Amended C.W.P.No.1193 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Amended C.W.P.No.1193 of 2009 Date of Order: 19.12.2011 Balbir Kaur ...Petitioner Versus Estate Officer, Union Territory, Chandigarh and another. ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE NARESH KUMAR SANGHI Present: Mr. S.S.Katnoria, Advocate for the petitioner. Mr. K.K.Gupta, Advocate for the respondents. RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of certiorari quashing order dated 20.07.2006 (Annexure P-7), passed by the Estate Officer, Union Territory, Chandigarh, the order dated 19.08.2008 (Annexure P-9), passed by the Chief Administrator, Union Territory, Chandigarh, and another order dated 29.09.2010 (Annexure P-11), passed by the Chief Administrator, Union Territory, Chandigarh. The petitioner also prays for issuance of a writ in the nature of mandamus directing the respondents to allot Booth No.26, Sector 24-C, Chandigarh, to the petitioner. The petitioner is a poor widow. After her marriage, she was compelled by her circumstances, to work in rehri market, Sector 37, Chandigarh, to bring up two sons and three daughters. The Amended C.W.P.No.1193 of 2009 -2- petitioner's husband passed away on 30.08.2000. In the year 1991, the Chandigarh Administration conducted a survey and decided to allot booths to rehri/phariwalas. The petitioner was issued license No.1810 in 1991 and her name was registered at Sr.No.2385. The petitioner received a letter dated 12.03.1991 from Chandigarh Housing Board, Chandigarh, asking her to deposit Rs.3000/- as earnest money against construction of booth within 15 days. The petitioner deposited Rs.3000/- with the Chairman, Chandigarh Housing Board, on 24.03.1991. As the petitioner was found eligible for allotment of a booth in Sector 24-C, Chandigarh, the Estate Officer, issued a letter of intent for allotment of booth No.26, Sector 24-C, Chandigarh, on 03.01.2005. The letter of intent stated that as the petitioner has succeeded in a draw of lots held on 23.05.2003, she is required, as per condition No.3, to deposit Rs.7207/-, as first quarterly installment, towards cost of superstructure, within 30 days and as per condition No.4, a sum of Rs.4977/- as first quarterly installment towards cost of construction. The petitioner could not deposit these amounts, within 30 days but deposited these amounts on 19.07.2005. As there was a delay of 166 days in depositing the amount, the petitioner was asked to appear before the Estate Officer on 14.11.2005. The petitioner filed affidavit dated 14.11.2005, explaining the delay and seeking condonation of delay. Vide order dated 20.07.2006, the Estate Officer withdrew the letter of intent, by holding that her application, for condonation of delay, has not found favour with the Chandigarh Administration. Aggrieved by this order, the petitioner filed an appeal, averring therein that being a poor widow, she could not deposit the Amended C.W.P.No.1193 of 2009 -3- first installment due to financial constraints, but she has been able to arrange funds and is ready to deposit all installments upto the filing of the appeal with interest. The appeal was dismissed on the ground that the petitioner has failed to fulfill conditions set out in the letter of intent and as the Chandigarh Administration has refused to condone delay. Counsel for the petitioner submits that the petitioner is a poor widow, who looks after her family from the small income, she ekes out from selling cosmetics, bangles and small gift items in the rehri market. She did not have sufficient funds to deposit the first installment within time. The extreme poverty of the petitioner and her inability to deposit the amount within time should have been sufficient for the respondents to condone delay. It is further submitted that pursuant to an interim order dated 13.09.2010, passed during pendency of this petition, she filed an application under Rule 9A of the Chandigarh Lease Hold of Sites and Building Rules, 1973 (hereinafter referred to as the 'Rules) for extension of time along with an undertaking that she is ready and willing to pay all the installments with interest. The Chief Administrator has rejected the application by holding that though a sympathetic view should be taken it would create a wrong precedent as rates of property have multiplied. Counsel for the petitioner further submits that as Section 9A of the Rules, empowers the respondents to condone delay and as the petitioner had furnished a bonafide and truthful explanation for delay, the impugned orders should be quashed and the respondents should be directed to allot booth