Civil Writ Petition No.2059 of 1995 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: March 07 , 2011 Sh.B.K.Nanda .....Petitioner VERSUS The Advisor to the Administrator, Union Territory, Chandigarh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Puneet Bali, Advocate, for the petitioner. Mr.K.K. Gupta, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner was allotted SCO No.16 & 17, Sector 20-D, Chandigarh in open auction for a total premium of Rs.10,91,000/- on 10.3.1989. He is struggling hard to retain the same. The petitioner had defaulted in making the payment as per the schedule. When the petitioner was served a notice under Rule 12(2) of the Chandigarh Lease Hold of Sites and Building Rules, 1973 for payment of the first instalment of Rs.3,11,794/- on 6.9.1990 along with interest and the penalty, he had filed this petition with a prayer for grant of time for making the entire payment. The petitioner had also made payment Civil Writ Petition No.2059 of 1995 : 2 : which was returned. The petitioner had also sought quashing of the demand of penalty and interest, which as per him was illegal. Having been allotted the Site, the petitioner was to pay the first instalment within six months, but he did not do so and hence received a notice dated 6.9.1990 (Annexure P-2), referred to above. The petitioner, in turn, requested the Estate Officer to grant him six months time for making payment of the instalments. The request of the petitioner was agreed and he was granted time upto 31.3.1991 for clearing the outstanding payment. Apparently, the petitioner still did not comply with the requirement and was served a notice again on 9.4.1991 to clear the outstanding payment of Rs.3,77,975/-, failing which ex-parte proceedings were to commence against him. The petitioner still approached the respondents for seeking extension of time through his letter dated 23.4.1991. The respondents this time decided to cancel the allotment of the site and forfeited 10% of the amount deposited by the petitioner as earnest money. The petitioner filed an appeal against this order dated 15.7.1991 before Chief Administrator Chandigarh. In the meantime, petitioner received another notice dated 18.12.1991 telling him that he was in unauthorised occupation of the site in question. The petitioner on 4.2.1992 informed the respondents that his appeal was pending before the Chief Administrator, Chandigarh. On 25.5.1992, Chief Administrator granted him time to make up the outstanding amount within six months and reduced the forfeiture of 10% of the earnest money as ordered earlier to 5%. The petitioner again defaulted and on 26.3.1993 made representation for extension of two more months to pay the outstanding amount. The petitioner then Civil Writ Petition No.2059 of 1995 : 3 : deposited the entire amount including 2nd and 3rd instalment on 7.5.1993. As per the petitioner, Advisor, Chandigarh Administration asked the Estate Officer to accept the payment made by the petitioner, besides admitting that interest at the rate of 15% w.e.f. 28.11.1990 could not be charged from the petitioner. He even admitted that the penalty and forfeiture should not be charged. Apparently, these averments are not fully supported by the documents on record. On records is an order, Annexure P-13 passed by the Advisor, which is to the effect that prayer for re-scheduling the instalments is genuine and was accepted. The site was restored to the petitioner subject to the condition that he shall deposit the entire outstanding amount in three instalments on or before 30.3.1993 with a forfeiture of 5% as already reduced by the Chief Administrator, failing which the impugned order of the Estate Officer was to become operative. Another aspect which may need notice here is that re- scheduling of the instalments in respect of SCO No.16 & 17, Sector 20, Chandigarh was at issue but appeal in respect of SCO No.16 was still pending before the Chief Administrator. The revision accordingly was treated in respect of SCO 17 and no relief was granted in respect of SCO 16. The petitioner thereafter submitted a representation before the Advisor for modification of the earlier order so far as it had granted time to pay the instalments. This was, however, treated as a review petition and was dismissed on 7.7.1993. In the meantime, the petitioner had deposited the demand draft, which was returned to him on 6.7.1993 with the remarks that the lease of the site in question Civil Writ Petition No.2059 of 1995 : 4 : stood cancelled. The petitioner thereafter sought review of the order which was declined on 21.12.1994. The petitioner had then filed the present writ petition. Initially, the respondents filed a short written statement while seeking liberty to file detailed reply, if need so arose. After making reference to the background under which the petitioner was allotted this site, it is pointed out that the petitioner failed to adhere to the schedule of payment for which show cause notice was issued to him. The petitioner was also heard in person on three different occasions and when he failed to clear the amount due, the Estate Officer had cancelled the lease on 11.7.1991. Reference is then made to appeal, revision and two review applications filed by the petitioner. It is stated that petitioner is a willful defaulter and had not clear the outstanding payment despite number of opportunities. Respondents have not disputed that the appeal filed by the petitioner was disposed of by Chief Administrator on 4.5.1992 giving liberty to the petitioner to clear outstanding payment within six months reckonable from the date of despatch. The amount of earnest money forfeited was also reduced to 5%. Failure on the part of the petitioner was to result in reviving or restoring the order passed by the Estate Officer. The petitioner had then filed revision which was also disposed of, reference to which has already been made while noticing the facts pleaded by the petitioner. The petitioner, therefore, was required to clear the entire outstanding amount on or before 30.3.1993, but did not do so. Instead, a review application was filed, which, as per the reply, was not maintainable. The same was also dismissed on 7.7.1993. Still, the petitioner preferred a second review, Civil Writ Petition No.2059 of 1995 : 5 : which was also dismissed on 21.12.1994. The respondents accordingly prayed for dismissing the writ petition on the ground that the petitioner was a willful defaulter. As per the short reply, a sum of Rs.7,62,820/- inclusive of interest upto 31.8.1995 was outstanding against the petitioner. The statement of account in this regard was annexed with the short reply. The respondents have also filed a detailed written statement to point out that petitioner has filed this petition for quashing of the demand dues, interest, penalty and forfeiture without challenging the order passed by the Estate Officer dated 11.7.1991 cancelling the lease of the site in favour of the petitioner. As per the respondents, it would be essential for the petitioner to challenge this order because the revisional authority had allowed the revision and had quashed this order by imposing condition. Since the petitioner could not fulfill the condition imposed in the order vide which lease was cancelled and so the same order would stand revived or restored. It is, therefore, submitted that the cancellation has already attained finality and even the order of eviction has been passed, so the petitioner is left with no locus to maintain the present writ petition. While responding to the averment made in the writ petition, it is stated that present dispute relates to SCO Site No.17 only and detailed mention is made to various steps taken leading to cancellation of the lease. Reference is also made to the subsequent orders passed by appellate and revisional authority and so also of the reviews to make a prayer for dismissing the writ petition. While disputing the contention raised in the petition, it is pointed out that the Estate Officer had granted time to the petitioner Civil Writ Petition No.2059 of 1995 : 6 : for making the payments but with a stipulation that interest on the delayed payment has to be paid as provided in the rules. It is further pointed out that after passing of the order by quasi-judicial authorities, the representations filed by the petitioner were not maintainable for extension of time and, thus, the prayer made by the petitioner for review was also held not maintainable as the revisional authority has no power to review. The prayer accordingly is made for dismissing the writ petition. The writ petition was admitted on 21.2.1995 and the dispossession of the petitioner was stayed. On an application filed for early hearing of this petition, this court referred the matter to Permanent Lok Adalat in this court for resolving the controversy amicably. The matter was then taken up by the Permanent Lok Adalat. On 6.2.2009 statement was made before the Lok Adalat that the property can be restored to the petitioner as per the latest instructions only on payment of the current price. This position was disputed by the counsel for the petitioner and, hence, the writ petition was referred back to the court for adjudication on merits. The case has, thus, come up for hearing now before the court. While seeking early hearing of this petition, the petitioner has placed on record certain documents indicating that he is 83 years old and that he had applied for extension of load in respect of electrical installation at the Site in question. The petitioner has also placed on record a communication granting approval to extend the date of submission of the revised plan. The petitioner accordingly had prayed for out of turn hearing as the submission of the revised plan was not possible until the present writ petition was decided. Civil Writ Petition No.2059 of 1995 : 7 : The petitioner has placed on record certain documents showing payment of ground rent in the year 1999, which according to the respondents was accepted without prejudice to their rights and was subject to the outcome of the present writ petition. This clarification was issued by the Assistant Estate Officer on 17.9.2009. Nothing much, thus, can be read from these documents. Even otherwise once the petitioner has continued to occupy the Site in question under the orders of this court, he would not be in a position to escape liability for paying ground rent etc. as per the rules. The main stress of the submissions as made by the counsel for the petitioner was concentrated on the order whereby his prayer for grant of extension of time to deposit the amount was declined on the ground that it would amount to review of the earlier order. Counsel for the petitioner, therefore, placed before me certain judgments to substantiate his plea that power to grant extension of time, if granted, does not amount to review. In this regard, he made reference to Surinder Singh Vs. Central Government and others, (1986) 4 Supreme Court Cases 667. Reference is also made to Chinnamarkathian alias Muthu Gounder and another Vs. Ayyavoo alias Periana Gounder and others, (1982) 1 Supreme Court