IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13799 of 2007 DATE OF DECISION: October 22, 2008 Jarnail Singh …Petitioner Versus State of Punjab and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Rakesh Gupta, Advocate, for the petitioner. Mr. Suvir Sehgal, Addl. AG, Punjab. for respondent No. 1. Mr. J.S. Toor, Advocate, for respondent No. 2. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR & JORA SINGH, JJ. 1. This petition filed under Article 226 of the Constitution prays for quashing order dated 8.5.2007 (P-5), declining the request of the petitioner for condonation of delay in depositing the dues in respect of Plot No. 511SF, Shaheed Sewa Singh Thikriwala Nagar Development Scheme, Rajpura Road, Patiala. A further prayer has C.W.P. No. 13799 of 2007 been made for directing the respondents to accept the remaining instalments of the aforementioned house and to hand over physical possession of the same. 2. Brief facts of the case are that the petitioner was allotted LIG Flat No. 511 (Second Floor) in Shaheed Sewa Singh Thikriwala Nagar Development Scheme, Rajpura Road, Patiala, by the Improvement Trust, Patiala, vide demand-cum-allotment letter dated 7.7.2006 (P-1). At the time of submitting the application, the petitioner had already deposited a sum of Rs. 47,000/- as earnest money being 10% tentative cost. The petitioner was required to pay Rs. 80,200/- within 30 days of allotment and the balance 75% amount i.e. a sum of Rs. 3,22,500/- was required to be paid in 10 instalments as per the details given in the schedule attached with the letter of allotment starting from 5.10.2006 to 5.4.2011. Interest at the rate of 12% was payable on the outstanding instalments after the date of offer for possession of flat. It has further been stipulated in the allotment letter that in case of failure of payment of instalment on due date, interest on the due amount was to be charged as under:- “a) For the 1st month of default @ 18% per annum b) For the two months of default @ 20% per annum c) For the three months of default @ 30% per annum d) For the fourth months of default @ 35% per annum” 3. The allotment was liable to be cancelled in case of non- receipt of instalment with interest within 4 months and the entire amount paid was to be forfeited. No extension beyond four months 2 C.W.P. No. 13799 of 2007 of the due date of payment was admissible except in case of acute hardship, which was subject to such penalty of not less than 20% of the instalment amount or as may be decided by the Trust in addition to interest @ 35% for the period beyond 4 months. In the event of seeking extension, written request was to be made. It has also been mentioned that the allotment was to be governed by the provisions of the Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983 (for brevity, ‘the Rules’). 4. The petitioner has claimed that since he was unwell and his brother-in-law (sister’s husband), namely, Shri Bhagat Singh was seriously ill and admitted in the Rajindra Hospital, Patiala, therefore he could not deposit 15% cost of Rs. 80,200/- within the stipulated period of 30 days. However, the petitioner deposited a sum of Rs. 83,350/- instead of Rs. 80,200/- on 10.10.2006, which includes Rs. 3,150/- towards interest and penalty. In this manner, a delay of three months and three day has occurred in payment of 15% amount. In token of aforementioned payment a receipt No. 31740, dated 10.10.2006, was issued to the petitioner (P-2). Thereafter, on 24.11.2006 the petitioner deposited a sum of Rs. 33,133/- towards first instalment and interest @ 18%, which was actually payable upto 5.10.2006 (P-3). The second instalment which was due on 5.4.2007. It is claimed that when the petitioner went to deposit the said instalment in the month of April, 2007 alongwith Demand Draft No. 894786, dated 22.3.2007, amounting to Rs. 32,250/-, he was told that the payment of 15% cost made by him earlier, was not accepted because the same was not deposited in time. Though the 3 C.W.P. No. 13799 of 2007 aforementioned demand draft was taken from the petitioner but no receipt of the same was issued. Faced with this situation, the petitioner made a detailed representation dated 3.4.2007 and requested for acceptance of the amount paid by him (P-4). However, the request of the petitioner has been declined vide order dated 8.5.2007, which is subject matter of challenge in the instant petition. After passing of the impugned order the petitioner also sent a legal notice dated 23.5.2007 (P-6). The respondents instead of replying the legal notice, sent a communication dated 31.5.2007 and again intimated that his request has been rejected. He was asked to produce the original receipt dated 10.10.2006 and 24.11.2006 so that Rs. 1,16,480/- could be reimbursed to him. The draft dated 22.3.2007, for a sum of Rs. 32,250/- was also returned to him (P-7). 