CIVIL WRIT PETITION NO.21694 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 16, 2011 Kamlesh Girdhar .....Petitioner VERSUS 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. R. K. Bansal, Advocate for Mr. Rajinder Goyal, Advocate, for the petitioner. Mr. Sanjay Kaushal, Sr.Standing Counsel for U.T. Chandigarh. **** RANJIT SINGH, J. The petitioner had surrendered the allotment of a booth made in his favour in Sector 41-D, Chandigarh. The respondents, while allowing the surrender, have forfeited the entire amount of `1,80,000/- deposited by the petitioner. The petitioner accordingly has approached this Court to either refund the amount, once the respondents have accepted the offer of surrender or to restore the lease of the booth in his favour and accept the balance amount alongwith requisite charges. CIVIL WRIT PETITION NO.21694 OF 2008 :{ 2 }: Booth No.39, Sector 41-D, Chandigarh was allotted to the petitioner and he deposited a sum of `72,000/-, which is 10% of the total premium. He further deposited a sum of `1,08,000/- on 6.1.1999 to clear 25% of the price of total premium. The petitioner, however, was not given possession despite repeated requests. When the possession of the booth was offered to the petitioner on 20.5.2002, he noticed that the administration has constructed a toilet in front of the booth in question. The petitioner accordingly made a prayer for surrender of the booth in question and for refund of `1,80,000/- deposited by him alongwith 18% interest per annum. Respondent No.4, however, imposed penalty of `39,714/- for non-deposit of instalments and ground rent. The petitioner filed an appeal against this order and the order was set-aside. The case was remanded to the respondents for affording opportunity of hearing to the petitioner. On 1.12.2004, respondent No.4 still dismissed the application of the petitioner for surrender of site and further forfeited 10% of the premium plus ground rent and interest. The petitioner had then filed an appeal against the same on 19.1.2005, which was dismissed on 30.10.2007. The petitioner thereafter filed a revision, which was dismissed on 19.3.2008. Thereafter, the petitioner filed Civil Writ Petition No.19132 of 2008 before this Court on 10.11.2008. The petitioner would maintain that her husband was having sufficient funds to pay the instalments, which he did not pay because of the incumbrance attach to the booth. This Court required of the petitioner to show that she had adequate amount to meet the demand of payment of instalments and also that she had ever sent CIVIL WRIT PETITION NO.21694 OF 2008 :{ 3 }: representation. The petitioner thereafter withdrew this writ petition with liberty to file a fresh petition and accordingly the present writ petition was filed. The respondents have filed reply. As per the respondents, the petitioner had deposited only 25% of the premium and thereafter had not paid any instalment. It is pointed out that the petitioner had made a request for surrender of booth after 2 years of the auction/allotment. The case was referred to Chief Administrator on 19.9.2002, who through his letter dated 22.5.2003, opined that notification regarding surrender of site was issued on 5.6.2002 whereas the lessee made an application for surrender on 20.5.2002. Accordingly, it was viewed that the application of lessee for surrender can not be considered under the said notification. Reference is also made to appeal and revision filed by the petitioner, which have been declined. Prayer, thus, is made for dismissing the writ petition. It is noticed that the only ground to decline the prayer of the petitioner for surrender is that the notification in this regard was issued on 5.6.2002 whereas the application for surrender was made on 20.5.2002. It is clearly seen that the case of the petitioner was under consideration and has been referred to the Chief Administrator on 19.9.2002 i.e. much after the notification. The opinion of the Chief Administrator was recorded on 20.5.2003, when the notification was clearly in operation. Merely because the notification, permitting right to surrender was issued a few days after the application, can not be considered an appropriate ground to decline the prayer of surrender as made by the petitioner. CIVIL WRIT PETITION NO.21694 OF 2008 :{ 4 }: It may need a notice that the petitioner had made a prayer for surrendering the booth on account of a toilet block coming in front of the booth. This fact is not denied but is stated that the same was in the knowledge of the petitioner at the time of auction. There is not much material on record in this regard. Viewing all these facts, this Court had directed the counsel appearing for Union Territory, Chandigarh, to have instructions as to why the part of payment deposited by the petitioner be not refunded, so as to take the subject booth out of litigation as it would then enable the respondents to re- auction the same. The counsel appearing for Union Territory had prayed for adjournments on more than one occasion ultimately to submit before the Court that the respondents are not prepared to refund the amount, even to end litigation. This attitude on the part of respondents certainly is not conducive to the process of conciliation. The only justification advanced in declining the prayer is that the notification permitting surrender was issued subsequent to the date of application submitted by the petitioner. The respondents had not taken any decision on the application, when the notification came into being and certainly could have been taken into consideration to consider the claim of the petitioner for surrender. The respondents, thus, are certainly not seen acting in a fair manner to deal with the case. In fact, they have not responded fairly to the reasonable course given and viewed by this Court to end the litigation. Needless to mention that surrender of the booth would enable the respondents to re-auction the same now and the booth can fetch much more price as per the prevailing rates. The CIVIL WRIT PETITION NO.21694 OF 2008 :{ 5 }: respondents, thus, are apparently behaving in a brazen manner. The prayer made by the petitioner appears just and reasonable and deserves to be allowed. The writ petition is accordingly allowed. Directions are hereby issued to the respondents to refund the money deposited by the petitioner. Since the respondents have utilised the said amount for considerable period starting from 1999 onwards, there is not justification seen in allowing the respondents to forfeit any part of the money so deposited by the petitioner. To balance equities, the petitioner is not held entitled to any interest, as claimed by him in the petition. However, seeing the unfair attitude of the respondents, the petition deserves to be allowed with costs, which are assessed at `10,000/-. Let this amount be refunded to the petitioner within a period of two months from the date of receipt of copy of this order. The respondents would be free to deal with the booth in accordance with law. May 16, 2011 ( RANJIT SINGH ) khurmi JUDGE