CIVIL WRIT PETITION NO. 13577 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: July 07, 2009. Parties Name Mount Carmel Educational Society, Chandigarh ...PETITIONER VERSUS Chandigarh Administration, U.T. Chandigarh and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. Akshay Bhan, Advocate, for the petitioner. Mr. Deepak Sharma, Advocate, for the respondents. JASBIR SINGH, J. (oral) ORDER: Petitioner has filed this writ petition with a prayer that directions be issued to respondent No. 3 to rectify account statement (Annexure P-15) and to re-prepare the same in terms of Rule 10 of the Chandigarh Lease Hold of Sites and Building Rules, 1973 (in short the Rules) It is also prayed that the date of instalment, towards payment of price of the plot allotted to the petitioner, be rescheduled by taking May 3, 2000, as the deemed date of delivery of possession. Record reveals that in response to a public notice Annexure P- 1, inviting applications for allotment of land, on lease hold basis, to the educational Institutions in Sector 47-B, Chandigarh, petitioner moved an application along with earnest money of Rs. 20,03,760/- for allotment of a CIVIL WRIT PETITION NO. 13577 OF 2007 -2- plot measuring 2.30 Acres of land to start a School. Petitioner was found eligible and vide order dated May 6, 1999, plot measuring 1.37 Acres in Sector 47-B, Chandigarh, for setting up a Primary School was allotted in favour of the petitioner against premium of Rs. 1,99,63,250/-. In the allotment letter, it was also stated that ground rent, at usual rate, as prescribed under the Rules shall be charged. Para No. 5 of the allotment letter reads thus: “The allotment of land shall be governed by the provision of Chandigarh Lease Hold of Sites and Building Rules, 1973. You are, therefore, requested to remit a sum of Rs. 9,87,525.00 to cover 25% tentative premium along with an undertaking on Non-judicial Stamp Papers worth Rs. 3/- duly attested by Executive Magistrate in case the above terms and conditions are acceptable, within thirty days from the date of issue of this letter.” In response to letter of allotment, petitioner deposited an amount of Rs. 9,87,053/- on May 25, 1999. Vide letter Annexure P-5, the petitioner, after accepting allotment of land measuring 1.37 Acres, made a prayer for allotment of additional land, making its plot 2.3 Acres. On receipt of money, as referred to above, vide letter dated September 16, 1999, allotment order was issued (Annexure P-6) intimating the petitioner that amount deposited by way of earnest money has been adjusted against price of the plot allotted and following schedule for payment of instalments towards premium and ground rent was fixed: CIVIL WRIT PETITION NO. 13577 OF 2007 -3- Number of the instalment Due date of payment Date upto which payment should be made Amount of equated instalment including interest. 1st instalment 7-2000 10/08/00 Rs.15,87,942.00 2nd instalment 7-2001 10/08/01 Rs.15,87,942.00 3rd instalment 7-2002 10/08/02 Rs.15,87,942-00 4th instalment 7-2003 10/08/03 Rs.15,87,942-00 5th instalment 7-2004 10/08/04 Rs.1587,942-00 6th instalment 7-2005 10/08/05 Rs.15,87,942-00 7th instalment 7-2006 10/08/06 Rs. 15,87,942-00 8th instalment 7-2007 10/08/07 Rs. 15,87,942-00 9th instalment 7-2008 10/08/08 Rs. 15,87,942-00 10th instalment 7-2009 10/08/09 Rs. 15,87,942-00 Ground rent annually for 1st 33 years Rs.299081/- for every year. Admittedly, possession of the plot was delivered on May 25, 1999. Thereafter, request of the petitioner for allotment of additional piece of land was also approved by the authority concerned on November 16, 1999 (Annexure P-7) and it was decided that additional area of land measuring 1.37 Acres be allotted to the petitioner. In response to order, mentioned above, allotment letter was issued on May 3, 2000. For additional area, total premium payable was fixed as Rs. 1,19,63,250/- and it was stated as under: “The following shall be the schedule of payment of instalments of the premium and ground rent: Number of the instalment Due date of payment Date upto which payment should be made Amount of equated instalment including interest. 1st instalment 4-2001 10/05/01 Rs.15,87,942-00 2nd instalment 4-2002 10/05/02 Rs.15,87,942-00 3rd instalment 4-2003 10/05/03 Rs.1587,942-00 4th instalment 4-2004 10/05/04 Rs.15,87,942-00 5th instalment 4-2005 10/05/05 Rs. 15,87,942-00 6th instalment 4-2006 10/05/06 Rs. 15,87,942-00 CIVIL WRIT PETITION NO. 13577 OF 2007 -4- Number of the instalment Due date of payment Date upto which payment should be made Amount of equated instalment including interest. 