CWP No. 2964-08 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P.No. 2964 of 2008
Date of decision 3 .12.2008
Daljit Singh and others ...Petitioners
Versus
U.T.Chandigarh and another ... Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Amit Jain Advocate for the petitioner.
Mr. N.K.Gupta, Advocate for the respondents
1. Whether Reporters of local papers may be allowed to see the judgement ?
2. To be referred to the Reporter or not ?
3. Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The petitioner was the highest bidder in respect of Plot No.
1199, Sector 19 B, Chandigarh in the open auction held on 10.12.2004. He
deposited 25 percent of the price of the site amounting to Rs. 20 lacs and the
remaining 75 percent was to be paid within a period of 90 days from the
date of auction. On 3.1.2005, allotment letter was issued to him which
stipulated that the petitioner was bound by the Chandigarh (Sale of Sites
and Building) Rules, 1960 (for brevity ‘the Rules’). The petitioner was not
able to retain the site as they could not deposit 75 percent of the amount
within 90 days. They surrendered the site on 3.3.2005 with a written
request. The Assistant Estate Officer vide notice dated 24.3.2005
( Annexure P.2) called upon the petitioners to show cause why penalty @
2.5 percent of the premium alongwith interest be not imposed and
recovered in respect of surrendered site under Rule 7A of the Rules. It is
also pertinent to mention that the petitioner was offered possession on
CWP No. 2964-08 2
3.1.2005 ( Annexure R.1) and they actually took physical possession on
25.1.2005 ( Annexure R.2). Accordingly a sum of Rs. 2 lacs was deducted
from the earnest money of Rs. 20 lacs deposited by the petitioner and Rs. 18
lacs was refunded to them. Thereafter respondents discovered a mistake and
vide letter dated 5.11.2007 issued a show cause notice to the petitioners
requiring them to explain as to why penalty by not charged @ 5 percent as
envisaged under Rule 7A(2) of the Rules. The respondents claimed the
difference of Rs. 3,38,082/-. On the amount of Rs.2 lacs, interest has also
been added amounting to Rs. 1,38,082/- as provided by the Rule 7A of the
Rules. The petitioner contested the claim made by the respondents and also
requested for re-allotment of the plot in case they are to charge 5%.
The basic issue which requires determination in the present
case is whether respondents were entitled to charge penalty @ 5 percent on
the surrender of the site or penalty @ 2.5 percent was rightly charged. In
that regard it would be necessary to read Rule 7(A) of the Rules which reads
as under:
“7-A Surrender of site- (1) A transferee who has already paid
atleast 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 upto the date of surrender.
The date of surrender under these rules shall be the date when
intimation by the transferee to this effect reaches the Estate
Officer.
CWP No. 2964-08 3
(2) A transferee as mentioned in sub rule (1) above, may
surrender the site within two years of the date of the allotment
on payment of 5% of the premium as penalty. 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).”
A perusal of sub rule 1 of Rule 7 A of the Rules show that if the site
is surrendered before the offer of possession and within a period of 180 days
of the allotment whichever is earlier then penalty @ 2.5 % of the premium
is charged. It is thus evident that two conditions are required to be satisfied
for application of sub rule (1). Firstly the surrender by the allottee has to be
before the offer of possession of site by the Estate Officer. Secondly, the
surrender has to be made within 180 days of the allotment of the site. Sub
Rule (1) would not be attracted to the facts of the present case because
possession to the petitioner was delivered on 22.2.2005 ( Annexure R/2)
and offer of possession was made on 3.1.2005.
According to sub rule (2) of Rule 7(A) of the Rules if a
transferee surrender the site within two years of the date of allotment then
penalty @ 5% of the premium is charged and interest would also be
chargeable from him. In the present case, site has been surrendered by
submitting an application on 3.3.2005 which is within 180 days from the
date of allotment of letter which was issued on 3.1.2005 ( Annexure P.1)
and thereafter the process of issuance of notice and personal hearing was
initiated by letter dated 24.3.2005 ( Annexure P.2). The case of the
petitioner would be covered by sub Rule (2) for the simple reason that he
has surrendered the site within a period of two years after taking possession
CWP No. 2964-08 4
and therefore no legal infirmity is discernible in the initiation of
proceedings for charging penalty @ 5 percent vide order dated 5.11.2007
( Annexure P.4).Therefore, we find that the writ petition does not merit
acceptance and is liable to be dismissed.
The claim of the petitioner for re-allotment is also without any
merit because the petitioners were not forced to surrender at any stage. It is
their volunteer act. They have undertaken to abide by the Rules and
accordingly the penalty on surrender has to be paid by them. Moreover, the
period of more than three years have passed and the re-allotment could not
be ordered as the situation has completely undergone change. Therefore, we
reject the claim made.
For the reasons mentioned above, this petition fails and the
same is dismissed.
(M.M.Kumar)
Judge
(Jora Singh)
3 .12.2008 Judge
okg