Civil Writ Petition No. 12018 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Civil Writ Petition No. 12018 of 2008 Date of Decision: 26.11.2009 Bir Singh Nain …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 2. Civil Writ Petition No. 12013 of 2008 Bhajan Lal Nain …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 3. Civil Writ Petition No. 12014 of 2008 Jagdish Lal and Another …Petitioners Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 4. Civil Writ Petition No. 12015 of 2008 Jasbir Singh …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents Civil Writ Petition No. 12018 of 2008 2 5. Civil Writ Petition No. 12016 of 2008 Krishan Lal …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 6. Civil Writ Petition No. 12017 of 2008 Arjun Dass …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 7. Civil Writ Petition No. 12019 of 2008 Kusum Devi …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 8. Civil Writ Petition No. 12020 of 2008 Gir Raj Parshad …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents Civil Writ Petition No. 12018 of 2008 3 9. Civil Writ Petition No. 12021 of 2008 Arjun Dass Narula …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 10. Civil Writ Petition No. 12022 of 2008 Raj Pal …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 11. Civil Writ Petition No. 12023 of 2008 Parshotam Lal …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents 12. Civil Writ Petition No. 12050 of 2008 Narinder Singh and Others …Petitioners Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents AND Civil Writ Petition No. 12018 of 2008 4 13. Civil Writ Petition No. 17374 of 2009 Shiv Charan Lal Sharma …Petitioner Versus Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Deepak Sibal, Advocate for the petitioner. Mr. D.K. Jhangra, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) Counsel for the parties are in agreement that following Civil Writ Petitions can be decided by this common judgment:- i) Civil Writ Petition No. 12018 of 2008 titled as “Bir Singh Nain v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; ii) Civil Writ Petition No. 12013 of 2008 titled as “Bhajan Lal Nain v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; iii) Civil Writ Petition No. 12014 of 2008 titled as “Jagdish Lal and Another v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; iv) Civil Writ Petition No. 12015 of 2008 titled as “Jasbir Civil Writ Petition No. 12018 of 2008 5 Singh v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; v) Civil Writ Petition No. 12016 of 2008 titled as “Krishan Lal v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; vi) Civil Writ Petition No. 12017 of 2008 titled as “Arjun Dass v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; vii) Civil Writ Petition No. 12019 of 2008 titled as “Kusum Devi v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; viii) Civil Writ Petition No. 12020 of 2008 titled as “Gir Raj Parshad v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; ix) Civil Writ Petition No. 12021 of 2008 titled as “Arjun Dass Narula v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; x) Civil Writ Petition No. 12022 of 2008 titled as “Raj Pal v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; xi) Civil Writ Petition No. 12023 of 2008 titled as “Parshotam Lal v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; xii) Civil Writ Petition No. 12050 of 2008 titled as “Narinder Singh and Others v. Haryana State Agricultural Marketing Board, Haryana, Panchkula Civil Writ Petition No. 12018 of 2008 6 and Others”; And xiii) Civil Writ Petition No. 17374 of 2009 titled as “Shiv Charan Lal Sharma v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”; Counsel state that facts in all writ petitions are identical except in Civil Writ Petition No. 17374 of 2009 titled as “Shiv Charan Lal Sharma v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others” where there is a little variation of facts. Before the controversy raised in these writ petitions is appreciated, it is necessary to recapitulate the facts. Government of Haryana, through its Nodal Agency Haryana State Agricultural Marketing Board, Haryana (hereinafter referred to as “the Board”) decided to develop New Grain and Vegetable Market at Faridabad. The petitioners participated in the auction and being successful bidders were allotted various sites in the market. 25% of the auction amount was deposited at the spot. Allotment letters were issued. Later a dispute arose, that, the Board had not provided basic amenities which included electricity connections, internal roads, platforms, boundary wall, sewerage and drinking water. In some cases, it was stated that common toilets were also not provided. Due to non provision of these basic amenities, the allottees withheld the payment of instalments. Withholding of the instalments led the Board to fasten the allottees with penal interest. Since the instalments were not paid on the ground that basic amenities were not provided, the allottees in their own wisdom decided not to construct the building on the plots allotted. Building was to be constructed as per the building plan circulated by the Civil Writ Petition No. 12018 of 2008 7 Board and same was to be approved also. Non-construction raised another issue regarding the extension of time for constructing the building. Extension of the time also invited payment of non-construction fee or extension fee. In U.T. Chandigarh Administration v. Amarjeet Singh and Others 2009(1) Recent Civil Reports 401, it stands concluded that once person participated in the auction, as the site is auctioned on as is where is basis, therefore, successful bidder cannot later refuse to make the payment of instalment on the ground that basic amenities were not provided. This question was also determined by the Hon'ble Apex Court in Municipal Corporation, Chandigarh and Others v. M/s Shantikunj Investment Pvt. Ltd. etc. Judgment Today 2006(3) 1. A Single Bench of this Court in M/s Amar Singh Pritam Singh v. State of Haryana and Others (Civil Writ Petition No. 2029 of 2001 decided on 1.5.2009) where the Board was relying upon case of Amarjeet Singh's case (supra), held that the petitioner having defaulted in payment of due instalments, as per agreed schedule, is liable to pay penal and compound interest, as per the agreed terms & conditions of the allotment and no direction of refund thereof can be issued. Mr. Deepak Sibal, Advocate, appearing for the petitioners, has made valiant effort to persuade this Court to formulate contrary opinion and has brought certain issues into notice of