Judgment:
Kanwaljit Singh Ahluwalia, J.
1. Petitioners preferred Civil Writ Petition No. 10780 of 2001. This writ petition has a chequered history of litigation in the perspective of the same, this Court will notice the controversy and facts of the case.
2. Chandigarh Administration on 18.11.1997 held an auction for a site/plot No. 86 (Semi-Industrial) (Kabari Market), Industrial Area, Phase-II, Chandigarh. Petitioners were successful in the auction and were issued letter of allotment on 13.02.1998 (Annexure P-1). Petitioner in consonance with the advertisement and terms of auction deposited 25% of the auction amount. It is a case of respondent - Chandigarh Administration that petitioners had taken possession of the plot on 5.07.1999. They have submitted applications for sanction of building plan on 6.09.1999. Building plan was sanctioned on 9.11.1999. Till today admittedly no construction has been raised on the plot. Petitioners on the ground that no basic amenities have been provided avoided to pay the instalments of premium and ground rent, consequently, the allotment of lease was cancelled. Petitioners filed a present writ petition with a prayer that respondents be directed to provide amenities such as water, sewerage connection, electricity supply, approach roads, parking and street light, with a further prayer that till then payment of instalments, ground rent and interest payable by the petitioners be deferred. They also sought a writ in the nature of prohibition restraining the respondents from charging ground rent and instalments of premium till the date amenities are provided. In the alternative, petitioners asked for refund of the 25% amount of auction deposited i.e. Rs. 5,97,000/- along with interest @18% per annum from the day of the cancellation of allotment i.e. 13.02.1998.
3. Counsel for the petitioners states that since cancellation of lease was not communicated therefore same was not made subject to challenge in the writ petition.
4. During the pendency of the writ petition on similar cause, various writ petitions were filed. A Division Bench of this Court rendered judgment in M/s Shantikunj Investment (P) Ltd. v. Municipal Corporation and Ors. holding that providing of amenities is a condition precedent to the payment of the interest and the penalty whereas a contrary view was taken by another two Division Benches in G.S. Khurana v. Chandigarh Administration and D.L.G. Builders Pvt. Ltd. v. Advisor to the Administrator, Chandigarh Administration Chandigarh and Ors. saying that payment of instalments and ground rent is not dependent upon provision of amenities sought. Municipal Corporation, Chandigarh and Ors. assailed the decision of Shantikunj Investment Pvt. Ltd. and Ors. The present writ petition filed by the petitioners was dismissed relying upon the judgment of a Division Bench rendered in D.L.G. Builders Pvt. Ltd. (supra). Petitioners also filed Special Leave Petition. It was clubbed along with various pending Special Leave Petitions and they all were decided together in a judgment titled as Municipal Corporation, Chandigarh and Ors. v. Shantikunj Investment (P) Ltd. and Ors. : 2006 (4), Supreme Court Cases 109. Counsel for the petitioners has stated that the Special Leave Petition filed by the petitioner was assigned docket No. SLP(C) No. 23738 of 2002. It will be apposite here to reproduce following paragraph of the judgment given by Hon'ble Apex Court in Shantikunj Investment (P) Ltd. and Ors. (supra):
38. In this background, we are of the opinion that the interpretation of the Act and the Rules given by the Division Bench of the Punjab and Haryana High Court in the impugned judgment (Shanti Kunj Investment (P) Ltd.) cannot be sustained. It has been contended by the counsel for the Chandigarh Administration that all necessary facilities have been provided and some of the allottees have already constructed their buildings and have rented out the same and some allottees have applied for construction of hotels also. It is not possible for us to examine all these facts individually. Some of the sectors have been fifty developed and some sectors have been less developed. Therefore, it is not possible to work out that in one case it has been fully developed and in the other case it is still not developed. However, in some cases full payment has been made, in some cases two instalments have been made. Therefore, all these disputed facts have to be adequately dealt with by the High Court.
