C.W.P No.531 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** C.W.P No.531 of 1993 Date of Decision :
20. 08.2013 Ram Singh ....Petitioner Versus The State of Haryana and another ....Respondents CORAM : HON'BLE Mr.JUSTICE SATISH KUMAR MITTAL HON'BLE Mr.JUSTICE MAHAVIR S.
CHAUHAN Present : Ms.Kamalpreet, Advocate, for the petitioner.
Mr.Tarun Singla, Advocate, for the respondents.
MAHAVIR S.
CHAUHAN, J.
In an open auction, held on 25.11.1990, for allotment of a shop site, the petitioner was the highest bidder in respect of shop site No.17 measuring 10 feet X 8.feet in Anaj Mandi, Nathusari Chopta, District Sirsa, (for short as 'the shop site') at Rs.7,00,000/-.
The petitioner deposited 1/4th of the auction money, i.e., Rs.1,75,000/-, at the time of the auction and was issued a letter of allotment dated 19.03.1991 (Annexure P-1).As per Clause 5 of the allotment letter, petitioner was required to deposit remaining amount of Rs.5,25,000/- either in one lump-sum without interest within 30 days of the receipt of the letter of allotment or in six half yearly instalments together with interest @ 12½% per annum.
However, owing to financial constraints, the petitioner found himself unable to deposit the balance amount of sale consideration in respect of shop site and, accordingly, vide application dated 24.08.1991 (Annexure P-2).he requested the respondents to cancel the allotment and to refund to him the amount of Rs.1,75,000/- deposited by him at Virender Singh Adhikari 2013.09.03 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.531 of 1993 -2- the time of the auction, after deducting 10% of the sale consideration.
Respondent No.2, vide communication dated 30.09.1991 (Annexure P-3).conveyed to the petitioner that allotment of the shop site could not be cancelled and conditions of allotment have to be strictly adhered to.
The communication dated 30.09.1991 was followed by another communication dated 13.08.1992 (Annexure P-4).whereby respondent No.2 asked the petitioner to pay due instalments within 15 days or face resumption of the site in question.
Faced with the situation, petitioner has approached this Court by way of the instant Civil Writ Petition, under Articles 226/227 of the Constitution of India, with a prayer for issuance of a writ of mandamus to direct the respondents to accept surrender of the shop site and refund to him the amount of Rs.1,75,000/- deposited by him at the time of the auction, after deducting 10% of the sale consideration under Section 46A sub-section 8 of the Punjab Agricultural Produce Markets (Haryana Amendment) Act, 1989 (hereinafter referred to as 'the 1989 Act').Respondents have filed a counter, wherein it has been admitted that the petitioner had made a request for cancellation of allotment and refund of the amount of 25% deposited by him at the time of auction but refund of this amount is not permissible in terms of condition No.18 of the letter of allotment (Annexure P-1).We have heard learned counsel for the parties and have perused the record.
It is argued on behalf of the respondents that there is no provision for surrender of the site allotted to the petitioner and refund of the amount of earnest money so deposited by him.
Rather, according to the learned counsel for the respondents, on account of non-deposit of Virender Singh Adhikari 2013.09.03 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.531 of 1993 -3- instalments in respect of shop site, an order of resumption is liable to be passed and the amount deposited by the petitioner to be forfeited.
Clause 18 of the letter of allotment (Annexure P-1) reads as under:- “18.
Should any transferee fail to observe or comply with any of the terms and conditions mentioned above the plot will be resumed and his deposit shall be forfeited to the Market Committee, Sirsa, which may have the property resold by public auction.”
From a perusal of the above cited clause of the letter of allotment, it comes out that this clause would come into operation only if the petitioner fails to comply with terms and conditions of the letter of allotment and it does not forbid the petitioner from surrendering the shop site allotted to him and asking for refund of the earnest money.
Learned counsel for the respondents has not been able to show any provision of law or rules/regulations prohibiting surrender of allotted shop site by the allottee in the event of inability of the allottee to pay the balance of sale consideration.
It may be added that in the letter of allotment (Annexure P-1) it has been stated that the petitioner was required to deposit remaining 75% of the sale consideration without interest within 30 days from the date of receipt of the letter of allotment or in six half yearly instalments together with interest @ 12½% but no date(s) for deposit of the instalments have been given.
It is also relevant to point out here that the letter of allotment (Annexure P-1) was issued on 19.03.1991 and just a month thereafter, i.e., on 24.08.1991, the petitioner made request (Annexure P-2) for surrender of the shop site and for refund of the deposited money to him.
As aforesaid, learned counsel for the respondents has not been able to show any provision of law or Virender Singh Adhikari 2013.09.03 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.531 of 1993 -4- rules/regulations that prohibits surrender of the allotted shop site and for refund of the earnest money deposited by the petitioner.
It may be stated that even in the event of resumption of the shop site under Section 46-A(8) of the Act, forfeiture cannot exceed 10% of the total amount of consideration.
In the consequence, the writ petition is allowed and respondents are directed to accept surrender of the shop site and to refund, to the petitioner, the amount of Rs.1,75,000/- after deducting an amount equivalent to 10% of the sale consideration.
However, in view of peculiar facts and circumstances of the case, there shall be no order as to costs.
(SATISH KUMAR MITTAL) (MAHAVIR S.
CHAUHAN) JUDGE JUDGE 20 08.2013 adhikari Virender Singh Adhikari 2013.09.03 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh