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Judgment
Sanjiv Berry, J.
The petitioner has preferred the instant petition under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of the orders dated 22.03.1999 (Annexure P-3), dated 24.03.1999 (Annexure P-4), dated 20.12.1999 (Annexure P-5) and dated 09.06.2000 (Annexure P-7), with further prayer for issuance of writ in the nature of mandamus for releasing the amount of ₹4,16,000/- along with interest for the period for which the entire amount of premium was illegally retained by the respondents.
In nutshell the facts of the case are that the petitioner along with other purchasers had participated in open auction and submitted bid qua SCO site No. 41-42, Sector 8-C, Chandigarh from respondents on a premium of ₹2,80,00,000/- and had deposited 10% of the bid amount on 11.12.1998 and 15% on 08.01.1999, in total petitioner had deposited ₹52,05,000/-. Despite deposit of 25% of the amount, the respondents failed to issue allotment letter till 18.03.1999 i.e. 97 days from the date of the auction. Due to harassment caused by the respondents by not issuing allotment letter, the petitioner surrendered the site vide letter dated 18.03.1999 (Annexure P-2).
The respondent Estate Officer issued a show cause notice dated 22.03.1999 (Annexure P-3) under Rule 20 of Chandigarh Lease-Hold of Sites & Building Rules-1973 (hereinafter referred to as ‘the Rules of 1973’) and gave opportunity of being heard on 24.03.1999. The respondent vide impugned order dated 24.03.1999 (Annexure P-4) cancelled the lease of auctioned site and forfeited 10% i.e 20,80,000/- auction amount, however, it released 15% i.e. 31,25,000/- of remaining deposited auction amount to the petitioner.
Aggrieved by the same, the petitioner filed an appeal against the order dated 24.03.1999 (Annexure P-4) before the Chief Administrator, U.T. Chandigarh and vide order dated 20.12.1999 (Annexure P-5), the Chief Administrator, ordered to reduce the forfeiture from 10% to 2% of the total premium and further ordered to pay balance amount without deducting any ground rent or interest to the appellants within a period of 30 days.
Further aggrieved petitioner preferred a revision petition before the Advisor to the Administrator, U.T.Chandigarh (Annexure P-6). In the meanwhile, the respondents released 8% of the premium i.e. ₹4,16,000/-, out of 10% amount, in compliance of the orders dated 20.12.1999 (Annexure P-5) passed by the Chief Administrator. The Advisor to the Administrator dismissed the revision petition vide order dated 09.06.2000 (Annexure P-7) on the ground of limitation.
Thereupon, the petitioner preferred a complaint dated 09.05.2000 (Annexure P-8) before National Consumer Disputes Redressal Commission, New Delhi which was also disposed of/withdrawn vide order dated 03.04.2001 (Annexure-9).
Thereafter the petitioner preferred the present writ petition before this Court.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner contends that the petitioner was successful bidder for purchase of SCO Site No. 41-42, Sector 8-C, Chandigarh on a premium of ₹2,80,00,000/- and deposited 10% i.e. ₹20,80,000/- and thereafter deposited 15% i.e. 31,25,000/- in total deposited 52,05,000/-, but after lapse of 97 days from the date of auction, when the respondents failed to issue allotment letter as per Rule 10 of Rules of 1973, vide letter dated 18.03.1999 (Annexure P-2) petitioner surrendered the site.
He contends that the respondents instead of considering the surrender of site, issued notice and cancelled the lease by forfeiting 10% amount vide impugned order dated 24.03.1999 (Annexure P-4) which on appeal was reduced to 2% of the amount vide impugned order dated 20.12.1999 (Annexure P-5).
He submits that the petitioner further preferred revision petition before the Advisor to the Administrator, U.T. Chandigarh which again was dismissed vide impugned order dated 09.06.2000 (Annexure P-7).
A complaint dated 09.05.2000 (Annexure P-8) preferred by the petitioner before the National Consumer Disputes Redressal Commission, New Delhi was later on withdrawn vide order dated 03.04.2001 (Annexure P-9).
He contends that the respondent had acted in a mala fide, discriminatory and illegal manner against the petitioner and had no right to retain even 2% of the premium amount deposited by the petitioner, once they had not delivered the possession to the petitioner and as such, the impugned orders are liable to be set-aside and the petitioner is entitled to be paid 2% amount illegally retained by the respondent along with interest.
