C.W.P.No.914 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.914 of 2008 Date of Decision:- 09.05.2011 Jagjit Singh ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.P.K.Mutneja, Advocate, for the petitioner. Mr.A.S.Grewal, Sr.Addl.AG, Punjab, for respondent No.1. Mr.Jaspreet Singh, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) Challenge in this writ petition is to the auction notice dated 28.12.2007 (Annexure P-9) issued in the news paper by the Improvement Trust, Sangrur (hereinafter referred to as 'the Trust') wherein, the plot allotted to the petitioner was put to auction and a prayer for issuance of a writ of mandamus directing the respondents not to hold the auction qua the plot of the petitioner. The case of the petitioner is that in response to an advertisement issued by the Trust, the petitioner applied for allotment of residential plots measuring 200 sq. yards vide application dated 25.8.2000. In the draw of lots, petitioner was one of the successful applicants and he C.W.P.No.914 of 2008 -2- was issued allotment letter dated 3.7.2001 (Annexure P-1). He was allotted plot No.1-A, (corner plot) in the general category in the Scheme, namely, 9.81 acres JP Nagar. The total sale price of ` 7,70,000/- out of which the petitioner was required to deposit, within 30 days of the dispatch of the allotment letter, the amount and in case he wanted to pay the price in instalments then ` 1,92,500/- as 25% of the total cost including the earnest money, if any paid, was to be deposited. As the petitioner opted for deposit of the cost of the plot in instalments, a Schedule was supplied by the Trust-respondent No.2. The petitioner deposited the amount as demanded i.e. 25% of the price on 3.7.2001. A letter of possession of plot No.1-A was issued to the petitioner on the same day i.e. 3.7.2001 (Annexure P-2). As the petitioner did not deposit the instalments as per the Schedule, he received a letter dated 26.3.2002 ( Annexure P-3) calling upon him to deposit the amount as per the instalments as after the deposit of 25% of the amount of the plot, the remaining five instalments with difference of six months were to be deposited in the office of the Trust but he had not made any payment of instalment. It was mentioned that he was required to deposit ` 1,50,150/- along with penal interest. It was also mentioned that plot could be resumed and would be restored after deposit of 20% penalty. Thereafter, similar letters dated 25.7.2002 (Annexure P-4) was issued to the petitioner and then on 5.12.2002 (Annexure P-5) with the variance of the amount of instalments to be paid by him. In all these letters, it was specifically mentioned that in case he does not deposit the amount, the plot could be resumed. The petitioner did not deposit the amount still. It is the contention of the petitioner that he could not make C.W.P.No.914 of 2008 -3- good the payment for the reason that his father suffered a heart problem because of which he had to be hospitalized and he underwent a heart by- pass surgery during this period. On receipt of the letter dated 5.12.2002 (Annexure P-5) the petitioner approached the respondent-Trust and apprised them of the difficulty he was facing. In order to show his bona fides, he was called upon to deposit an amount of ` 1,00,000/- by means of a draft which he did on 3.1.2003 vide receipt No.9822 dated 8.1.2003. Thereafter, he again received letter dated 11.9.2003 (Annexure P-6) from the respondent-Trust wherein the details of amount required to be deposited by him were mentioned besides mentioning that if he does not deposit the same within a period of one week, his plot would be resumed by the Trust and to this communication, the petitioner did not respond. Another letter dated 2.12.2003 (Annexure P-7) was received by him where again he was given one opportunity to make good the amount due. The petitioner filed a representation to the Executive Officer of the Trust dated 18.12.2003 praying therein for waiver of the penalty which had been imposed upon him. It is his contention that to this representation, he did not receive any response nor the amount of ` 1,00,000/- which was deposited by him by way of bank draft dated 3.1.2008 was credited to his account due. No further notice was received by the petitioner nor did he receive any order of resumption of the plot from the respondents. The petitioner was shocked to see auction notice appearing in the news-paper dated 28.12.2007 wherein the plot allotted to him was also included for auction slated for 23.1.2008 (Annexure P-9). It is this auction notice which is put to challenge in the present writ petition. The primary ground for challenge to the auction notice is that C.W.P.No.914 of 2008 -4- there was no authority for resumption of the plot as no order