ORDER
G.S. Singhvi, J.
1. In this petition filed on 7.3.1996, the petitioner has preyed for quashing the order dated 10.4.1991 passed by the Estate Officer. Union Territory, Chandigarh cancelling the lease of site No. 439-P Sector 46-A, Chandigarh.
2. The facts necessary for deciding the issue raised in the petitioner are that on the basis of the highest bid of Rs. 18,90,000/- given by him in the auction held by the Chandigarh Administration on 23.2.1990 for residential sites, the disputed plot was allotted to the petitioner on lease hold basis subject to the terms and conditions specified in the letter of allotment dated 3.5.1990. Clauses 2, 3, 4, 5, 8, 9 and 10 of the letter of allotment read as under :-
“2. A residential site details whereof are given below is hereby allotted to you on Lease Hold Basis on the terms and conditions mentioned herein after.
Sector Sr.No. of Area in Sq.Yds. Premium Yearly rent
the plot & dimensions for 1st 33 years.
46-A 439(P) 504 Sq.Yds. 18,90,00/- Rs. 47250/-
per annum
3. The lease shall be governed by the provisions of the Capital of Punjab (Dev. & Reg.) Act 1952 as amended upto the dale and the rules made thereunder.
4. The sum of Rs. 4,72,500/- paid by you as 25% of the premium of site has been adjusted against the premium payable in respect of the lease.
5. The lease shall be deemed to have commenced from the date of auction. In case it is intended to pay the premium instalment the balance of 75% of the premium together with interest thereon 7% per annum shall be payable in three equated annual instalments, the first instalment being payable at the expiry of one year from the date of auction. Interest shall accrue from the date of auction. However no interest shall be payable if the said 75% balance of the premium is paid in full within 30 days of the date of auction. In your case the following shall be scheduled of payment of instalment of premium.
Sr.No. of Due date of Date upto which Amount of
instalment payment payment should equated
be made. instalment
including interest
1st instalment 24.2.91 10.3.91 Rs. 5,40,138.00
Each instalment.
2nd instalment 24.2.92 10.3.92 Rs. 47,250.00
per annum.
3rd instalment 24.2.93 10.3.93
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8. In the event of non payment of any instalment of premium or rent by the 10th of the. month following the month in which it falls due or such extended period as may be allowed by the Estate Officer but not exceeding three months in all from the date of which the instalment was originally due, the Estate Officer may issue a notice to the lessee calling upon to show cause why the lease may not be cancelled and the site resumed and the amount already paid forfeit to the Government.
9. After considering the cause if any shown by the lessee in pursuance of the aforesaid notice the Estate Officer may either allow payment of instalment/rent with penalty, which may extend to 100% of the amount due or order cancellation of lease and forfeit the whole/part of the amount already paid.
9(a). The site has been given to you on lease hold basis for 99 years in the first instance. After the expiry of this period the lease may be renewed on such terms and conditions as the Govt. may decide. In addition to the premium mentioned in para 2 above rent at the rate of 2-1/2 % of the premium for the 1st 33 years is payable every year which may be raised to 3-3/4 of the premium for the next 33 years and to 5% of the premium for the remaining 33 years of the lease period.
9(b). The rent shall start accruing from the date of auction, the 1st Instalment being due after the expiry of one year from the date of auction and shall be payable by the 10th of the month following the month in which it falls due.
10. You will have to execute a lease deed within six months from the date of auction in the prescribed proforma in such manner as may be directed by the Estate Officer. The stamp duty leviable (Rs.65,205/-) according to prevalent rates and all other expenses in respect of the execution/registration of lease deed shall be borne by you. The lease deed on non-judicial stamp paper is to be got typed in duplicate keeping the carbon copies on the judicial papers. The reverse page of the non-judicial stamp paper is to be left blank.”
3. It appears that after having made up his mind to give bid for grant of lease of residential plot, the petitioner had executed a general power of attorney in favour of his real brother Shri Devender Singh and it is the said general power of attorney holder who deposited balance of the premium so as to comply with the requirement of clause 4 of the letter of allotment. However, instead of paying the first instalment which became due on 24.2.1991 and which could be paid latest upto 10.3.191 in accordance with clause 5 read with clause 8 of the letter of allotment, the petitioner’s general power of attorney holder-Shri Devender Singh submitted an application dated 2.4.1991 expressing his desire to surrender the plot. The Estate Officer did not accept his request but issued notice under Rule 12(3) of the Chandigarh Lease Hold of Sites, and Building Rules, 1973 (hereinafter referred to as ‘the 1973 Rules’) requiring Shri Devender Singh to show cause why lease of the site be not cancelled and the whole/part of the premium and ground rent be not forfeited. Shri Devender Singh appeared before the Estate Officer and showed his inability to retain the site. Upon this, the Estate Officer passed the impugned order for cancellation of the lease of the site and forfeiture of 1% of the total premium plus interest and ground rent.
