CIVIL WRIT PETITION NO. 13577 OF 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: July 07, 2009.
Parties Name
Mount Carmel Educational Society, Chandigarh
...PETITIONER
VERSUS
Chandigarh Administration, U.T. Chandigarh and others
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
PRESENT: Mr. Akshay Bhan,
Advocate, for the petitioner.
Mr. Deepak Sharma, Advocate,
for the respondents.
JASBIR SINGH, J. (oral)
ORDER:
Petitioner has filed this writ petition with a prayer that
directions be issued to respondent No. 3 to rectify account statement
(Annexure P-15) and to re-prepare the same in terms of Rule 10 of the
Chandigarh Lease Hold of Sites and Building Rules, 1973 (in short the
Rules) It is also prayed that the date of instalment, towards payment of
price of the plot allotted to the petitioner, be rescheduled by taking May 3,
2000, as the deemed date of delivery of possession.
Record reveals that in response to a public notice Annexure P-
1, inviting applications for allotment of land, on lease hold basis, to the
educational Institutions in Sector 47-B, Chandigarh, petitioner moved an
application along with earnest money of Rs. 20,03,760/- for allotment of a
CIVIL WRIT PETITION NO. 13577 OF 2007 -2-
plot measuring 2.30 Acres of land to start a School. Petitioner was found
eligible and vide order dated May 6, 1999, plot measuring 1.37 Acres in
Sector 47-B, Chandigarh, for setting up a Primary School was allotted in
favour of the petitioner against premium of Rs. 1,99,63,250/-. In the
allotment letter, it was also stated that ground rent, at usual rate, as
prescribed under the Rules shall be charged. Para No. 5 of the allotment
letter reads thus:
“The allotment of land shall be governed by the provision of
Chandigarh Lease Hold of Sites and Building Rules, 1973.
You are, therefore, requested to remit a sum of Rs. 9,87,525.00
to cover 25% tentative premium along with an undertaking on
Non-judicial Stamp Papers worth Rs. 3/- duly attested by
Executive Magistrate in case the above terms and conditions
are acceptable, within thirty days from the date of issue of this
letter.”
In response to letter of allotment, petitioner deposited an
amount of Rs. 9,87,053/- on May 25, 1999. Vide letter Annexure P-5, the
petitioner, after accepting allotment of land measuring 1.37 Acres, made a
prayer for allotment of additional land, making its plot 2.3 Acres. On
receipt of money, as referred to above, vide letter dated September 16, 1999,
allotment order was issued (Annexure P-6) intimating the petitioner that
amount deposited by way of earnest money has been adjusted against price
of the plot allotted and following schedule for payment of instalments
towards premium and ground rent was fixed:
CIVIL WRIT PETITION NO. 13577 OF 2007 -3-
Number of the Due date of Date upto which Amount of equated
instalment payment payment should instalment including
be made interest.
1st instalment 7-2000 10/08/00 Rs.15,87,942.00
2nd instalment 7-2001 10/08/01 Rs.15,87,942.00
rd
3 instalment 7-2002 10/08/02 Rs.15,87,942-00
th
4 instalment 7-2003 10/08/03 Rs.15,87,942-00
5th instalment 7-2004 10/08/04 Rs.1587,942-00
6th instalment 7-2005 10/08/05 Rs.15,87,942-00
7th instalment 7-2006 10/08/06 Rs. 15,87,942-00
th
8 instalment 7-2007 10/08/07 Rs. 15,87,942-00
th
9 instalment 7-2008 10/08/08 Rs. 15,87,942-00
10th instalment 7-2009 10/08/09 Rs. 15,87,942-00
Ground rent annually Rs.299081/- for every
for 1st 33 years year.
Admittedly, possession of the plot was delivered on May 25,
1999. Thereafter, request of the petitioner for allotment of additional piece
of land was also approved by the authority concerned on November 16,
1999 (Annexure P-7) and it was decided that additional area of land
measuring 1.37 Acres be allotted to the petitioner. In response to order,
mentioned above, allotment letter was issued on May 3, 2000. For
additional area, total premium payable was fixed as Rs. 1,19,63,250/- and it
was stated as under:
“The following shall be the schedule of payment of instalments
of the premium and ground rent:
Number of the Due date of Date upto which Amount of equated
instalment payment payment should be instalment
made including interest.
1st instalment 4-2001 10/05/01 Rs.15,87,942-00
nd
2 instalment 4-2002 10/05/02 Rs.15,87,942-00
rd
3 instalment 4-2003 10/05/03 Rs.1587,942-00
4th instalment 4-2004 10/05/04 Rs.15,87,942-00
5th instalment 4-2005 10/05/05 Rs. 15,87,942-00
6th instalment 4-2006 10/05/06 Rs. 15,87,942-00
CIVIL WRIT PETITION NO. 13577 OF 2007 -4-
Number of the Due date of Date upto which Amount of equated
instalment payment payment should be instalment
made including interest.