this Court. He has relied upon Annexure P1 and has referred to para 3 of the allotment letter to say that it was specifically stated in the allotment letter that the area and the dimension shown above as given in the respective plan are subject to variation at the time of actual possession. Counsel for the petitioner Civil Writ Petition No. 12018 of 2008 8 laid much stress on the word “actual possession” in para 3 of the allotment letter and submitted that the delivery of possession cannot be construed from issuance of letter of allotment. Counsel appearing for the respondent-Board referred to paras 12 and 13 of the allotment letter in which it was specifically stated that the building is to be constructed within two years from the date of issuance of allotment letter. Therefore, it was stated that in the terms & conditions of the allotment letter, time of construction is to commence from issuance of letter of allotment. Even otherwise, allotment letter specifically states that petitioner has been allotted plot No. 40. Its dimension has been also given as 20' x 50'. In this context, word “actual possession” is to be considered in a broader sense. It is at the spot when the measurement is to be taken. A fraction of square yard less or more will not make the allotment bad. Therefore, in para 3 “actual possession” was used more as a caution. Once, the plot number has been assigned which has been specifically carved out, it cannot be said that by allotment of plot offer of possession has not been made to the petitioner. Allotment letter specifically mentioned the plot number. Therefore, possession has been offered and thereafter petitioner has to approach the authorities for delivery of physical possession and demarcation. No separate letter of offer or possession is to be issued by the authorities. Petitioner has not approached the authorities by way of any communication that actual possession and demarcation of the specific plot number be given to him. Counsel has referred to Annexure P5, a communication dated 20.6.2008, and has stated that the Board had intimated the allottee of the shop to make the construction within four months as per the standard drawings/designs Civil Writ Petition No. 12018 of 2008 9 approved by the Board. It was urged that till building plan was approved, the penal interest could not be charged. According to counsel, communication (Annexure P5) further says that the demarcation of the plot shall be given at the spot. Demarcation of the plot and possession are entirely different. Once the possession is offered for a specific plot vide allotment letter, on an application or on request made by the petitioner, official of the department ought to give and demarcate the plot, so that allottee may not construct a building on a plot belonging to another. Therefore, it cannot be said that the possession was not offered. Counsel has further relied upon Annexure P6 and stated that the Board had stated that the buildings are upto mark, therefore, allottee should deposit the extension fee of Rs.1,52,100/-. Counsel further states that since basic amenities were not there, therefore, charging of extension fee is not justifiable as the construction could not be raised. Counsel has further relied upon Rule 5 of Haryana Agricultural Marketing Board (Sale of Immovable Property) Rules, 2000 (hereinafter referred to as “2000 Rules”) to say that rule provided that interest shall only be levied from the date of issue of allotment letter after minimum basic amenities like roads, water supply, sewerage and electrification are existing. Counsel further states that since these amenities are not there, therefore, interest could not be charged. The above said contentions in view of judgment rendered by Single Judge of this Court in M/s Amar Singh Pritam Singh's case (supra) cannot be entertained, as the matter stand concluded. In M/s Amar Singh Pritam Singh's case (supra) reliance was placed on M/s Shantikunj Investment's case and Amarjeet Singh's case (supra). Civil Writ Petition No. 12018 of 2008 10 Due to pendency of number of similar petitions, a request was made to the Chief Administrator of the Board to remain present in the Court so that some kind of consensus may emerge and dispute could be amicably resolved. This Court intend to appreciate the initiate taken by the Chief Administrator who is present in this Court, as with mutual discussions with the counsel, he has resolved one of the issue, whether interest is to be charged at six monthly rest or at annual rest. The Chief Administrator has instructed the counsel to say that the interest will be charged at the annual rest as charging of interest at six monthly basis was not correct. Therefore, to this extent, petitioners are entitled to refund. It has been clarified that for the first three years, department had, as per rules, charged interest at six monthly rests. Thereafter, interest is to be levied at annual basis. In view of the statement, this Court is of the view that the necessary refund shall flow to the petitioners. Another significant concession granted by the Chief Administrator, is, that since the petitioners were in litigation for long, therefore, if the amounts have not been paid, the same can be deposited in instalments by the allottees. Mr. Deepak Sibal has stated that there is no need of any such concession as all the allottees have already paid the amount due to the Board except the petitioner in Civil Writ Petition No. 17374 of 2009 titled as “Shiv Charan Lal Sharma v. Haryana State Agricultural Marketing Board, Haryana, Panchkula and Others”. Accordingly, it is stated that allottee of plot in Civil Writ Petition No. 17374 of 2009 has to pay more than Rs.2,00,000/- towards interest. Taking into consideration the grant Civil Writ Petition No. 12018 of 2008 11 of concession by the Chief Administrator, it is directed that allottee in Civil Writ Petition No. 17374 of 2009 may pay the interest in four monthly equated instalments. For making the payment in instalments henceforth, no penal interest will be charged. The stand of the Board that basic amenities were provided at the time of allotment is disputed by the allottees. Under the writ petition, this Court will not adjudicate this issue. Since the matter has already been decided by a Single Judge of this Court relying upon judgment in M/s Shantikunj Investment's case (supra), petitioners have rightly paid the penal interest. Therefore, petitioners are not entitled to any refund for making payment of extension fee and penal interest. (Kanwaljit Singh Ahluwalia) Judge November 28, 2009 “DK”