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Judgment
Naresh Chander Jain, J.—In this writ petition the action of the Chandigarh Administration granting permission to the Petitioner for selling his house No. 3103, Sector 32-D Chandigarh, subject to payment of Rs. 2,04.10/- has been challenged and it has been prayed that this Court may issue a writ of mandaums directing the Respondent to refund the aforesaid amount to the Petitioner after quashing Annexure P-4
The facts giving rise to the writ petition m the first instance be noticed. The Petitioner retired from the Indian Army as a Brigadier, in the year 1974. Sometime in 1965, the Chandigarh Administration took a decision to establish a defence colony at Chandigarh. On Petitioner''s request in writing his name was registered for allotment of a plot with the Station Headquarters Chandigarh at serial No. 1185 in April 1965. In January, 1967, 866 plots of various sizes were available for being allotted to different cadres of defence services. The Petitioner filed an application on 6.2.1967 in the prescribed form for allotment of a residential plot measuring 1000 sq. yards. The Petitioner was allotted a plot No. 557 Sector 33-B after going through the required formalities. The plot measured 1014 square yards. The price of the plot approximately was fixed at Rs. 16,224/-. The Petitioner after the receipt of the allotment letter, paid a sum Rs. 2456/- on 26-10-67 against a valid receipt The necessary terms of allotment were as follows:
The possession of the site will be given to you or to your authorised respresentative after the payment of 25 per cent of the sale price.
You shall execute the Deed of Conveyance within such period and in such manner as may be directed by the Estate Officer, Chandigarh.
The building on the site shall be built by you within three years from the date of delivery of possession in accordance with the plans as prescribed in the Capital of Punjab (Development and Regulation), Building Rules 1952. The requirement of Frame Control and Architectural Control wherever applicable shall be complied with.
You shall not, except with the previous permission in writing of the Estate Officer, be entitled to sell, mortgage or otherwise transfer (except by way of lease from month to month in writing), title or interest in the site for a period of ten years.
At a subsequent stage, the Petitioner was allotted another plot No. 3103, Sector 32-D, Chandigarh of similar size on payment of same amount and the allotment of previous plot was cancelled due to some reasons which need not detain this Court There was no change in terms and conditions. The Petitioner was required to accept the allotment The Petitioner having conveyed his acceptance, the possession of the aforementioned plot in Sector 32-D, Chandigarh was given to him on 16-5 72. He raised the construction in the year 1980 after taking loan for building purposes from financing institutions. Occupation certificate was obtained in September 1985. It is further the case of the Petitioner that he faced financial difficulties after retirement on account of his illness. Under forced circumstances, the Petitioner was compelled to sell his house. It has further been stated that after the bargain was struck, the Petitioner on the advice of his estate agent applied for ''no objection'' certificate from the Estate Officer. It is under these circumstances, and on his application that the Petitioner was issued a letter Annexure P-4 asking him to deposit the amount in question under Rule 8-C of 1979 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960. The Petitioner paid the amount in question and according to him, it was under the threat of not getting the no objection certificate from the Estate Officer. Annexure P-4 has been challenged on various grounds
Mr. S.C. Nagpal the learned Counsel for the Petitioner has argued that the Government did not remain the owner of the property after the same was allotted in view of the title having been passed in favour of the Petitioner. It has next been argued that according to the relevant paragraph from the conveyance deed the vendor was to retain paramount charge over the site for the unpaid portion of the purchase price and he could not transfer either by way of sale gift, mortgage or otherwise the site or any right title or interest therein till such time as the full purchase price was paid to the Government The attention of this Court was drawn to relevant para from the proforma of the conveyance deed which reads as follows:
1 (b) The Vendor shall have a first and paramount charge over the said site for the unpaid portion of the purchase price, and save with the sanction of the Estate Officer, the transferee shall have no right to transfer by way of sale, gift, mortgage or otherwise the site or any right, title or interest therein (except by way of lease on monthly basis) till such time as the full purchase price is paid to the vendor.
In short, the argument of the learned Counsel is that once in the proforma conveyance deed, the above mentioned clause is in existence no conveyance deed could be substituted at a later stage and even the change in the terms and conditions does not give any right to the Respondent to ask for the amount in question. In any case, the learned Counsel proceeds to aruge that ten years period having expired, he was under no obligation to seek any permission and, therefore, the order of the Estate Officer directing the payment of the amount in question could neither been upheld in law nor in equity. It has further been argued that Rule 8-C giving the right to the Chandigarh Administration to grant permission on payment of 1/3rd of the increase in the value having come into force in the year 1979, the same would not apply to the case of the Petitioner as there was no such Rule at the time of alloment of the plot in question in favour of the Petitioner.
