Indian Kanoon - Search engine for Indian Law

14. On the other hand, learned counsel for the Board has argued that the allottees were offered possession in the year 1984 after the basic amenities were provided. It is argued that even in the replication, the allottees have not disputed that basic amenities were not in existence at that time i.e. in the year 1984. Even the Local Commissioner has found that the amenities have been provided though the maintenance and up-keep can be said to be poor. It was for the reason that the allottees were not using the infrastructure created by Board. It is, thus, contended that the allottees are liable to pay interest and penalty in terms of the letter of allotment. It is also contended that the basic amenities like road, water supply, electrification & sewerage etc. have been provided, though the non-availability of any of such basic amenity is not a ground for the allottees not to pay the installments along with interest thereon. In support of the arguments raised, the learned counsel for the Board has relied upon Sector 6, Bahadurgarh Plot Holders' Association (Regd.) v. State of Haryana; (1996) 1 SCC 485;

Municipal Corporation, Chandigarh & others                 v. Shantikunj
 LPA No.502 of 2012 (O&M) &
LPA No.1868 of 2011 (O&M)                                                   (11)


Investment    (P)    Ltd.    &    others;   (2006)    4    SCC     109;    Secy.,

Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 SCC 684; Haryana State Agricultural Marketing Board & another v. Raj Pal; (2011) 13 SCC 504.

15. It is argued that in Raj Pal's case (supra), the Supreme Court has found that the basic amenities were not provided till the year 2007, therefore, in respect of the period prior to the promulgation of the Rules, the Court has directed the payment of interest @ `15% per annum. But in the present case, the basic amenities were made available in the year 1984 itself, therefore, the allottees are liable to pay interest and penalty from the date the offer of possession was made. It is also argued that the Rules will not be applicable to the allottees who have been allotted plots prior to 10.3.2000 as there is no retrospective applicability of such Rules to the allotments already made. The Rules were subsequently amended on 5.3.2002, contemplating charging of interest only on providing of basic amenities. Therefore, the allotments made on or after 5.3.2002, alone are not liable to pay interest and penalty unless the basic amenities are provided.

22. In respect of direction No.2, the question requires to be examined is as to whether, the offer of possession by the Board or the Market Committee itself is sufficient to justify demand of interest and penalty or the Court in exercise of its power of judicial review can examine the question as to whether the basic amenities have been provided or not?

23. Though the offer of possession by the Market Committee or the Board in the absence of anything contrary on record, should be deemed to be a valid statement of completion of the basic amenities as all official acts are deemed to be regularly performed, but this Court in exercise of its power of judicial review can interfere with the offer of possession given by the Market Committee or the Board if the allottees are able to satisfy such offer of possession is colourable exercise of power without creating basic amenities. It will be a question of fact in each case in respect of allotments made after 5.3.2002, whether the basic amenities have been provided. The ancillary question needs to be examined is that what would constitute basic amenities. In Municipal Corporation, Chandigarh & others v. Shantikunj Investment (P) Ltd. & others, (2006) 4 SCC 109, the Hon'ble Supreme Court has held that it is not possible in every case that the entire area is developed first and allotment is served on a platter and that it is not possible to accept a sweeping proposition that if all the facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty without fear of being LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (16) visited by the consequences of non-payment or delayed payment. Such has never been the condition precedent. It was observed that it is true that in order to fully enjoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, is not the correct approach in the matter. It was further held that once the allotment has been made in favour of the allottee, he can take possession of the property and use the same to his benefit in accordance with law. That does not mean that all the facilities should be provided first for the so-called enjoyment of the property as this was not the condition of auction. The Court observed:-

26. In view of the judgments referred to above, the basic amenities which are required to be provided by the Market Committee or by the Board are the amenities which enable the allottee to use the allotted plots. The complete development of infrastructure takes long time. Therefore, the expression "basic amenities" have to be understood in the sense that in the absence of LPA No.502 of 2012 (O&M) & LPA No.1868 of 2011 (O&M) (19) such amenities i.e. the water supply, sewerage, roads and provision of electricity, site allotted cannot be used. The question of raising of pucca platforms, streetlights or other facilities for optimum utilization of the sites are not part of the basic amenities. Therefore, the offer of possession can be interfered with by this Court only if the basic amenities, in contradistinction to the facilities for optimum utilization are not provided.