Court dismissed a writ petition seeking quashing of orders cancelling land allotment due to failure to deposit earnest money. It held the petitioner lacked transferee status under the 1995 Act and no natural justice violation occurred.
Writ of certiorari quashing impugned orders dismissed; CM allowed, document taken on record.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Writ Petition No. 4317 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARAYANA, AT CHANDIGARH
Civil Writ Petition No. 4317 of 2010 Date of Decision: 21.2. 2012
Lakha Singh
..Petitioner
Versus
State of Punjab and others.
..Respondents
CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Arun Jain,Senior Advocate with Mr. A.S.Ahluwalia, Advocate for the petitioner.
Mr. Balwinder Singh, Advocate for respondent nos. 3 and 4.
RAJIVE BHALLA, J.
C.M.No.2244 of 2012
CM is allowed.
Document (Annexure P-10) is taken on record.
CWP No.4317 of 2010
The petitioner prays for issuance of a writ of certiorari quashing order dated 4.7.2003 passed by the Estate Officer, PUDA, Bathinda, order dated 9.12.2003 passed by Additional Chief Administrator, PUDA, Bathinda and order dated 13.10.2009 passed by Joint Secretary to Government of Punjab, Department of Housing and Urban Development, Chandigarh-
Civil Writ Petition No. 4317 of 2010 2
cum-Revisional Authority.
The petitioner applied for allotment of a plot in Urban Estate, Phase-3, Part-2, Bathinda, under a scheme floated by the Punjab Urban Development Authority, Bathinda (hereinafter referred to as “PUDA”). The petitioner received a letter, dated 15.6.2001, informing him that he has succeeded in the draw of lots and is entitled to allotment of a plot. Vide memo no. 4581 dated 08.8.2001, the petitioner was asked to deposit Rs.1,73,250/-, within 60 days, so as to make up 25% of the earnest money with respect to plot No. 73 C, measuring 500 sq.yards, in Phase-3, Plot no.2, Urban Estate, Bathinda. The petitioner, admittedly, did not deposit this amount. The allotment was, accordingly, cancelled on 4.7.2003. The petitioner claims that he filed an application, dated 25.8.2003, before the Additional Chief Administrator, PUDA, narrating reasons for his inability to deposit the consideration amount, within time and also filed an appeal challenging the order of cancellation. The appeal filed by the petitioner was dismissed by the Additional Chief Administrator, PUDA, on 9.12.2003. The petitioner filed a revision in 2008, which was dismissed on 13.10.2009.
Counsel for the petitioner submits that the order cancelling the allotment, is illegal and void as it is contrary to Section 45 of the Punjab Regional and Town Planning and Development Act, 1995 (hereinafter referred to as the “1995
Civil Writ Petition No. 4317 of 2010 3
Act). It is argued that it was incumbent upon the Estate Officer, before ordering cancellation, to issue a show cause notice, grant a reasonable opportunity of hearing, impose a penalty and only if the petitioner failed to pay the consideration and the penalty, proceed to cancel allotment but the Estate Officer has not followed the procedure for cancellation prescribed by section 45 of the 1995 Act. It is further argued that inherent in the power to cancel an allotment is an obligation to grant an opportunity to an allottee to satisfy the Estate Officer about reasons for default in payment of consideration amount or instalments. The petitioner has been denied such an opportunity. It is argued that during the relevant period, the petitioner was seriously unwell and, therefore, could not deposit the consideration amount. A perusal of the documents, appended with the writ petition, clearly establish that the petitioner has been under treatment for various ailments. It is further submitted that the appeal and the revision have been dismissed, without taking into consideration, the medical condition of the petitioner and the failure of the Estate Officer to follow the procedure prescribed by section 45 of the 1995 Act.
Counsel for the respondents submits that the petitioner did not inform the Estate Officer or any other officer about his medical treatment, did not seek extension of time for deposit of 15% beyond a period of 60 days, as required by Condition no.3 of the allotment letter and did not offer payment even after the
Civil Writ Petition No. 4317 of 2010 4
allotment was cancelled on 4.7.2003. A plot was allotted on 8.8.2001. The period of 60 days expired on 8.10.2001. The medical reports, placed on the record, relate to the years 2004,2005 and 2008. The petitioner is merely using his medical condition, which, even otherwise, is an alcohol related ailment, to gain sympathy of this court. It is argued that from 2001 uptil the filing of the writ petition, the petitioner has not come forward to offer any payment. After dismissal of the appeal, the revision was filed after a delay of more than 05 years. It is argued that in the absence of any error of jurisdiction or illegality in the impugned orders, the petition should be dismissed.
We have heard counsel for the parties and perused the impugned orders.