4. We make it clear that though it was not a condition precedent but there is obligation on the part of the Administration to provide necessary facilities for full enjoyment of the same by the allottees. We therefore, remit the matter to the High Court for a very limited purpose to see that in cases where facilities like kutcha road, drainage, drinking water, sewerage, street lighting have not been provided, then in that case, the High Court may grant the allottees some proportionate relief. Therefore, we direct that all these cases be remitted to the High Court and the High Court may consider that in case where kutcha road, drainage, sewerage, drinking water facilities have been provided, no relief shall be granted but in case any of the facilities had not been provided, then the High Court may examine the same and consider grant of proportionate relief in the matter of payment of penalty under Rule 12(3) and (sic interest for) delay in payment of equated instalment or ground rent or part thereof under Rule 12(3-A) only. We repeat again that in case the above facilities had not been granted then in that case consider grant of proportionate relief and if the facilities have been provided then it will not be open on the part of the allottees to deny payment of interest and penalty. So far as payment of instalment is concerned, this is a part of the contract and therefore, the allottees are under obligation to pay the same. However, so far as the question of payment of penalty and penal interest is concerned, that shall depend on the facts of each case to be examined by the High Court. The High Court shall examine each individual case and consider grant of proportionate relief.
40. In SLP (C) No. 23738 of 2002, the lease has been cancelled. Therefore, whether such cancellation was legal or otherwise, the High Court will examine the same in the light of the above observations. In SLP (C) No. 23941 of 2002, in fact the possession of the plot had been given on 17.1.2000. The allottee had a grievance that there was a mango tree on his plot which was to be removed. The High Court may decide as to what extent the relief should be granted.
5. In Shantikunj Investment (P) Ltd. (supra) had remanded all the matters to the High Court. They were listed before a Division Bench of this Court.
6. Counsel for the petitioners has relied upon Col. R.C. Punj v. U.T. Administration Chandigarh and Ors. in civil Writ Petition No. 12624 of 2002 decided on May 4, 2006 to say that since the facts regarding provision of basic amenities due to divergent opinion could not be reconciled, the Division Bench had remanded the matter to Assistant Estate Officer to pass a detailed speaking order. It will be necessary to reproduce the concluding part of the judgment given by Division Bench in Col. R.C. Punj (supra) for ready reference.
Keeping in view the facts and circumstances of the case and also the fact that parties take divergent pleas with regard to the factual position, it would not be possible for this Court to examine the aforesaid question and adjudicate thereupon, for want of any supporting material on behalf of either of the parties.
Consequently, we deem it appropriate to require Assistant Estate Officer, Chandigarh Administration, Chandigarh (Exercising the powers of Estate Officer) to examine the factual pleas raised by the petitioner. For this purpose, the petitioner shall file a detailed representation before the Assistant Estate Officer, within a period of four weeks from the date of the receipt of the certified copy of this order. The petitioner shall take all such pleas, which are available to him in the aforesaid representation and shall also annex copies of the relevant documents, upon which reliance is being placed by him. On the receipt of the aforesaid representation, the Assistant Estate Officer shall examine the aforesaid representation and pass a detailed speaking order within a further period of four months thereafter, after affording an opportunity of personal hearing to the petitioner or his counsel and the departmental representative. After a final order is passed by the Assistant Estate Officer, the petitioner shall be communicated, through a written communication, vide registered post, of any outstanding dues against him. On receipt of the aforesaid communication, the petitioner shall clear all the aforesaid outstanding dues against him, within a further period of three months thereafter.
Needless to say that on receipt of the payment of the aforesaid dues from the petitioner any order passed on account of earlier default committed by the petitioner, shall be treated to have been condoned and any penal action/resumption order, if so passed, shall be treated as nonest. A copy of this order be given dasti on usual payment.
7. Therefore, as per the orders passed in SLP preferred by the petitioners, this Court before it considers whether any proportionate relief is to be given to the petitioners regarding penalty and penal interest, it is necessary to determine whether basic facilities/amenities were provided or not. This Court ventured to carry on this exercise but conflirting stand has been taken by Chandigarh Administration and the Municipal Corporation regarding the date when amenities were provided. The Para 1 of the preliminary objections of the written statement filed by respondents No. 1 and 2 i.e. Chandigarh Administration and the Estate Officer, Chandigarh Administration read as under:
1. That as on 18.11.1997 that is the date of auction of Semi Industrial Site No. 86 Industrial area Phase-II, Chandigarh, following amenities were available.
i) Water supply line.
ii) Sewer line.
iii) Storm water disposal.
iv) Electricity/power system. However, the details with regard to the status of site as on date are given as under:
i) Semi Industrial site No. 86, Industrial Area Phase II Chandigarh.
