H.S.BHALLA, J. - (1.) BY this common judgment, I shall be disposing of two petitions, being Civil Writ Petition Nos. 8597 of 1998 and 457 of 2004 together as the questions of fact and law involved therein are identical in nature. However, for the sake of convenience, facts are being extracted from Civil Writ Petition No. 457 of 2004.
(2.) THE petitioner-Company, by virtue of this petition, has knocked at the door of this court by filing the present writ petition under Article 226 of the Constitution of India praying for quashing the order dated 12.9.2000 passed by Assistant Commissioner-I (Exercising the Powers of the Estate Officer), Municipal Corporation, Chandigarh (respondent No. 5) and 21.11.2001 passed by Commissioner, Municipal Corporation, Chandigarh (Exercising the powers of Chief Administrator, U.T., Chandigarh) (respondent No. 4) (Annexures P-6 and P-7) respectively as also the order dated 31.12.2003 (Annexure P-14) passed by the Advisor to the Administrator, Union Territory, Chandigarh (respondent No. 3), whereby the review petition filed by the present petitioner was dismissed. The petitioner-Company has also sought a direction to charge interest/lease money from the petitioner with effect from July 1999 onwards when the work for providing basic facilities like sewerage, parking and street lights was got completed by the respondents and to accept the Demand Drafts worth Rs. 59,51,500/- which has been illegally returned by the respondents after keeping it with them for more than one year. The other facts required to be noticed for the disposal of this petition are that petitioner purchased SCO No. 902 and 903, Pocket 6, Manimajra in an open auction, which was got conducted by the respondents on 17.4.1997 for Rs. 1,65,02,000/- and Rs. 1,61,99,000/- respectively. As per the terms and conditions of the auction, the petitioner had to deposit 25% of the bid money within 30 days. The petitioner deposited 25% of the consideration/bid money amounting to Rs. 41,25,000/-, i.e. 25% of Rs. 1,61,00,000/- within 30 days. Thereafter, the respondents issued allotment letters of site/plot Nos. 902 and 903 respectively on 22.5.1997 in favour of the petitioner. As per the allotment letters, the petitioner had to pay the balance 75% of the amount in three equal instalments of Rs. 56,10,680/- and Rs. 54,74,000/- respectively by 10.5.1998, 10.5.1999 and 10.5.2000. In addition to this, the petitioner was required to pay annual Ground Rent of Rs. 4,12,550/- and Rs. 4,02,500/- per annum. In view of the allotment letters (Annexures P-1 and P-2) respectively, the petitioner took the possession of the site on 30.5.1997 and found that there was absolutely no development carried out by the respondents and even the basic amenities like leveling of pits, provision of Sewerage system, parking facilities, parking and street light and pucca approach roads was totally non-existent on the site. In the absence of above mentioned facilities, it was very difficult for the petitioner to start construction of the hotel. It is further pointed out that since the date of auction, which was announced by the respondents that the site is fully developed, parking facility is there, pavement/roads have been constructed, street light/electricity is available, sewerage and other basic facilities are available, but after taking possession, the petitioner found that the development work had not been carried out by the respondents and therefore, the petitioner wrote many letters, including letter dated 30.7.1998 (Annexure P-3) to the respondents and pointed out that the basic development work had not been provided by the Corporation, it is very difficult to run the hotel and it will become further difficult for them to pay the instalments. Despite the various letters written by the petitioner to the respondents, respondents did not take any step to carry out the development work and provide basic amenities. Since the respondents had failed to provide the basic amenities, therefore, the petitioner could not pay the amount of instalment fixed by the respondents in time. In order to compel the respondents to provide basic amenities and to complete the development work, the petitioner filed Civil Writ Petition No. 8597 of 1998 before this Court with a prayer that the respondents be directed to complete the development work at site Nos. 902 and 903, Pocket 6, Manimajra. In this writ petition, notice was issued to the respondents and thereafter, the above said writ petition was admitted to hearing. It is further pointed out that the petitioner had got sanctioned loan of Rs. 300 lac in March 1998 from Small Industries Development Bank of India. The petitioner approached respondents and offered to make the lump-sum payment of the auction amount, but the respondents refused to accept the same and on account of this reason, the petitioner could not avail the loan. The Bank wrote a letter to the petitioner on 20.10.1999 to the effect either to avail the loan or the said loan shall be canceled. In the absence of development work carried out by the respondents, the petitioner could not deposit the instalments in time. Accordingly, respondent No. 5 vide order dated 12.9.2000 canceled the lease of SCO Nos. 902 and 903 and forfeited 10% of the amount of consideration money, interest and other dues payable in respect of the said site. Copy of order dated 12.9.2000 