M.M.KUMAR,J. - (1.) THE petitioners have approached this Court feeling aggrieved by order dated 9.1.2007/6.6.2007 (Annexure P-8) passed by the Estate Officer- respondent No. 3. They have also sought directions to the respondents not to charge ground rent, interest and penalty from the date of auction till the date of passing of order dated 6.6.2007 and to refund the amount deposited by the petitioners under protest in terms of letter dated 22.8.2007 (P-9).
(2.) BRIEF facts of the case are that the petitioners are successful bidder in respect of S.C.O. No. 59, Sector 32-C, Chandigarh in an open auction held on 18.11.1997 by Chandigarh Administration-respondent for a total sum of Rs. 63,00,000/-. Letter of allotment was issued on 13.1.1998 (Annexure P-1). As per clause 4 of the letter of allotment a sum of Rs. 15,75,000/- paid by the petitioners was adjusted against the premium payable in respect of the lease. As per clause 5, the balance of 75% of the premium together with interest @ 10% per annum was required to be deposited in three equated annual instalments. The schedule of payment has been given in the allotment letter by adding the amount of interest @ 10% per annum. The first installment of Rs. 18,99,970/- was required to be made by 18.11.1998. Second and third installments of the same amount were required to be made on 18.11.1999 and 18.11.2000 respectively. In case of delay, interest @ 24% was required to be paid as per clauses 8-A, 9(a) and 9(b). After taking possession on 3.6.1998, the petitioners submitted the site plan and sanction was accorded on 9.10.1998. On 17.9.1998, the petitioners made a representation complaining that on excavation of earth upto 4 to 5 feet deep for the purposes of constructing basement, it was found on the site that main sewerage line of 10 to 12 feet diameter is crossing the site of S.C.O. No. 59, Sector 32-C, Chandigarh vertically and the digging had to be stopped. The petitioners, thus, requested that main sewerage connection may be changed so that they could start the construction work (P-2). The petitioners also sent a legal notice dated 20.11.1998 (P-3). The petitioners then filed CWP No. 19412 of 2001 in this Court placing reliance on the Division Bench judgment in the case of Shanti Kunj Investments v. Chandigarh Administration, 2001(2) RCR(Civil) 809 : 2000(1) PLR 838. However, the writ petition was dismissed by this Court on 15.5.2002 considering the subsequent decision of another Division Bench in the case of M/s. D.L.G. Buildings Pvt. Ltd. v. The Advisor to the Administrator, Chandigarh Administration, Chandigarh and others, (CWP No. 13695 of 2001, decided on 18.2.2002). The petitioners then filed Special Leave Petition in the Supreme Court. On the directions issued by Hon'ble the Supreme Court while considering bunch of petitions, a Local Commissioner was appointed who submitted his report with regard to each site. With regard to SCO Nos. 58-59, Sector 32, following report was submitted (P-4) : "The site was open and even though the allotment had been made in 1997, no construction till (date ?) had been made. Though all facilities like parking, streetlight, sewage, water connection were available which was confirmed by Manager, Central Bank of India which was functioning from SCO No. 64. The administration pointed out that allottee had not applied for connection and, therefore, no case of connection of electricity with respect to this allotment was pending. The allottee was given a hearing and his lawyer was kind enough to come to Delhi and he pointed out that there was a huge pipe of 12 feet diameter on the middle of the plot, therefore, the work could not be proceeded and had to be stopped. The said plea as per the records was removed in the year 2000 and he also pointed out that on 18.11.97 when the auction was held in his favour out of 67 lacs bid money, he had paid 15 lacs. He has not paid any further amount of money as the plot of no utility to him till the time the pipe was removed. The administration pointed out that sum of Rs. 1,28,71,639 was due with respect to this plot by way of penalty, interest and principle etc. Note : To say the least, the interest rate charged by the Administration though is contractual rate but it does not seem to be rapacious and is perhaps more than the rate of interest which is charged by Kabuliwals."
(3.) HON 'ble the Supreme Court remanded all the cases to this Court for deciding each case on its own merit (P-5). This Court further remanded the matter to the Assistant Estate Officer, Chandigarh Administration to examine the pleas raised by the petitioners and the petitioners were directed to file a detailed representation, vide order dated 9.5.2006 (P-6). The petitioners filed detailed representation on 31.8.2006 (P-7). The representation made by the petitioner has been decided by the respondent vide order dated 9.1.2007. After noticing the facts, the Estate Officer concluded that basic amenities like water, sewerage, kucha road and drainage etc. were provided prior to 18.11.1997, whereas road parking and street lights were provided at site on 28.1.2001 and 18.7.2002 respectively. With regard to shifting of the water supply/sewerage line under the plot, it has been found that the same was shifted/removed on 28.12.1999. The Estate Officer further found that no benefit could be given in terms of premium or any interest charged thereon, inasmuch as, no right of the petitioner to enjoy the property was curtailed. The Estate Officer also partly accepted the prayer of the petitioner not to charge the ground rent, interest and penalty for the period when encumbrances were brought to the notice upto the date when the same were removed. Furthermore, it has been ordered that the said period should be added towards the three years period permissible for raising construction on site as per the allotment letter. The Estate Officer went on to conclude with the following observation :- "The case has been examined in detail and it is a fact based on record that all the basic amenities like (water, sewerage, kucha road and drainage etc) except road parking and street light were provided at the (site ?) prior to 18.11.1997 (i.e. date of auction of site). However road parking and streetlights were also provided at site on 28.01.2001 and 18/07/2002 respectively. As regard shifting/removal of water supply/sewerage line under the plot the same was shifted/removed on 28/12/1999 which was passing under the SCO site in question and resulted in hindrance in the construction of building. In accordance with the above said judgment and the facts of the case, it was the obligation on the part of the allottee to pay the premium of the site in time and no benefit can be given in terms of premium or any interest charged thereon. Since most of the basic amenities as per the above judgment were also available at the site except street light which has also been completed on 18/07/2002. Therefore, on account of lack of basic amenities no case is made out in favour of the lessee but there was an encumbrance on the site, which prohibited the construction on the site, and therefore, the right employment of the property was curtailed by it and it is quite justified to compensate the lessee on this ground. Therefore, no ground rent as well as interest and penalty imposed thereupon is to be charged for the period starting from the period when the encumbrance is brought to the notice of this office upto the date when the same is removed. The request of the lessee is partially accepted. The above said period shall also be added towards the three years period allowed for the purpose of raising construction on site as per the allotment letter for the purpose of construction. By this order, the representation dated 31.08.2006 of Sh. Rajinder Singh Sidhu as per orders of Hon'ble High Court dated 09/05/2006 is disposed off." ;