No.26, Sector 24-C, Chandigarh, to the petitioner. Amended C.W.P.No.1193 of 2009 -4- Counsel for the respondents submits that as the petitioner did not deposit the initial installment, the letter of intent stood withdrawn. Accordingly, the Estate Officer was left with no alternative but to withdraw the offer. It is further argued that the amount deposited, six months after the due date was returned to the petitioner. In the absence of any concluded contract between the petitioner and the respondents, the writ petition should be dismissed. It is further submitted that the order passed under Rule 9A, declining prayer for extension of time, is legal and valid. We have heard counsel for the parties, perused the paper book and considered the impugned orders. The Estate Officer, UT, Chandigarh, issued a letter of intent dated 03.01.2005, allotting a booth, to the petitioner. As per conditions No.3 and 4 thereof, the petitioner was required to deposit the first installment towards premium of superstructure and construction, within 30 days. The petitioner, admittedly, could not deposit these amounts within the stipulated period but deposited them, after a delay of 166 days, on 19.07.2005. The Estate Officer, UT, Chandigarh, called upon the petitioner to appear before him on 14.11.2005 at 11.00 AM. The petitioner appeared before the Estate Officer and filed an application giving reasons for delay, namely, that her small business was not yielding enough money to pay the amount required by the Estate Officer, but she has now been able to arrange funds, has deposited the money. Instead of deciding the application himself, the Estate Officer forwarded her application to the Chandigarh Administration, which vide order dated 01.05.2006 refused to condone delay. The Assistant Estate Officer, exercising Amended C.W.P.No.1193 of 2009 -5- powers of Estate Officer, UT, Chandigarh, rejected the petitioner's prayer for condonation of delay by holding that as the Chandigarh Administration has refused to condone delay, he has no option but to cancel the letter of intent and return the demand drafts. The appeal filed by the petitioner was dismissed inter-alia on the ground that the Chandigarh Administration has already declined the application for condonation of delay. The petitioner, thereafter, filed the present writ petition. During pendency of the writ petition, and after taking into consideration the fact that the petitioner had lost her husband and had to look after five children, the petitioner was granted liberty to file an application before the Chief Administrator, UT, Chandigarh, under Rule 9A of the Rules for extension of time. The order dated 13.09.2010, reads as follows:- “Present: Mr. S.S.Katnoria, Advocate, for the petitioner. Mr. K.K.Gupta, Advocate. ** Heard learned counsel for the parties for some time. Keeping in view the fact that the petitioner has lost her husband and has five children to be brought up, it appears that her case requires sympathetic reconsideration by the authorities. Consequently, the petitioner is directed to file an application to the Chief Administrator, U.T., Chandigarh, under Rule 9A of the Chandigarh Amended C.W.P.No.1193 of 2009 -6- Lease Hold of Sites and Building Rules, 1973 seeking extension of time along with an undertaking that she is ready and willing to pay the due installments along with interest @ 6% per annum within a reasonable time. Let the said application be considered by the Chief Administrator, U.T., Chandigarh before the adjourned date. List on 30.9.2010. September 13, 2010 (SURYA KANT) JUDGE” The petitioner filed a representation before the Chief Administrator, U.T., Chandigarh, seeking extension of time, in terms of the above order but the application was rejected on 20.09.2010. The eligibility of the petitioner to allotment of a booth site, as a measure of rehabilitation of rehari/phari walas is not disputed. The Estate Officer and the appellate authority have rejected the petitioner's application for condoning delay on the ground that it has not found favour with the Chandigarh Administration. A relevant extract from the order passed by the Estate Officer reads as follows:- “Whereas she was asked to intimate the reason of delay for making the payment. She has intimated the reason for delay vide her application dated 19.01.2006. Her request for condonation of delay was forwarded to the Administration vide memo No.6958 dated 27.2.2006 but the Chandigarh Administration vide memo No.9/9/406- Amended C.W.P.No.1193 of 2009 -7- UT/2006/2356, dated 1.5.2006 has declined the condition of delay as the reasons given for delay are not