed to have given concession to those who are desirous of taking public property on lease basis. For availing this concession, the allottee is duty-bound to pay the premium in lump sum within 30 days without being required to pay interest or to pay the same in three equated instalments along with interest. The provision for cancellation of lease in the case of default has been incorporated primarily for protecting public property from unscrupulous allottees. However, the rules of natural justice have been statutorily engrafted in Section 8-A of the Act and Rule 12(3) of the Rules. In other words, the competent authority is required to give notice and opportunity of hearing to the lessee before an order cancelling the lease can be passed on the ground of non-payment of premium etc. Thus, the procedure prescribed for cancellation of the site/building is consistent with the rules of natural justice and the provisions of Rule 12 do not, in any manner, offend the concept of the fair procedure which forms an integral part of the scheme of our constitutional system. So far as these cases are concerned, ample opportunity was given to the" petitioners to pay the arrears of instalments and to show cause against the proposed action. It is a different thing that they did not choose to offer any justification whatsoever for not having paid the dues. Therefore, it is not possible to hold that the impugned orders arc arbitrary.
21. At this stage, we may refer to some decisions of this Court and of the Supreme Court regarding interpretation of the provisions of the Act and the Rules framed thereunder.
22. The constitutional validity of Section 9 of the Act was considered in L.P.A. No. 218 of 1965, Jagdish Chand Radhey Shyam v. State of Punjab and others, decided on 21-2-1966. A Division Bench of this Court rejected the argument that power of resumption conferred upon the Estate Officer is ultra vires to the provisions of the Constitution. That decision was reversed by the Supreme Court in Jagdish Chand Radhey Shyam v. State of Punjab, AIR 1972 SC 2587. While striking down Section 9 of the Act, their Lordships observed (at p. 2590 of AIR):--
"The Act creates a charge on the property. The Act forbids creation of a third party right by the transferee until the amount represented by the charge is paid in full. In the teeth of statutory security and enforceability it is totally unreasonable restriction on the enjoyment of property by resuming the site for defaults in payments of money and forfeiting the monies paid by the transferee. For these reasons, we are of the opinion that the Government is not entitled to forfeit the monies paid and resume the site under the provisions contained in Section 9 of the 1952 Act. These provisions violate Articles 14 and 19(1)(f). These provisions are unconstitutional."
23. Thereafter, the Parliament amended the provisions of the Act by Act No. XVII of 1973. By virtue of the amending Act, Section 3 was amended. Section 8 was substituted, Section 8-A was introduced and Section 9 was omitted.
24. In Brij Mohan v. Chief Administrator, AIR 1980 Punj &Hry 236, aFull Bench held that the resumption is an incident of a deprival of the ownership right concerning the transferee and this course was permissible under Section 8-A. However, in Amrit Sagar Kashyap v. Chief Commissioner, U.T., Chandigarh, (1980) 82 Pun LR 441, a Division Bench gave a different meaning to the words resume and resumption. The correctness of the decision of the Division Bench was doubted in some other cases resulting in reference of the controversy to a larger bench. In Ram Puri v. Chief Commissioner, Chandigarh, AIR 1982 Punj & Hry 301, a Full Bench examined the controversy at great length and by a majority decision, it has been held that:
"The word resumption under Sec. 8-A means clearly the divestiture of title of a building or the site, as the case may be and not merely a temporary divesting of possession only. It is an error to construe the word resumption as meaning only a temporary divesting of possession in favour of a trustee who is obliged to restore the same if the default is later rectified. So construed the sanction under the Statute far from being in any way effective would render the same totally futile and the misuse sought to be prohibited could be made with absolute impunity. The true import and width of the word resumption designedly used by the Legislature in Section 8-A must be construed in the context in which it is placed for the longer purposes of the Act and not in abstruse isolation. One of the avowed objects of the Act was not only to have a planned city but of creating its capital within the shortest possible time. This was sought to be effectuated by making it a necessary condition of purchase that the site sold would be built upon within a prescribed period.
If a violation of the aforesaid condition is made and the transferee recalcitrantly refuses to build thereon then the Estate Officer by taking possession of such a vacant site merely becomes a gratuitous caretaker of the same till the transferee chooses to exercisehis option of building thereon. In a situation of this kind the very purpose and the spirit of the Act of creating a new capital speedily would be totally frustrated. Equally it would render the authorities powerless agai nst the terrible evil of profiteering in developed urban sites by unscrupulous transferees who could definitely bide their time till prices escalated sky high whilst the Estate Officer gratuitously guarded their unbuilt sites."
