Civil Writ Petition No. 2938 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 2938 of 2010 Date of decision: March 10, 2011 Smt. Satwant Kaur & another .....Petitioners VERSUS Chandigarh Administration & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Present: Mr. Vikas Jain, Advocate, for the petitioners. Mr. KK Gupta, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioners have approached this Court for quashing that part of the order Annexure P-6, whereby deposit of forfeiture of 10% of the premium/penalty as a precondition for restoration of allotment of SCO No.421/422, Sector 35, Chandigarh, has been directed. The petitioners are co-allottees of commercial site SCO No. 421/422, Sector 35, Chandigarh, which was allotted on 26.9.1996. They have completed the construction. The petitioners were alleged to have misused the basement as a retail shop instead of godown. Respondent No.3, accordingly, passed an order cancelling the lease and forfeiting 10% of the total amount of Civil Writ Petition No. 2938 of 2010 -2- consideration money vide Annexure P-3. The petitioners impugned the said order before respondent No.3, who dismissed the appeal on 11.1.2007. Against this order, the petitioners preferred revision. The revisional authority after obtaining report from the concerned field staff restored the allotment of the site on the condition that forfeiture/ penalty, if any, will be paid within one month. Aggrieved against the same, the petitioners filed CWP No.6597 of 2007 challenging the order requiring the petitioners to deposit forfeiture of 10% of the premium amount. The petitioners, accordingly, stated before the Court that they would deposit the money demanded, subject to the outcome of the writ petition. They, accordingly, deposited a sum of Rs.22,60,000/- (i.e. Rs.22,10,000/-for forfeiture and Rs.55,000/- on account of misuse penalty). Further amount of Rs.5,78,331/- was demanded as misuse charges. Ultimately, the said writ petition was withdrawn with a view to overcome the preliminary objection that the petitioners had not impugned the relevant orders. The petitioners have, accordingly, filed this writ petition. The submission is that once the order of resumption is withdrawn, the forfeiture of premium cannot be allowed. In support, counsel for the petitioners has referred to the case of M/s Goyal and Company Versus Union Territory Chandigarh,1992 (2) PLR 303, where this Court has taken a view that forfeiture of 10% of premium of lease can be ordered only while resuming the site by cancelling the lease and once the lease is restored the order of forfeiture cannot be allowed to stand. The forfeiture amount was, Civil Writ Petition No. 2938 of 2010 -3- accordingly, quashed. Similar view has also been taken by the Division Bench of this Court in H.S. Birdi Versus Union Territory Chandigarh, 2002 PLJ 41. It is observed that if there is no cacellation of lease, question of forfeiture would not arise. In view of the law laid down by this Court, option was given to the Estate Officer to correct the position. The counsel for the respondents, however, says that the Estate Officer would not be in competent position to waive the forfeiture amount. The matter, accordingly, has been heard. Nothing substantial could be stated by the counsel for the respondents to dispute the proposition of law laid down in the cases of M/s Goyal and Company(supra) and H.S. Birdi (supra). Accordingly, the forfeiture of 10% of the lease amount as ordered cannot be sustained, as the resumption order has been set aside. The misuse charges, however, would still be leviable. Accordingly, the present writ petition is partly allowed and the order directing forfeiture of premium is set aside. The petitioners shall have to pay the misuse charges for the misuse period, which they have already deposited. The petitioners shall not be entitled to refund of misuse charges. March 10, 2011 (RANJIT SINGH ) monika JUDGE