of resumption was received by him and that he had no occasion to respond to the show cause notice which also was not issued to him nor he was given an opportunity of hearing before resumption of the plot by the respondent- Trust. The order of resumption has civil consequences and cannot be resorted to without giving an opportunity of hearing to the petitioner. The petitioner was ready and willing to deposit the amount and accordingly, he had made a representation for waiver of the penalty imposed upon him but no decision on the same was taken by the respondents. It is his further contention that the deposit of ` 1,00,000/- by the petitioner was not credited to his account due and in any case, the amount which was deposited by the petitioner could not have been forfeited by the respondent- Trust. Upon notice having been issued, respondents have put in appearance and filed reply stating therein that the consequences which the petitioner is facing now is all because of default on his part in making payment of the instalments which he was required to make on account of allotment of the plot in his favour. The terms of allotment of the plot as are mentioned in the letter dated 3.7.2001 (Annexure P-1) govern the terms of the contract which the petitioner had entered into with respondent-Trust. The respondent-Trust proceeded to resume the plot in accordance with the terms of the allotment letter and, therefore, no illegality was committed by it. Various opportunities were given to the petitioner to deposit the instalments due but he after initial payment of 25% of the amount of the cost of the plot did not deposit any amount with the respondent-Trust. On request made by the petitioner about the difficulty which he had faced C.W.P.No.914 of 2008 -5- because of the ill health of his father, opportunities were given to the petitioner vide letters dated 11.9.2003 and 2.12.2003 but the petitioner did not avail of these opportunities and, therefore, the respondent-Trust proceeded to resume the plot as per the allotment letter. Arguments have been addressed by the counsel for the parties as per the pleadings. Counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Sandhya Jindal vs. State of Haryana, 1996 (3) PLR 614 to contend that even though the power of cancellation of allotment and forfeiture of the amount already paid is administrative in character but at the same time, it cannot be denied that such an action follows grave consequences qua the allottee and, therefore, issuance of notice and opportunity of hearing to the allottee before order of cancellation of forfeiture or deposit can be made is a sine qua non to the validity of the action taken by the Competent Authority. Counsel for respondent No.2 placed on record the decision of the Trust dated 13.10.2003 deciding to resume the plot allotted to the petitioner and forfeit the amount deposited by him. The facts, as have been noticed above, are not in dispute. It is a settled principle of law that where there is no statutory provision governing the terms of allotment of the plot, the allotment letter would govern the rights and liabilities of the parties and this has been conceded by counsel for the parties during the hearing. It is a contract which had been entered into by the petitioner with the Trust in the present case, after he had accepted the terms of allotment as mentioned in the letter of allotment dated 3.7.2001 (Annexure P-1). In the letter of allotment, as per Clause (1), the C.W.P.No.914 of 2008 -6- dimension of the plot, location thereof and the total sale price has been mentioned. Clause (2) provides for the mode of payment according to which if the total amount is deposited within 30 days of the dispatch of the letter, no interest was to be charged but in case the allottee wanted to pay the price in instalments, then he was required to deposit ` 1,92,500/- as 25% of the total cost including the earnest money, if any, paid. Rest of the cost was payable in five half yearly monthly instalments with simple interest at the rate of 12 % per annum (in case of corner plot, 10% additional cost shall be payable). As per Clause (4), for instalments a Schedule has to be supplied by the Trust, which was duly supplied to the petitioner, and in case he failed to deposit the instalments, as indicated in the Schedule, the allottee was liable to pay penal interest at the rate as prescribed under the Rules. In case the allottee did not pay the instalments within six months of its having become due, the Trust was entitled to resume the plot and could restore the same on payment of upto date instalments with penal interest and 20% as penalty. As per Clause (6), the responsibility to deposit necessary instalments of the plot as indicated in the Schedule with the Trust on due dates was of the allottee and the Trust was not bound to issue any notice in this behalf. As per Clause (7), the building on the plot allotted was to be completed within three years from the date of issue of allotment letter after getting demarcation and after getting the plan of the proposed building approved by the Trust. As per Clause (13), if any default is made regarding payment or construction, the Trust would resume the said plot/home and cancel the allotment and confiscate the deposited amount. The provisions of the allotment letter are clear and specific according to which in case of default of payment of instalments, the C.W.P.No.914 of 2008 -7- consequences were also clearly spelt out. It was specifically provided in Clause (6) that the Trust was not bound to issue any notice in case of default by the allottee in payment of instalments as per Schedule provided by the Trust, on due dates. Construction on the plot was to be completed within three years from the date of issue of the allotment and as per Clause (13), in case of default in making payment or construction, the Trust could resume the said plot/home and cancel the allotment and confiscate the deposited amount. As is apparent from the pleadings and admitted by the petitioner, after the initial deposit of 25% of the amount, no amount was deposited by him except for ` 1,00,000/- which he had deposited by way of draft dated 3.1.2003 on 8.1.2003 with the Trust. It also stands admitted by him that he had received notices dated 26.3.2002, 25.7.2002 and 5.12.2002 wherein the Trust specifically called upon him to deposit the instalments due along with penal interest. In these letters, it was further stated that the plot would be resumed and would be restored after deposit of 20% penalty. These notices were as per Clause (4) of the allotment letter. On receipt of these notices, the petitioner simply sat over the said notices and did not respond to any of them. What has been stated by him in the writ petition is that he could not deposit the amount because of ill health of his father who had to undergo a heart by pass surgery during the year 2002. It is also his case that on receipt of the notice dated 5.12.2002 (Annexure P-5) from the Trust, he met the Officers of the Trust and apprised them of the financial difficulties which he was facing owing to illness of his father and sought time to deposit the amount. To show his bona fides, he deposited an amount of ` 1,00,000/- on 8.1.2003 vide demand draft dated 3.1.2003. C.W.P.No.914 of 2008 -8- Thereafter, the petitioner again kept silent till he received notice dated 11.9.2003 (Annexure P-6). The contents of the said notice are relevant and, therefore, are being reproduced here-in-below:- “In connection with the letters under reference you were informed that corner plot No.1-A measuring 200 sq.yard in J.P.Nagar Scheme was allotted. After the deposit of 1/4th amount of this plot by you the remaining amount was to be deposited in five installment with 12% interest in a difference of 6-6 month, but you have not deposited any installment of the above plot. At this point you are continuing as defaulter of four installments. The first installment of Rs.1,50,150/- of the plot was to be deposited on 22-11-2001, second installment of Rs.1,43,220/- on 22-5-2002, third installment of Rs.1,36,290/- on 22-11-2002 and forth installment of Rs.1,29,360/- on 22-5-2003. Three installments are late by a period of more than six months. By this letter you are informed that under Section 18 of Land Disposal Rules, 1964 the installments of the allotted plot along with penal interest and penalty be deposited/paid within one week. In the event of non- payment of the amount/non-payment of installments within one week, your plot will be resumed by the Trust. Thereafter the deposited amount will be forfeited in the Trust fund and the allotment of the plot will be cancelled.” C.W.P.No.914 of 2008 -9- The contents of the above-notice would show that an opportunity was again given to the petitioner to deposit the due amount as per the allotment letter within a period of one week and on non-deposit of the amount, the plot was to be resumed by the Trust, the deposited amount would be forfeited and allotment of plot be cancelled. This notice was as per Clause (13) of the allotment letter. A decision in the light of the notice dated 11.9.2003 for non- compliance by the petitioner was taken by the Trust in its meeting held on 13.10.2003 vide which it was decided that the plot allotted to the petitioner be resumed and the amount deposited be forfeited. Even after taking this decision, another letter dated 2.12.2003 was issued to the petitioner informing him about the decision of the Trust that on account of non- payment of instalment, the Trust