25. The Full Bench rejected the argument raised on behalf of the petitioner that Section 8-A is violative of the Articles 14 and 19(1) of the Constitution and held :--
"The subsequent amendments introduced in Sections 3 and 8 as also the deletion of Section 9 together and its substitution by Section 8-A of the Act was designed to and has undoubtedly cured the infirmities which their Lordships had discerned in the previous provisions in Jagdish Chand Radhey Shyam' s case (AIR 1972 SC 2587). By these legislative changes the charge on the transferred site has been abolished and similarly the clog on the transfer to the third party stands removed. Further there are now in-built guarantees and safeguards provided in Section 8-A itself by ensuring a reasonable opportunity to show cause against any proposed resumption or forfeiture. A further limitation that forfeiture is no case shall exceed 10 per cent of the total amount of consideration money has been itself laid down therein. The Estate Officer is obliged to record his reasons after giving adequate opportunity including the right to lead evidence to the transferee before passing an order adverse to his interest. Further the statute and the rules thereunder provide for an appeal and revision against such orders. Therefore, it cannot be said that Section 8-A suffer from the vice of discrimination or in any way violate the equality clauses under Article 14 of the Constitution. .............. The fundamental right under Article 19(1)(f) to acquire, hold and dispose of property is not an absolute right. It can be hedged in by the imposition of reasonable restrictions on its exercise in the interest of general public. Apart from this express limitation imposed by the Con-
stitution itself binding precedents of the final Court have authoritatively highlighted that in this context considerations of large, social and public purpose are germane to the construction of this Article. The challenge to the constitutionality of a statute on the anvil of Article 19(1)(f) is not merely to be judged from the particular provisions of the section alone. It is permissible and indeed desirable for the Court to take judicial notice of the facts, which led to the enactment of the statute and the avowed objects and reason thereof. Again the preamble to the Act may provide a clue to its interpretation. Further the provisions of the impugned Section along with the other supplementary provisions of the Act as also the statutory rules made thereunder, have also to be viewed as a whole for testing its constitutionality............. It is well settled that the taint of unconstitutionality does not attach to a provision of law merely because there may be remote possibilities of the abuse of power conferred thereby. In such a situation it is only the arbitrary or the wrongful exercise of the power which can be struck down but not the statute itself. The entire Act was purposefully directed to provide a reasonable social control of the urbanisation visualised by the creation of an altogether new capital city for the State from scratch. The three-fold pre-eminent ideas underlying the same were the need and incentive to create an altogether new town at a place where none existed and that too within the shortest possible time, and further to ensure that it conformed to an ideal concept of a planned city as against the haphazard urbanisation or the mushroom growth of slums which in the ultimate analysis can even strangulate an existing town to extinction. It is not mandatory for the authority to order resumption, but only in extreme cases it enables it to do so when the other powers and sanction to enforce the purpose of the Act have failed, or in the circumstances it is the only remedial power which can be applied. Therefore, it is farcical and imaginary to assume that the authority would necessarily use this power arbitrarily and whimsically and that they will use this hammer to swat a fly.
In the larger conspectus of the purposes of the Act itself, its preamble; the specific provisions of Section 8-A; the setting in which it is placed along with the supplementary sections of the Act and the rules framed thereunder, it has to be held that the enabling power of resumption conferred thereby is only a reasonable restriction on the fundamental right to hold, acquire and dispose of property and he is, therefore, in no way violative of Article 19(1)(f)........"