passed by respondent No. 4 is annexed with the petition as Annexure P-6. Against the order passed by respondent No. 4, the petitioner filed appeal before respondent No. 5, but respondent No. 5 also dismissed the appeal of the petitioner vide order dated 21.11.2001, without appreciating the facts of the case, a copy of which is annexed with the petition as Annexure P-7. The petitioner again filed revision before respondent No. 3 against the order dated 21.11.2001. Respondent No. 3 allowed the revision and set aside the orders and restore the site to the petitioner, but subject to the condition that outstanding amount along with reduced forfeiture of 2% is paid within six months. The petitioner filed civil suit for declaration challenging the orders dated 12.9.2000, 21.11.2001 and 6.3.2002 (Annexures P-6 to P-8) respectively before the learned trial Court. The learned trial court, after hearing both the parties, passed an order dated 17.9.2002 (Annexure P-9) directing the respondents not to resume/cancel/forfeit money or to take any further action regarding the suit property subject to the deposit of balance principal amount within 10 days. In view of the order Annexure P-9, the petitioner deposited Rs. 59,51,500/-, i.e., balance principal amount on 26.9.2002 by way of four bank drafts. However, subsequently, the learned trial Court returned the plaint of the petitioner with liberty to approach appropriate forum within one month. It is further pleaded that the respondent-Corporation came into existence from 24.5.1994 and provisions of Capital of Punjab (Development and Regulation) Act, 1952 and Rules framed thereunder were made applicable to all the properties being controlled and auctioned by Municipal Corporation. As per Rule 12(3) of the Chandigarh Lease Hold of Sites and Building Rules, 1973, the amount of annual equated instalment was required to be calculated with an ingredient of interest @ 10%, but in the case of the petitioner, the respondent-Corporation has calculated the amount of equated instalment at the higher rates. It is further categorically pleaded that in identical circumstances, where Municipal Corporation allotted different commercial sites and thereafter failed to provide basic amenities for the use and occupation of the sites sold to them, Civil Writ Petition No. 959 of 1999 titled Shakti Kunj Investment (P) Ltd. v. U.T. Administration and others, was filed before this Court. It is further categorically pleaded that the sites allotted to the petitioner, i.e. SCO Nos. 902 and 903 is located on Pocket No. 6 on Chandigarh-Kalka Road and is popularly known as Housing Board Chowk, Manimajra. There were approximately 12 sites which were put to auction, which took place on 17.4.1997. The sewerage pipes were to be laid down from site No. 914, which was at the end and it had to be connected with the main sewerage pipe located near site No. 901, which was situated on the other side of the road. The petitioner purchased site Nos. 902 and 903 being highest bidder on 17.4.1997 and deposited 25% of the amount. The allotment letter was issued to the petitioner on 22.5.1997 and the petitioner took the possession on 30.5.1997. Petitioner has further pointed out that letter (Annexure P-13) clearly spells out that other facilities like sewerage was not available at the time of issuance of allotment letter and is also proved from the fact that work of laying down of sewerage started on 29.5.1998 and the same was in progress in February, 1999. This fact becomes clear from the perusal of third running bill prepared by the respondents, which shows that even Rs. 1,47,441/- was paid to the contractor on 24.2.1999, therefore, in view of letters (Annexures P-12 and P-13), it is clear that the contention of the petitioner that basic facilities like sewerage, parking and street lights were not available and therefore, respondents were not entitled for interest/lease money till basic amenities becomes available. Since the petitioner was not aware of existence of letters (Annexures P-11 to P-13) at the time of passing of orders (Annexures P-6 to P-8), therefore, the petitioner filed review application before respondent No. 3 and highlighted the facts of the case and requested that the order (Annexure P-8) be reviewed, but vide Annexure (P-14), respondent No. 3 dismissed the review application on the ground that there is no power of review in the Act. Respondents returned the bank drafts, which were deposited by the petitioner vide Annexure P-10 after the passing of the order Annexure P-9. The petitioner has finally prayed that the two sites were allotted in the year 1997, yet the basic facilities like sewerage, parking, streetlights and pavements were not provided despite the repeated representations. This fact also becomes clear from the perusal of Annexure P-11 whereby the respondents had re-scheduled the instalments of allottee of site number 906 and also from the perusal of Annexure P-12, which reflects that the work of laying sewerage pipes were in progress in February, 1999 and was still incomplete, therefore, the petitioner has also prayed that it has been done in the case of allottee of site No. 906, the instalments of the sites of the petitioner should also be re-scheduled from the date when the work for providing the basic facilities got completed and the interest/lease rent must be charged from that date.
