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2008 DIGILAW 2028 (PNJ)

Daljit Singh v. U. T. Chandigarh

2008-12-03

JORA SINGH, M.M.KUMAR

body2008
JUDGMENT M.M. Kumar, J.:-The petitioner was the highest bidder in respect of Plot No. 1199, Sector 19 B, Chandigarh in the open auction held on 10.12.2004. He deposited 25 percent of the price of the site amounting to Rs. 20 lacs and the remaining 75 percent was to be paid within a period of 90 days from the date of auction. On 3.1.2005, allotment letter was issued to him which stipulated that the petitioner was bound by the Chandigarh (Sale of Sites and Building) Rules, 1960 (for brevity ‘the Rules’). The petitioner was not able to retain the site as they could not deposit 75 percent of the amount within 90 days. They surrendered the site on 3.3.2005 with a written request. The Assistant Estate Officer vide notice dated 24.3.2005 ( Annexure P.2) called upon the petitioners to show cause why penalty @ 2.5 percent of the premium alongwith interest be not imposed and recovered in respect of surrendered site under Rule 7A of the Rules. It is also pertinent to mention that the petitioner was offered possession on 3.1.2005 (Annexure R.1) and they actually took physical possession on 25.1.2005 (Annexure R.2). Accordingly a sum of Rs. 2 lacs was deducted from the earnest money of Rs. 20 lacs deposited by the petitioner and Rs. 18 lacs was refunded to them. Thereafter respondents discovered a mistake and vide letter dated 5.11.2007 issued a show cause notice to the petitioners requiring them to explain as to why penalty by not charged @ 5 percent as envisaged under Rule 7A(2) of the Rules. The respondents claimed the difference of Rs. 3,38,082/-. On the amount of Rs.2 lacs, interest has also been added amounting to Rs.1,38,082/- as provided by the Rule 7A of the Rules. The petitioner contested the claim made by the respondents and also requested for re-allotment of the plot in case they are to charge 5%. 2. The basic issue which requires determination in the present case is whether respondents were entitled to charge penalty @ 5 percent on the surrender of the site or penalty @ 2.5 percent was rightly charged. The petitioner contested the claim made by the respondents and also requested for re-allotment of the plot in case they are to charge 5%. 2. The basic issue which requires determination in the present case is whether respondents were entitled to charge penalty @ 5 percent on the surrender of the site or penalty @ 2.5 percent was rightly charged. In that regard it would be necessary to read Rule 7(A) of the Rules which reads as under: “7-A Surrender of site- (1) A transferee who has already paid atleast 25% premium of the site, may, before he is offered possession of the site by the Estate Officer, and within 180 days of the allotment of the site, whichever is earlier, surrender the site on payment of 2.5% of the premium as penalty. In this event, interest at the rate prescribed in rule 10(1) shall be chargeable on the balance premium due from the transferee for the period from the date of allotment upto the date of surrender. The date of surrender under these rules shall be the date when intimation by the transferee to this effect reaches the Estate Officer. (2) A transferee as mentioned in sub rule (1) above, may surrender the site within two years of the date of the allotment on payment of 5% of the premium as penalty. Interest shall be chargeable from the transferee as provided in sub rule (1) above. The Estate Officer shall be competent to decide such cases, as also cases under sub rule (1).” 3. A perusal of sub rule 1 of Rule 7 A of the Rules show that if the site is surrendered before the offer of possession and within a period of 180 days of the allotment whichever is earlier then penalty @ 2.5 % of the premium is charged. It is thus evident that two conditions are required to be satisfied for application of sub rule (1). Firstly the surrender by the allottee has to be before the offer of possession of site by the Estate Officer. Secondly, the surrender has to be made within 180 days of the allotment of the site. Sub Rule (1) would not be attracted to the facts of the present case because possession to the petitioner was delivered on 22.2.2005 (Annexure R/2)n and offer of possession was made on 3.1.2005. 4. Secondly, the surrender has to be made within 180 days of the allotment of the site. Sub Rule (1) would not be attracted to the facts of the present case because possession to the petitioner was delivered on 22.2.2005 (Annexure R/2)n and offer of possession was made on 3.1.2005. 4. According to sub rule (2) of Rule 7(A) of the Rules if a transferee surrender the site within two years of the date of allotment then penalty @ 5% of the premium is charged and interest would also be chargeable from him. In the present case, site has been surrendered by submitting an application on 3.3.2005 which is within 180 days from the date of allotment of letter which was issued on 3.1.2005 ( Annexure P.1) and thereafter the process of issuance of notice and personal hearing was initiated by letter dated 24.3.2005 ( Annexure P.2). The case of the petitioner would be covered by sub Rule (2) for the simple reason that he has surrendered the site within a period of two years after taking possession and therefore no legal infirmity is discernible in the initiation of proceedings for charging penalty @ 5 percent vide order dated 5.11.2007 (Annexure P.4).Therefore, we find that the writ petition does not merit acceptance and is liable to be dismissed. 5. The claim of the petitioner for re-allotment is also without any merit because the petitioners were not forced to surrender at any stage. It is their volunteer act. They have undertaken to abide by the Rules and accordingly the penalty on surrender has to be paid by them. Moreover, the period of more than three years have passed and the re-allotment could not be ordered as the situation has completely undergone change. Therefore, we reject the claim made. For the reasons mentioned above, this petition fails and the same is dismissed. ------------------