26. The correctness of the majority judgment of the Full Bench has been considered by the Apex Court in Babu Singh Bains v. Union of lndia,(1996) 9 JT(SC) 371: (AIR 1997 SC 116), their Lordships referred to the majority judgment in Ram Puri's case (AIR 1982 Punj & Hry 301) and then held (at p. 120 of AIR):
"Accordingly, the Full Bench had held that Section 8-A was brought on Statute with a view to bring it in conformity with the purpose of the Act seeks to subserve. Learned counsel for the appellant relied upon the minority judgment of learned Judge, with due respect, sought to set the clock back to the Amendment by constructing the meaning of the words forfeiture and resumption and the consequential effect on general principles of law without giving needed effect to the object of the Amendment. Once the Statute occupied the field and gave power to resume the land or building subject to the conditions mentioned therein, the general principles of resumption and other principles considered therein absolutely remained no more relevant. The majority judgment has rightly focussed the question in the correct perspective and had held that Section 8-A is valid in law and, therefore, not violative of Article 14. In Northern India Caterers (Pvt.) Ltd. v. State of Punjab, AIR 1967 SC 1581, this Court had held that when there are two modes of procedure, one being more drastic and harsher than the other without any guildelines, invocation of the former was violative of Article 14 which was reversed by a larger bench in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, AIR 1974 SC 2009 knocking the bottom of the plea of constitutional invalidity of Section 8-A on the anvil of Article 14. Though softer course under Section 15 was available, Section 8A does not become invalid on that score. Section 9 has been deleted and procedural safeguards have been provided in Section 8-A. Therefore, Section 8A, having provided fair procedure, does not become arbitrary and violative of Article 14. For these reasons and also for the reasons given in the majority judgment, we are of the view that Section 8-A is not violative of Article 14 since it has prescribed an in-built procedure of giving an opportunity and right to adduce evidence and consideration thereof by the Estate Officer before resumption and to pass a reasoned order in support thereof. The order is also subject to an appeal before the Chief Administrator. If permissible, within scribed parameters, appellate order may be subject to judicial review under Article 226. Since this procedure was not available under Section 9 of the Act, this Court had declared it as ultra vires of Article 14. The vice pointed out by this Court in Jagdish Chand's case (AIR 1972 SC 2587) (supra) has been cured by introducing Section 8-A. It would, therefore, be clear that the resumption under Section 8-A is not only in case of non-payment of dues under the sale but for violation of the conditions of the sale, the rules, regulations and other relevant conditions applicable in that behalf. Therefore, we do not find any invalidity in Section 8-A."
27. In C.W.P. No. 9503 of 1995, Ajit Singh v. Chandigarh Administration through Administrator, Union Territory, decided on 29-8-1996, the order of cancellation as well as the orders passed by the appellate and the revisional authorities were challenged on various grounds set out in the writ petition one of which was that the petitioners could not carry out their business effectively because the basic amenities had not been provided by the Administration. While dismissing the writ petition, this Court held as under:--
'There is another important reason why no indulgence should be shown to the petitioners. The allotment letter, Annexure-P.1, contains a clear stipulation regarding the schedule of payment. Para 8 of the allotment letter postulates cancellation of lease on account of non-payment of instalments money. Para 8-A empowers the Estate officer to allow payment of instalments with penalty up to 100 per cent of the amount due and interest at the rate of 12 per cent for the delayed period. Duty to pay fee and taxes etc. was also of the petitioners. In addition to the conditions incorporated in the letter of allotment, the petitioners were bound to abide the provisions of the Act and the Rules. The general terms and conditions laid down by the Administration form part of the contract entered into between the petitioners and the respondents. Paras 11, 12 and 21 of the general conditions also contemplate payment of 25 per cent amount as a condition precedent to the acceptance of bid; remaining 75 per cent in three equated instalments along with interest; and cancellation of the lease as well as forfeiture of the whole or part of the premium already paid. The petitioners took possession of the property andraised construction thereon after having accepted the conditions incorporated in Annexnres-P.1 and R.1. They did so knowing fully the implications and consequences of their failure to pay the instalment money. After having accepted those conditions and taken public property on an assurance that they would faithfully comply with the conditions of payment laid down by the Administration, the petitioners are not entitled to plead that they were not bound to make payment of instalments on the ground that basic amenities were not provided by the Administration. We may add that payment of instalments was not subject to the Administration's providing basic amenities to the petitioner. Rather the conditions incorporated in Annexures-P. 1 and R. 1 made it obligatory for the petitioners to pay their duties. Thus, the petitioners cannot wriggle out of the contract which they had entered into with the respondents. In matters like the present one, writ jurisdiction cannot be exercised by the High Court to permit a party to commit a breach of the terms and conditions of contract of allotment."
