IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
L.P.A. No.37 of 2009
Date of decision: 27.1.2009
The Estate Officer, Chandigarh Admn., U.T., Chandigarh.
-----Appellant
Vs.
Smt. Raj Rani & others.
-----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE JITENDRA CHAUHAN
Present:- Mr. Sanjeev Sharma, Advocate
for the appellant.
----
1. This appeal has been preferred by the Chandigarh
Administration under Clause X of the Letters Patent against
judgment of learned Single Judge of this Court, allowing the writ
petition of respondents No.1 to 4 against order of resumption of plot
allotted on lease hold basis for 99 years and forfeiture of 10% of the
amount paid on account of non-payment of third instalment.
Learned Single Judge allowed the outstanding payment to be made
within one month from receipt of certified copy of the order.
2. Case of the original writ petitioners is that they were
allotted residential plot on 30.6.1975 and they paid 25% of the
premium of the site at the time of allotment. Thereafter, two out of
three instalments were duly paid and there was default in third
instalment which fell due on 7.6.1978. The original authority passed
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an order of forfeiture and cancellation of allotment against which the
predecessor of original writ petitioners filed an appeal, but he died
during pendency of the appeal. The appellate authority allowed the
appeal to the extent of setting aside of cancellation and reducing
the amount of forfeiture. The writ petitioners, however, still
preferred a revision petition for setting aside forfeiture. The revision
petition was allowed on 4.10.1988 and one month time was given to
make the payment. The time expired on 23.1.1989 and application
for extension of time was dismissed. The writ petitioners got
prepared draft for the amount on 13.2.1989 which was about 20
days later than the time by which the amount was to be paid.
3. Learned Single Judge held that 20 days time should
have been extended and cancellation of allotment or forfeiture of
amount for the said delay would be too harsh in the circumstances.
Learned Single Judge gave one months time from the date of
receipt of certified copy, on which the allotment will stand
regularized.
4. We have heard learned counsel for the parties.
5. Learned counsel for the appellant submitted that the
default in payment could not be readily condoned and if the same
was to be condoned, the writ petitioners should be required to pay
present market price. Reliance has been placed on judgment of the
Hon’ble Supreme Court in M.D., HSIDC and others v. M/s Hari
Om Enterprises and anothers JT 2008(8) SC 184. It has also
been submitted that mere sympathy should not be a ground to
exercise the power of judicial review as laid down in Haryana
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Urban Development Authority and another v. Roochira
Ceramics and another (1996) 6 SCC 584. It has further been
submitted that there was no error in the order of the Administration
in declining to extend time in view of judgment of this Court in
Maharani Depinder Kaur Burdwan (W.B.) v. Union Territory,
Chandigarh 1996(3) PLR 598.
6. We are unable to accept the submissions made.
7. The judgment in M/s Hari Om Enterprises (supra) does
not deviate from the earlier view in Teri Oat Estates (P) Ltd. v.
U.T., Chandigarh and others (2004) 2 SCC 130, to the effect that
doctrine of proportionality could be invoked as part of Article 14 of
the Constitution. If the order was disproportionate to the default and
too harsh, the same could be interfered with. It is on application of
said principle in the facts of the case concerned that the Hon’ble
Supreme Court gave direction for payment of current market price
was issued, finding chronic defaults by the allottees. The judgment
in Roochira Ceramics (supra) is also distinguishable on facts as
there were repeated defaults in the case before the Court. In the
present case, the writ petitioners had already deposited 75% of the
amount and for the delay in depositing the remaining amount, the
appellate and revisional authorities found valid justification. The
draft was got prepared by the writ petitioners after delay of 20 days
of the time given. No doubt, there was default, but having regard to
all the circumstances, the learned Single Judge having held that the
default was not chronic or intentional, we do not find any ground to
interfere under Clause X of the Letters Patent.
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8. The appeal is dismissed.
( ADARSH KUMAR GOEL )
JUDGE
January 27, 2009 ( JITENDRA CHAUHAN )
ashwani JUDGE