Letters Patent Appeal No.645 of 2009 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.645 of 2009 Date of decision: 24.07.2009 *** Sat Pal Gupta and others ...Appellants Versus Union of India and another ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Raj Kumar Garg, Advocate for the appellants ***** S.D.ANAND, J. The appellants were highest bidders at the impugned auction, held by the respondent-Chandigarh Administration for the sale of plot No.145 Sector 40-A, Chandigarh, on 10.12.2004. The allotment letter was issued in their favour on 29.12.2004 and the possession of the plot was offered to them on that very day. The appellants made a requeste for being allowed to surrender the plot on 16.2.2005. That request came to be accepted on 6.4.2005 and they were allowed to surrender that site on payment of 2.5% of the premium, as penalty alongwith interest till the date of surrender. However, after about 2 years thereof, the appellants were called upon to deposit an additional amount of Rs.3,39,747/- towards Letters Patent Appeal No.645 of 2009 -2- *** penalty for surrender in terms of the provisions of Rule 7-A of the Chandigarh (Sale of Sites and Building Rules, 1960 (hereinafter referred to as “the Rules”). The appellants filed Civil Writ Petition No.19298 of 2007 to obtain the invalidation of the demand for additional amount. The plea did not find favour with the learned Single Judge, thereby impelling the appellants to file the instant Letters Patent Appeal. The determination of the point in controversy shall turn upon the interpretation of Rule 7-A of the Rules which is reproduced hereunder for facility of reference:- “Rule 7-A Surrender of Site :- (1) The transferee who has already paid at least 25% premium of the site, may, before he is offered possession of the site by the Estate Officer, and within 180 days of the allotment of the site, whichever is earlier, surrender the site on payment of 2.5% of the premium as penalty. In this event interest at the rate prescribed in Rule 10(1) shall be chargeable on the balance premium due from the transferee for the period from the date of allotment up to the date of surrender. The date of the surrender these rules shall be the date when intimation by transferee to this effect reaches the Estate Officer. 2. An transferee as mentioned in sub-rule (1) above, may surrender the site within two years of the date of allotment on payment of 5% of the premium as penalty. Letters Patent Appeal No.645 of 2009 -3- *** Interest shall be chargeable from the transferee as provided in sub-rule (1) above. The Estate Officer shall be competent to decide such cases, as also cases under sub-rule(1).” The learned Single Judge held, on interpretation of the above quoted Rule, that the respondents were within their right to require the appellants to pay 5% of the premium penalty along with interest on the date of surrender in terms of Sub Rule 2 of Rule 7-A of the Rules. In obtaining that view, the learned Single Judge also drew sustenance from a view taken by a Division Bench of this Court in Dalijit Singh and others Vs. Union Territory, Chandigarh and another, CWP NO. 2964 of 2008 decided on 3.12.2008. Learned counsel, appearing on behalf of the appellants, argues in the first instance that the view taken by the learned Single Judge proceeds on a mis-interpretation of the relied upon Rule. The plea advocated is that since the appellants surrendered the plot within 180 days of the allotment of the site, it is only Rule 7-A above quoted which shall be applicable and there will be no applicability of Sub Rule 2 of Rule 7-A of the Rules. We have not been able to persuade ourselves to accept the contention. It is apparent from a perusal of Rule 7-A that Sub Rule (1) thereof that it would apply only to an offer of surrender of site “to a transferee who has already been paid at least 25% premium of the site, may, before he is offered possession of the site by the Estate Officer, and within 180 days of the allotment of the site, whichever is earlier”. The only Letters Patent Appeal No.645 of 2009 -4- *** eventuality wherein Sub Rule (1) of Rule 7 of the Rules would apply is when the offer/surrender of site is made before allottee is offered possession of the site and within 180 days of the allotment of site whichever is earlier. In the present case, the possession of the site had been offered to the appellants on 10.12.2004 itself and the surrender offer was made by the appellants on 16.2.2005. Out of these two eventualities, the earlier eventuality was the offer of possession of the site. For attracting the provisions of Sub Rule 1 of Rule 7-A of the Rules, the appellants ought to have surrendered the site before the offer of possession was made to them. They concededly did not do so. It is apparent from the facts obtaining on the file that the surrender offer was made by them on 15.2.2005; while the offer of possession had been made to them on 10.12.2004 itself. It is only in case of the applicability of Sub Rule (1) of Rule 7-A of the Rules that the surrender would be acceptable on payment of 2.5% of the premium as penalty. There can, thus, be no dispute with the factual position that the surrender offer not having been made before the offer of possession made by Chandigarh Administration, the appellants cannot be heard to argue the applicability of Sub Rule (1) of Rule 7-A of the Rules. Faced with the factual predicament aforementioned, learned counsel for the appellants argues that the respondent-Chandigarh Administration having once accepted the surrender on payment of 2.5% of the premium as penalty, could not have gone overboard after a period of more than two years to impose 5% of the premium, as penalty, in terms of Sub Rule 2 of Rule 7-A of the Rules. There can be no estoppel against the law. The appellants have Letters Patent Appeal No.645 of 2009 -5- *** not challenged the vires of the above quoted Rules. In that view of things, the Rules are applicable with full force. Sub Rule 2 of Rule 7-A of the Rules authorises the competent authority to impose a liability of 5% of the premium as penalty in case site is surrendered within two years of the date of allotment. It would be pertinent to notice here that Sub Rule (1) of Rule 7-A of the Rules envisions two eventualities, as a package, to pre-exist to attract the applicability of that Sub Rule. We have already held in the fore- going paras of this order that Sub Rule (1) of Rule 7-A of the Rules does not apply to the facts of the case before us and it is Sub Rule 2 of the Rule 7-A of the Rules which is applicable. It appears that the impugned order is a valid endeavour for the rectification of an error initially committed by the Chandigarh Administration in having invoked the provisions of Sub Rule (1) of Rule 7-A of the Rules. We do not find anything irregular in the rectification endeavour made by the respondent-Chandigarh Administration. As a last resort, the learned counsel for the appellants argues that the impugned order having been passed by the competent authority in exercise of quasi-judicial jurisdiction, an opportunity of hearing ought to have been given to the appellants. The plea raised thereby is that the impugned order is invalid for want of compliance with the principles of natural justice i.e. affording of an opportunity of hearing before the impugned order came to be granted. Learned counsel has not been able to invite our attention to any part of the Rules which could indicate that an order of the category of the one impugned before us had been granted in exercise of quasi judicial jurisdiction. The adjudication of the controversy is based upon the factual Letters Patent Appeal No.645 of 2009 -6- *** premise evident from the conceded documentation and the facts apparent therefrom do not at all admit of any other interpretation. In the absence thereof, we do not find any fault with the impugned order. Dismissed. (S.D.ANAND) JUDGE July 24, 2009 (J.S.KHEHAR) Pka JUDGE