28. The question whether the allottees of commercial sites can avoid payment of instalments of premium and ground rent has been considered by this Court and answered in the negative while deciding C.W.P. No. 3370 of 1992 (reported in AIR 1999 Punj & Hry 156), Sukhpal Sing Kang v. Chandigarh Administration. Some of the observations made in that case are:--
"The argument of the learned counsel that the respondents are estopped from making recovery of the instalments of premium etc. because they have violated the terms and conditions of contract entered into with the petitioners by not providing the amenities is wholly untenable. At the cost of repetition, we deem it appropriate to observe that neither in the conditions of auction nor in the terms of allotment any indication was given to the petitioners that the respondents will be giving possession of the fully developed sites or that the availability of amenities like approach roads, street lights, parking places etc. would constitute a condition precedent for payment of instalments. Therefore, the petitioners cannot avoid their liability to pay the instalments of premium and ground rent. That apart, after having taken part in the auction with full knowledge of the terms and conditions notified by the respondents and having accepted the leases of the sites on the basis of terms and conditions incorporated in the letters of allotment without any protest, the petitioners will be deemed to have agreed to pay the amount of premium along with interest and ground rent in terms of Rules 12 and 13 of the 1973 Rules. In our considered opinion, the petitioners cannot seek, intervention of the Court for getting themselves relieved of their obligation to pay the amount due to the respondents in accordance with the terms of contract."
29. Two of the cases relied upon by Shri Ashok Aggarwal are almost identical to these petitions. The facts borne out from the order passed in Civil Writ Petition No. 17947 of 1995, Ashok Kumar v. Union Territory, Chandigarh, show that the petitioners were allotted built-up booth No. 15, Sector 17 for a premium of Rs. 4,61,000/- on the basis of the highest bid given by them at the auction held on 22-2-1987. Likewise, the facts of Civil Writ Petition No. 14865 of 1995, Smt. Maya Devi v. Union Territory, Chandigarh, show that built-up booth No. 6, Sector 17 was allotted to the petitioner on the basis of the highest bid of Rs. 5,33,000/- given by her at the auction held on 22-2-1987. In both the cases, leases were cancelled due to non-payment of instalments etc. After the dismissal of the appeals and the revision petitions filed by them, the petitioners invoked the writ jurisdiction of the High Court for invalidation of the adverse orders. The main ground on which the petitioners sought quashing of the order of cancellation was that the administration has failed to provide amenities. In Ashok Kumar's case (supra), the Court rejected this plea by making the following observations :--
'The argument of the learned counsel that the Administration was taking advantage of Us own default by not providing amenities to the petitioners is wholly without substance. The petitioners had taken possession of the site in question after having given highest bid for the same in an open auction and made payment of 25% of the premium. They must have been aware of whatever amenities were available at the site. In the allotment letter, there is no indication of any special amenity being provided to the petitioners. Thus, there is no substance in the plea of the petitioners that they were not required to pay the amount of instalments because of the failure of the administration to provide amenities to them."
30. In Smt. Maya Devi's case (supra), the Court observed as under :--
"We have heard learned counsel for the parties and have carefully perused the record of the case. There is no dispute between the parties that in accordance with the terms incorporated in the letter of allotment, the petitioner and her co-allottee had the option to pay 75 per cent of the premium in lump-sum within a period of 30 days from the date of allotment or to pay the same in three equated annual instalments and also that the petitioner and her co-allottee did not pay the 75 per cent amount in lump-sum. It is, therefore, reasonable to infer that the allottees had opted to pay the remaining premium in three equated instalments. However, after exercising the option to pay the remaining amount of premium in three equated instalments, the petitioner and her co-allottee failed to pay even a single penny. This prompted the Assistant Estate Officer to issue notice dated 4-5-1988 under Rule 12(3) with the allegation that the allottees had wilfully failed to pay the amount of instalment and the ground rent which fell due on 22-2-1988. Even thereafter, the allottees did not bother to discharge their contractual obligation. Rather they persisted with default and did not pay the second and third instalments as well. Their contumacious conduct to grab the public property without paying the amount due to the Administration is amply exhibited by the fact that they not only refrained from paying the amount which was due in the form of instalments on the dates specified in the allotment letter but they did not avail the concession given by the Assistant Estate Officer to them to clear the dues by keeping the proceedings pending for over two years. In this factual background, we do not find any justification to accept the plea of the learned counsel that the respondent No. 3 did not have the jurisdiction to initiate action against the petitioner and her co-allottee for cancellation of the lease of the site."