7th instalment 4-2007 10/05/07 Rs. 15,87,942-00 8th instalment 4-2008 10/05/08 Rs. 15,87,942-00 9th instalment 4-2009 10/05/09 Rs. 15,87,942-00 10th instalment 4-2010 10/05/10 Rs. 15,87,942-00 Ground rent annually for 1st 33 years Rs. 299081/- for every year It is an admitted fact that possession of the additional land allotted was delivered on May 3, 2000. Record reveals that the petitioner failed to comply with the Schedule, fixed for payment, accordingly interest and penalty amount were charged. Against above said action, petitioner sent a representation on March 14, 2003 (Annexure P-8), wherein it was specifically stated that deemed date of delivery of possession should be as on May 3, 2000, when additional area of land was allotted to the petitioner and payment schedule be re-fixed accordingly. Vide order dated October 16, 2003 (Annexure P- 9), the competent authority conveyed it to the petitioner that on account of failure of the petitioner to deposit amount of instalment towards price in time, penalty, interest etc. to the tune of Rs. 4,59,433/- has been imposed upon the petitioner. Petitioner went in appeal. In its ground of appeal, it was specifically stated that date of delivery of possession be taken as May 3, 2000, when allotment of additional area was made and the schedule of payment be fixed accordingly and further that taking into consideration that date, ground rent be charged. Appeal was partly accepted. Vide order dated April 6, 2004, it was ordered as under: “I have heard both the parties and gone through the records of the file carefully. The Law Officer representing the Estate CIVIL WRIT PETITION NO. 13577 OF 2007 -5- Officer submitted that the appellant failed to make the payment of the government dues within stipulated date and time. Therefore, the orders of the Estate Officer are as per rule. The counsel for the appellant submitted that at present no amount is due against his client. If any due he is ready and willing to pay the same. He, therefore, prayed that the order of the Estate Officer may kindly be set aside and reduce the penalty. On the basis of arguments led by both the parties and facts of the case, I find that a lenient view is granted in this case. As per submissions made by the counsel for the appellants, I accept the appeal. Accordingly, the order of the Estate Officer is set aside and the penalty on amount of ground rent be reduced from 100% to 60%. The appellant is directed to clear the outstanding dues within three months.” The order, extracted above, clearly indicates that a lenient view was taken when relief was granted to the petitioner. Petitioner was not satisfied. It filed an application for clarification of the order, mentioned above and vide order dated July 13, 2004, penalty imposed for non-payment of instalment was also reduced from 10% to 4%. Petitioner went in revision reiterating grounds of attack, which it agitated in its appeal. It was specifically stated that no amount would be recoverable from the petitioner if date of possession of both the plots is taken as May 3, 2000. In revision, on an undertaking given by the petitioner that it shall clear all dues, revision petition was disposed of by observing thus on February 22, 2006: “3. The counsel for the petitioner submitted that he has filed a CIVIL WRIT PETITION NO. 13577 OF 2007 -6- revision petition against the order of the Chief Administrator dated 13.7.2004, wherein the petitioner was directed to deposit the entire outstanding amount within a period of three months with reduced penalties imposed upon him. The petitioner could not utilize the land allotted to him as the allotment was not in accordance with the commitment made in the public notice. The respondent Estate Officer imposed penalties on the ground of delay in making payment of premium without rationalizing the allotment letter. The petitioner has not been communicated the legally due amount till date. However, the petitioner is ready to deposit the outstanding amount in case an opportunity is given. A prayer was, therefore, made for setting aside the impugned order and waiving off the entire amount of the penalties in the interest of justice. 4. The representative of the Estate Officer submitted that the Chief Administrator has already given enough relief to the petitioner by reducing the penalties from 100% to 60% on ground rent and from 10% to the 4% on instalments. Since the petitioner failed to clear the outstanding dues within the time given by the Chief Administrator, the petition, he argued, therefore, deserved to be dismissed. 5. After hearing the parties, going through the record and keeping in view the undertaking given by the petitioner to clear the outstanding dues, I hereby set aside the impugned order and grant six months time to clear the entire outstanding dues, failing which the order of the Estate CIVIL WRIT PETITION NO. 13577 OF 2007 -7- Officer shall become operative.” The respondent – Estate Officer wrote a letter to the petitioner to deposit an amount of Rs. 18,55,957/- and Rs. 3,05,145/- by August 21, 2006. The amount was worked out without penalty (Annexure P-15). Statement of account was also annexed with the letter. Petitioner deposited the amount as claimed vide order Annexure P-15. Thereafter, the respondent claimed an amount of Rs. 18,87,023/- towards price of the additional land and an amount of Rs. 2,99,081/- towards ground rent, which had fallen due on July 16, 2007-. Petitioner made a representation denying its liability to make above said payment. Thereafter present writ petition has been filed. In its reply, the respondents have stated that allotment of land of 1.37 Acres was accepted by the petitioner without any objection. Thereafter, request was made for allotment of