Cases 159. In this case, the Hon'ble Supreme Court has observed that jurisdiction to grant time would include, in absence of any contrary indication, jurisdiction to grant extension of time. It is observed that if a court in exercise of jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to Civil Writ Petition No.2059 of 1995 : 8 : grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. The principle of equity apparently has been invoked by the Hon'ble Supreme Court while so holding. When some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the court is held to retain to itself the jurisdiction to re-examine the alteration or modification of the circumstances which may necessitate extension of time. It is observed that if the court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of negative provision it undoubtedly enjoys. The counsel would then refer to Managing Director, Haryana State Industrial Development Corporation and others Vs. Hari Om Enterprises and another, (2009) 16 Supreme Court Cases 208 to urge that resumption would not result automatically even in case of non payment of penalty within the prescribed time. The Hon'ble Supreme Court in this regard has observed that jurisdiction of the State to resort to the drastic power of resumption or forfeiture ordinarily should be undertaken as a last resort. As per the Supreme Court, the courts can balance equities between the parties and refuse to exercise its discretionary jurisdiction even if the order is found to be illegal is not a universal truth. It is observed that each case has to be considered on its own merits and where the order is found to be wholly unfair and unreasonable, Supreme Court can exercise its jurisdiction under Article 142 and may also consider rendition of individualized justice. Where time granted is flexible, then its fulfillment is not imperative. It is accordingly observed that Civil Writ Petition No.2059 of 1995 : 9 : resumption and forfeiture should be the last resort. Reliance is also placed on Terioat Estates (P) Ltd. Vs. U.T., Chandigarh and others, (2004) 2 Supreme Court Cases 130 to submit that resumption and forfeiture of money deposited by the lessee in case of default in making repayment should be exercised only as a last resort. In this case, it is held that application of said power would depend upon the factual matrix in each case and no hard and fast rule can be laid down therefor. It may be of benefit to notice the observations made by the Hon'ble Supreme Court in Terioat Estates (P) Ltd.'s case (supra) as under:- “22. One of the questions which, therefore, must always be posed by the Estate Officer, while initiating a proceeding under Section 8-A of the Act, is as to whether the drastic power of resumption and forfeiture has been taken recourse to as a last resort. The order of the Estate Officer dated 13-8-1992, does not say so. No reason has also been assigned in the said order. 23. It may be that the appellant did not even comply with the appellate order but it had a legitimate grievance therefor insofar as the said order was made available to it after 7-3-1995 whereas the part-payment in terms thereof was to be made on the said date. The revisional order dated 17-5-1995 provided that payment be made in terms of the accounts submitted by the Estate Officer but the question as to whether the Estate Officer could levy interest over and above 12% p.a., i.e. 15% from 1992 and Civil Writ Petition No.2059 of 1995 : 10 : 24% from 1993 was the subject-matter of a writ petition which was pending before the High Court. The appellant paid the entire amount which, according to it, was due to the respondent. It further kept in readiness a pay order of Rs.13,00,000, a copy whereof had also been filed with the review application.” On the other hand, the counsel for the respondents has referred to some of the decision to submit that where the site was restored to an allottee subject to certain conditions, then failure of the allottee to comply with the conditions would lead to revival of the resumption order and there would not be any need to pass a fresh order in this regard. Reference is made to Maharani Deepinder Kaur and others Vs. U.T., Chandigarh etc., 1996(3) PLR 598 in this regard. Counsel for the respondents would also seek support from this judgment to contend that power of review like the power of appeal must be conferred by law. Reliance is also placed on Deep Chand and another Vs. Additional Director, Consolidation of Holdings, Punjab, Jullundur and another, 1964 PLR 318. Case of Charanjit Singh and others Vs. Additional Director, Consolidation Punjab, Chandigarh and others, 1985 PLR 364 is referred to in support. The counsel has also placed before me an unreported judgment passed in (Civil Appeal No.4450 of 2007 (Municipal Corpn. Chandigarh & Ors. Vs. Vipin Kumar Jain), decided on 20.9.2007, where the appeal filed by the Municipal Committee was allowed upholding the order of resumption for non- payment of instalment dues. Civil Writ Petition No.2059 of 1995 : 11 : From the facts as noticed above, it would emerge that the issue which would require determination is whether the representation made by the petitioner before the Advisor for modification of the earlier order for extending the time to pay instalment could be dismissed on the ground that it would amount to review of the earlier order. There is not much dispute between the parties that the Advisor had passed an order, allowing the prayer of the petitioner for rescheduling the instalments which was found to be genuine. The site was restored