CWP NO.19487 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO.19487 of 2007 Decided on : 31.10.2008 Jagdish Rai ....Petitioner VERSUS U.T. Chandigarh & another ....Respondents CORAM:- HON'BLE MR. JUSTICE M. M. KUMAR HON'BLE MR. JUSTICE JORA SINGH Present:- Mr. Rajiv Atma Ram, Sr. Advocate with Ms. Deepika, Advocate for the petitioner. Mr. K. K. Gupta, Advocate for the respondents. 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? M. M. KUMAR J. The petitioner has approached this Court with a prayer for quashing order dated 09.01.2007/13.07.2007 which is stated to have been served on him on 03.10.2007 (Annexure P-8). The petitioner has also sought directions to the respondents to proportionately reduced ground rent, interest and penalty in accordance with the directions issued by Hon'ble the Supreme Court in the case of Municipal Corporation, Chandigarh v. Shantikunj Investment Private Limited, (2006) 4 SCC 109. Brief facts of the case are that the petitioner was successful CWP NO.19487 of 2007 -2- bidder in respect of S.C.O. No.58, Sector 32-C, Chandigarh in an open auction held on 18.11.1997 by Chandigarh Administration-respondent for a total sum of Rs.60,00,000/-. They issued allotment letter on 21.01.1998 (Annexure P-1) which required him to deposit 25% of the auction amount (i.e. Rs.15,00,000/-) within one month and the remaining amount of Rs.45,00,000/- was to be paid in installments alongwith interest. The petitioner deposited the amount of Rs.15,00,000/- to the respondent in time. The schedule of payment has been given in the allotment letter by adding the amount of interest @ 10% per annum. The first installment of Rs.18,09,495/- was required to be made by 18.11.1998. Second and third installments of the same amount were required to be made on 18.11.1999 and 18.11.2000 respectively. In case of delay, interest @ 24% was required to be paid as per clauses 8(A), 9(a) and 9(b). After taking possession on 18.03.1998, he submitted the site plan and sanction was accorded on 22.06.1998. On 16.07.1998, the petitioner made a representation complaining that on excavation of earth upto 4 to 5 feet deep for the purposes of constructing basement, it was found on the site that main sewerage line of 10 to 12 feet diameter is crossing the site of S.C.O. No.58, Sector 32-C, Chandigarh vertically and the digging had to be stopped. The representation have been repeated from time to time which are collectively placed on record as Annexure P-2. On 27.04.2001, a show cause notice under Rule 12(3) and 13(iii) of Chandigarh Leasehold Sites and Building Rules, 1973 was issued, calling upon the petitioner to pay the amount of installment alongwith ground rent and interest @ 24% per annum for the defaulted period as to why penalty be not imposed and recovered from him. The petitioner challenged the afore-mentioned show cause notice by filing CWP NO.19487 of 2007 -3- CWP No.4388 of 2001. The afore-mentioned petition was dismissed by placing reliance on a judgment of this Court rendered in the case of Shantikunj Investment Pvt. Ltd. Vs. Chandigarh Administration, 2000 (1) PLR 838. The Division Bench dismissed the writ petition on 15.05.2002 (Annexure P-4). The matter was taken to Hon'ble the Supreme Court. Hon'ble the Supreme Court dealt with the case of the petitioner in para 36 and 37 by observing as under:- “36. In S.L.P.(c) No.14289 of 2003, S.L.P.(c) No.2948 of 2003 and S.L.P.(c) Nos.13640-13641 of 2004, the grievance of the writ petitioners was that sewerage line was passing through the allottees' building. Therefore, possession could not be handed over and the same was handed over only after removal of that sewerage line from the allotted plot. This aspect may also be examined by the High Court. 37. This Court also called for a report by appointing a Commission. The report of the Commissioner has been placed on record. The High Court while deciding the question of facilities provided may look into the aforesaid report.” It is observed that the matter was sent back to this Court. The petitioner after referring to the order passed by Division Bench in CWP No.12624 of 2002 (Annexure P-6) on 04.05.2006 in the case of Col R. C. Punj Vs. U.T. Administration, Chandigarh made a representation to the Estate Officer, Chandigarh to grant him benefit of the judgment of Hon'ble the Supreme Court rendered in Shantikunj Investment Pvt. Ltd. (supra). He claimed that parking lights were provided on 18.07.2002 and road parking CWP NO.19487 of 2007 -4- was provided on 31.07.2002 as per affidavit of the Estate Officer. He claimed compensation and relief of waiving the penalty interest, ground rent, extension fee etc. and rescheduling of the payment of all the installments. On 03.10.2007, the petitioner was informed that a sum of Rs.1,68,37,334/- is outstanding against the above said SCO site on account of ground rent, interest and penalty worked out upto 24.12.2007. The petitioner was asked to clear the outstanding amount within a period of three months from the date of issuance of letter which was to expire on 03.01.2008. The representation made by the petitioner has been decided by the respondent vide order dated 13.07.2007. After noticing the facts, the Estate Officer concluded that basic amenities were provided at the site and a report with regard to removal of sewerage line obstructing construction of the site in question was obtain from the Chief Engineer, Municipal Corporation, Chandigarh. The report confirmed that the old sewerage line was completely removed in the month of July, 2000 and the storm water drainage facilities exists in the area for more than 5 years. The basic amenities at site were also available as per the report submitted to this Court on 18.11.1997 and it was on that basis that the petition filed by the petitioner was dismissed on 15.05.2002. The Estate Officer concluded that all basic amenities like water/sewerage/drainage/road and parking were provided at the site prior to 18.11.1997 except the parking lights. The parking lights were also provided at the site on 18.07.2002. The water supply/sewerage line underlying the plot was shifted on 28.12.1999. The Estate Officer went on to conclude with the following observation:- “In accordance with the above said judgment and the facts of the case, it was the obligation on the part of the allottee CWP NO.19487 of 2007 -5- to pay the premium of the site in time and no benefit can be given in terms of premium or any