(3.) ON the other hand, the petition has been contested by the respondents denying most of the assertions raised in the petition. They prayed that the petition be dismissed, but they also categorically pleaded that since the SCO sites has already been resumed vide order dated 12.9.2000 (Annexure P-6) after giving opportunity to the petitioner for the remittance of the due amount and the appeals against the said orders of resumption has also been dismissed vide separate orders dated 21.11.2001 (Annexure P-7) and the revision petitions also dismissed vide separate orders dated 6.3.2002 (Annexure P-8) after giving sufficient opportunity to the petitioners for depositing the entire amount, therefore, the only remedy available to the petitioner is to first clear the entire payment as per the statement of account enclosed as Annexures R-1 and R-2 and then to apply to the competent authority for retransfer of the site as provided under the Rules. It is further pointed out that as per the statement Annexure R-1, a sum of Rs. 2,26,94,963/- is payable in respect of SCO No. 902 and another sum of Rs. 2,30,65,109/- is payable in respect of SCO No. 903. However, it has been admitted that the petitioner took possession of the sites on 30.5.1997. The area surrounding the sites of the petitioner was fully developed and all the basic amenities were available in the area and that is why the petitioner even got constructed both the sites after taking possession thereof. The plea regarding non-providing of the amenities in the area is totally frivolous and has not even been relied upon by this Court, while dealing with the adjoining site of SCO No. 904 and this plea has been raised just to avoid the timely payment of the instalments, interest and the ground rent etc. No such representation or protest was made either at the time of giving the bid in the open auction or even at the time of taking possession of the sites. However, it has been admitted that the petitioner had earlier filed Civil Writ Petition No. 8597 of 1998, which was simply admitted by this Court, but no stay was granted to the petitioner. It is further admitted to the extent that when the petitioner failed to pay any amount beyond the initial payment of 25% of the premium amount in spite of giving repeated opportunities and notices, the competent authority was left with no other alternative but to cancel the lease of the sites. The petitioner then filed separate appeals against the resumption orders and when the petitioner failed to clear the outstanding amount even at the appellate stage, both the appeals were also dismissed vide separate orders dated 21.11.2001 (Annexure P-7). The revision petitions of the said orders passed in the appeals were also dismissed in the absence of fulfilling the undertaking by the petitioner with regard to the payment of the balance amount. The petitioner was granted six months time by the appellate authority for making the balance payment, but the petitioner failed to pay the remaining amount within the said period in spite of giving an undertaking to that effect and thereby the order of the appellate authority dismissing the appeal and upholding the resumption of the sites came into operation. It is further admitted that the petitioner deposited the bank drafts amounting to Rs. 59,51,500/- on the directions of the Civil Court, but the same were not taken into account by the answering respondents and were returned back on the dismissal of the civil suit and review application filed by the petitioner. It is further pleased that although providing of basic amenities in the area is not linked with the payment of the instalments, yet it is submitted that the same were available near the sites of the petitioner as has also been noticed by this Court in the case filed by the adjoining site No. 904 as pleaded above. The equated instalments in the case of the petitioner have been calculated with the ingredient of interest @ 10% itself in the statement of accounts attached as Annexures R-1 and R-2 with the written statement and not @ 18% as alleged by the petitioner. It is finally pleaded that the impugned orders are legal and the same has been passed in accordance with law.;