7th instalment 4-2007 10/05/07 Rs. 15,87,942-00
8th instalment 4-2008 10/05/08 Rs. 15,87,942-00
th
9 instalment 4-2009 10/05/09 Rs. 15,87,942-00
th
10 instalment 4-2010 10/05/10 Rs. 15,87,942-00
Ground rent annually Rs. 299081/- for
for 1st 33 years every year
It is an admitted fact that possession of the additional land
allotted was delivered on May 3, 2000.
Record reveals that the petitioner failed to comply with the
Schedule, fixed for payment, accordingly interest and penalty amount were
charged. Against above said action, petitioner sent a representation on
March 14, 2003 (Annexure P-8), wherein it was specifically stated that
deemed date of delivery of possession should be as on May 3, 2000, when
additional area of land was allotted to the petitioner and payment schedule
be re-fixed accordingly. Vide order dated October 16, 2003 (Annexure P-
9), the competent authority conveyed it to the petitioner that on account of
failure of the petitioner to deposit amount of instalment towards price in
time, penalty, interest etc. to the tune of Rs. 4,59,433/- has been imposed
upon the petitioner. Petitioner went in appeal. In its ground of appeal, it
was specifically stated that date of delivery of possession be taken as May 3,
2000, when allotment of additional area was made and the schedule of
payment be fixed accordingly and further that taking into consideration that
date, ground rent be charged. Appeal was partly accepted. Vide order dated
April 6, 2004, it was ordered as under:
“I have heard both the parties and gone through the records of
the file carefully. The Law Officer representing the Estate
CIVIL WRIT PETITION NO. 13577 OF 2007 -5-Officer submitted that the appellant failed to make the payment
of the government dues within stipulated date and time.
Therefore, the orders of the Estate Officer are as per rule. The
counsel for the appellant submitted that at present no amount is
due against his client. If any due he is ready and willing to pay
the same. He, therefore, prayed that the order of the Estate
Officer may kindly be set aside and reduce the penalty.
On the basis of arguments led by both the parties and facts of
the case, I find that a lenient view is granted in this case. As per
submissions made by the counsel for the appellants, I accept the
appeal. Accordingly, the order of the Estate Officer is set aside
and the penalty on amount of ground rent be reduced from
100% to 60%. The appellant is directed to clear the
outstanding dues within three months.”
The order, extracted above, clearly indicates that a lenient view
was taken when relief was granted to the petitioner. Petitioner was not
satisfied. It filed an application for clarification of the order, mentioned
above and vide order dated July 13, 2004, penalty imposed for non-payment
of instalment was also reduced from 10% to 4%. Petitioner went in revision
reiterating grounds of attack, which it agitated in its appeal. It was
specifically stated that no amount would be recoverable from the petitioner
if date of possession of both the plots is taken as May 3, 2000. In revision,
on an undertaking given by the petitioner that it shall clear all dues, revision
petition was disposed of by observing thus on February 22, 2006:
“3. The counsel for the petitioner submitted that he has filed a
CIVIL WRIT PETITION NO. 13577 OF 2007 -6-revision petition against the order of the Chief Administrator
dated 13.7.2004, wherein the petitioner was directed to deposit
the entire outstanding amount within a period of three months
with reduced penalties imposed upon him. The petitioner could
not utilize the land allotted to him as the allotment was not in
accordance with the commitment made in the public notice.
The respondent Estate Officer imposed penalties on the ground
of delay in making payment of premium without rationalizing
the allotment letter. The petitioner has not been communicated
the legally due amount till date. However, the petitioner is
ready to deposit the outstanding amount in case an opportunity
is given. A prayer was, therefore, made for setting aside the
impugned order and waiving off the entire amount of the
penalties in the interest of justice.
4. The representative of the Estate Officer submitted that the
Chief Administrator has already given enough relief to the
petitioner by reducing the penalties from 100% to 60% on
ground rent and from 10% to the 4% on instalments. Since
the petitioner failed to clear the outstanding dues within the
time given by the Chief Administrator, the petition, he
argued, therefore, deserved to be dismissed.
5. After hearing the parties, going through the record and
keeping in view the undertaking given by the petitioner to
clear the outstanding dues, I hereby set aside the impugned
order and grant six months time to clear the entire
outstanding dues, failing which the order of the Estate
CIVIL WRIT PETITION NO. 13577 OF 2007 -7-Officer shall become operative.”
The respondent – Estate Officer wrote a letter to the petitioner
to deposit an amount of Rs. 18,55,957/- and Rs. 3,05,145/- by August 21,
2006. The amount was worked out without penalty (Annexure P-15).
Statement of account was also annexed with the letter. Petitioner deposited
the amount as claimed vide order Annexure P-15. Thereafter, the
respondent claimed an amount of Rs. 18,87,023/- towards price of the
additional land and an amount of Rs. 2,99,081/- towards ground rent, which
had fallen due on July 16, 2007-. Petitioner made a representation denying
its liability to make above said payment. Thereafter present writ petition has
been filed.