31. In view of these judicial precedents, we have no hesitation to hold that the petitioners could not have avoided their statutory as well as contractual obligation to pay the instalments and the Assistant Estate Officer cannot be said to have acted illegally when he cancelled their respective leases by holding them guilty of wilful default in the payment of instalments of premium with interest and ground rent as required by Rules 12 and 13 of the Rules. The well reasoned conclusions recorded by the Assistant Estate Officer, which have been reiterated by the appellate and the revisional authorities and with which we express our complete agreement, are amply supported by the fact that at the time of giving bid at the open auction held on 22-2-1987, the petitioners did not point out that the basic amenities were lacking. They accepted the offer of lease without putting any condition. Even at the time of taking possession, the petitioners did not make grievance that they will not be able to do business due to lack of amenities. In response to the notice issued by the Assistant Estate Officer under Rule 12(3), the petitioners did not raise the plea of lack of amenities but after 5 years of accepting the allotment, they made representations to the administration through the President of the Association for relieving them of the obligation to pay instalments on the ground of lack of amenities. This conduct of the petitioners amply supports the conclusion recorded by the Assistant Estate Officer that the petitioners have concocted the plea of lack of amenities in order to get themselves relieved of their contractual obligation to pay the instalments of premium etc. and, in our opinion, this is sufficient to reject the argument of the learned counsel that the Assistant Estate Officer did not have the jurisdiction to initiate proceedings for cancellation of the lease of the booths allotted to the petitioners.
32. The argument of Shri Sarin and Shri Jain that the impugned decision should be quashed on the ground of discrimination appears quite attractive in the context of the order dated 7-3-1995 passed by the Adviser to the Administrator in favour of Sukhjit singh and the order dated 22-4-1996 passed by this Court in C.W.P. No. 16500 of 1995 but after having gone through these orders, we are convinced that the orders passed by the Assistant Estate Officer cannot be quashed on the ground of violation of Article 14 of the Constitution of India. Revision petition No. 115 of 1994 filed by Sukhjit Singh was decided by the Adviser to the Administrator in the Lok Adalat by making the following order :--
"This revision petition was placed before me in the Lok Adalat today. The petitioner submitted draft worth Rs. 6 lakhs and undertook to pay the outstanding balance amount by 31st March, 1995 along with penalty amount. However, request for waiving of forfeiture amount was made. In this regard, statements of the parties have been recorded separately. Keeping in view the fact that the petitioner has paid 6 lakhs today and in view of the above undertaking I take lenient view in the matter and by accepting the revision petition restore the booth in question to the petitioner subject to the condition that he pays all the balance outstanding amount together with penalty amount by 31st of March, 1995. However, forfeiture amount as imposed by the Estate Officer is waived off.
Parties be communicated.
Sd/-
Chandigarh, dated the (V.K.Duggal) 7th March, 1995. Adviser to the Administrator Union Territory, Chandigarh."
33. The writ petition filed by Sudarshan Kumar Jain was disposed of by the High Court on 22-4-1996 by passing the following order :--
"Counsel for the respondents states that the total amount due towards the petitioner including the interest and penalty etc. has been paid by him which stands duly credited to his account. The site in dispute was resumed on account of nonpayment of dues. Since the dues have been cleared, the impugned orders Annexures-P. 5 and P.6 as well as the order passed by the revisional authority are set aside and the site stands restored to the petitioner. The writ petition is disposed of accordingly.