to the petitioner subject to the condition that he shall deposit the entire outstanding amount in three instalments on or before 30.3.1993 with a forfeiture of 5% as already ordered by Chief Administrator. On failure of the petitioner, to comply with this order, the impugned order passed by the Estate Officer was to become operative. It appears that the petitioner had two SCO Nos.16 and 17 and SCO No.16 standing in his name. Since the petitioner could not pay the amount, he had moved an application for modification of the earlier order, seeking extension of the time for payment of instalment. The said application was entertained by the Advisor and during the pendency thereof, the petitioner had deposited the demand draft of the entire amount, which was returned to him on 6.7.1993. The application seeking extension of time was dismissed on 7.7.1993 by treating it to be a review and on the ground that the allotment in favour of the petitioner already stood cancelled. It is thereafter that the petitioner sought a review of this order, which was declined on 21.12.1994. The writ petition was admitted and dispossession of the petitioner stayed. As already noticed, the petitioner has asked for Civil Writ Petition No.2059 of 1995 : 12 : extension of load and has submitted revised plan and has also been depositing ground rent. The whole trouble of the petitioner, thus, is the impugned order, Annexure P-20, whereby the prayer of the petitioner for extension of time was declined. The petitioner has, with sufficient justification, relied upon the precedent in the cases of Surinder Singh (supra) and Chinnamarkathian A Muthu Gounder (supra) to urge that prayer for extension of time could not have been declined on the ground that it would amount to review of the earlier order. As held in these cases, jurisdiction to grant time would include in absence of any contrary indication, jurisdiction to grant extension of time. No specific provision has been pointed out before me to urge that there is specific bar for granting extension of time. The Advisor had granted time to the petitioner for depositing the instalments and, thus, it is clear that he had a jurisdiction to do so. What the petitioner had pleaded, was extension of time to deposit instalment, which was declined on the ground that Advisor could not review this order. That view apparently may not be a correct view of law. Principle of equity would also come into play. Certain circumstances were taken into consideration for fixing a length of time. The Court or authority, thus, would retain to itself the jurisdiction to re-examine the alteration or modification of the circumstances, which may necessitate extension of time. Such jurisdiction certainly the Courts and authorities would enjoy in the absence of any negative provision. It may also need a notice that the petitioner had deposited the entire amount and had further undertaken to deposit the balance amount, if any, within a period of 15 days. The draft submitted by the petitioner was returned and the impugned order was passed after one day of the return of Civil Writ Petition No.2059 of 1995 : 13 : the draft. Once it is held that prayer for extension of time would not mean a review, then the reliance by counsel for the respondents on the case of Maharani Deepinder Kaur (supra) would be of no avail to him. The issue may be considered from another angle. It is well known and settled position of law that where action of the State is wholly unfair and unreasonable, which violates Article 14 of the Constitution of India, then both law and equity demand grant of relief and so the writ Court may grant such relief. That being the position, it is to be considered as to what relief is to be granted in this case. The petitioner has only prayed for quashing of order, Annexure P-20. Accordingly, the respondents would plead that the case can be remanded back to the Advisor for deciding afresh after setting-aside the impugned order, if it is so warranted. The petitioner has continued to remain in possession of the property for all these years. He has been regularly paying the ground rent. He had also submitted the revised plan for carrying out modification, which could not be approved in view of the pending litigation. Would it then now be fair to leave this issue open and give rise to another round of litigation? The exact prayer of the petitioner in this writ petition is not only to quash order, Annexure P-20 but also to quash the illegal demand made by the respondents on the petitioner qua penalty, interest and forfeiture. Further plea is that the date of actual payment of due be kindly taken as 7.5.1993, when the payment made by the petitioner was returned on 6.7.1993. The petitioner has also prayed that the rate of interest be fixed at the rate of 12% only since the administration has not made any change in the interest rate till 7.5.1993. In view of the multi-dimensional prayers Civil Writ Petition No.2059 of 1995 : 14 : made by the petitioner, there would not be any need to remand the case back to the Advisor for fresh decision. As a result, the impugned order dated 7.7.1993, Annexure P-20, is quashed. Since the petitioner has already deposited the amount on 7.5.1993, it would be fair to direct that the said due payment be accepted by calculating the rate of interest at the rate of 12%, if the amount still has not been paid. The direction to pay 5% forfeiture and penalty, which were imposed, shall also stand. The writ petition is accordingly disposed of in the above terms. March 07, 2011 (RANJIT SINGH ) ramesh JUDGE