Bimal Sharma vs U.T. Chandigarh and Others

Hemant Gupta, J.—Challenge in the present petition is to the orders of resumption of commercial site No. 791 in Motor Market and Commercial Complex, Manimajra, Chandigarh dated 15.5.2008, passed by the Secretary, Municipal Corporation, Chandigarh exercising the powers of Estate Officer, U.T. Chandigarh (Annexure P-13) and affirmed by the Chief Administrator, U.T., Chandigarh (Annexure P-15) on 25.11.2008 and by the Adviser to the Administrator, U.T. Chandigarh (Annexure P-20) on 10.8.2011. Petitioner was the successful bidder of the aforesaid plot in an auction conducted on 7.1.1990. Petitioner was issued letter of allotment on 20.4.1990. As per the letter of allotment, the petitioner was to complete the building according to the sanctioned plan which shall be according to Control Sheets prepared by the Chief Architect and Secretary within one year from the date of allotment, failing which, the plot shall be liable to be resumed.

The petitioner did not submit any building plans for construction of the building nor took any other step for use of the commercial site allotted to him for almost 17 years. It was on 16.11.2007 (Annexure P-4), petitioner sent a communication, to know the amount of extension fee for construction so that booth can be constructed. It was on 7.5.2008 (Annexure P-12), the petitioner was issued a show cause notice for resumption of plot on account of failure of the petitioner to raise construction. Consequently, after giving opportunity of hearing, order of resumption was passed by the authorities exercising the powers of Estate Officer on 15.05.2008.

An appeal against the said order filed by the petitioner through his attorneys Shri Suresh Gulati and Anil Kumar. The same was dismissed on 10.10.2008 (Annexure P-14). The revision was also dismissed by the Adviser on 18.3.2009 (Annexure P-16). However, in a Civil Writ Petition No. 8852 of 2009, Bimal Sharma vs. U.T., Chandigarh, decided on 9.9.2010, against the said order, the order passed by the Adviser was set aside and the matter was remitted back to decide the revision filed by the petitioner afresh according to law and also keeping view the instructions dated 1.12.2009.

The petitioner has produced the instructions dated 1.12.2009 on record. The relevant extract reads as under:

As a policy, all those plot holders except government/semi government organizations of the Chandigarh Administration, whose time period for construction as mentioned in the allotment letter has expired and the extension for construction ranted by the Estate Officer has also been lapsed but they have not raised any construction on the plot will be given one last opportunity to complete the construction and to obtain occupation certificate within one year from the date of publication of public notice in this regard. The extension will be given by the Estate Officer after complete of all necessary formalities and deposit of extension fee.

A public notice be given that all those site/plot holders who have completed their construction long ago but could not obtain the completion certificate can apply to Estate Officer immediately for the grant of completion certificate, certifying that they have completed the construction as per the sanctioned building plan and there is no violation. They need to attach a copy of proof of completion and occupation of building such as copy of sewer connection issue prior to 22.1.1993 or a copy of electiricy/water bill paid prior to 22.1.1993 or sanction letter of grant of electricity/water connection as the case may be. For the allotments made after 22.1.1993, a copy of extension letter and a copy of last electricity/water bill paid shall be attached. They also need to get a certificate from the concerned architect on his/her letter pad certifying that the building has been constructed in accordance with the sanctioned building plan and has no violation as on date of inspection by him/her. The application shall be submitted by all the applicants either at Suvidha Counter at the Estate Office or at the e-Sampark Centres of Chandigarh Administration, under due receipt and the receipt of the same shall be deemed to be the completion certificate. In case of any deficiency in the documents within 15 days time. In case of non-submission of the remaining documents within the said period, the applicants shall not be granted deemed completion. The applicants shall complete the formalities within 90 days of the first submission of their applications and thereafter a list will be prepared of all such applicants and out of them 25% sites will be randomly selected through the computerized system by the Estate Officer and those sites will be got inspected by the team constituted by the Estate Officer.

After considering the said instructions, learned Adviser has passed an order dated 10.8.2011. It has been found that the petitioner has filed an affidavit that he would raise construction on the site up to 31.3.2008. The petitioner was granted time to raise construction, but on account of the failure of the petitioner to raise construction, the site allotted has been resumed.

Learned Revisional Authority has taken into consideration that the appeal was filed by the attorneys on the basis of General Power of Attorney executed on 9.7.2008, after the resumption of site on 15.5.2008 and that the circular dated 1.12.2009 is not applicable to the present case as the lease of the site has already been cancelled on 15.5.2008.

The entire claim of the petitioner is based upon the circular dated 1.12.2009, whereby the time was granted to the allottees for raising of the construction. However, the fact remains that in terms of the earlier request for extension of time, the petitioner has filed an affidavit that he will raise construction up to 31.3.2008. But till such date, the petitioner has not even submitted building plans for sanction. The site was allotted to the petitioner in the year 1990 in an open auction. However, the petitioner has failed to take any step for raising construction for 17 years when he sought time to raise construction but failed to do so.

Similar issue has been considered by us in LPA No. 90 of 2012, The Advisor to the Administrator, U.T., Chandigarh and ors vs. Sh. B.K. Nanda, decided on 16.8.2012, wherein it has been held to the following effect:

Before we consider the judgments referred to by the Learned Counsel for the appellants, we need to emphasize that the allottee is a purchaser of a commercial property in an open auction. Once he has given bid to purchase commercial property in public auction, the allottee is presumed to have means and intention to enjoy the possession of the same.

He has also by his bid excluded the rest of the bidders from entering upon the premises say even by a single rupee and sought to deny timely payments to the public exchequer and engaged the appellant in relentless litigation causing waste of public time and money. Therefore, the assertions made ingratiatingly time and again that he has no source of income other than from meager agriculture pursuits and is an old person and therefore could not pay on time are alien to examine the claim of the allottee for the extension of time. The commercial interest has to be weighed keeping in view the larger pubic interest and that for delay and default of an allottee, no benefit accrues or ought to be granted to an allottee.

The equitable considerations for extension of time of cancellation of lease or resumption of a residential plot would be materially different from cancellation of a lease of a commercial property. The residence is a basic necessity fundamental to decent human existence, whereas commercial property is purchased for profit motive either to make a living out of it or to exploit the same commercially by renting out the same.

The allottee is a purchaser of a commercial property in an open auction knowing fully well that the balance premium amount has to be paid in three annual installments. Having purchased the commercial property in an open auction, then to raise a plea of lack of insufficient funds is wholly unjustified and untenable. If the allottee has no funds, he should not have ventured into the arena of purchase of commercial property. The terms of allotment have to be strictly adhered to as it is a commercial motive, which prompted the allottee to participate in an open auction. Therefore, he is bound to honour such commercial commitments in terms of the allotment letter.

Though, in the circular dated 1.12.2009, the plot holders were given time period for construction and also the benefit to the persons who have completed the construction but has not obtained the occupation certificate. Such benefit of the policy cannot be given to the petitioners whose plots have been resumed prior to the issuance of the said policy. The petitioner has purchased the commercial property ostensibly to carry out his business activities but for 17 long years, the petitioner has failed to take any step to set up any commercial activity.

In view of the said fact, we do not find any illegality or irregularity in the orders passed by the authorities, which may warrant interference in writ jurisdiction of this Court. Dismissed.