interest charged thereon. Since most of the basic amenities as per the above judgment were also available at the site except parking lights which were also provided on 18.07.2002. Therefore, on account of lack of 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 employment 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 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 upto 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. By this order, the representation dated 18.10.2006 of Sh. Jagdish Rai as per orders of the Hon'ble High Court dated 09.05.2006 is disposed off.” In the written statement, the stand taken is that the benefit of the judgment of Hon'ble the Supreme Court in the case Shantikunj Investment Private Limited has already been given to the petitioner vide order dated 09.01.2007/13.07.2007. It has been conceded that physical CWP NO.19487 of 2007 -6- possession of the site was given to the petitioner on 18.03.1998 and the building plan was sanctioned on 22.05.1998. On the basis of the representation, the water pipe was shifted on 28.12.1999 and sewerage line was also removed in the month of July, 2000. He was prevented from carrying out construction work from 16.07.1998 to July, 2000. Accordingly, necessary benefit by waiving ground rent interest and penalty has been granted to the petitioner which is to be charged from him from 16.07.1998 till July, 2000. The petitioner has also been granted extension for raising construction on the site. We have heard learned counsel at the considerable length and find that the instant petition is devoid of merit. The Chandigarh Administration-respondent has passed the fair order by granting benefit to the petitioner for the period from 16.07.1998 upto July, 2000. It was during the afore-mentioned period that the construction work of the petitioner could not be carried out but in respect of later period there has been no obstruction in the construction work. The petitioner has also been granted extension in time for raising construction. The petitioner has been able to successfully delay the payment in respect of the site in question and in the meanwhile the price of the site has gone up manifold. He is getting away by paying ground rent interest and penalty except for the period of 16.07.1998 till July, 2000. The order of Hon'ble the Supreme Court is categorical in this regard and for facility of reference the same reads thus:- “In this background, we are of the opinion that the interpretation of the Act and the Rules given by the Division Bench of the Punjab & Haryana High Court in the impugned judgment (M/s Shanti Kunj Investment Pvt. Ltd.) CWP NO.19487 of 2007 -7- cannot be sustained. It has been contended by the counsel for the Chandigarh Administration that all 1 facilities have been provided and some of the allottees have already constructed their buildings and have rented out the same and some allottees have applied for construction of Hotels also. It is not possible for us to examine all these facts individually. Some of the sectors have been fully developed and some sectors have been less developed. Therefore, it is not possible to work out that in one case it has been fully developed and in the other case it is still not developed. However, in some cases full payment has been made, in some cases two installments have been made. Therefore, all these disputed facts have to be adequately dealt with by the High Court. We make it clear that though it was not a condition precedent but there is obligation on the part of the Administration to provide necessary facilities for full enjoyment of the same by the allottees. We, therefore, remit the matter to the High Court for a very limited purpose to see that in cases where facilities like kutcha road, drainage, drinking water, sewerage, street lighting have not been provided, then in that case, the High Court may grant the allottees some proportionate relief. Therefore, we direct that all these cases be remitted to the High Court and the High Court may consider that in case where Kutcha road, drainage, sewerage, drinking water facilities have been provided, no relief shall be granted but CWP NO.19487 of 2007 -8- in case, any of the facilities had not been provided, then the High Court may examine the same and consider grant of proportionate relief in the matter of payment of penalty under Rule 12(3) and delay in payment of equated installment or ground rent or part thereof under Rule 12(3) only. We repeat again that in case the above facilities had not been granted then in that case consider grant of proportionate relief and if the facilities have been provided then it will not be the open on the part of the allottees to deny payment of interest and penalty. So far as payment of installment is concerned, this is a part of the contract and therefore, the allottees are under obligation to pay the same. However, so far as the question of payment of penalty and penal interest is concerned, that shall depend on facts of each case to be examined by the High Court. The High Court shall examine each individual case and consider grant of the proportionate relief.” As far as case of the petitioner is concerned, all basic amenities were available on the site at the time of auction. We further find that road drainage, sewerage and drinking water facilities were provided to the petitioner. Therefore, in accordance with the direction of the Hon'ble the Supreme Court, no relief is available to him on that account. However, the Chandigarh Administration-respondent have themselves accepted that the petitioner was deprived of the use of his plot for raising construction from 16.07.1998 to July, 2000. Accordingly, proportionate benefit for that period has been given in respect of ground rent interest and penalty. Therefore, CWP NO.19487 of 2007 -9- writ petition is devoid of merit and the same is liable to be dismissed. For the reasons, afore-mentioned we uphold the order dated 09.01.2007/13.07.2007 (Annexure- P'8') passed by Assistant Estate Officer, U.T., Chandigarh. It has been brought to our notice that after the filing of the petition, same amount has further been deposited and the correct figure payable by the petitioner is 1,55,73,101/- upto 15.11.2008. The afore- mentioned amount shall be paid by the petitioner within a period of 3 months from today. The writ petition stands disposed of in the above terms. (M. M. Kumar) Judge (Jora Singh) Judge October 31, 2008 ashish