additional land, which was also allotted subsequently. Both the transactions were independent and provisions of the Act will start taking effect from the date when possession was delivered in each case. It was further stated that the petitioner has not laid challenge to the order Annexure P-14, which was passed on its undertaking to make payment of the amount claimed and further that the issues which the petitioner has now raised, were very much available to the petitioner when the matter was pending before the appellate authority and the revisional authority. Once order dated February 22, 2006 (Annexure P- 14) has become final, it does not lie in the mouth of the petitioner to say to the contrary. It has been prayed that the writ petition be dismissed. After hearing counsel for the parties, this Court is convinced CIVIL WRIT PETITION NO. 13577 OF 2007 -8- that no interference can be made in this writ petition, at the instance of the petitioner. In response to notices Annexures P1 to P3, petitioner moved an application for allotment of land measuring 2.30 Acres in Sector 47, Chandigarh. Its request was acceded only to the extent of land measuring 1.37 Acres, for which intimation was sent vide letter dated May 25, 1999 (Annexure P-5). The petitioner was directed to make payment towards 25% of amount of premium. Petitioner complied with the same. Thereafter allotment letter was issued on September 16, 1999 (Annexure P6). Possession of the land in question was also delivered on that date and schedule for payment was also fixed. Petitioner accepted the allotment made to it without any murmur. However, thereafter request was made for allotment of additional land, which was accepted vide order dated November 16, 1999. Allotment letter was issued regarding additional land, measuring 1.37 Acres, on May 3, 2000. Possession was also delivered on May 3, 2000. Facts of the case clearly indicate that two adjoining plots were allotted to the petitioner vide two separate allotment letters. Both allotments were independent transactions. Under these circumstances, it cannot be accepted, as propagated by the petitioner, that schedule of payments be fixed by treating May 3, 2000 (on which date second letter of allotment was issued) as a date of allotment of entire land to the petitioner. The petitioner was required to adhere to the schedule of payment as was mentioned in allotment letters, referred to above. No objection was raised regarding separate schedule of payments for both the plots. Default was committed for making the payment and when interest, penalty etc. were imposed, the petitioner woke up and to save its skin, put up this excuse of giving deemed CIVIL WRIT PETITION NO. 13577 OF 2007 -9- date of possession, i.e., May 3, 2000. The authorities took a lenient view and waived some portion of interest and penalty. Before the revisional authority, the petitioner gave an undertaking to make entire payment. By taking note of the same, total amount of interest and penalty were waived and six months' time was granted to the petitioner to clear the outstanding dues. Before the appellate authority and the revisional authority, petitioner averred with vehemence that schedule of payments be fixed, by taking date of second allotment (May 3, 2000) as a date of delivery of possession for the entire land. This was not accepted. Order Annexure P-14 was passed on February 22, 2006, which has become final and is not under challenge. As such, at this stage, petitioner is not entitled to rake up the same controversy, which it has raised before the competent forum. In view of facts, mentioned above, it is not open to the petitioner to say that amount of interest, penalty, ground rent etc. were not calculated in terms of rule 10 of the Rules. Be that as it may, Rule 10 of the Rules reads thus: “10. Delivery of possession:- Actual possession of the site/ building shall be delivered to the lessee on payment of 25% of the premium in accordance with rule 8 or 9 as the case may be. Provided that no ground rent payable under rule 13 and interest on the instalments of premium payable under sub-rule (2) of the Rule 12 shall be paid by the lessee till the actual and physical possession of the site/building is delivered or offered to be delivered to him, whichever is earlier.” In earlier part of this order, this Court has held that two plots of land were allotted to the petitioner, one on September 16, 1999 (Annexure CIVIL WRIT PETITION NO. 13577 OF 2007 -10- P-6) and another on May 3, 2000. Admittedly, possession of the first plot was delivered on September 16, 1999, and possession of second plot was delivered on May 3, 2000. In both the allotment letters, separate schedule of payment was fixed. Limitation for imposition of ground rent was also fixed from the date when possession was delivered. Contention of counsel for the petitioner that possession of the entire land shall be deemed to have been delivered on May 3, 2000 (date of second allotment) is liable to be rejected in view of discussion in earlier part of this order. In view of facts, mentioned above, no case is made out for interference. Dismissed. July 07, 2009. ( Jasbir Singh ) DKC Judge