Civil Writ Petition No. 8263 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 8263 of 2007 Date of Decision: 7.12.2009 Arvind Gupta …Petitioner Versus The State of Punjab and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sandeep Sharma, Advocate for the petitioner. Mr. Anil Kumar Sharma, Additional Advocate General, Punjab, for respondent No.1. Mr. Sushil Gautam, Advocate for respondents No.2 to 4. Kanwaljit Singh Ahluwalia, J. (Oral) The present writ petition has been filed seeking quashing of impugned order dated 9.5.2006 (Annexure P6) whereby the Estate Officer, Punjab Urban Development Authority, Mohali, refused to accept 15% of the amount i.e. Rs.14,55,000/- as the same was deposited after delay. Impugned order (Annexure P6) depict that Estate Officer had also forfeited 10% of the amount deposited by the petitioner at the time of auction. The Additional Chief Administrator issued a public advertisement (Annexure P10) for auction of site No. 79-82 in Sector 56. This was a Shop-cum-Flat. As per the auction notice, the successful bidder had to deposit 10% of the auction money in cash or by way of Civil Writ Petition No. 8263 of 2007 2 demand draft at the close of auction and 15% of the auction money was to be deposited within 30 days. Admittedly, petitioner had not deposited 15% of the auction money within 30 days. The petitioner, as per terms and conditions of the allotment letter, had to deposit 15% of the amount by 20.10.2005. Instead of doing so, petitioner deposited the amount on 7.12.2005 by way of a bank draft dated 7.12.2005 drawn in favour of Estate Officer, Punjab Urban Development Authority, for Rs.14,55,000/-. This bank draft was issued by the Punjab National Bank. This amount was returned by the Estate Officer on 9.5.2006 vide impugned order (Annexure P6) and the 10% amount deposited at the time of auction was also forfeited. Counsel for the petitioner relied upon Annexure P14 policy issued by the respondents for condonation of delay. This policy has been annexed as Annexure P14. The policy states that the respondents have felt that in some genuine cases, allottees are not making payment of 15% of the initial amount within the stipulated period due to circumstances beyond their control. Therefore, as per the policy, various authorities were prescribed for condonation of delay subject to payment of surcharge leviable on the 15% amount which was not deposited within 30 days. It will be apposite here to reproduce relevant portion of the policy (Annexure P14):- “It is felt that in some genuine cases, allottees could not make the payment of 15% initial amount within the stipulated period under circumstances beyond their control. Keeping in view Civil Writ Petition No. 8263 of 2007 3 the genuine difficulties of the allottees, the matter was placed before the Finance and Accounts Committee in its 32nd meeting held on 9.8.02 vide agenda item no. 32.18 with the proposal that some extra period beyond the stipulated period may be allowed on payment of surcharge. The Finance & Accounts Committee have approved the proposal as under:- 1. Condonation of delay in respect of residential plots:- Sr. No. Period of Condonation Officer who can condone the delay Rate of surcharge leviable on 15% amount. 1 Upto 30 days from the expiry of prescribed period in allotment letter Estate Officer 1.5% of the amount due 2 Upto 60 days from the expiry of prescribed period in allotment letter Addl. Chief Administrator 2.0% of the amount due 3 Upto 90 days from the expiry of prescribed period in allotment letter Chief Administrator 2.5% of the amount due 4 Upto 6 months from the expiry of prescribed period in allotment letter Chairman 3.0% of the amount due Counsel for the petitioner has submitted that there was a delay of 47 days in depositing the amount, therefore, as per the policy (Annexure P14) request was to be considered by the Additional Chief Administrator. But in the present case, without referring the application Civil Writ Petition No. 8263 of 2007 4 of the petitioner (Annexure P4) before the Chief Administrator, the Estate Officer, at his own, passed order (Annexure P6). Counsel further submits that even if the stand of the respondents is accepted that there is a delay of 78 days, if the delay is to be counted from the date of auction, then also case of the petitioner was to be considered by the Chief Administrator as petitioner was ready to pay 2.5% of the amount due. Petitioner had filed a revision against the impugned order (Annexure P6). The grounds of revision are annexed as Annexure P7. The revisional authority dismissed revision (Annexure P8). The Chief Administrator while rejecting the revision considered the arguments raised by the Senior Law Officer for the Punjab Urban Development Authority. It will be apposite here to notice the arguments raised on behalf of the Estate Officer, Punjab Urban Development Authority:- “On the other side, Shri Harmel Singh, Senior Law Officer appeared on behalf of Estate Officer, PUDA, Mohali and during the hearing on the basis of conditions of auction he stated that it has been clearly mentioned in the auction conditions that 10% amount will be forfeited in case 15% bid amount is not deposited within 30 days of the date of auction. As per policy, if the bidder wanted to extend the time limit, then he could request for the same within 30 days. But the bidder has deposited this amount with the delay of 78 days and has not requested for the extension of time limit in written. Therefore, this case does not cover under the policy Civil Writ Petition No. 8263 of 2007 5 and this case has already been rejected at the level of Chief Administrator and the present appeal is also liable to be rejected”. Counsel for the petitioner further submits that this argument was devoid of merits as Annexure P4 was nothing but a request to accept the amount. In the application, it was stated by the applicant that he does not