On the contrary, learned counsel representing the respondent Chandigarh Administration has assailed these arguments to be misconceived and without any basis. He submits that the petitioner cannot blow hot and cold in the same breath and for his own shortcomings the respondent cannot be blamed. He submits that admittedly the petitioner along with five (5) persons in their individual capacity had participated in the open auction and submitted bid for the SCO in question for a premium of ₹2.08 crores on 11.12.1998, subject to the condition of deposit of 25% of the bid amount in terms of Rule 9 of the Rules of 1973. He submits that by moving letter dated 08.01.1999 (Annexure R-1), the petitioner requested the Authorities to issue allotment letter in the name of M/s G.R.Exim Pvt. Ltd. During the pendency thereof, the cheque given by the petitioner whereby 10% of the bid amount was deposited by him on 11.12.1998 got dishonoured, which however on being presented again on 29.01.1999 got cleared.
Subsequently, on 18.03.1999, the petitioner requested the Authorities that he intends to surrender the site along with request to refund of the entire amount deposited with interest (Annexure P-2). He contends that the reason for such surrender by the petitioner was infact another subsequent auction of the neighbouring site held on 05.03.1999, which registered 33% fall in price and the site was auctioned for ₹1,41,00,000/-, prompted the petitioner to surrender the site and ask for the refund.
Learned counsel submits that as there was no provision for surrender of site under the Rules of 1973, a Show Cause Notice to the petitioner under Rule 20 of the Rules of 1973 was issued leading to cancellation of the site with forfeiture of 10% of the premium amount.
Consequent appeal and revision preferred by the petitioner were too dealt with by the concerned Authorities in accordance with law. The petitioner has no case in his favour and had even withdrawn the complaint preferred by him before National Consumer Disputes Redressal Commission, New Delhi. In support of his arguments, learned counsel for the respondents referred judgment passed by Division Bench of this Court in Raj Karan Boparai vs. Union Territory, Chandigarh, 2002 (3) RCR (Civil) 454; and prayed for dismissal of the petition.
Considering the rival contentions and perusing the record, no dispute qua the factual position in so far as the petitioner along with five (5) other persons in their individual capacity had participated in open auction and the petitioner was highest bidder for the site in question, of ₹2.80 crores, 10% of the bid amount was deposited by him on 11.12.1998 by way of cheque and deposited another 15% amount on 08.01.1999.
It is also not disputed that the application Annexure R-1 was received by the respondent on 08.01.1999 from M/s G.R. Exim Pvt. Ltd asking for issuance of allotment letter in the name of said Company qua the site in question. The perusal of record shows that while the aforesaid application (Annexure R-1) was pending consideration the petitioner moved another application (Annexure P-2) on 18.03.1999 requesting for surrender of the site and asking for refund of earnest money, on the basis thereof, a notice dated 22.03.1999 (Annexure P-3) was issued, whereby the petitioner was given liberty of being heard in person. On 24.03.1999 after hearing the petitioner present in person, order (Annexure P-4) was passed cancelling site and forfeiture of 10% of the premium amount. The perusal of Annexure P-4 reveals that the lessee had opted to surrender the site due to financial problem and since there was no provision for surrender in the Rules of 1973, a Show Cause Notice for cancellation of the allotment was given wherein after giving opportunity of being heard to the petitioner, order Annexure P-4 was passed by the Authorities in presence of the petitioner.
The petitioner preferred an appeal against the order dated 24.03.1999 (Annexure P-4) which too was partly accepted by reducing the forfeiture amount of 10% to 2% vide impugned order dated 20.12.1999 (Annexure P-5)
A revision petition against the order dated 20.12.1999(Annexure P-5) was preferred before Advisor to the Administrator, U.T. Chandigarh vide Annexure P-6) which was dismissed vide order dated 09.06.2000 (Annexure P-7) being barred by limitation. It is also worth mentioning that the petitioner had also moved a complaint dated 09.05.2000 (Annexure P-8) to the National Consumer Disputes Redressal Commission, New Delhi which however was withdrawn by moving an application dated 03.04.2001 (Annexure P-9) before the Commission.