4. The petitioner has challenged the order of resumption on the ground that the application submitted by the general power of attorney for surrender of the plot was not only unauthorised but was fraudulent also. He has averred that his general power of attorney was neither authority to surrender the plot nor he ever sought his permission for that purpose and, therefore, the Estate Officer should not have acted upon the application filed by him.
5. The respondent has challenged the maintainability of the writ petition on the ground of delay and also on the ground that the petitioner has failed to avail the statutory alternative remedies of appeal and revision available to him. On merits, the respondent has justified the impugned order by stating that the application for surrender of plot submitted by the general power of attorney of the petitioner was legally not tenable and as the petitioner did not deposit the instalments along with interest and ground rent, the Estate Officer was left with no option but to pass the impugned order, keeping in view the inability shown by the petitioner to retain the site. The respondent has also averred that the amount of premium deposited by the petitioner was refunded after deducting Rs. 18,900/- and the same was credited in his account. The respondent has contested the petitioner’s plea that his power of attorney holder was not authorised to surrender the site.
6. In the replication filed by him, the petitioner has reiterated his stand that the general power of attorney did not have the authority to surrender the plot in dispute. He has tried to explain the delay by stating that he had come to India at the time of auction in 1990 and then after a gap of 6 years and then only he learnt about the resumption of site.
7. The first contention urged by Shri J.S. Narang, learned senior counsel appearing for the petitioner is that the Estate Officer did not have the jurisdiction to take cognizance of the letter dated 2.4.1991 written by the general power of attorney of the petitioner because the latter had exceeded his brief. Learned counsel submitted that the general power of attorney was not given the authority to surrender the plot allotted by the Chandigarh Administration and, therefore, the order of resumption passed in the light of the request made by Shri Devender Singh should be declared as nullity. Learned counsel argued that the 1973 Rules do not envisage surrender by the allottee as one of the grounds for resumption of the site and, therefore, the Estate Officer exceeded his jurisdiction in passing the order of cancellation of the lease of the site. Shri Narang invited our attention to the contents of Annexure P.7 and submitted that the transfer of 1,69,000 dollars in the petitioner’s account maintained in N.R.I. Branch of the State Bank of India at Chandigarh is sufficiently indicative of the petitioner’s desire to build property in Chandigarh. He tried to explain the delay by stating that till 1996 the petitioner did not know about the letter written by his general power of attorney for surrender of the plot and the order of cancellation of lease and, therefore, he cannot be non-suited on the ground of delay and laches, particularly when it is proved from the record that he has been made victim of fraud played by his general power of attorney.
8. Shri Ashok Aggawal strongly urged for dismissal of the writ petition on the ground of laches. He submitted that the unexplained delay of almost 5 years between the date of cancellation of the lease and institution of writ petition and total silence on petitioner’s part during this long period shows that the story put forward by him to explain the delay is unnatural and lacks credibility. Shri Aggarwal also objected to the maintainability of the writ petition on the ground that the petitioner has failed to avail the statutory alternative remedies of appeal and revision available to him under Section 10 of the Capital of Punjab (Development and Regulation) Act, 1952 read with Rule 22 of the 1973 Rules. The learned counsel submitted that the power delegated to Shri Devender Singh as general power of attorney of the petitioner was wide and pervasive and entitled him to surrender the plot and, therefore, the order of cancellation passed by the respondent should not be invalidated. Shri Aggarwal also submitted that the impugned order should not be quashed because the petitioner did not pay the three instalments of premium which were payable latest by 10.3.1991, 10.3.1992 and 10.3.1993 respectively.
9. We have thoughtfully considered the respective submissions and are of the view that the writ petition merits dismissal. Admittedly, there is a delay of 5 years between the dates of cancellation of lease and filing of the writ petition. In order to explain this long time gap of 5 years, the petitioner has, in paragraph 2 of the writ petition, stated as under:
“The petitioner had visited India in the years 1984, 1988 and thereafter in 1990 and after 1990 has come to India now in November, 1995 and is going back to U.S.A. on 12/13.2.1996.”
