HARPAL SINGH Vs. UNION TERRITORY, CHANDIGARH

JUDGEMENT

(1.) THIS is a petition to quash the notices Annexures P1 to P3 issued by the Assistant Estate Officer, exercising the powers of the Estate Officer, Chandigarh and the orders Annexures P4 to P6 passed respectively by the Assistant Estate Officer, the Chief Administrator and the Adviser to the Administrator, Union Territory, Chandigarh whereby the plot allotted to the petitioner has been resumed and a part of the amount deposited by him as premium has been forfeited.

(2.) IN the open auction held on 13.3.1988, the petitioner gave the highest bid of Rs. 21,32,000/- for S.C.O. Site No. 461-62, Sector 35-C, Chandigarh. The petitioner deposited 25% of the total premium. Thereafter, the Estate Officer issued allotment letter dated 12.4.1988. In terms of the allotment letter option was available to the petitioner to deposit the remaining premium within 30 days without interest or to pay the remaining amount in three annual equated instalments along with interest. The petitioner did not opt for paying the remaining amount in lump-sum. He also failed to deposit the first instalment of Rs. 6,09,299/- as well as the ground rent amounting to Rs. 53,300/- which fell due on 13.3.1989. Consequently, the Assistant Estate Officer issued notice dated 29.5.1989 under Rule 12(3) of the Chandigarh Lease Hold of Sites and Buildings Rules, 1973 (hereinafter referred to as "the Rules of 1973") and called upon the petitioner to pay the amount of instalment with ground rent and interest together with penalty of Rs. 66,260/- within the period of three months i.e. by 31.8.1989. The petitioner not only ignored that but also failed to deposit the second and third instalments. This resulted in the issuance of notices dated 6.6.1990 and 13.11.1991 requiring the petitioner to deposit the amount of instalment along with ground rent and interest and penalty within three months. Even then the petitioner did not bother to deposit the amount. Therefore, the Assistant Estate Officer took further proceedings under Rule 12(3) of the Rules of 1973 for cancellation of the lease of the site. The Assistant Estate Officer fixed the hearing of the case on 3.10.1989, 12.12.1989, 27.2.1990, 26.6.1990, 4.9.1990, 16.10.1990, 5.6.1991, 26.6.1991, 14.8.1991, 4.9.1991, 13.11.1991, 11.12.1991, 6.5.1992 and 24.6.1992. The petitioner failed to avail these opportunities and did not deposit the amount. Therefore, the Assistant Estate Officer held that he was guilty of wilful default and on that basis the order Annexure P4 dated 24.6.1992 came to be passed for cancellation of the lease of the site and forfeiture of 10% of the premium of the site plus ground rent and interest. The petitioner preferred appeal and succeeded in persuading the Chief Administrator to set aside the order of the Assistant Estate Officer by making an unequivocal promise through his counsel that he would make part payment on 7.3.1995 and that the remaining amount will be paid by 31.3.1995. The Chief Administrator reduced the amount of forfeiture from 10% to 2%. Even then the petitioner did not bother to deposit the amount due. Instead he preferred revision petition before the Adviser to the Administrator. Before the revisional authority also, it was given out that the petitioner would pay the outstanding dues. Believing the promise made by the petitioner/his representative the Adviser to the Administrator restored the site to the petitioner subject to the condition that he shall pay Rs. 10 lacs by 7.6.1995 and the balance amount in two equal instalments payable on 27.6.1995 and 25.7.1995. However, after the passing of order dated 26.5.1995 by the Adviser the petitioner failed to clear the due amount and with a view to avoid penal consequences, he filed the present petition.

(3.) THE first contention urged by Shri S.R. Dass, counsel for the petitioner is that the proceedings initiated by the respondents for cancellation of site should be dropped because the petitioner has deposited the entire outstanding amount and construction over the plot allotted to him has already been completed. Shri Dass submitted that the default committed by the petitioner in depositing the instalment money cannot be termed as wilful because the petitioner was facing financial crisis at the relevant time. The second contention urged by Shri Dass is that the imposition of penalty and forfeiture of the premium already deposited by the petitioner are contrary to Rule 12(3) and, therefore, the order of resumption should be declared illegal and void. Shri Subhash Goyal, learned counsel for the respondents rebutted the contentions of Shri Dass and argued that the petitioner does not have the locus standi to challenge the orders Annexures P4, P5 and P6 because he did not deposit any of the instalments after securing possession of the valuable property belonging to the respondents. Learned counsel submitted that the finding recorded by the Assistant Estate Officer on the issue of wilful default is based on a proper appreciation of the facts which were available before the concerned authority and as the petitioner did not challenge this finding before the appellate and the revisional authorities, he cannot now challenge the same by way of writ under Article 226 of the Constitution. Shri Goyal further argued that forfeiture of a part of the premium is legally justified in view of the explicit provision contained in Rule 12(3). In the alternative, he argued that even if the imposition of penalty is found to be illegal, the proceedings of resumption and the impugned orders do not call for interference by the High Court in exercise of its writ jurisdiction. Shri Goyal relied on the following judgments :-