In its reply, the respondents have stated that allotment of land
of 1.37 Acres was accepted by the petitioner without any objection.
Thereafter, request was made for allotment of additional land, which was
also allotted subsequently. Both the transactions were independent and
provisions of the Act will start taking effect from the date when possession
was delivered in each case. It was further stated that the petitioner has not
laid challenge to the order Annexure P-14, which was passed on its
undertaking to make payment of the amount claimed and further that the
issues which the petitioner has now raised, were very much available to the
petitioner when the matter was pending before the appellate authority and
the revisional authority. Once order dated February 22, 2006 (Annexure P-
14) has become final, it does not lie in the mouth of the petitioner to say to
the contrary. It has been prayed that the writ petition be dismissed.
After hearing counsel for the parties, this Court is convinced
CIVIL WRIT PETITION NO. 13577 OF 2007 -8-
that no interference can be made in this writ petition, at the instance of the
petitioner. In response to notices Annexures P1 to P3, petitioner moved an
application for allotment of land measuring 2.30 Acres in Sector 47,
Chandigarh. Its request was acceded only to the extent of land measuring
1.37 Acres, for which intimation was sent vide letter dated May 25, 1999
(Annexure P-5). The petitioner was directed to make payment towards 25%
of amount of premium. Petitioner complied with the same. Thereafter
allotment letter was issued on September 16, 1999 (Annexure P6).
Possession of the land in question was also delivered on that date and
schedule for payment was also fixed. Petitioner accepted the allotment
made to it without any murmur. However, thereafter request was made for
allotment of additional land, which was accepted vide order dated
November 16, 1999. Allotment letter was issued regarding additional
land, measuring 1.37 Acres, on May 3, 2000. Possession was also delivered
on May 3, 2000.
Facts of the case clearly indicate that two adjoining plots were
allotted to the petitioner vide two separate allotment letters. Both allotments
were independent transactions. Under these circumstances, it cannot be
accepted, as propagated by the petitioner, that schedule of payments be
fixed by treating May 3, 2000 (on which date second letter of allotment was
issued) as a date of allotment of entire land to the petitioner. The petitioner
was required to adhere to the schedule of payment as was mentioned in
allotment letters, referred to above. No objection was raised regarding
separate schedule of payments for both the plots. Default was committed for
making the payment and when interest, penalty etc. were imposed, the
petitioner woke up and to save its skin, put up this excuse of giving deemed
CIVIL WRIT PETITION NO. 13577 OF 2007 -9-
date of possession, i.e., May 3, 2000. The authorities took a lenient view
and waived some portion of interest and penalty. Before the revisional
authority, the petitioner gave an undertaking to make entire payment. By
taking note of the same, total amount of interest and penalty were waived
and six months’ time was granted to the petitioner to clear the outstanding
dues. Before the appellate authority and the revisional authority, petitioner
averred with vehemence that schedule of payments be fixed, by taking date
of second allotment (May 3, 2000) as a date of delivery of possession for
the entire land. This was not accepted. Order Annexure P-14 was passed
on February 22, 2006, which has become final and is not under challenge.
As such, at this stage, petitioner is not entitled to rake up the same
controversy, which it has raised before the competent forum.
In view of facts, mentioned above, it is not open to the
petitioner to say that amount of interest, penalty, ground rent etc. were not
calculated in terms of rule 10 of the Rules. Be that as it may, Rule 10 of the
Rules reads thus:
“10. Delivery of possession:- Actual possession of the site/
building shall be delivered to the lessee on payment of 25% of
the premium in accordance with rule 8 or 9 as the case may be.
Provided that no ground rent payable under rule 13 and interest
on the instalments of premium payable under sub-rule (2) of the
Rule 12 shall be paid by the lessee till the actual and physical
possession of the site/building is delivered or offered to be
delivered to him, whichever is earlier.”
In earlier part of this order, this Court has held that two plots of
land were allotted to the petitioner, one on September 16, 1999 (Annexure
CIVIL WRIT PETITION NO. 13577 OF 2007 -10-
P-6) and another on May 3, 2000. Admittedly, possession of the first plot
was delivered on September 16, 1999, and possession of second plot was
delivered on May 3, 2000. In both the allotment letters, separate schedule
of payment was fixed. Limitation for imposition of ground rent was also
fixed from the date when possession was delivered. Contention of counsel
for the petitioner that possession of the entire land shall be deemed to have
been delivered on May 3, 2000 (date of second allotment) is liable to be
rejected in view of discussion in earlier part of this order.
In view of facts, mentioned above, no case is made out for
interference. Dismissed.
July 07, 2009. ( Jasbir Singh ) DKC Judge