It is evident that there is certainly no provision regarding the surrender of site as had been sought by the petitioner by moving an application dated 18.03.1999 (Annexure P-2). The procedure for lease by auction is laid down in Rule 9 thereof while Rule 20 thereof deals with cancellation of the lease and forfeiture of the amount, for the sake of convenience, Rule 20 of the Rules of 1973 is reproduced herewith:-
“Rule 20. Notwithstanding and without prejudice to other provisions of these rules the Estate Officer may, by notice in writing, cancel the lease and forfeit the whole or part of the premium and ground rent paid in respect thereof which in no case shall exceed ten per cent of the total amount of premium, interest and other dues payable in respect of the site or building or both as the case may be, on the ground of default, breach or noncompliance of any of the terms and conditions of lease or for furnishing in writing incorrect information under rule 19.
Provided that no order regarding cancellation of lease/forfeiture under this rule shall be made unless the lessee has been given a reasonable opportunity of being heard.”
Although the petitioner has claimed failure on the part of the respondent to give actual possession and allotment letter being a ground for surrender, but the cogent reading of all the correspondence would reveal that the delay was due to the fact that the petitioner although participated in the auction in personal capacity but on 08.01.1999 an application (Annexure R-1) was moved to the Authorities to issue the allotment letter in the name of M/s G.R. Exim Pvt. Ltd. which was already in existence on the date of auction but had not participated in the process. The petitioner had surrendered the site vide letter dated 18.03.1999 (Annexure P-2). It is evident from Annexure P-3 and P-4 that notice was issued by the respondent for cancellation of the site as there was no procedure for surrender, the petitioner was heard as he appeared in person before the Assistant Estate Officer as is evident from perusal of Annexure P-4 and there had been a categoric request from the petitioner that he intend to surrender the site due to financial problem and based thereon, the allotment was cancelled and order to forfeit 10% of the premium of the site was made vide order dated 24.03.1999 (Annexure P-4). The order (Annexure P-4) has been passed in consonance with the provision contained in Rule 20 of the Rules of 1973 and the forfeiture is also been in accordance thereto.
The perusal of impugned order dated 20.12.1999 (Annexure P-5) whereby the appeal preferred by the petitioner was partly accepted, would also reveal that there had been categoric contention of the counsel for the petitioner that due to financial hardship, the petitioner was not in a position to retain the site and was forced to surrender the same. Considering the submissions made on behalf of the petitioner, the Chief Administrator, U.T. Chandigarh, being the Appellate Authority took a lenient view in the matter and reduced forfeiture from 10% to 2% of the total premium while the balance amount was ordered to be refunded to the petitioner. Admittedly, the balance amount has already been refunded to the petitioner. The revision preferred by the petitioner was dismissed by the Advisor to the Administrator, U.T. Chandigarh being time barred vide impugned order dated 09.06.2000 (Annexure P-7).
The perusal of impugned orders reveal that the same have been passed by the competent Authority in accordance with the provisions of Rules and no illegality or infirmity therein could be pointed out by learned counsel for the petitioner. As per the Rules of 1973, once the allotment of site was cancelled by passing order in presence of the petitioner after hearing him, forfeiture to the extent of 10% of the amount was a natural consequence, however it is evident from the perusal of impugned order dated 20.12.1999 (Annexure P-5) passed by Chief Administrator, Chandigarh, on appeal preferred by the petitioner, that the Authority had partly accepted the appeal of the petitioner by taking lenient view in the matter and reduced the forfeiture amount from 10% to 2% of the premium directing the respondents administration to refund 8% amount already forfeited, which admittedly had been refunded to the petitioner.
In the aforesaid circumstances of the case, it is apt to mention here that the Division Bench of this Court in Raj Karan Boparai’s case (supra) while dealing with the Rules of 1973 had categorically observed that there is no provision for surrender a lease or refund of earnest money in the Act or Rules and the only consequence of non-deposit of premium despite notice is forfeiture of earnest money, whole or in part and a defaulter cannot claim refund on surrender of lease, once the cancellation of lease was in accordance with Rule 20 of the Rules of 1973. This preposition could not be controverted by the learned counsel for the petitioner.
Thus, in the light of the above discussion, we are of the considered opinion that the respondent Authorities had passed the impugned orders in accordance with provision of law and have not committed any illegality or infirmity in passing thereof after hearing the petitioner. On the contrary the petitioner has miserably failed to establish any case being in his favour for issuance of writ as prayed for.
Consequently, finding no merit in the instant writ petition, the same is hereby dismissed.