ii) Date of auction 18.11.1997
iii) Date of issue of allotment 13.02.1998 letter
iv) Date of offer of possession 13.02.1998
v) Date on which possession was taken 5.7.1999
vi) Date of application for sanction of building plan 6.9.1999
vii) Date of sanction of Building plan 9.11.1999
viii) Stage of construction Plot is lying vacant
ix) Provision of electricity LD System laid in 1999
x) Date of providing sewerage line. 1985
xi) Date of providing of water supply line February, 1999
xii) Date of providing storm water drainage 1986
xiii) Out standing dues Rs. ______
xiv) Date of making provisions of approach road/parking completed on 25.7.2001.
8. Whereas respondent No. 3 - Municipal Corporation, Sector-17, Chandigarh in its reply in Para 7 has submitted as under:
All the facilities have been provided. Roads and parking areas have been completed on 28.07.2001, street lighting/parking lights on 25.2.2002, water supply lines were laid in February 2000, sewerage was completed on 5.11.1999 and storm water lines were completed on 27.1.2002. Now all the facilities have been provided.
9. Admittedly in the present case, auction was held on 18.11.1997. Building Plan was sanctioned on 9.11.1999. Road and Parking area was completed on 28.07.2001. Street light and parking lights were provided on 25.02.2002. Regarding the date of sewerage and storm water there is a difference of opinion. Chandigarh Administration states that sewerage line was provided in year 1985 whereas Municipal Corporation states that sewerage was completed on 5.11.1999. Therefore the observations made by Division Bench in Col. R.C. Punj's case (supra) become relevant and it is to be determined by competent authority as to when amenities were provided.
10. This Court in writ jurisdiction shall not tread on the path of requisitioning and appreciating evidence. Not only this after the decision of Shantikunj Investment Pvt. Ltd. another significant judgment was rendered by Hon'ble Apex Court in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. : 2009(4) Supreme Court Cases 660. In this case, judgment of the Shantikunj Investment Pvt. Ltd. was considered and it was held that judgment is on its own facts and was rendered due to special facts and circumstances of that case. The following observation of Hon'ble Apex Court in Amarjeet Singh and Ors. case (supra) are important to be noticed.
We asked the learned Counsel for the parties to tell us which is the obligation of the lessor in the lease deed which says that they will not charge interest on the installments before providing the amenities. There is neither any condition in the lease nor any obligation under the auction. If the parties have given their bids an with their eyes wide open, they have to blame themselves. It cannot be enforced by any mandamus as there is no obligation contained in the lease deed or in the auction-notice.
7. Therefore, it is evident that a lessee/successful bidder cannot seek rescheduling of the instalments of premium or postponement of accrual of the interest payable as per rules.
11. In Municipal Corporation, Chandigarh and Ors. v. Vipin Kumar Jain Civil Appeal No. 4450 of 2007 decided on September 20, 2007, Hon'ble Apex Court had allowed the Special Leave preferred by Municipal Corporation, Chandigarh and while setting aside the orders of this Court observed as under:
Auction is a price-discovery mechanism which falls in the contractual realm. In the present case we are concerned with commercial sites. Auction is basically an exercise in raising revenues for the Government. When the price is not paid within time it results in loss of revenue to the State. Time is the essence of the contract in matters concerning auction. Property prices rise by the day.
In the present case there was no illegality in the holding of auction. Despite repeated notices issued to the respondent calling upon him to make payment, respondent failed to pay within the stipulated period. Despite repeated indulgence being shown to the respondent by the competent authorities payments were not made. Property prices increase by the day and if within stipulated period contractual obligations are not fulfilled then in that event the State suffers losses which cannot be compensated in terms of interest or penalty after four days. Ultimately auction is an exercise for detecting or discovering the price prevalent in the particular area in a particular year and if time overruns are to be allowed on flimsy excuses for not paying the money in time then the entire exercise would fail. We are therefore of the view that the High Court should not have interfered in the process in which the Corporation was fully justified and entitled to forfeit 10% of the amount and to invite fresh offers on new terms and conditions.