substantive and sufficient.” An extract from the order passed by the appellate authority reads as follows:- “ When the appellant failed to fulfill the conditions contained in the letter of intent and the Chief Administrator had declined to condone the delay, the Estate Officer was left with no alternative but to order the withdrawal of letter of intent.” The Estate Officer and the appellate authority, lost sight of the fact that they exercise quasi judicial statutory powers, whereas the Chandigarh Administration exercises purely administrative powers. The Estate Officer and the appellate authority were, therefore, required to consider the delay, independent of any decision taken by the Chandigarh Administration. The impugned orders have been passed under a mistaken understanding that as the Estate Officer and the appellate authority are administratively subordinate to the Chandigarh Administration, they are bound to affirm its administrative order, whatever be its legality. During pendency of the writ petition, the petitioner was granted liberty to file an application for extension of time, but her application did not find favour with the Chief Administrator and he has held that though a sympathetic view should have been taken but condoning delay, would upset the functioning of the government and create a wrong precedent as prices have risen manifold. A relevant extract from this order reads as follows:- Amended C.W.P.No.1193 of 2009 -8- “As such, despite the fact that one would definitely like to have sympathetic consideration for old person, any allowance for a person to deposit the due at much later stage compared to the time limit given will not set right precedence and can lead to many problems and similar occurrence in future.” We are of the considered view that the respondents should have by adopting a pragmatic and a sympathetic approach, condoned the delay. It is true that time schedules set out in allotment letters are to be adhered to but where a statutory rule confers power to extend time or to condone delay and the facts disclosed, reveal a bonafide explanation, for the delay, such an explanation should generally be accepted. The reasons assigned by the Chief Administrator, while rejecting the application, for extension of time, in our considered opinion, are neither legal nor tenable. After recording a finding that a sympathetic view should have been taken, the learned Chief Administrator could not have held that such an order would set a wrong precedent or lead to problems in future. If a prayer, for extension of time, is bonafide, its rejection, for fear of creating precedents or problems in future, is in essence, a negation of the power conferred to extend time and condone delay. The rights of a party, if tenable, cannot be held hostage to administrative perceptions of creating precedents, or problems in future. The Chandigarh Administration has repeatedly extended periods for deposit of installments with respect to plots allotted to industrialists and owners of shop-cum-flats by imposing penalties and charging penal interest etc. but when a poor widow, who ekes out her Amended C.W.P.No.1193 of 2009 -9- livelihood from a small shop/phari, makes such a request, it is rejected by raising frivolous objections. We are, therefore, of the firm opinion that as the respondents do not deny the eligibility of the petitioner, there is no allegation of malafide on her part, and she had offered to pay the entire amount with interest before the appellate authority, the respondents should have, in all fairness, condoned the delay of 166 days in making payment of the first installment. We would like to reiterate that the power to extend time, has to be exercised in a judicious manner, after taking into consideration the facts and circumstances of each case, and if reasons furnished are bonafide, then reasons like rise in prices, creation of precedents, problems in governance etc., cannot be a ground to reject a bonafide prayer for extension of time. In view of what has been stated hereinabove, we allow the writ petition, set aside the orders dated 20.07.2006 (Annexure P-7), 19.08.2008 (Annexure P-9) and dated 29.09.2010 (Annexure P-11) and direct the respondents to accept the amounts offered by the petitioner, allot booth No.26, Sector 24-C, Chandigarh, to the petitioner within three months from receipt of a certified copy of this order. The petitioner shall, however, be bound to pay all such charges as may be leviable, including penalty and interest, in accordance with law. No order as to costs. (RAJIVE BHALLA) JUDGE (NARESH KUMAR SANGHI) December 19, 2011 JUDGE nt