The petitioner was offered the plot in dispute, vide letter dated 15.6.2001. Clause no.3, of the allotment letter, required the petitioner to deposit another sum of Rs.1,73,250/- in addition to the sum of Rs. 99,000/- already deposited, so as to make good the earnest money, i.e, 25% of the total tentative consideration. The petitioner, admittedly, did not deposit this amount or seek extension of time. The time schedule for deposit of consideration and the consequences of defaults, are set out in clauses 3 and 4 of the allotment letter, and read as follows:-
“3.- In case you accept allotment you should send your acceptance by registered AD post within 60 days from
Civil Writ Petition No. 4317 of 2010 5
the date of receipt of allotment letter along with amount of Rs.1,73,250/- which together with an amount of Rs.99,000/- paid by you alongwith your application form as earnest money will constitute 25% of the total tentative price, in case you fail to make the payment within the stipulated time, the allotment is liable to be cancelled. However, on your request the Chief Administrator or any other officer authorised by him may allow to make the payment of initial amount as the case may be made within a further period of 6 months subject to the conditions that the interest for extension in time should be made by you within sixty days from the date of issue of allotment letter, in that case, penal interest at the rate of ONE AND HALF PERCENT (1-1/2 %) per annum shall be charged on the amount due. However, if the request for extension is received after 60 days of the date of issue of allotment letter in that case penal interest at the rate TWO PERCENT (2%) per annum shall be charged on the amount due.
“ 4.- In case, you refuse to accept the allotment and
your refusal is received after the draw of lots and within 30 days of issue of allotment letter, in that case 10% of earnest money deposited shall be forfeited. In case, refusal is received after 30 days and within 60 days of
Civil Writ Petition No. 4317 of 2010 6
issue of allotment letter, 15% of the earnest money deposited shall be forfeited. In case of refusal/acceptance is not received within 60 days of the issue of allotment letter or refusal is received after making 25% payment, the action shall be taken under the provision of section 45(3) Punjab Regional Town Planning and Development Act, 1995.”
Admittedly, the petitioner, did not deposit 15% of the amount towards earnest money or pray for extension of time as envisaged by clause 3 of the allotment letter. The Estate Officer, therefore, had no option but to pass an order cancelling the allotment. It would be appropriate to mention that the order of cancellation was preceded by letters/notices dated 26.8.2003, 18.9.2003, 24.10.2003, 4.11.2003, 11.11.2003 and 04.12.2003, calling upon the petitioner to make payment towards earnest money. Despite these letters, the petitioner chose not to respond. The petitioner, in our considered opinion, cannot be heard to urge that the order of cancellation has been passed without complying with principles of natural justice or granting an opportunity to the petitioner to explain reasons for default in payment. It is true that section 45 (3) of the 1995 Act, prescribes the procedure for cancellation, i.e., imposition of penalty followed by cancellation, if the penalty is not deposited, but in our considered opinion, as the petitioner did not deposit the earnest money, i.e., did not accept the conditions of the offer for
Civil Writ Petition No. 4317 of 2010 7
allotment, the petitioner cannot claim the status of a "transferee" as referred to in section 45 of the 1995 Act. Section 45 of the Act set out the rights of persons, who have deposited earnest money, accepted terms and conditions set out in the allotment letter, and have, thereafter, made a default in payment of consideration amount or any installment. Section 45 of the Act, therefore, does not apply to the case of the petitioner.
We would, at this stage, like to make a pointed reference to certain other facts. Though the appeal filed by the petitioner was dismissed on 4.7.2003, the revision was filed on 28.7.2008, after a delay of more than five years. Despite the delay, the revisional authority examined the petitioner's case on merits but rejected his claim. We have examined the documents relating to the petitioner's ailment. The ailment, in our considered opinion, was not of such a nature as could prevent the petitioner from depositing earnest money.
During pendency of proceedings, the respondents showed their readiness to allot a plot to the petitioner on the price fixed in the latest auction, but the petitioner rejected this offer.
We are satisfied that the petitioner's default in depositing the complete earnest money, was reason enough to cancel the allotment letter. The petitioner's failure to offer any cogent explanation for his failure to make up the entire earnest money, failure to respond of a number of notices/letters,
Civil Writ Petition No. 4317 of 2010 8
disentitles him to any relief. The petitioner's ailment, is a post cancellation fact, and even otherwise, could not prevent the petitioner from depositing the complete earnest money.
The impugned orders, therefore, cannot be said to be illegal or void, as to require interference under Article 226 of the Constitution of India. The writ petition is, consequently, dismissed with no orders as to costs.
( RAJIVE BHALLA ) JUDGE
21.2.2012 VK
( RAKESH KUMAR JAIN ) JUDGE
3 issues framed by the court
Whether Section 45 of the Punjab Regional and Town Planning and Development Act, 1995 applies to an allottee who failed to deposit the earnest money and thus did not accept the allotment conditions.
Whether the cancellation of land allotment for non-deposit of consideration was illegal due to non-issuance of show cause notice.
Whether the impugned orders require interference under Article 226 of the Constitution of India.
2 provisions across 2 enactments
Lakha Singh
State of Punjab
Rajive Bhalla
Rakesh Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
