CWP No.14046 of 2009.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.14046 of 2009 Date of Decision: 10.08.2010 **** Amardeep Singh Hira and others . . . . Petitioners VS. UT Chandigarh and Others . . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. RS Guron, Advocate for the petitioners Mr. KK Gupta, Advocate for respondents No.1 & 2 Ms. Ashima Mor, Advocate for respondent No.3 ***** SURYA KANT J. (ORAL) (1). The petitioner seeks a mandamus to direct the Chandigarh Administration and the Municipal Corporation, Chandigarh to extend the time period for construction of SCO No.60, Sector 32 C & D Chandigarh without levying any charges for non- construction/completion of the building and also to recalculate the dues after withdrawing the interest and ground rent components upto the date of removal of the encumbrances on the site. CWP No.14046 of 2009.doc - 2 – (2). The petitioners were successful bidders for the Shop-cum-Office (SCO) site No.60 in Sector 32 C&D, Chandigarh in an open auction held by the Chandigarh Administration on 18th November, 1997. The site was allotted to them vide allotment letter dated 13.2.1998 (Annexure P1). (3). The adjoining sites No.58, 59, 61 & 62 were also put to auction and allotted to their successful bidders along with Site No.60 allotted to petitioners. (4). The undisputed facts are that when the allottees of sites No.58 & 59 as well as Nos.61 & 62 started the excavation work to construct basements on their respective sites, it was found that the sewerage and water pipelines were running through their plots. (5). It is too obvious and cannot be denied that the sewerage and water pipelines were acrossing the petitioner’s site No.60 also. The petitioners filed a complaint before the District Consumer Disputes Redressal Forum, UT Chandigarh, which was allowed in part granting them exemption from payment of rent, penalty and interest, with a further direction for re-scheduling the instalments payable by them. Compensation for harassment CWP No.14046 of 2009.doc - 3 – etc. was also awarded. The said order was upheld in appeal by the State Consumer Disputes Redressal Commission, Chandigarh also. The respondents thereafter preferred a revision petition before the National Disputes Redressal Commission where in view of the decision by the Hon’ble Supreme Court in UT Chandigarh and others v. Amarjeet Singh and others (Civil Appeal No.1994 of 2006), it was held that the auction purchaser was not a ‘consumer’ within the meaning of the Act and that the petitioners were not entitled to approach the Consumer Forum. (6). The petitioners have accordingly invoked the writ jurisdiction of this Court. (7). There is no denial to the fact that pursuant to the directions issued by this Court in the case(s) of the allottees of the adjoining Plots No.58, 59, 61 & 62, the Assistant Estate Officer, UT Chandigarh passed the orders dated 09.01.2007 (Annexure P6 & P7), the relevant and operative part whereof reads as follows:- “In accordance with the above said judgement and the facts of the case, it was the obligation on the part of the allottee to pay the premium of the site in time and no benefit can be given in CWP No.14046 of 2009.doc - 4 – terms of premium or nay interest charged thereon. Since most of the basic amenities as per the above judgement were also available at the site except parking lights which were also provided on 18.07.2002. Therefore, on account of lack of the basic amenities no case is made out in favour of the lessee but there was an encumbrance on the site, which prohibited the construction on the site, and therefore, the right to enjoyment of the property was curtailed by it and it is quite justified to compensate the lessee on this ground. Therefore, no ground rent as well as the interest & penalty imposed thereupon is to be charged for the period i.e. 16.07.1998 starting from the period when the encumbrance is brought to the notice of this office up to the date i.e. July, 2000 when the same is removed. The request of the lessee is partially accepted. The above said period shall also be added towards the three years period allowed for the purpose of raising construction on site as per the allotment letter.” (Emphasis applied) (8). Similarly, the allottees of Site No.62 have been granted the following relief by the Adviser to the Administrator UT Chandigarh vide his order dated 04.11.2009:- “After hearing the parties and going through the record, I find that there was sewer line underneath the SCO 61 & 62, Sector 32 C&D, Chandigarh. The representative of the Estate CWP No.14046 of 2009.doc - 5 – Officer has admitted that the sewer line passing through the site has been removed in July, 2000. I also find that the Estate Officer in the case of adjoining SCO 61, Sector 32 C&D, Chandigarh vide letter/memo dated 12.01.2004 has decided to charge interest and ground rent from the date sewer line has been removed. In my opinion, it is necessary that the fate of two similarly circumstances cases should be the same. Therefore, I accept the revision petition, set aside the impugned order and direct the Estate Officer to give the same relief to the petitioners as was given to the adjoining SCO 61, Sector 32 C&D, Chandigarh.” (9). The petitioners now urge that they being similarly- placed allottees are entitled to the relief as has been granted by the respondents to the allottees of Plots No.58, 59, 61 & 62. (10). Learned counsel for the respondents, on the other hand, contends that factually the petitioners never started any construction at the site nor dug the basement and in fact have not constructed the site till date, as such they are not entitled to claim parity or seek the relief granted to their adjoining allottees. (11). Having heard learned counsel for the parties at some length and on perusal of the record, I am of the considered view that no distinction can be CWP No.14046 of 2009.doc - 6 – validly drawn between the petitioners’ case and of their adjoining allottees to whom some relief has been granted by the respondent-authorities. I say so for the reason that once during the course of excavation work it was admittedly found that the sewerage and water pipelines were acrossing the sites No.58 to 62, the petitioners were not in a position to start/raise any construction till the encumbrances were removed in July, 2000. The fact that the sewerage and water pipelines were detected in the adjoining plots when their allottees started the digging work was sufficient to refrain the petitioners from starting any such exercise in futility. (12). For the reasons afore-stated, the writ petition is allowed in part and the respondents are directed not to charge any ground rent, interest or penalty imposed upon the petitioners from the date of allotment till the date of removal of encumbrances in July, 2000. The charges under the aforesaid heads, if already recovered from the petitioners, shall be refunded/adjusted against dues, within a period of three months from the date of receipt of a certified copy of this order. Similarly, the petitioners shall not be liable to pay the non- CWP No.14046 of 2009.doc - 7 – construction charges for a period of three years, commencing from July, 2000, on the pattern of the adjoining allottees. However, this order shall not preclude the respondents from recovering non-construction charges, as per the Rules/Byelaws, after the expiry of the above- stated period of three years. (13). Ordered accordingly. (14). Dasti . (SURYA KANT) JUDGE 10.08.2010 vishal shonkar