10. He has also averred that for the purpose of completing the formalities in connection with the plot allotted to him by the Chandigarh Administration, he had appointed his brother Shri Devender Singh as general power of attorney. By making these averments, he has tried to give an impression that after giving the highest bid in the auction held on 24.2.1990, the petitioner entirely depended upon his brother and he never tried to find out whether or not the amount of premium and ground rent has been deposited and whether the formalities like execution of lease deed have been completed or not. In our view, this explanation is not only far from being satisfactory but is most unnatural and sans credibility. In the normal course of human conduct, the petitioner would have been very keen to know about the fate of the plot allotted to him. He would have been anxious to know from his brother as to whether the amount, of instalments with interest and ground rent had been deposited or not. He would also have made an attempt to know whether the amount credited in his N.R.I, account has been utilised for paying the amount due to the Chandigarh Administration. If he did not get information from his brother-cum-general power of attorney, the petitioner would have become gravely concerned about the status of the plot allotted to him and would have tried to contact the Estate Officer to get information about the status of his plot. However, the fact of the matter is that no such step was ever taken by the petitioner. The very fact that the petitioner kept total silence for a period of 5 years makes the petitioner’s attempt to explain the delay most unnatural.
11. Shri Aggarwal does not appear to be wide of the margin in stating that the petitioner and his general power of attorney, who was none else but his real brother, had consciously surrendered the plot in the year 1991 keeping in view the then prevailing situation and he has invoked writ jurisdiction for restoration of the allotment in view of the changed scenario and that this petition has been filed with a view to earn profits keeping in view the fact that the prices of landed property have registered muiti-fold rise in last few years. This finds considerable support from the observations made by the Supreme Court in Chandigarh Administration and Ors. v. Jagjit Singh and Ors., (1995-2)110 P.L.R. 176 (S.C.). We, therefore, hold that the petitioner is guilty of laches and the writ petition deserves to be dismissed on this ground.
12. The argument of Shri Narang that the general power of attorney of the petitioner was not authorised to apply to the Estate Officer for surrender of the plot deserves a close scrutiny. In this regard, it is important to bear in mind that the petitioner had executed general power of attorney two days before giving bid for the site. Clauses 11,13 and the last but one paragraph of the general power of attorney (as reproduced in Annexure P.4) read as under:
“11. To manage and sell or gift or mortgage or all any part of my immovable property situated at Dera Bassi, Village Mahilwal, Gulabgarh, District Patiala, Punjab and Chandigarh, on my behalf.
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13. To make all sorts of correspondence with the Estate Officer, Chandigarh Administration, Chandigarh and with all other appropriate authorities/departments concerned in respect of any property at Chandigarh and any other property to be purchased by me and by my attorney under his signatures
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I hereby confirm and ratify to confirm all the acts, deeds and things on my behalf as the same were done by me in person.”
13. A careful reading of the above extracted clauses of the general power of attorney shows that the petitioner gave unlimited authority to his brother to make all sorts of correspondence with the Estate Officer in respect of any property at Chandigarh and any other property to be purchased by the petitioner. This shows that the disputed plot which was allotted to the petitioner on the basis of bid given by him on 24.12.1990 was subject to the exercise of authority by Devinder Singh as the power of attorney of the petitioner and in exercise of the power, he could apply for surrender of the plot. We are, therefore, unable to agree with Shri Narang that the action of Shri Devender Singh (G.P.A.) to apply for surrender of the plot was unauthorised or fraudulent.
14. In view of our conclusion that Shri Devender Singh, general power of attorney holder of the petitioner, was authorised to make surrender of the plot and in view of the admitted fact that the amount of premium to be paid on 10.3.1991 was not paid by the petitioner or his general power of attorney in spite of the fact that the notice dated 5.4.1991 was issued by the respondent, it is not possible to hold that the order passed by the respondent is illegal or arbitrary. In our opinion, the petitioner is bound by the action of his general power of attorney and he is estopped from questioning the order passed by the Estate Officer to cancel the lease due to the non-payment of the instalment and also keeping in view the application filed by Shri Devender Singh.
15. For the reasons mentioned above, the writ petition is dismissed.