resumed the plot allotted to him. Another opportunity was, however, given to the petitioner to deposit the amount due by 22.12.2003 and in the event of non-payment of the amount by the above date, the amount deposited by him would be forfeited in the Trust fund and the allotment of the plot will be cancelled and the plot will be resold. The petitioner did not avail of this opportunity also and instead submitted a representation dated 8.12.2003 for waiver of the penalty imposed. He did not pursue this representation as is apparent as there is no communication or reminder on the part of the petitioner to the respondent-Trust and he woke up from the slumber only after an advertisement dated 28.12.2007 was issued by the respondent-Trust for auctioning the plot of the petitioner, by filing the present writ petition. From December, 2003, till January 2008, when the present writ petition was filed, the petitioner did not deposit any amount towards the amount due for C.W.P.No.914 of 2008 -10- the plot nor did he pursue the representation dated 8.12.2003 submitted by him for waiver of the penalty. It is apparent that the petitioner after submitting the representation dated 8.12.2003, simply slept over the matter and woke up only after the auction notice came to be published in the news paper. In the light of the above, the only conclusion which can be drawn is that the petitioner was not interested in paying the instalments due as no steps were taken by him, initially after depositing 25% of the cost price and then after depositing ` 1,00,000/- in January 2003 till the date of filing of the writ petition. Ample opportunities were given to the petitioner and that too, on various stages by issuing notices to him but he failed to respond to them. All these notices specifically talked about the resumption of the plot on non-deposit of the amount and forfeiture/confiscation of the amount deposited by him. Notice dated 11.9.2003 talked about the resumption of the plot and the forfeiture of the amount deposited as also the cancellation of the plot. Notice dated 2.12.2003 informing the petitioner about the decision of the Trust that his plot was resumed and still he was given one more opportunity to deposit the amount due by 22.12.2003 and in the event of non-payment of the amount by the above date, it was again mentioned that the amount deposited by him would be forfeited in the Trust fund and the allotment of the plot will be cancelled and the plot would be resold. All this was in the year 2003. The principles of natural justice were duly complied with and the mandate of the Division Bench judgment in the case of Sandhya Jindal's case (supra), on which reliance has been placed by the counsel for the petitioner, stands fully complied with. The petitioner was given due notices and also made aware of the consequences in case he C.W.P.No.914 of 2008 -11- did not comply with the terms of allotment, the due amount was intimated to him from time to time, the effect of non compliance, such as cancellation of allotment and forfeiture/confiscation of the amount deposited and the plot to be resold, were made known to the petitioner, who did not take any steps, what else can be termed as compliance of principles of natural justice than this. Further the action taken by the respondent-Trust against the petitioner is in consonance with the letter of allotment dated 3.7.2001 (Annexure P-1). Although Clause (6) of this letter stated that the Trust was not bound to issue notice to the petitioner in the event of his default in payment of the intalments rather it was the responsibility of the petitioner to deposit the necessary instalments as per Schedule but still at each stage the petitioner has been issued due notices making him aware of the consequences which are likely to follow in case he did not deposit the amount due as per the instalment Schedule. But still the petitioner failed to comply with the notices. As is apparent from the above, the petitioner has not acted in a bona fide manner and, thus, is not entitled to any claim which has been made in the present writ petition. There is no illegality committed by the respondent-Trust in issuing the auction notice dated 28.12.2007 (Annexure P-9) which would require interference by this Court. In view of the above, finding no merit in the present writ petition, the same stands dismissed. May 09, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE C.W.P.No.914 of 2008 -12- C.M.No.2427 of 2011 in C.W.P.No. 914 of 2008 *** Present:- Mr.P.K.Mutneja, Advocate, for the petitioner. Mr.A.S.Grewal, Sr.Addl. AG, Punjab. Mr.Jaspreet Singh, Advocate, for respondent No.2. *** Annexures R-1 to R-5 are taken on record. Application stands disposed of. May 09, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE