CWP No. 9438 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 9438 of 2004 Date of decision 23 .1.2009 Manjoor Singh and another ...petitioners Versus The Union Territory, Chandigarh and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JORA SINGH Present: Mr.S.K.Sud, Advocate for the petitioners. Mr.Deepak Sharma, Advocate for respondent nos. 1 and 2 Ms.Palika Monga, AAG Haryana. 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This petition filed under Article 226 of the constitution prays for quashing demand of Rs. 8,93,478/- raised by the respondents-Estate Officer, Chandigarh vide order dated 11.11.2004 ( Annexure P.6). A further prayer has been made for issuance of direction to the respondents to refund the amount of Rs. 9,93,750/- to the petitioners. Brief facts of the case are that the petitioners purchased a plot bearing No.3529 (P) sector 38 D, Chandigarh in an open auction for a consideration of Rs.39,75,000/- on 25.9.1996 and paid a sum of Rs.9,93,750/- as 25 percent of the plot price. They were issued a letter of allotment on 12.12.1996 ( Annexure P.1). According to the terms and conditions of letter of allotment, the petitioners were to pay the balance amount in three yearly instalments of Rs.11,98,790/- each alongwith ground CWP No. 9438 of 2004 2 rent of Rs. 99,375/-. It was stipulated in clause 8 of the letter of allotment that the allotment of plot was liable to be cancelled and the plot was liable to be resumed in case of failure to pay the instalment. As the petitioners could not pay the instalments as per the terms and conditions of allotment letter, the Estate Officer cancelled the allotment of lease hold plot under Rule 12(3) of the Chandigarh Lease Hold of Sites and Building Rules, 1973 (for brevity 'the 1973 Rules') on 10.11.1999 which order was communicated to the petitioners on 14.12.1999 (Annexure P.2). The petitioners preferred an appeal before the Chief Administrator, UT, Chandigarh under Section 10 of the Capital of Punjab (Development and Regulations) Act, 1952 read with Rule 22 of the 1973 Rules against the order of cancellation wherein it was mentioned that the Estate Officer levied 10 percent penalty amounting to Rs. 2,39,758/- on account of failure to pay instalments and 100% penalty on ground rent amounting to Rs. 1,98,750/-. The appeal was allowed on 6.4.2004, but the order was conveyed to the petitioners on 23.4.2004, (P.3) subject to the condition of clearing the entire outstanding dues within two months failing which the order of the Estate Officer was to come into operation automatically. The petitioners failed to comply with the directions of the Appellate Authority and therefore order of cancellation of plot came into operation. On 9.9.2003, the Collector, U.T., Chandigarh on the asking of the Estate Officer, UT, Chandigarh initiated recovery proceedings and memo dated 9.9.2003 was sent to the Collector, Kurukshetra to recover a sum of Rs. 53,90,599/- from the petitioners under the Recovery of Revenue Act, 1890 as the amount was recoverable as arrears of land revenue from the petitioners. The collector started recovery proceedings and summons were CWP No. 9438 of 2004 3 issued to the petitioners to appear before him. The petitioners submitted an application to the Collector, U.T., Chandigarh for withdrawal of the memo of recovery sent to Collector, Kurukshetra on the ground that their appeal is pending and memo of recovery is premature. It is claimed that the counsel for the petitioners met the Estate Officer, Chandigarh and the Estate Officer orally agreed not to takeout recovery proceedings. As no written directions were issued, the Collector, Kurukshetra proceeded with the recovery of Rs. 53,90,599/-. It is alleged by the petitioners that the order imposing penalty of Rs. 2,39,758/- on account of failure to pay the instalment and Rs. 1,98,750/- representing ground rent, were passed ex-parte. The petitioners filed a revision petition before the Adviser to the Administrator, UT Chandigarh. The Revision petition was accepted and a direction was issued to the Estate Officer to calculate the amount due from the petitioners and intimate the same to them. The grievance of the petitioners is that the demand of the Estate Officer of a sum of Rs. 8,93,478/- (P.6) is an illegal demand in as much as interest has been calculated at inflated rates than payable under the rules. The penalty of Rs.2,39,758/- and Rs. 1,98,750/- has also been challenged on the same ground. In response to the notice of motion having been issued respondent nos. 1 and 2 have filed their written statement. The stand taken by the respondents is that the terms and conditions of the allotment letter dated 12.12.1996 have not been complied with. The other broad factual background as stated in the preceding paras has not been denied. It has been pointed out that possession of the plot was handed over to them on 23.10.1997 (R.1/1). A show cause notice dated 17.12.1998 under Rule 12(3) of the 1973 Rules was issued as to why penalty be not imposed on the CWP No. 9438 of 2004 4 defaulted amount of instalments and ground rent. Despite issuance of summons for appearance on various dates, the petitioners deliberately failed to join the proceedings and therefore the ex-parte proceedings were taken and 10% penalty on the 1st and 2nd instalments alongwith 100% penalty on ground rent was imposed vide order dated 17.3.1999 which was conveyed to the petitioners on 24.3.1999. It is alleged that the petitioners have failed to comply with the order passed in appeal and have also failed to fulfill their contractual obligation as per the terms and conditions of the allotment letter which are binding on the petitioners. It is averred in reply to para 8 of the petition that recovery proceedings as per provisions of law have been initiated for recovery of entire outstanding amount because the petitioners have failed to deposit the dues. The petitioners have also filed replication and have submitted that clause 17 of the allotment letter contemplates that in case of default/ breach or non compliance of any of the conditions of lease it may be cancelled and the site be resumed. It is further asserted that clause 17 further provides that amount in part or whole paid to the government towards premium/ rent of the site would also be forfeited to the government. The contention raised by the petitioners is that no construction had been raised and according to Annexure R/1/2 the allottee could also apply for refund as the amount was refunded in all cases after deducting the penalty which infact is not correct. However, they have submitted that the action of the respondents was in violation of the terms and conditions of the allotment letter. The petitioners further claimed that after purchasing the plot in the open auction held on 25.9.1996 for a sum of Rs.39,75,000/- on lease hold basis they have paid a sum of Rs.9,93,750/- representing 25 percent of the CWP No. 9438 of 2004 5 amount at the time of auction and rest of the 75 percent was payable in lump sum or in three annual equated instalments. They could not pay first and second instalments as per the terms and conditions and the allotment was cancelled on 10.11.1999 ( Annexure P.2). In the endorsement made in the cancellation order dated 10.11.1999 the officer of the Administration was directed to take up the matter with the concerned officer under the Public Premises Act for eviction of unauthorized occupants from the said site. The petitioners have claimed that since no construction was raised on the plot no body was to be evicted and the petitioners was not required to formally surrender the possession of the plot which had already been resumed. According to the petitioners, the Estate Officer under clause 12(3) of the 1973 Rules had imposed penalty of Rs. 2,39,758/- for failure to pay the instalments and penalty of ground rent of Rs,. 1,98,750/- . His claim in nut shell is that he would be entitled to refund of amount of Rs. 5,47,241/- after defraying the penalty on account of failure to pay instalments and ground rent whereas Rs. 8,93,478/- is being illegally demanded from the petitioners. Having heard learned counsel for the parties, we are of the considered view that the question of giving up of possession of the plot in question after the passing of resumption order on 10.11.1999/14.12.1999 (P.2) is a question of fact. The appeal filed by the petitioners was allowed by the Chief Administrator setting aside the order of cancellation vide his order dated 6.4.2004 ( Annexure P.3). However, it was subject to the condition of clearing the entire outstanding dues within two months failing which the order of Estate Officer dated 10.11.1999 was to come into operation automatically. The aforesaid order came into operation as the petitioners failed to comply with the directions of the appellate authority. It CWP No. 9438 of 2004 6 was thereafter that recovery proceedings were initiated and memo dated 9.9.2003 was sent to the Collector to recover a sum of Rs. 53,90,599/- from the petitioners to be recovered as arrears of land revenue. However, the petitioners have claimed that the order of resumption would result into delivery of possession to the respondent administration. They have also claimed that since no construction was raised on the plot, therefore, it is deemed to be with the Administration from the date of the order of resumption which was passed on 10.11.1999 (P.2). In the facts and circumstances of the case we deem it just and appropriate to direct the Chief Administrator to reconsider the whole matter and if the petitioners are found to have surrendered possession on these facts then grant them the benefit of not charging any interest. The payment of refund, if any found due to them, be made to the petitioners expeditiously. (M.M.Kumar) Judge (Jora Singh) 23.1.2009 Judge okg