5. In the short reply filed on behalf of respondent No. 1 the stand taken is that the competent authority after examining the request of the petitioner has found no substance in the plea of illness taken by the petitioner and the same was not considered a sufficient and valid reason by the competent authority for condoning the delay in depositing the 15% amount, therefore, the request of the petitioner has rightly been declined. 6. In the written statement filed on behalf of respondent No. 2 the factual position has been admitted and it has been asserted that the amount deposited by the petitioner was accepted by the Trust subject to the decision and approval of the Government. Since the Government vide order dated 8.5.2007, declined the request of the petitioner for condonation of delay, therefore, the amount deposited 4 C.W.P. No. 13799 of 2007 by the petitioner has been returned. It has also been pointed out that in pursuance to the direction of this Court the petitioner has deposited a sum of Rs. 64,500/- on 19.9.2007, however, he failed to deposit the amount of interest accrued. In that regard he was issued letter dated 1.10.2007 (R/2/1) followed by letter 31.1.2008 (R/2/2) for deposit of a sum of Rs. 13,149/- as on 5.2.2008. However, the said amount has not been deposited. 7. In the replication to the written statement filed by respondent No. 2, the petitioner has submitted that he has already deposited an amount of Rs. 28,500/- towards enhanced cost of the flat in question and Rs. 190/- as interest on 28.2.2008 and another sum of Rs. 13,149/- though not payable by him, was also deposited on 28.2.2008 itself (P-9 & P-10). The petitioner has further deposited the fourth instalment on 4.4.2008, which has been duly accepted by the respondents (P-11). 8. We have heard learned counsel at a considerable length and find that the approach adopted by the respondents is unwarranted and unsustainable in the eyes of law. From a perusal of the sequel of events narrated in the preceding paragraphs it clearly comes out that the petitioner has bonafidely failed in depositing the 15% amount within the stipulated period of 30 days. The subsequent act and conduct of the petitioner in depositing all the due amount or the enhanced amount demanded by the respondents proves that he could not deposit the 15% amount within 30 days on account of his as well as illness of his brother-in-law. Accordingly, it is held that the delay of three months and three days in depositing the 15% amount is 5 C.W.P. No. 13799 of 2007 neither deliberate nor intentional but due to illness of the petitioner and his brother-in-law. 9. So far as the question of power to relax is concerned, such power vests with the Government as per Rule 14 of the Rules, which reads thus:- “14. Power to relax.- Where the Government is of opinion that it is necessary or expedient so to do, whether of its own motion or on being moved by a Trust, it may, by order for reasons to be recorded, in writing, relax the guidelines provided in these rules, to meet the special requirements of any scheme.” 10. A bare perusal of Rule 14 of the Rules, shows that the Government is competent, on its own motion or on being moved by a Trust, to relax the guidelines provided in the rules in order to meet the special requirements of any scheme. The period for depositing the amount is not inflexible and it could be relaxed. Even otherwise, an order supported with reasons is required to be passed by the competent authority. In the instant case, the competent authority has passed a totally cryptic and non-speaking order, inasmuch as, no reasons whatsoever in rejecting the request of the petitioner have been given. The laconic order (P-5) passed by the Government states that it has considered the request of the petitioner for condonation of delay for LIG Flat No. 511 Second Floor, SST Nagar Scheme and there was no substance. Therefore, the impugned order dated 8.5.2007 is liable to be set aside. 6 C.W.P. No. 13799 of 2007 11. We are, thus, of the view that the delay of 3 months 3 days caused by the petitioner in making payment of 15% amount deserves to be condoned by charging penalty at the rate of 12%. Accordingly, the writ petition succeeds and impugned order dated 8.5.2007 (P-5) is quashed. The respondents are directed to hand over LIG Flat No. 511, Second Floor, Shaheed Sewa singh Thikriwala Nagar Development Scheme, Rajpura Road, Patiala, to the petitioner within a period of two months from the date of receipt of a certified copy of this order as physical possession of the flat has not been given so far. The petitioner shall be liable to pay penalty @ 12% for the delay of 3 months 3 days. We have imposed the rate of penalty of 12% by taking clue from the demand-cum-allotment letter dated 7.7.2006, which provides that “interest @ 12% shall be payable on the outstanding instalments after the date of offer for the possession of flat”. We hope and trust that the petitioner would deposit the remaining instalments in time as per the schedule appended with the allotment letter, which shall be accepted by the respondents. 12. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (JORA SINGH) October 22, 2008 JUDGE sanjeev/Pkapoor 7