Mr. Ashok Bhan, Sr. Advocate, the learned Counsel for the Respondent, in reply to the argument of Shri S.C. Nagpal, the learned Counsel for the Petitioner, has primarily argued that no writ is maintainable for the recovery of the amount in question It has further been argued that once the Petitioner agreed to pay and made the payment of the amount in question and he was allowed to sell the house he cannot be allowed to approbate and reprobate in the same breath. In other words, the Petitioner is estopped by his conduct from maintaining this writ petition
Having given my thoughtful consideration to the entire matter, this Court is of the view that there is considerable force in the submissions made by the counsel for the Petitioner. There is no dispute between the counsel for the parties that Rule 8-C under which action has been taken was introduced for the first time in the year 1979. Rule 8-C reads as under:
Notwithstanding anything contained in the letter of allotment/conveyance deed imposing a ban on the transfer of site/building as the case may be, or any right, title or interest therein before the stipulated period, the Estate Officer may grant permission to the transfer by way of sale, gift, mortgage or otherwise of the site, building or any right, title or interest therein, after transferee has paid full price of the site/building and it in the opinion of the Estate Officer special circumstances exist for the grant of such permission This will be applicable to all categories of site/buildings sold by allotment/hire purchase, or on concessional rates. In the case of the transfer by way of sale/gift/mortgage or otherwise of the site or any right, title or interest therein, 1/3rd of the unearned increase in the value, i.e. the difference between the price paid and the market value of the site/building at the time permission of transfer shall be paid to the Government before registering such sale or transfer. The market value of the property for this purpose shall be assessed by the Estate Officer or such other authority as may be prescribed by the Chief Administrator and the transferee shall be entitled to produce his evidence and of being heard;
The perusal of the above mentioned Rule makes it clear that its applicability does not have retrospective effect and it does not govern the cases where allotments have been made prior to the enforcement of Rule 8-C. This Rule does authorise the Estate Officer to ask for 1/3rd of the unearned increase in the value but it would not apply to the cases of those allotments which had taken place prior to the enforcement of the Rule. By reading the Rule in its right perspective it can certainly be held that the same is only prospective and not retrospective. The action of the Estate Officer having been taken under Rule 8-C, is, therefore, liable to be quashed as being wholly illegal and without jurisdiction.
The argument of the counsel for the Petitioner that once the entire money has been paid and the conveyance deed has been executed, the Petitioner becomes full-fledged owner of the property in dispute, merits acceptance on general principles. The Government remains the owner of the property till the consideration is paid. Once the entire consideration is paid and even conveyance deed is executed in favour of the allottee, he becomes the occlusive owner of the site. In some that similar circumstances the Hon''ble Supreme Court allowed the writ petition of an auctfon-purchaser in a case reported in Jagdish Chand Radhey Shyam Vs. The State of Punjab and Others, The apex Court was dealing with a situation where full money was not paid by the auction purchaser It was held that once auction sale of Government land or building is complete the title in the property vests in the purchaser and it cannot be said that the Government remains the owner of the property till full consideration is paid It was further held that the unpaid portion of consideration money will become the first charge on the property. The observations of the apex Court apply with greater force on the facts of the instant case. Rather the case in hand on facts is better in the sense that no instalment has remained due and in view thereof the Petitioner could not be saddled with any liability at the time of granting permission.
The matter can yet be examined from another angle. The present was a case of allotment of the site in dispute to the Petitioner on free hold basis and not on lease hold basis. If at all any permission was needed, the same was a routine one. In any case, the grant of permission to the Petitioner on payment of amount in question cannot be supported by reference to any provision of law or any rule. In the considered view of this Court, no other point need be gone into for allowing the writ petition of the Petitioner.
As regards the arguments of the counsel for Union Territory, Chandigarh, the same are unacceptable. It has been held by the High Court of Delhi in Sunil Vasudeva and Others Vs. Delhi Development Authority, that the principle of estoppel cannot operate against a person who has made the payment to Delhi Development Authority being afraid of refusal to get the permission to sell. Even otherwise once this Court holds and which is being held that the Respondent was not authorised to ask for the payment of the amount in question and that the order Annexure P-4 is illegal to this extent, there is no reason why this Court should not interfere to protect the rights of a citizen who has become full owner on payment of full money. This Court is disinclined to drive the Petitioner to file a suit for recovery of the amount in question This Court after issuance of a writ of certiorari quashing Annexure P-4 to the extent that it has granted permission on payment of the amount in question, can always issue a writ of mandamus directing the Respondent to refund the amount which has been illegally charged on apparent threat of refusing to accord permission to sell. Since it has been held by me that the permission which was sought from the Administration to sell the plot was a routine one, it cannot successfully be maintained by the Respondent that the Petitioner is approbating and reprobating.
9 In nut shell, this Court is of the considered view that Rule 8-C (1979) of the Chandigarh (Sale of Sites and Buildings), Rules 1960 is prospective in operation and the same does not apply to the allotments made before enforcement of the Rule. It is further held that the direction of payment of 1/3rd of the unearned profit under the aforesaid Rule is illegal and without jurisdiction. The writ petition for enforcement of the right of refund of an amount, which has been recovered illegally on the threat of not granting the permission, is maintainable and that the subject of the State need not be driven to file a suit for recovery of the amount illegally recovered.
In the light of the observations made above, the writ petition is allowed. A writ of certiorari is issued quashing Annexure P-4 to the extent where directions have been issued to make the payment of an amount of Rs. 2,04,101/-. In consequence of the issuance of writ of certiorari, a writ of mandamus is also issued directing the Respondent to refund the aforesaid amount along with the interest at the rate of 9 per cent per annum from the date of deposit till the date of payment, by the Respondent. The Petitioner would have the costs of writ petition.