Sd/- N. K. Kapoor 22-4-1996. Sd/- N. K. Sodhi Judges"
34. A careful reading of the above noted orders shows that neither this Court nor the Advisor to the Administrator examined the issue relating to legality of the order passed by the Assistant Estate Officer under Rule 12(3) of the Rules in the context of various judicial precedents. Therefore, these orders cannot be treated as precedents worthy of being applied or followed in other cases. We are also of the opinion that the order passed by the Adviser to the Administrator in Sukhjit Singh's case (supra) is per se contrary to public interest. It appears that the concerned officer misused the forum, of Lok Adalat to shower undue benefits upon Sukhjit Singh. Similar must be the reason why C.W.P. No. 16500 of 1995 was not properly contested by the administration and a concessional order was allowed to be made in favour of the petitioner-Sudarshan Kumar. That apart, there are grave dangers of adopting this concessional approach in such like matters, in which the petitioners have been found guilty of violating the conditions of contract (letter of allotment) and the rules regulating allotment. If such defaults are condoned in the manner suggested by learned counsel for the petitioners, it will become a matter of pure conjectures and subjective satisfaction of the administrative authorities as well as the Courts and the possibility of patently inconsistent orders being passed in similar cases cannot be ruled out. It will also encourage unscrupulous persons to grab public property without paying for it, a phenomenon which is wide spread in Chandigarh, which is internationally known as City Beautiful. This can be avoided if the provisions of law are rigorously enforced against all and sundry. Therefore, we are unable to accept the submissions of Shri Saiin and Shri Jain.
35. In this connection, we may make reference to the decision of the Supreme Court in the Haryana Urban Development Authority v. Roochira Ceramics (1996) 6 SCC 584. The facts of thatcase show that the Estate Officer, H.U.D.A. allotted industrial plot to the petitioner for Rs. 2,61,360/- (tentative price). Due to the failure of the allottee to pay the instalments, proceedings under Section 17 of the Haryana Urban Development Authority Act, 1977 were initiated by the Estate Officer, who passed the order of resumption on the ground of default. The petitioner challenged the order of resumption on C.W.P. No. 14676 of 1995. A Division Bench of this Court allowed the petition and passed the following order:--
"Keeping in view the financial stringency of the petitioner, interest of the parties, readiness and willingness of the petitioner to pay the remaining unpaid amount and to set the controversy at rest, orders Annexures-P.5 to P.8 are quashed. The petitioner shall deposit the balance amount of instalments including enhancement of price along with interest at the rate of 10% per annum on the unpaid amount within a period of three months. The respondents shall calculate and convey to the petitioner the total amount payable by it within two weeks from the date of receipt of copy of judgment. After the receipt of intimation regarding the total amount of its liability, the petitioner shall deposit the said amount within two months thereafter positively. In case, the petitioner fails to deposit the amount within the time specified despite intimation in terms of our judgment, he shall be liable to pay whole of the amount to the respondents as per the demand and the calculations made by the respondents according to the order impugned and he shall not be held entitled to any further time to make the payment. It is relevant to mention here that as per stipulation in the allotment letter, copy Annexure-P. 1 to the writ petition, interest at the rate of 10% per annum is being charged from the petitioner.
36-37. The Haryana Urban Development Authority challenged the order of the Division Bench in S.L.P. No. 15110 of 1996 (Civil Appeal No. 13187 of 1996); The Haryana Urban Development Authority v. Roochira Ceramics. On 23-10-1996, the Supreme Court accepted the appeal filed by the respondents and passed the following order :--
"The respondent was allotted an industrial plot. He had to pay 25% of the price in the beginning and the balance in 6 equal instalments. He only paid the first instalment but not the rest. A show cause notice was given to him on 5-9-94 under Section 17 (3) of the HUDA Act. A notice proposing imposition of penalty was also issued. These notices could not be served upon him and, therefore, notices were served by affixture. A notice dated 10-1-95 was also given providing personal hearing. The respondent never appeared. Accordingly, the plot was resumed under Section 17(4) of the Act and the amount deposited was forfeited. The appeal preferred by the respondent was dismissed by the Appellate Authority who held that though several notices were issued to the respondent, he has been evading service. It dismissed the appeal holding that in view of the persistent defaults made by the respondent, there was no ground for interference in appeal. The respondent therefore approached Punjab & Haryana High Court by way of a writ petition. He pleaded certain financial difficulties without recording a finding as to the correctness of the said plea assuming for the sake of argument that such a course was permissible in a writ petition the High Court allowed the writ petition "keeping in view the financial stringency of the petitioner, interest of the parties, readiness and willingness of the petitioner to pay the remaining unpaid amount and to set the controversy at rest." The High Court further directed that interest shall be charged only at 10% per annum on the amount due and not at the rate of 18% as calculated by the authority for a part of the period.