have any knowledge of procedure and terms & conditions, therefore, amount be accepted. It was incumbent upon the Estate Officer to place the letter before the Authority who was competent to condone the delay. The competent authority may have rejected the application or may have accepted the same by asking the petitioner to pay the rate of surcharge leviable on 15% amount as per the policy (Annexure P14). The revision was declined on the ground that the matter was already considered by the Chief Administrator in appeal and the Additional Chief Administrator being a delegate of the Chief Administrator cannot consider the decision taken by the Chief Administrator in the appeal. Mr. Rajiv Gupta, Advocate, states that he, with responsibility, can state at bar that no appeal was filed before the Chief Administrator, therefore, the Chief Administrator had not applied mind and there was no adjudication on the submissions made. In the context of the statement made by counsel for the petitioner, it will be apposite to make reference to the concluding portion of the order:- “The submissions of both the sides were considered during the hearing and record was perused. After perusing the same, it has been found Civil Writ Petition No. 8263 of 2007 6 that the case for the condonation of delay of 78 days for the remittance of 15% amount has already been considered at the level of Chief Administrator which has been rejected on 1.2.06 as the bidder could not deposit the due amount within thirty days of the delay of auction and could not give in writing for the extension of time, on the basis of guidelines of the policy. The undersigned being a appellate authority, PUDA, Mohali, exercise the delegated powers of the Chief Administrator and the appeal of the bidder has already been rejected at the level of Chief Administrator. Therefore, keeping in view the circumstances the present appeal of the petitioner is also not acceptable and is rejected. Estate Officer, PUDA, Mohali, is directed to include this site in the next auction”. Thereafter, petitioner had filed a revision. The same was also rejected. The order of Revisional Authority is annexed as Annexure P12. The Revisional Authority rejected the revision by observing as under:- “I have heard both the parties at length and have also perused the record of the case produced before me during the course of hearing. In view of the totality of the circumstances and facts of the case, I am not in agreement with the arguments advanced by the counsel for the petitioner rather I deem it fair, just and reasonable to reject the Civil Writ Petition No. 8263 of 2007 7 present revision petition being without any merit. The Estate Officer, PUDA, Mohali, is directed to take further necessary action in accordance with law as provided under the Act”. Counsel for the petitioner has submitted that arguments raised were not dealt with by the Revisional Authority. Counsel further states that it is particularly so as in a case of similarly situated person, namely Parmal Singh, Revisional Authority has accepted the revision. The order passed by the Revisional Authority, in the case of Parmal Singh, is annexed herewith as Annexure P10. The Revisional Authority accepted the revision by observing as under:- “With the above stipulation the revision petition is partly accepted and the impugned orders are set aside subject, however, to the following conditions that the 15% amount along with interest, penal interest surcharge etc. and in addition a penalty equivalent to 10% of the total allotment price shall be deposited within 30 days of the communication of the order. In case the said amount is not deposited, the order of resumption shall remain in place and the 10% amount already deposited shall be deemed to have been forfeited in favour of PUDA. Let this order be communicated to all concerned”. It is further urged that similarly in case of one Smt. Sushma, Civil Writ Petition No. 8263 of 2007 8 Revisional Authority passed order (Annexure P11) and accepted the revision by holding as under:- “With the above stipulation the revision petition is disposed of and the impugned orders are set aside subject, however, to the following conditions: that the 15% amount along with interest, penal interest, surcharge, etc. and in addition a penalty equivalent to 10% of the total allotment price shall be deposited within 30 days of the communication of this order. In case the said amount is not deposited, the order of resumption shall remain in place and the 10% amount already deposited shall be deemed to have been forfeited in favour of PUDA. Let this order be communicated to all concerned”. Counsel for the respondents is unable to satisfy this Court as to why different yardsticks were adopted in case of other two persons, namely Parmal Singh and Smt. Sushma. However, counsel for the respondents has stated that petitioner had not sought extension of time. A perusal of application (Annexure P4) reveal that by depositing 15% of the amount, petitioner specifically stated that he is not aware of rules and procedures but he is ready to comply with the same. Therefore, the Estate Officer, as per policy (Annexure P14), should have placed the application before the Chief Administrator or the authority who was competent to condone delay as per policy (Annexure P14). Civil Writ Petition No. 8263 of 2007 9 Therefore, in these circumstances, there is no other option but to set aside impugned orders (Annexures P6, P8 and P12) and remit the matter back to the Chief Administrator, Punjab Urban Development Authority, to take decision in terms of policy (Annexure P14). The Estate Officer shall decide regarding the competent authority before whom the case of the petitioner is to be placed and the competent authority shall take the necessary decision within three months from the date of receipt of certified copy of this order. (Kanwaljit Singh Ahluwalia) Judge December 7, 2009 “DK”