12. Before the import of judgments rendered in Amarjeet Singh and Ors. and Vipin Kumar Jain is considered this Court cannot become oblivious of the fact that the Special Leave preferred by the petitioner was disposed of by way of common judgment rendered in Shantikunj Investment Pvt. Ltd. In Para 40 of judgment of Shantikunj Investment Pvt. Ltd. reproduced above specifically reference has been made to SLP preferred by the petitioner, Hon'ble Apex Court while remitting the matter back to this Court has asked to determine the controversy. Therefore, qua the petitioner matter stands conclusively decided by Hon'ble Apex Court in the judgment delivered in Shantikunj Investment Pvt. Ltd. case. Therefore parties to present writ petition cannot wriggle out of the observations made by Hon'ble Apex Court in Shantkunj Investment Pvt. Ltd. (supra). Nothing can be added nor substracted. Therefore in view of the conflicting stand taken by Chandigarh Administration and the Municipal Corporation, Assistant Estate Officer is directed to determine as on which date basic amenities were provided after hearing the parties. This Court is also bound by the observations made by Division Bench of this Court in Col. R.C. Punj case (supra). Counsel for the respondents has stated that on facts, Col. R.C. Punj case cannot be applied in the present case as in that case allottee had paid the instalments of premium and ground rent whereas petitioner has not paid any amount after payment of 25% initial amount. To counter this, counsel for the petitioners has relied upon an order passed by Division Bench of this Court in bunch of 8 writ petitions titled as Rajiv Gupta and Ors. v. Chandigarh Admn. through its Advisor in CWP No. 19836 of 2003 decided on 17.04.2006. The Division Bench observed as under:
This order shall dispose of a bunch of writ petitions. Learned Counsel for the petitioners have placed reliance upon a judgment of the Apex Court rendered in Municipal Corporation, Chandigarh and Ors. etc. v. Shantikunj Investment Pvt. Ltd. Etc. JT 2006 (3) SC 1. On the strength of the aforesaid judgment, learned Counsel for the petitioners states that the matter is required to be reexamined by the competent authority keeping in view the guidelines laid by the Apex Court. Learned Counsel appearing for the respondents have no objection if this prayer of the petitioners is granted.
In view of the aforesaid fact, the resent writ petitions are disposed of. It is directed that petitioners will file a detailed representation before the competent authority (Assistant Estate Officer of Chandigarh Administration/Additional Commissioner, Municipal Corporation, Chandigarh) within a period of 3 weeks from the date a certified copy of this order is received. In the aforesaid representation, the petitioners shall detail out the various claims made by them on the basis of which they claim that they are not required to make the payment of the penal interest and penalty. On receipt of the aforesaid representation, the aforesaid competent authority shall decide the matter afresh taking into consideration the law laid down by the Apex Court in Shanti Kunj Investment Pvt. Ltd.'s case (Supra).
It is also directed that till the matter is finally decided by the competent authority, neither any recovery shall be effected from the petitioners nor the petitioners will be dispossessed from the sites under their possession.
However, it is clarified that if there are any pending instalments with regard to the amount of ground rent, that should be duly paid by such allottees in terms of the directions issued by the Apex Court in Shanti Kunj Investment Pvt. Ltd 's case (Supra).
It is further clarified that if no such representation is made by any one of the allottees within the aforesaid period of three weeks, as directed above, than the writ petition filed on his behalf shall be deemed to have been dismissed. If any order adverse to the petitioners is passed by the competent authority than the petitioners/allottees would be entitled to challenge the same before the appellate authority in accordance with law.
Copy of the order be given dasti on payment of the usual charges.
13. Therefore this Court has to reconcile the observations made by Hon'ble Apex Court in Shantikunj Investment Pvt. Ltd. (supra) and by two Division Benches of this Court in Col. R.C. Punj (supra) and Rajiv Gupta and Ors. (supra) and the conflicting stand taken by Chandigarh Administration and Municipal Corporation. Therefore, Assistant Estate Officer is directed to hear parties to writ petition and decide as on which date the basic amenities were provided. The Estate Officer will go into the entire gamut of the controversy and will pass a detailed speaking order.
14. The parties are directed to file their written submissions also. With these observations, the present writ petition is disposed of. The parties are at liberty to assail the order of the Assistant Estate Officer in appropriate forum. Needless to say parties will be at liberty to raise all arguments which have been raised in the present writ petition in the subsequent proceedings.