We are of the opinion that in a writ petition it was not open to the High Court to entertain the plea of financial stringency for the first time. The respondent who had not responded to repeated notices and had not availed of the personal hearing offered to him, could not be allowed to plead such financial stringency for the first time before the High Court. Indeed the High Court could not have entertained such a plea. It has been held repeatedly by this Court that the power under Article 226 is the power of judicial review. The High Court can only examine the procedural correctness. It cannot get into the merits of the controversy like an appellate authority. No finding is recorded by the High Court in this case that the procedure adopted by the Estate Officer was either not in accordance with the statutory provisions or was in violation of the principles of natural justice. The High Court obviously acted as an appellate authority. There is no room for any benevolence. The perils and pitfalls are too many to recount. There will be no objective standards of judging. Justice becomes personalised. It would vary from Judge to Judge. In the absence of any procedural irregularity, the High Court had no jurisdiction to interfere in the matter. The High Court also failed to notice that the respondent is guilty of not paying the instalments as undertaken by him. By interfering on the basis of unverified and unsubstantiated plea of financial stringency, the Court would be encouraging contumacious conduct and breach of undertakings.
The appeal is accordingly allowed. The judgment of the High Court is set aside. The writ petition filed by the respondent shall stand dismissed."
38. In view of the unequivocal pronouncement of the Supreme Court in the case of M/s. Roochira Ceramics (1996 (6) SCC 584), we do not find any justification to follow the unusual order passed by the Adviser to the Administrator in the case of Sukhjit Singh or the concessional order passed by the High Court in the case of Sudarshan Kumar Jain.
39. We are also unable to agree with Shri Sarin and Jain that the impugned orders should be set aside because the petitioners have paid the dues in compliance of the interim order passed by the Court. In our view, the benevolent interim orders passed by the Court can neither entitle the petitioners to claim restoration of the leases as of right nor can such orders justify issuance of a writ to quash the impugned orders which are otherwise legal and justified, more-so because such approach has been strongly disapproved by the Supreme Court in the case of M/s. Roochira Ceramics (1996 (6) SCC 584) (supra). The only concession which can be given to the petitioners within the parameters of the law is to direct the respondents to entertain their applications' for reallotment of site in terms of Rule 21-A(ii) of the Rules. This is precisely what this Court has done in all the judicial precedents referred to hereinabove and also in the following cases :--
(i) C.W.P. No. 10937 of 1996, Devender Singh Pannu v. The Chandigarh Administration, decided on 20-12-1996.
(ii) C.W.P. No. 699 of 1996, Joginder Singh Sidhu v. Union Territory, Chandigarh, decided on 9-4-1997;
(iii) C.W.P. No. 5931 of 1997, Gurkirpal Singh Sandhu v. Chandigarh Administration, decided on 1-5-1997;
(iv) C.W.P. No. 2832 of 1997, Ghansham v. Union Territory, Chandigarh, decided on 29-5-1997;
(v) C.W.P. No. 16365 of 1995, Harpal Singh Ahluwalia v. Union Territory Chandigarh, decided on 3-7-1997;
(vi) C.W.P. No. 9160 of 1997, Amar Nath v. Chandigarh Administration, decided on 4-7-1997;
(vii) C.W.P. No. 9692 of 1997, Kulwant Singh Sidhu v. Union Territory, decided on 16-7-1997; and
(viii) C.W.P. No. 4829 of 1996, Hari Pal v. Chandigarh Administration through the Advisor to the Administrator, Chandigarh, decided on 7-11-1997.
40. This is also the approach adopted by the Supreme Court while disposing of S.L.P. Nos. 25282-25283 of 1996. That was a case in which the lessee had let out the premises for residential purposes but the tenant misused the same resulting in cancellation of the lease. There was inter se litigation between the lessee and the tenant as well. The order of eviction of tenant passed by the Rent Controller, was upheld by the Appellate Authority and the High Court. The tenant challenged these orders before the Supreme Court. While disposing of the S.L.P.s on 17-2-1997, their Lordships observed that the respondents i.e. the allottees can take necessary steps to move the concerned authorities for reallotment of site under Rule 11-D of the 1960 Rules (that is pari materia to Rule 21-A of the Rules).
41. In view of the above discussion, the writ petitions are dismissed with liberty to the petitioners to apply for re-allotment of the booths by making applications under Rule 21-A of the Rules. If they file such applications within two weeks from today, the competent authority shall grant their applications within next one month subject to their fulfilling the conditions laid down in the relevant rules.